must give this help to the educator, to the employer, and above all,
to the girl. It will undoubtedly demonstrate that many occupations in
which women are now engaged are eminently unsuitable, failing entirely
to reach the standard set by Miss Marshall that they shall “develop
that kind of efficiency which will be of value to the woman as a home
maker, and which will not be detrimental physically or morally.”[45]
By careful study authoritative knowledge must be gained of the girl’s
experience, and of the possibility of readjustment of methods by the
employer. The few of us who have attempted such intensive work have
uniformly found the employer willing to discuss such readjustment
with us, because he realizes that we are honestly trying to furnish
him with efficient workers and that we realize the difficulty of
dealing with the individual. The industrial record of a girl covering
a period of three or four years may show that she was a shiftless,
inert, indifferent worker, and hence drifted from job to job. Here
the distinct vocational function of the bureau must be brought into
play, the girl’s school record studied, and her temperament noted. She
may be a “misfit” or she may need a stimulation which no amount of
trade training will give, possibly a stimulation of the imagination
by literature or history. If this girl could be released a few hours
a week, or better, two days a week, from her employment, without
the loss of pay which she cannot afford, she might be made into a
valuable worker. Many employers are not averse to considering such an
experiment. The records may show, however, not a shiftless worker, but
one who has been laid off because of irregular work. This girl must
have training for a skilled trade which is successful enough to give
full employment to efficient workers. It is apparent that the contact
of the bureau with the school must be exceedingly close. Perhaps here
the bureau can help prevent the waste which is now so evident in the
issuing of work certificates; the waste of opportunity for information
concerning the girl and her work.
We are as yet too young in the field to state positively the outcome
of the experiment. It is not an easy experiment and there are many
possibilities of failure. But in any case it is better to fail trying
than to be idly distrustful of the possibility of good coming out of
the present conditions under which woman is living. The ignorant, the
foolish and the cowardly are in despair because she is becoming base
and sordid through the fate laid upon her by industrial evolution.
They refuse to see that if she were assisted to a sane adaptation of
her life to this fate, she would become only a finer and truer type
of womanhood. And perhaps, heretical though it be to say so, it may
be discovered that a woman who has missed opportunity for development
through wifehood and motherhood, has often been able to reach the
full fruition of her womanhood through wisely chosen work. To direct
girls judiciously into vocations which may be theirs not for three
or five years, but for life, and which may enable them, even without
marriage, to fulfil the promise which their girlhood gave of a wise,
tender, courageous womanhood, is in itself no mean task. As a precedent
condition, the employment-vocation bureau, must help us to discover
what is the best work for women to do, and under what conditions they
can do it. It will thus aid them to perform that work intelligently,
efficiently, and enthusiastically. Then, and then only, will come the
just remuneration, the living wage for which women at present struggle
in vain.
FOOTNOTES:
[41] The Alliance Employment Bureau, New York City; the Coöperative
Employment Bureau for Women and Girls, Cleveland; Council of Jewish
Women Employment Bureau, Pittsburg; Schmidlapp Bureau for Women and
Girls, Cincinnati.
[42] _A Handbook of Employments_, by Mrs. Ogilvie Gordon, Aberdeen:
The Rosemount Press; _Report on the Desirability of Establishing an
Employment Bureau in the City of New York_, by Edward T. Devine,
Russell Sage Foundation; _The Chicago Employment Agent and the
Immigrant Worker_, by Grace Abbott, University of Chicago Press;
_Annual Reports_ of the Alliance Employment Bureau, _Reports on
Investigations_, Mary A. Van Kleeck.
[43] An excellent selected bibliography on employment bureaus and
unemployment is contained in the report of Mr. Devine above referred to.
[44] Besides private trade schools, interesting experiments have been
made in continuation and coöperative training in Boston, Chicago and
Cincinnati. In Cincinnati, the coöperative plan inaugurated by Dean
Schneider in the university has been remarkably successful.
[45] Florence M. Marshall: _Industrial Training for Women_, Bulletin
No. 4 National Society for the Promotion of Industrial Education, p.
17.
THE CONSTITUTIONAL ASPECT OF THE PROTECTION OF WOMEN IN INDUSTRY
ERNST FREUND
University of Chicago
I
A brief survey of the American legislation for the protection of women
in industry will facilitate the discussion of the constitutional
principles by which the action of legislatures is controlled. The
following types of statutes should be distinguished:
1. Those which provide that no person shall be precluded, debarred
or disqualified from any lawful occupation, profession or employment
on account of sex. Illinois and Washington so provide by statute
(making exceptions for military employment and public office), while
California enacts the same principle in the form of an article of her
constitution. A statute of this kind can at most have the effect of
removing some supposed bar existing by virtue of law of custom. The
statute of Illinois was in fact the consequence of a decision of the
supreme court of that state which denied a woman a license to practise
law, and against which the Supreme Court of the United States had been
appealed to in vain.[46] The incorporation of the principle into the
constitution will, on the other hand, control future as well as past
legislation, and may prove an embarrassment in the way of carrying out
other protective policies. The wording of the provisions does not seem
to affect any possible disqualifications by reason of marriage and
coverture.
2. Those which bar women from certain employments altogether. It is
noteworthy that only five days after removing the disabilities of sex
with reference to employment in general, Illinois prohibited the labor
of women in coal mines, and the same prohibition is now found in the
principal mining states (Indiana, New York, Pennsylvania, Washington,
West Virginia, Wyoming). The other employment from which women are
sometimes debarred (in about a dozen states) is the dispensing of
intoxicating liquors. So under the liquor-tax law of New York (§31) no
woman not a member of the keeper’s family may sell or serve liquor to
be consumed on the premises. In California, under the constitutional
provision above quoted, an ordinance making it a misdemeanor for a
female to wait on any person in any dance cellar or barroom was held
invalid,[47] but later on an ordinance prohibiting the sale of liquor
in dance cellars or other places of amusement where females attend as
waitresses was sustained,[48] as was also the refusal of licenses to
those employing females,[49] upon the ground that the clause of the
constitution did not prevent the prescribing of conditions upon which
the business of retailing liquor shall be permitted to be carried on.
The court evidently felt that the object to be gained justified a
narrow construction of the constitution.
3. Statutes which prohibit the employment of women in cleaning
machinery while in motion, or in work between moving parts of
machinery. Such legislation, according to the digest of labor laws
prepared by the United States Commissioner of Labor in 1907, is found
in Missouri and West Virginia.
4. Statutes which compel the provision of sanitary and other
conveniences for females in industrial or mercantile establishments.
Beside certain obvious requirements in the interest of decency,
particular mention should be made of the legislation found in the great
majority of states, under which seats must be provided for female
employes and their use permitted when the women are not engaged in
active duty.
5. Statutes which prohibit night work in various kinds of industrial
establishments. They are to be found in about half a dozen states
(Connecticut, Indiana, Massachusetts, Missouri, Nebraska). A
corresponding provision of the law of New York was declared
unconstitutional.[50] The only authority cited was the case of Lochner
_v._ New York;[51] and it should be noticed that at the date of the
decision (June, 1907), the supreme court of the United States had not
yet promulgated its very liberal views as to the power to control
women’s work which subsequently appeared in the case of Muller _v._
Oregon.[52] The New York Court treated the prohibition also as a
sanitary measure exclusively, and did not advert to possible moral
considerations. The decision stands, however, unrevoked, and the law of
New York must be treated as annulled.
6. Statutes which in other respects limit the hours of labor of female
employes. The establishments to which the laws apply vary, as they do
in the case of night work, manufacturing establishments being the most
common. The number of states having such laws has rapidly increased in
recent years, there being now over twenty in all parts of the country,
not counting those which apply only to females under age, or those
which forbid only the compelling of work for longer hours. The number
of hours is usually ten per day, often with a reduction for the total
of the week, so as to make a shorter day on one day of the week; but
sometimes also providing only a maximum number for the entire week.
II
When we compare these statutes enacted on behalf of women workers with
the general body of labor legislation, we note the almost total absence
of any interference with purely economic arrangements: there is nothing
analogous to store-order or weekly-payment acts applying to women in
particular, nor any attempt to control the rate of wages. The most
controversial field of labor legislation from the constitutional point
of view has thus been avoided.
Health, safety and morals have always been undisputed titles of the
police power, where it is a question of protecting the public at
large. The control of the internal arrangements of the workshop in the
interest of the employes, who, in theory, entered into it voluntarily,
was the great extension of the power of the law achieved by the English
factory acts. It is a strange anachronism when we find American courts
in the end of the nineteenth century questioning the legitimacy of
restrictive legislation intended only for the benefit of the employed,
who may be willing to assume the risk,[53] but it is true that it was
not until after the middle of the nineteenth century that the English
law sanctioned sanitary requirements on behalf of adult employes, and
the singling out of adult women for the purpose of such protection
met with opposition.[54] At present the validity of the sanitary and
safety provisions of factory acts is, in principle, unquestioned, and
opponents of such acts have to scrutinize them for constitutional
defects in non-essential features. Where such provisions apply to women
in particular it is generally because the danger or evil arises out of
conditions peculiar to the sex.
The limitation of hours of labor is at present the most conspicuous
phase of restrictive labor legislation. As applied to men, it has in
general been confined to special occupations. In some cases the reason
why they were singled out is not apparent. This is true of the laws of
some southern states with regard to the employes of cotton or woolen
mills, which have not been passed upon by the courts of last resort;
in other cases, the inducing motive was the consideration of public
safety, as in the limitation of hours of trainmen; in the remaining
cases--those of miners and bakers--the legislation sought to justify
itself as a measure for the protection of the health of the employes.
It is well known that there is a conflict of judicial opinion
regarding the validity of this legislation, strongly emphasized by the
vacillating attitude of the Supreme Court of the United States, which
sustained an eight-hour day for miners and annulled a ten-hour day for
bakers.[55] The inconsistency of these two rulings is particularly
striking, since it is generally believed that the occupation of bakers
is exceptionally unsanitary, and was singled out as such under the
delegated powers of regulation committed to the federal council by the
German trade code, while the mining of coal under modern conditions is
regarded as remarkably immune from occupational disease. In Colorado
the eight-hour day for miners was declared unconstitutional.[56]
The difficulty which American courts have experienced with regard to
the treatment of hours of labor is easily understood. They assume
the existence of a constitutional principle which protects what is
called the freedom of contract. This means that the state must leave
the economic side of the labor contract to the free bargaining of the
parties concerned; it means from the point of view of the employer
that his business is not to be regulated by law in order to secure
satisfactory terms to the employe, as the railroad business is
regulated to secure fair terms to the shipper or the traveling public;
from the point of view of the employe it means that he is free to make
the most of his earning capacity, and to work as long as he pleases,
or rather, conceding the limited sphere of the police power, as long
as is consistent with proper standards of health and safety. The
movement for the eight-hour day has, generally speaking, been frankly
an economic movement, designed to advance the workman in the social
scale, to give him time for recreation, culture, the enjoyment of
his home, everything, in short, that is supposed to go with rational
leisure, and it has generally been accepted as a principle of American
constitutional law, that this consummation was not to be brought about
by legislative compulsion. The state was to further the movement only
in so far as it had the right to dictate the conditions of employment
on work done for the public.
Notwithstanding the recognition of this constitutional limitation,
there have at all times been large sections of organized labor who
would have been glad to enlist the power of the law in the struggle
for the shorter workday, and who would welcome any reduction on
constitutionally valid grounds as a step in that direction. Hence the
appeal for the eight-hour day on public works; and hence the appeal to
the police power of the state for the purpose of shortening hours of
labor.
There has always been greater difficulty in furnishing legal
protection against the risk of disease in industrial employment than
against the risk of accident. The common-law liability of the employer
for illness contracted by the employe in consequence of defective
arrangements may be regarded as a negligible factor, owing to the
difficulty of legally proving the cause of disease and to the operation
of the doctrine of assumption of risk. It is only since 1906 that
a statutory liability for disease has, within a very narrow range,
been established in England, and such a thing is not even agitated
in this country. For protection against occupational disease and
its consequences our laws rely upon preventive regulation entirely.
No system of protective devices, however, can banish altogether the
baneful effect of certain occupations upon the general health and
strength of the worker, and it is against these inevitable risks that
reliance must be placed upon diminishing the amount of exposure, _i.
e._, reducing the hours of labor. This reduction is, of course, also
the only remedy against the specific evil effects upon the human system
of overexertion and fatigue.
A demand which has generally been understood to serve economic
or social purposes may thus assume the character of a sanitary
requirement, and the confusion of purposes is aggravated by the fact
that of all sanitary risks that of a mere prolongation of effort
under undesirable conditions is the least tangible, as well as the
most variable according to individual constitutions, and that the
legal maximum of duration of work must be more or less haphazard
and arbitrary. The resulting difficulty in the application of
constitutional principles is obvious. If the courts are expected to
protect the freedom of contract, as the legislature is expected to
protect the public welfare, can the mere enactment of a statute be
accepted as conclusive as to the requirements of the public health
and safety? Up to the present time the courts have not succeeded in
evolving any definite theory with reference to this problem; it is a
matter of speculation whether in a given case they will acquiesce in
the legislative judgment or override it.
Toward legislation limiting the hours of labor of women the attitude
of the courts has on the whole been favorable. Ten-hour laws have been
sustained in Massachusetts, Pennsylvania, Nebraska, Washington and
Oregon, and the Oregon decision has been affirmed by the Supreme Court
of the United States. Against these decisions must be set that of the
supreme court of Illinois, rendered in 1895, declaring an eight-hour
day for women to be unconstitutional. A ten-hour law, modeled upon
that of Oregon, was enacted in Illinois in 1909, and a case involving
its constitutionality is now awaiting the decision of the supreme
court of the state.[57] The decision in the earlier Illinois case has
been much criticized, and the opinion contains statements which at
the present day would find the approval of few courts. Stripped of
superfluous dicta, and reduced to its vital points, the decision stands
for two things: that the adult woman is entitled to the same measure
of constitutional right as the adult man, and that the court did not
believe that an eight-hour day was a sanitary requirement even for
women. “There is no reasonable ground,” the court said, “at least none
which has been made manifest to us in the arguments of counsel, for
fixing on eight hours in one day as the limit within which woman can
work without injury to her physique, and beyond which, if she work,
injury will necessarily follow.”
This skepticism should not cause great surprise or indignation.
Notwithstanding the rapid change of opinion within the last two decades
in favor of restricting the hours of labor of women, an eight-hour
maximum day for women workers is even now unknown in America or in
Europe, and in Germany it took eighteen years, from 1892 to 1910, to
reduce the workday of female factory hands from eleven to ten hours. It
is easy to understand that a compulsory eight-hour day in 1893 or 1895
should have appeared to the court as an unreasonable and even arbitrary
interference with private rights. To say the least the case for such a
measure had not yet been made out.
The limitation of the hours of women workers had become a part of
English factory legislation as early as 1844. A factory report of the
previous year had pointed out that women were physically incapable of
enduring a continuance of work for the same length of time as men,
and that deterioration of their health was attended with far more
injurious consequences to society.[58] The need of hygienic protection
had thus been brought to the attention of the legislature. At the same
time the economic aspect of the measure appears to have been the more
prominent. The men desired shorter hours for themselves, but thought an
appeal to parliament hopeless; thus women and children were put forward
in the hope, which events justified, that the legal reduction of their
worktime would accomplish without legislation the same purpose for
men.[59] The agitation was in fact conducted as one for shorter hours
all around, although the bills as drawn did not include adult men.
There appears on the other hand to have been some apprehension on the
part of women that the men sought to impose restrictions upon them to
make them less desirable employes and thus crowd them out of work, and
for a long time the equal treatment of adult women and men was demanded
by the leaders of the women themselves.
Factory legislation, as first conceived, was to apply only to those
who were not free agents, namely to children. True, the married woman
was not legally a free agent, but she was struggling for emancipation,
which eventually came, and the female sex as such labored under
no disabilities. Prominent economists urged that the state had no
business to dictate to the adult woman the terms of her employment.
But the exclusion of woman from underground mines paved the way for
her subjection to state control, and the act of 1844 put her in the
same class with children and young persons. The separate and distinct
treatment of women thus became an established feature of English
factory legislation.
In America the sanitary or hygienic argument in the movement for
limitation of hours of female labor in factories was prominent from
the beginning. The legislation in Massachusetts enacted in 1874 had
been preceded by official investigations and reports concerning the
detrimental effect of long hours upon the constitution of women.
If woman was to be accorded the fulness of individual liberty and
equality with man,--and barring the denial of the active political
franchise, the tendency as manifested in married women’s legislation
and in admission to business and professional pursuits, was in that
direction--a peculiar danger in her case from overwork and a special
need of protection had to be made out.
In the earlier judicial decisions sustaining the ten-hour laws for
women the existence of this special danger and need was rather assumed
than supported by evidence. The argument for the Oregon law before the
Supreme Court of the United States for the first time laid all stress
and emphasis upon the documentary testimony which had been accumulated
in scientific treatises and official publications, showing the evil
effects of overexertion and overfatigue upon women employed in the
monotonous routine of mechanical labor. In marshaling medical, social
and economic, instead of legal authorities, Mr. Brandeis, the counsel
for the state of Oregon, clearly recognized that if the principle of
freedom of contract is to be accepted as part of the constitution,
the validity of the limitation of hours of labor becomes a question
of fact, which must be answered upon the basis of observation and
experience. The same line of argument was presented still more
elaborately (and again by Mr. Brandeis) in the Illinois case.
Attention was called to the extreme monotony of labor attending the
minute subdivision of manufacturing processes, to the increasing
strain of factory work due to the speeding of machinery, and to the
general baneful effects, moral as well as physical, of overexertion
and overfatigue. It is impossible to glance over the array of extracts
from authoritative sources gathered from different countries without
realizing that an entirely new light is thrown upon the subject of long
hours in industry, with primary and specific reference to the work of
women. A case for the exercise of the police power, even upon its most
conservative basis, is made out such as had never before been presented
when the validity of labor legislation was at issue. A showing of facts
such as this might well induce a court to sanction state interference
with the freedom of contract, while insisting to the fullest extent
upon the same measure of constitutional right for women and men.