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Protective Legislation

Before the passage of the Civil Rights Act of 1964, a federal law, employment issues that affected women were governed solely by state law. After the Civil War, large numbers of women went to work outside their homes. In his speech before his colleagues in the U.S. House of Representatives to encourage the extension of equal suffrage in Alaska on Wednesday, April 24, 1912, Congressman Edward T. Taylor of Colorado stated:

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“Blondie: The Night Shift.” Chic Young. Drawing, 1933. Published September 5, 1933. Prints and Photographs Division. LC-USZ62-126672. Reprinted with special permission of King Features Syndicate, Dean Young, and Jeanne Young O'Neil.

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But today one-fifth of all the women of this country are compelled to earn their own living by their daily labor. Nearly 7,000,000 women are wage earners today, and the number is constantly increasing. Woman suffrage is not responsible for bringing about that condition. It is the economic change that is going on in the life of this Republic. If the right to vote was taken away from the laboring men of this country tomorrow, they would within one year, and in many places within one week, be reduced to a condition of practical slavery; and it is little less than inhuman to compel the 7,000,000 women to work in this country under conditions that would be absolutely intolerable to men.64

Included in this workforce were married women, espeically black and immigrant women, whose families required two incomes, as well as women who were single, widowed, or had been deserted. Some of them held jobs as school teachers or worked in other professions. Most jobs held by women were low-paying and involved substandard conditions. Some suffrage organizations advocated improvement of working conditions for women. These groups were largely responsible for the changes in labor laws that are referred to as “protective legislation.”

Protective legislation limited the number of hours that a woman or child could work in certain jobs and guaranteed them a minimum wage. The legal result, however, was that men and women were treated differently in the work place. The major justifications were that

  • physical differences between men and women would make it dangerous for women to work;
  • the chronic fatigue of long hours would result in the deterioration of women's health; and
  • future generations would be affected by this deterioration in women's health.65
Wisconsin, the first state to pass this legislation, enacted a protective law in 1867, but a law passed in Massachusetts in 1874, and amended in 1902, provided the most common model:

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Protective Legislation. Regarding hours of labors, Revised Laws of Massachusetts, ch. 106, § 24, 1902. Law Library of Congress.

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. . . no woman shall be employed in laboring in a manufacturing or mechanical establishment more than ten hours in any one day, except as hereinafter provided in this section, unless a different apportionment in hours of labor is made for the sole purpose of making a shorter day's work for one day of the week; and in no case shall the hours of labor exceed fifty-eight in a week. . . . 66 [full item]

Although the laws were designed to protect the working woman's health, welfare, and morals until she married, not all employers and employees were satisfied with the legislation. Employers filed suit to have the statutes voided for being unconstitutional. Muller v. Oregon was one of the most famous of these cases.67 In it, the U.S. Supreme Court upheld the constitutionality of protective laws. Oregon's defense team was led by Louis D. Brandeis, a progressive attorney who became an associate justice of the Supreme Court before Muller was decided.68

Promulgation of minimum wage laws for women in the states followed their legislation of maximum hours. An example is the 1918 District of Columbia law that later became the subject of litigation:

Sec. 23. That this Act shall be known as the “District of Columbia minimum-wage law.” The purposes of the Act are to protect the women and minors of the District from conditions detrimental to their health and morals, resulting from wages which are inadequate to maintain decent standards of living; and the Act in each of its provisions and in its entirety shall be interpreted to effectuate these purposes.69

Employers contested these laws too; law suits were filed declaring them unconstitutional and in violation of the liberty-of-contract doctrine.70 In 1923, Adkins v. Children's Hospital was appealed to the U.S. Supreme Court, which ruled the law unconstitutional.71 Other state courts, following the precedent set by the Supreme Court, ruled that their state statutes were likewise unconstitutional. Fourteen years later, however, the U.S. Supreme Court reversed its decision and held that a law concerning the minimum wage for women in the State of Washington was constitutional.72

Although these laws guaranteed a minimum wage for women and children, they created unintentional inequities. Protective legislation gave courts the grounds for rendering inequitable decisions. It was not until the Civil Rights Act of 1964 that women enjoyed legislation granting equality in the workplace and the firm legal grounds to enforce such laws in court.

In employment, as in suffrage and possession of property, the legal history of women's struggle for equality mirrored what was happening in the society at large and amplifies our understanding of it.

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