By Irma Hochstein, June 1929 Issue
Laws Should be Suited Justly to the Needs of Human Life, Women Enter 536 out of 672 Occupations Studied
This article presents the case for what has become known as protective legislation for women. Irma Hochstein supported this legislation in a debate with Miss. Mabel Vernon of the National Woman's Party before the Zonta Club of Milwaukee in the following resolution pending before the Zonta Club:
"Resolved, that women in professions, in business and in industry shall be free to work, and protected as workers on the same terms as men, and that all legislation and regulations shall be based upon the nature of the work and not upon the sex of the workers."
Miss Hochstein has kindly consented to write up for La Follette's the list of the arguments as they were presented in the debate. - Managing Editor.
An Article by Burnita Shelton Matthews of the National Woman's Party ends with the clarion cry, "Away with protection and on with equality." The resolution pending before the Zonta Club provides that, women shall be free to work and shall be protected as workers on the same terms as men; in other words, it provides identical treatment of men and women. It would abolish sex as a classification for law-making. It seems to assume that lack of identity in legislation applying to men and women implies the inferiority of women.
The word equality is one of the finest in our language. Since the days of Thomas Jefferson equalitarianism has been the foundation of our theories of democracy. On ever widening planes of equality we have extended to all classes and to both sexes equal opportunities; equal opportunities for education and equal political rights at least as far as the right to vote is concerned. At the present time equal rights and equal opportunities in earning our living are one of our most vital equalitarian ideals. How may we achieve this ideal?
Women Remove Restrictions
Underlying the resolution before us is undoubtedly the fine motive for the removal of discrimination against woman in her opportunities to earn her living. But will identity of treatment according to the resolution achieve it? We have then this question before us: What is equality between men and women? Is it true that to have equality men and women must have exactly the same things and be treated in all respects as if they were alike? Or is, it equality for men and women that each should have the things best suited to their respective needs, which are not in all things, nor at all times alike?
Many of us in Wisconsin were schooled in a philosophy of law-making through the work of Dr. Charles McCarthy of the Wisconsin Legislative Reference Library to an ideal of government which attempts "to suit laws justly to the needs of human life." In our study of why labor laws for women came to be, and why they are at present needed we do not ask. Afe these laws of advantage to women? We have grown up in a philosophy of law-making which asks rather, are these laws suited justly to the needs of human life, of a human life which includes children, men and women?: In any analysis of laws we must cansider, too, what laws are possible under our constitutional limitations. It is with these questions in mind that we approach what is termed protective labor legislation for women, legislation which is a vital part of the attempt under our constitutional limitations to suit government justly to the complex industrial society of which women are a part. How intimately we are a part of that industrial society the analysis of the census of occupations made by the U. S. Women's Bureau shows, When Olive Schreiner said, about thirty years ago, "We claim all labor for our province," I wonder if she had a pre-vision of women's entering into 536 of the 672 occupations listed in the 1920 census, or that there would be, in 1920, 232 occupations. in which 1,000 or more wmen are employed? In the ceusus of 1849, only seven occupations were listed for women. It is quite clear that there is an ever widening field of opportunities. But a glance backward at the history of women's leaving the home to follow work and employment into the factory brings out one underlying fact: Women are cheap. The report of the U. S. Women's Bureau, "The effects of labor legislation an the employment opportunities of women," couches the statement less bluntly, "That women are cheaper than men and that they should be cheaper is the prevailing attitude today as it has been for generations. The effect this has lead on women's opportunity is discussed in greater detail in the body of this report. It can net, however, be relegated to one section as one distinct effect. Instead it must be carried as a motif through the entire study. It is the one universal influence that plays its part in every phase of women's opportunity."
Women As Cheap Labor
Women were cheap labor in the underground coal mines in England more than a hundred years ago. They worked for lower wages than men. Four generations later, greater numbers of their great grandchildren were rejected in the draft in England, during the war, because of physical unfitness than from any other district. Here we have a very definitely traceable result of the effect of letting women be free to work long hours in a dangerous occupation. We find the results stamped on the human life of the fourth generation.
Women were cheap when the first textile mills opened in Lowell, Massachusetts, in the eighteen thirties. Women are cheap labor in this present generation. Take the ease of the scrubwomen in the state capitol in Wisconsin. The state laws limiting women's hours and fixing a minimum wage do not apply to state employes. They are free to work as scrubwomen, as matrons and wardens in the state institutions for long hours and low wages. In 1919 the scrubwomen in the state capitol appealed to their employer, the superintendent of public property, for an increase in wages. They were told that if they were not satisfied with their wages they knew what they could do, there were plenty of other women willing and ready to take their jobs at these wages. They met one evening with the members of the Capitol Mutual Club to draft a bill for a state law to provide for their wage increase. Later that night they were on their jobs scrubbing the halls of the capitol. Looking at them a law-maker said to a member of the Club committee, "You women are the cheapest and the dearest thing in the world." Now this story illustrates not only that women are cheap but that they are in competition with each other. "There are plenty of women to take their places." Not only in scrubbing but in the other occupations.
Low Wages Are Paid
Take the recent case of the girls working in the textile mills in the south. In the mills in Elizabethton, Tennessee, the actual pay checks in 1929 show weekly wages of $5.45, $7.85, $8.75, for a week of 56 hours. There are some wages of $10.&4 and $11.20. The average wage in New York state in 1926 for women employes was $17.41, for men $31.47. Statistics show that women's wages are from one-third to one-half less than men's wages. This factor that woman is the cheap marginal worker is the underlying motif in any discussion of her working conditions and the laws regulating those conditions.
There is one other underlying motif still more fundamental. Can we make laws which will apply "on the same terms" to men and women in the face of the fundamental physical differences between them? There are feminists who minimize these fundamental physical differences, partly through fear that a recognition of physical differences may mean an admission of inferiority. I have therefore chosen a statement from a woman who as a scientist had observed human and animal life and who discovered identity of ability, of physical strength, of emotions and of intelligence in almost all lines in the two sexes.
Facts of Physical Difference
After showing in detail how alike the sexes are, Olive Schreiner in her chapter on Sex Differences in Woman and Labor concludes:
"So also, in our human world: alike in the sports and joys and sorrows of infancy; alike in the non-sexual labors of life; alike even in the possession of that initial instinct which draws sex to sex, and which, differing slightly in its forms of manifestation, is of equal intensity in both; the moment actual reproduction begins to take place, the men and the woman enter spheres of sensation, perception, emotion, desire, and knowledge which are not, and cannot be absolutely identical. Between the man who, in an instant of light-hearted enjoyment, begets the infant (who may even beget it in a state of half-drunken unconsciousness, and may easily know nothing of its existence for months or years after it is born, or even never at all; and who under no circumstances can have any direct sensational knowledge of its relation to himself), and the woman who bears it continuously for months within her, body, and who gives birth to it in pain, and who, if it is to live, is compelled, or was in primitive times, to nourish it for months from the blood of her own being--between these, there exists of necessity, towards a limited but all-important body of human interests and phenomena, a distinct psychic attitude. At this, one point, the two great halves of humanity stand confronting certain great elements in human existence, from angles that are not identical. From the moment the universal initial attraction of sex to sex becomes incarnate in the first concrete sexual act till the developed offspring attains maturity, no step in the reproductive journey has been quite identical for the man and the woman."
Let us face the facts of what this physical difference means to women and to the welfare of the race. Each year in the United States, 23,000 women die in childbirth. Each year 134,652 children die under one year of age. Studies of the U.S. Children's Bureau show that there are high correlations between the low earnings of fathers and infant mortality. The number of infant deaths falls sharply as the father's earnings increase. The lower the father's wage the more frequntly does the mother go out into industry to supplement that wage. So long as 23,000 women die each year in childbirth, so long as low wges are reflected in increased infant mortality, so long as the mother's care of the offspring until it attains maturity is different from the father's, it seems indisputable that we must acknowledge fundamental differences between men and women.
Attitude of the Courts
Ever since the beginning of the industrial revolution there have been three ways in which society has acted to improve the conditions under which women work, and that action has proceeded and should proceed steadily along each line: education, organization and legislation. Because of various reasons, not the least of which are the constitutional limitations of our lawmaking under which the courts have sustained laws relating to women, which under the police power they would not sustain for men, laws have been passed for women which do not apply to men workers. In many instances and wherever, constitutionally possible and conditions of work merit it, laws apply equally to men and women. We shall analyze that attitude of the courts when we take up laws regulating hours and wages. Before we do that let us see the conditions under which women are gainfully, occupied today which have led to legislation construed by some as limiting their freedom to work on the same terms as men, and by others as essential under the police powers of the state, for the general public welfare.
There are eight and one-half million gainfully employed women who work outside the home. Of these, 22.6 per cent are employed in manufacturing and 10 per cent in trade and transportation, i.e., clerks in stores. The laws limiting the hours of work for women apply chiefly to these two groups and affect 2,750,000 women, or 33 per cent of the workers. The laws relating to night work affect 15.6 per cent of the women workers. Forty per cent of the women workers are under 24 years of age, 33 per cent are between the ages of 24 and 54. One-fifth of the workers are married. Their wages are from one-third to one-half lower than men's. Of the eight and one-half million women wage earners, it is estimated that 260,000 are organized, or less than 3 per cent, whereas of the thirty and one-half million wage earners those organized in trades unions have accomplished through their bargaining power what women are not yet accomplishing. The reasons for the lack of organization among women as compared with men may be summarized briefly: A large per cent of women workers (40 per cent) are very young and do not expect to stay in industry more than three or four years; they do not haye a feeling of permanence in their jobs; they are largely in the semi-skilled and unskilled trades and these are not organized even among men. They compete with each ether for jobs. Their wages are low. They are unorganized. They suffer some 50 per cent more sickness than men. They are in the semi-skilled and unskilled jobs. They hae low bargaining powers. Of such workers Commons and Andrews in their Principles of Labor Legislation say:
"In any modern community large numbers of unorganized workers are found, still bargaining, individually, employed at low wages and apparently unable to make any effective efforts themselves to improve their conditions. If they are to be helped toward an equality in bargaining power, with the employer the state must take the initiative."
State Takes Initiative
The state has steppd in and taken the initiative. It has passed laws regulating the conditions under which women shall work fixing minimum standards. Chief among these are laws regulating hours and wages. Laws regulating the employment of women before and after childbirth are gaining in importance. In many states laws prohibit night work. Some states definitely prohibit women from working in dangerous occupations. Let us trace briefly the two most important groups of those regulating hours and wages. In 1824 the working hours for women in the textile mills of New England were twelve hours a day. Not until 1879 was the first enforceable ten-hour law for women passed in Massachusetts. In 1908 the Oregon ten-hour laws for women was sustained by U.S. Supreme court in the historic case of Muller vs. Oregon. The brief of Goldmark and Brandeis showed the effects of cumulative fatigue on the health of women. The Supreme court said:
"As healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race ... The limitation which this statute imposes on her contractual powers, upon her right to agree with her employer as to the time when she shall labor, are not imposed solely for her benefit, but also for the benefit of all."
Immediately following that decision state after state passed laws limiting the working day for women until by 1915 only seven states were without an hour law. Now ten states have laws limiting the hours to eight a day. The ruling in the Oregon case gave the grounds for sustaining the law. The courts have been much more conservative in sustaining hours of labor for men. Only two states now have laws, Oregon and Georgia, and these are laws providing a ten-hour day. Up to the present the courts in their decisions have given little promise that they would sustain eight-hour laws for men and that is an effectual club on the passage of the legislation for men. Men also have gained hour regulations through their trade union bargaining power and have relied largely on that method. The woman's bureau report on the effects of hours legislation on the employment opportunities of women finds that "wherever hours are unregulated or low standards prevail, some women work extremely long hours." In Iowa, 'which has no hours laws, I8 per cent of women in hotels and restaurants work 70 hours. In one candy factory the women work 73 hours per week.
In Illinois, outside the city of Chicago, one-eighth of all women employed worked the full ten hours. In stores the net result of hours regulations has been the elimination of long, weekly and excessive Saturday hours. How necessary hours laws are to sustain minimum standards for the cheaper workers is evidenced by efforts to undermine the legislative mtaimum fixed. In this session of the Wisconsin legislature a bill was just killed (193S) which would increase the hours of women in mercantile establishments in cities of 5,000 and under to ten hours a day. The employers would take the easiest way of exploitation of the weak in their effort to meet the competition of the mail order houses. The general effect of hours legislation has been confined to bringing backward industries up to standards more nearly approximating the general average.
Results of Low Wages
We have pointed, out the low rate of wages paid to women. As a result of the evils of these low wages, (e.g., in 1913 60 per cent of the women in New York factories earned less than $8.00 a week), laws were passed beginning with the Massachusetts law of 1912 fixing minimum wage rates for women. In other countries these laws applied equally to men and women. In the United States we again had our constitutional limitations. The courts might sustain legislation for women on the ground of public health which they would not sustain for men. And when in 1917 in the case of Stetler vs. O'Hara the Supreme court sustained the Oregon minimum wage law, Wisconsin proceeded to hold hearing and fix a minimum wage rate. These rates were made effective in 1919 and although so low a rate as twenty-two cents an hour, $10.50 a week, on the basis of a fifty-hour week, was fixed at that time, it was estimated that it directly affected one-third of the women workers of the state. But in 1923 the U.S. Supreme court declared the District of Columbia minimum wage law unconstitutional.
Law in Wisconsin
The following quotations from both the minority and the majority decisions give the attitude of the court. In his majority decision Justice Sutherland pointed out that the passage of the 19th amendment had changed the political status of women and thereby tended to equalize the bargaining power of men and women. Justice Holmes, however, dissented. Said he, "It will take more than the 19th amendment to convince me that there are no differences between men and women or that legislation cannot take those differences into account." Wisconsin's law still holds for all women under twenty-one. This may be said in regard to the effect of minimum wage laws; they directly increased the wages in Wisconsin of one-third of the workers. They did not lead to any reduction in the number of women employed.
We need not go into the evils of night work and its effects on the health of workers. Nor is it necessary here to go into the details of those few exceptional cases in which laws relating to women only have worked some hardship. The cases most often quoted are those of women employes in the New York transportation companies, in the printing trades and in restaurants. The U.S. Woman's Bureau report has given the facts in those cases. It has shown, for instance, that in the case of women pharmacists, really professional workers, in the state of Washington which has an eight-hour law, including women pharmacists, 8.21 percent of the pharmacists are women, the highest percentage of any state. All these cases are exceptional and insignificant as the report shows. The illustrations given of the effets of hours and wage legislation show that labor laws for women are initial and necessary measures in aiding women to attain a minimum degree of bargaining power in their employment. Progress for women workers is being made through employers' leadership for efficiency, through trade union organization for collective bargaining, through minimum industrial standards set by law. We are not minimizing the necessity of continuing to make efforts to study industries and to suit laws to those industries. And in those cases where the same laws may apply justly to both men and women and the courts will sustain them, we must work for those laws. But along with such efforts women must continue to progress through the three avenues mentioned and to move forward to that goal where there shall be no discrimination against women workers, and where they may achieve with men an equality of bargaining powers in their employment. Nothing is so important as leavng the avenue of legislation free. Wherever the same legislation for both men and women is possible and will meet "justly the needs of human life," we must work for such legislation. But wherever women's needs require special and different laws they must also be provided.
Footnote--The facts presented here have been taken from several sources, the chief of them the valuable report of the U S. Women's Bureau, "The effects of labor legislation on the employment opportunities of women," Bulletin No. 65, 1928.
This is probably the most important document in the field of women's employment in the last twenty years. Of it Henry R. Mussey says in the Survey, "If the findings are on the whole overwhelmingly favorable to the contention of the advocates rather than the opponents of legislation, that is the fault of the facts and not of the bureau; for the study at every point gives evidence of care and competence in getting relevant evidence, of conscientiousness in laying before the reader the exact facts found and of balance and restrint in drawing conclusions." In its conclusions the report says, "This study helps make it clear that protective legislation serves primarily to bring up the laggard. No legislative standard has ever been enacteo that has not first been proved practicable by some employers." Another report containing valuable information is the issue of the Annals of the American Academy of Political and Social Science, May, 1929, "Women in the Modern World." The student of labor legislation will return again and again to Commons and Andrews' "Principles of Labor Legislation."