A new book by Nancy Woloch, adjunct professor of history at Barnard, delves into the history of protective laws for women workers, exploring how they both influenced modern labor standards and set up barriers to equal rights. Below, Woloch answers questions about some of the key topics explored in her new book, A Class by Herself: Protective Laws for Women Workers, 1890s-1990s (Princeton University Press, 2015).
Q: WHY DID YOU CHOOSE THIS SUBJECT? WHY ARE PROTECTIVE LAWS SIGNIFICANT IN HISTORY?
A: Clashes over protective laws for women workers pervade 20th-century U.S. women’s history. Since the early 1900s, almost every state enacted some sort of women-only protective laws— maximum-hour laws, minimum-wage laws, night-work laws, factory- safety laws. Wherever one turns, the laws spurred debate, in the courts and the women’s movement. Long drawn to the history of these laws and to the conflict that they incite, I saw the opportunity to shape a new narrative: to track the rise and fall of protective laws from their roots in progressive reform to their collapse in the wake of Title VII of the Civil Rights Act of 1964, and beyond. Here was a chance to meld women’s history and legal history, to explore social feminism and equal rights, and to reconstruct a “constitutional conversation” on women’s status under law. Above all, the subject is contentious. Essentially, activist women disrupted legal history twice, first to establish single-sex protective laws and then to overturn them. The theme of disruption is irresistible.
Q: ONE WOULD THINK THAT PROTECTIVE LAWS FOR WOMEN EMPLOYEES WERE A POSITIVE THING, YET IT SEEMS THAT THE LAWS EVOKED OPPOSITION AMONG FEMINISTS. WHY WAS THAT?
A: Women-only protective laws enjoyed widespread public support in the Progressive era and for decades after. To save women workers from exploitation seemed humane and altruistic, and “a positive thing.” Proponents of protective laws capitalized on such convictions. They advanced a dual rationale. Protective laws would redress disadvantages that women faced in the labor force and provide “industrial equality.” The laws would also serve as an “entering wedge” to achieve labor standards for all workers. Opposition to protective laws among women, though rare at the start, gained force in the 1920s. To their critics, single-sex protective laws insured women unequal status and posed an obstacle to equal rights. Feuds among women activists over protective laws persisted for decades, with variations, and shaped the women’s movement.
Q: WHAT IS YOUR BOOK’S MAJOR CONTRIBUTION?
A: A Class by Herself shows the double imprint that protective laws for women workers left on U.S. history. The laws set precedents that led to the Fair Labor Standards Act of 1938 and to modern labor law, a momentous achievement; they also sustained a tradition of gendered law that abridged citizenship and impeded equality until late in the century.
Q: WHAT GROUPS OF WOMEN ACTIVISTS SUPPORTED WOMEN-ONLY PROTECTIVE LAWS AND WHAT GROUPS OPPOSED THEM?
A: I focus first on the National Consumers’ League, founded in 1898 and led as of 1899 by reformer Florence Kelley. One of the most vibrant and successful reform organizations of the Progressive Era, the NCL enabled the campaign for protective laws to move forward. I also underscore the role of the federal Women’s Bureau, started in 1920, which inherited the mission of the NCL: to preserve and promote protective laws. In the 1930s the WB began to cultivate a new constituency, union women, who supported protective laws for decades; women labor leaders became an important part of the WB coalition. Other women’s groups, too, endorsed protective laws, but these were the most crucial. Women foes of protective laws, less numerous, first coalesced in the National Woman’s Party, formed in 1920. In 1923 the NWP proposed an equal rights amendment, endorsed by women’s business and professional groups. In the 1960s and 1970s, spurred by Title VII of the 1964 Civil Rights Act, new groups of feminists, especially activists in NOW, challenged protective laws. Committed to achieving equal rights, feminist lawyers, from NOW and other women’s rights organizations, denounced women-only protective laws at Congressional hearings, wrote amicus briefs to derail the laws, and supported plaintiffs who attacked protective laws in state and federal court.
Q: DID CLASSIFICATION BY SEX EVER HELP WOMEN WORKERS?
A: Yes, definitely. Women-only state protective laws might provide benefits to women workers. In many instances, they provided shorter hours, higher wages, or better working conditions, just as reformers intended. But women-only laws always had built-in liabilities. Laws based on “difference” perpetuate difference. They entail hierarchy, stratification, and unequal power. They can quash opportunity, advancement, and aspiration. Once embedded in law, classification by sex might be adapted to any goal conjured up by lawmakers, or, as a critic in the 1920s pointed out, used to impose whatever restrictions “appeal to the caprice or prejudice of our legislators.”
Q: WHICH OF THE LEGAL CASES THAT INVOLVE PROTECTIVE LAWS STRIKE YOU AS THE MOST COMPELLING OR NOTEWORTHY?
A: A long chain of important cases, state and federal, concern protective laws. Let me mention two of the big ones. A well-known landmark case of 1908 is Muller v. Oregon, in which the Supreme Court unanimously upheld a state ten-hour law for women workers in factories and laundries. This is the case in which Boston lawyer Louis D. Brandeis, defending Oregon, presented the famous “Brandeis brief.” The Muller decision provides the title of my book. Woman, stated Justice David J. Brewer, “is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained.” Two issues intersect in the Muller case: Can the state impose labor standards? Is classification by sex constitutional? The fusion of issues shapes my narrative.
Many cases upset protective laws in the late 1960s and 1970s; a final case of the early 1990s stands out because it brought the long history of protective laws to a definitive end. United Automobile Workers v. Johnson Controls (1991) concerned a company’s exclusion of women workers from jobs that involved exposure to lead; in this case, the Supreme Court unanimously upset the last trace of the Muller opinion. “Concern for a woman’s existing or potential offspring historically has been the excuse for denying women equal employment opportunities,” Justice Harry Blackmun stated. “Congress has left this choice to the woman as hers to make.” Of interest: Johnson Controls presents an almost perfect reverse image of the Muller case of 1908.
Q: WHAT TODAY IS THE LEGACY OF PROTECTIVE LAWS FOR WOMEN WORKERS?
A: In a sense, women-only protective laws sank totally out of sight when they capsized in the 1970s. In another sense, of course, they left a strong legacy: modern labor standards, as embodied in the Fair Labor Standards Act of 1938 and all its amendments. Women-only protective laws paved a path for labor standards for all employees; the minimum wage, overtime rules, and factory safety regulations are part of the longstanding legacy of early protective laws.
Beyond this, echoes of many topics that I discuss in my book reverberate in current events. Labor regulation, for instance, is now a global issue, as illustrated in Bangladesh in 2012 and 2013. The fire in a garment factory on the outskirts of Dhaka that killed 117 workers, so reminiscent of the 1911 Triangle fire, and the yet more lethal collapse of a multi-story building, with garment production on its upper floors, underline the need for safety regulation everywhere. Closer to home, the drive to improve labor standards endures. Within the past year, we have seen a grassroots movement to raise the minimum wage and efforts to revise federal rules on the threshold for overtime. New revelations continually bring labor law issues into the news. New York City nail salons, we have recently learned, exploit immigrant workers by illegal low pay and exposure to hazardous chemicals. Reconciling work and parenthood impels discussion. Pregnancy law remains a challenge; enforcement of the Pregnancy Discrimination Act of 1978 has spurred more litigation than anyone anticipated. A recent case is Young v. United Parcel Services (2015). Demands for compensated family leave proliferate. Finally, equal employment opportunity cases remain a challenge, from the Lilly Ledbetter case of 2007 to the dismissed Wal-Mart case of 2011. Title VII, which catalyzed the end of single-sex protective laws, turns out to be a work in progress.
Q: WHAT DO YOU THINK WILL BE THE NEXT FRONTIER IN LABOR LEGISLATION AND HOW WILL IT AFFECT WOMEN?
A: Compensated parental leave may be the next frontier in labor law. Alone among major industrialized nations, the United States has never funded maternity leave. European nations, in contrast, have long insured paid leaves to working parents. President Obama’s proposal of 2015 to fund parental and sick leave for all employees, though unlikely to move forward right now, at least keeps the issue on the table.