unsettled as to the constitutional equality of women with men, so far
as liability to restrictive legislation is concerned. The few judicial
utterances on the subject are conflicting. Illinois in the first case
of Ritchie _v._ The People[60] made no distinction between men and
women with reference to personal rights and the freedom of contract.
New York is quite explicit: “Under our laws men and women now stand
alike in their constitutional rights, and there is no warrant for
making any discrimination between them with respect to the liberty of
person, or of contract.”[61] On the other hand the supreme court of
Nebraska, in sustaining the ten-hour law, frankly speaks of women as
wards of the state, and the passage in question is quoted with apparent
approval by the supreme court of Oregon; and the Supreme Court of the
United States, instead of planting its decision squarely upon the facts
presented in the brief for the state of Oregon, mingles considerations
drawn from physical conditions with others resting upon the general
status of the female sex in such a way as to give an apparent
preponderance to the latter. The court, speaking through Mr. Justice
Brewer, said:
Still, again, history discloses the fact that woman has always been
dependent upon man. He established his control at the outset by
superior physical strength, and this control in various forms, with
diminishing intensity, has continued to the present. As minors, though
not to the same extent, she has been looked upon in the courts as
needing especial care that her rights may be preserved. Education was
long denied her, and while now the doors of the school room are opened
and her opportunities for acquiring knowledge are great, yet even with
that and the consequent increase of capacity for business affairs,
it is still true that in the struggle for subsistence she is not an
equal competitor with her brother. Though limitations upon personal
and contractual rights may be removed by legislation, there is that in
her disposition and habits of life which will operate against a full
assertion of those rights. She will still be where some legislation
to protect her seems necessary to secure a real equality of right.
Doubtless there are individual exceptions, and there are many respects
in which she has an advantage over him; but looking at it from the
viewpoint of the effort to maintain an independent position in life,
she is not upon an equality. Differentiated by these matters from
the other sex, she 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.
It is impossible to close one’s eyes to the fact that she still looks
to her brother and depends upon him. Even though all restrictions on
political, personal and contractual rights were taken away, and she
stood, so far as statutes are concerned, upon an absolutely equal
plane with him, it would still be true that she is so constituted that
she will rest upon and look to him for protection; that her physical
structure and a proper discharge of her maternal functions--having
in view not merely her own health, but the well-being of the
race--justify legislation to protect her from the greed as well as
the passion of man. The limitations which this statute places upon
her contractual powers, upon her right to agree with her employer as
to the time she shall labor, are not imposed solely for her benefit,
but also largely for the benefit of all. Many words cannot make this
plainer. The two sexes differ in structure of body, in the functions
to be performed by each, in the amount of physical strength, in the
capacity for long-continued labor, particularly when done standing,
the influence of vigorous health upon the future well-being of the
race, the self-reliance which enables one to assert full rights,
and in the capacity to maintain the struggle for subsistence. This
difference justifies a difference in legislation and upholds that
which is designed to compensate for some of the burdens which rest
upon her.
We have not referred in this discussion to the denial of the elective
franchise in the state of Oregon, for while it may disclose a lack
of political equality in all things with her brother, that is not of
itself decisive. The reason runs deeper, and rests in the inherent
difference between the two sexes, and in the different functions in
life which they perform.[62]
It is to be noted that the Supreme Court refuses to regard the
non-possession of active political rights as a controlling element.
Under a system which sets constitutional limitations against the
popular will as expressed through the ordinary elective franchise,
the treatment of the latter as relatively indifferent has a certain
plausibility which would be much more doubtful in England or Germany.
If the vote cannot secure shorter hours, it may be argued that the
absence of the vote cannot be a valid reason for allowing the exercise
of the power. If, on the other hand, shorter hours are demanded in
the interest of the public, the bestowal of the franchise should not
forfeit the benefit of the measure.
From a practical point of view, however, political power is an
important, if not in the long run decisive, factor in the economic
struggle, and as long as it is withheld from women they have a claim
to special protection from the state, which they may put forward as
a requirement of justice, without conceding that their status is
naturally one of dependence and inferiority.
There is another argument in favor of a larger state interference with
the freedom of contract in the case of women than in that of men, which
has received little attention, but seems to deserve consideration.
The whole doctrine of freedom of contract is based upon a theory of
constitutional equality which is frequently belied by the facts. What
saves the theory from being altogether a fiction, is the possibility
of contracting on something like equal terms through the power of
collective bargaining. The doctrine of freedom of contract stands
and falls with the efficacy of the organization of labor. If for any
reason, such organization is impossible or ineffective, the right of
the state to exert its power in favor of tolerable economic conditions
cannot in reason be disputed, even though considerations of expediency
or wisdom may make its exercise undesirable.
In the past, women workers have been greatly inferior to men in the
power of effective organization. It remains to be seen whether this
inferiority will be permanent. Considering the fact that most women
enter industrial work as a temporary occupation which they expect to
give up for matrimony, and that the care of the household and family
is still regarded as their normal and proper function, it is not
surprising that there should be much less opportunity and inducement
for organization among women than among men. And if this should prove
to be a necessary limitation, it would constitute a justification for
the exercise of state control, which in the case of men may be found to
be absent or to be confined to particular employments.
When we examine the labor laws of Massachusetts and other states,
in which women are so commonly classed with young persons we might
be tempted to conclude, that as on the one hand the state claims
absolute control over children, and on the other hand is careful to
respect the constitutional rights of adult men, there is manifested a
consciousness of a power, not absolute, but transcending the normal
measure, equally exercisable over those beyond the age of childhood
and below full maturity, and over women. Upon closer scrutiny it will
however appear that there are extremely few cases in which special
legislation for women is of a purely economic character. The provision
of the Massachusetts law[63] forbidding deductions from the wages of
women (and minors) in case of the breakdown of machinery if they are
refused the privilege of leaving the mill while the damage is being
repaired, is one of the rare instances in point. Generally the common
protection accorded to women and young persons is quite capable of
being explained upon the basis of physical differences between adult
men and adult women, and it is not therefore necessary to have recourse
to the greater justification of special economic protection. The case
may be somewhat different in English and German legislation.
From a constitutional point of view it makes a considerable difference
whether the exercise of special power over the individual is based upon
his supposed dependency and inferiority of right, or is due to special
conditions in no way derogatory to his civil status. It is one thing to
quarantine a smallpox patient, another thing to detain an alien at an
immigrant station. When measures shall be proposed for the control of
women in industry upon a principle different from any applied to men,
it will be time to inquire whether she is to be measured by different
and inferior political standards. The laws that have been so far
enacted for women involve, with rare exceptions, no such discrimination.
The specific evil effects of long hours of standing upon female organs
have long been recognized; so there is assumed to be a difference
in nervous structure, and a greater susceptibility, in consequence
of this, to the exhaustion of prolonged work. The indirect danger
of diminished strength and vitality of possible offspring involves
a supreme interest of the community at large, for which there is no
parallel in the case of men, and which must satisfy the demands of the
strictest constitutional constructionist.
The prohibition of night work in factories has in the case of younger
women, at least, the justification of moral protection;[64] and while,
upon an assumed constitutional equality of both sexes, such total
prohibition is less easily explained as regards women of mature age,
it is probably possible to establish a case of social or physical
desirability of the restriction in their favor.
It might be said that the prohibition of women’s work on specially
dangerous machinery presents a case where the tutelary care of the
state is simply pushed one step farther than in the case of men; but
even here a specific danger is traceable; for it appears that the first
provision of that kind in England was due to the suggestions of factory
inspectors who pointed out to the parliamentary committee that the
customary dress of girls and women made them especially liable to be
caught by machinery.[65]
There are undoubtedly other matters in which protective legislation
for women might be extended for reasons not involving any deficiency
of constitutional status. Without indulging in speculation regarding
social needs or moral dangers, we may point to the provisions of
the German trade code, which recognize the special needs of working
women. The right given to women who manage their household, to ask
for an extra half hour at noon, if the period of noon rest is less
than an hour and a half, is probably, like all other privileges made
dependent upon special request, of little practical value. The rule
that women must not be employed after five o’clock in the afternoon
on Saturdays and the eve of holidays, is, however, mandatory, and is
likewise clearly dictated by a regard for household duties. Above all
there is the prohibition of employment before and after confinement,
altogether for eight weeks, the return to work requiring proof that
at least six weeks have elapsed since confinement. In accordance with
the recommendations of the Berlin Conference of 1890, England in 1891
likewise placed a restriction upon the employment of women for four
weeks after childbirth, but the enforcement of the law seems to suffer
from administrative difficulties.[66]
The present scarcity of similar legislation in this country seems to
be due, not so much to constitutional doubts or difficulties, as to
the fact that there does not appear to have been the same demand, or
perhaps, owing to the less common employment of married women, the
same occasion for such a restriction. Should the necessity for such
legislation arise there ought to be no fear that the constitutions
stand in the way of appropriate and adequate protection. Our
present statutes by no means exhaust the permissible field of state
interference.
III
If the validity of some particular form of regulation for a particular
purpose be conceded, another difficulty arises in determining the
proper range and scope of the proposed law. The equal protection of
the laws guaranteed by the fourteenth amendment does not demand a
mechanical equality of treatment of all persons irrespective of the
conditions of their occupation or employment; but this equality is
inconsistent with arbitrary or partial discrimination. Ever since the
Supreme Court of the United States declared the Illinois anti-trust law
unconstitutional, because it made an exception from its prohibitions
with reference to agricultural products or live stock in the hands of
the producer or raiser,[67] there has been a feeling of uncertainty
as to the extent of permissible classification. The tendency of the
federal Supreme Court has been on the whole to concede to state
legislatures a considerable latitude in the selection of objects of
police restraint; but the risk of contest on this ground is a factor
to be reckoned with in framing any restrictive legislation. Some of
the states, as Illinois, are inclined to apply the principle rather
strictly against the singling out by statute of certain groups, when
other groups might be liable to similar dangers or evils.
The categories which we find mentioned in the American statutes
restricting the hours of labor of women, are factories (by this or
some other equivalent designation), mechanical establishments (not
clearly differentiated from factories), mercantile establishments,
laundries, hotels and restaurants. In most of the states having laws
on the subject only some of these are covered. No law has as yet
undertaken to regulate with particular reference to women either
industrial home work or domestic or semi-professional service. Only one
state (Oregon) includes the important transportation and transmission
employments, especially the telephone and telegraph service, in which
so many women are engaged, while Montana confines its restriction to
the public telephone service. Up to the present time no law relating
to women’s work has been declared unconstitutional by reason of the
specification of particular employments; the law sustained by the
Supreme Court of the United States applied to manufacturing and
mechanical establishments and laundries. It seems reasonable enough
to differentiate these employments from those in which there is an
element of personal service, such as waiting on customers or rendering
direct assistance to the employer, and which are therefore free
from the monotonous routine of purely mechanical work. It might be
difficult on the other hand to justify the omission of such work as
dishwashing or scrubbing in restaurants or hotels. Again, where the
restriction applies to employment in mechanical, but not in mercantile
establishments, a question might be raised concerning the clerical
positions of both classes which are filled by women, and which are
subject to different treatment, while not differing in the character
of the work done. The difficulty can perhaps be avoided by construing
the statute as applying only to mechanical employments in mechanical
establishments.
Where, as in Missouri, the law is limited to cities above a certain
size, it may be argued plausibly that the loss of time in going to and
from work in large cities is apt to be considerable and may be taken
into account in determining the territorial application of the law.
Another difficulty is presented by the demands created by conditions of
emergency or an exceptional pressure of business. In condemning the New
York ten-hour law for bakers, the Supreme Court of the United States
referred disapprovingly to the absence of an emergency clause. On the
other hand the constitutionality of the fifty-four-hour law for women
of the state of Michigan is said to have been attacked on the ground
that it makes an exception for employment in preserving perishable
goods in fruit and vegetable canning establishments. Massachusetts
allows a limited amount of excess work in seasonal industries, and the
same is true under the German law.
The following comment by the New York commissioner of labor[68] on
the New York law regulating the hours of women is instructive in this
respect:
In its original bill form this act made an exception, adopted from
the English law, in favor of factories manufacturing perishable and
seasonal articles or the products of such articles, and allowed
them to employ females over 18 for sixty-six hours a week in not to
exceed six weeks a year. Similar exceptions are contained in the
laws of almost all the nations of Europe and are permitted by the
recent international labor treaty signed at Berne. They are based
upon necessity and equity and are consonant with health, for the
reason that in such industries limited overtime during rush periods
or seasons would be counterbalanced by reduced hours in slack periods
or seasons. But the provision aroused such a violent public protest
that it was temporarily abandoned. That was the cause of great regret
to me, for I believe that the health provisions of our factory laws
should be limited to the reasonable requirements of health, and that
particular industries should not be unnecessarily and unreasonably
embarrassed for the sole purpose of keeping a regulation general and
uniform. In those industries where the supply of the raw material, the
fitness of the material or the ability to work is determined by the
weather, it is impossible to divide the week, the month and the year
into working days or weeks of approximately equal duration, as our law
presupposes; and it is not a necessary or even a reasonable health
regulation that forbids time lost by such cause to be in any degree
made up when the weather permits. Reasonable variations from the more
regular limitations imposed upon those industries in which work is or
can be made regular should be allowed for those in which it cannot.
I do not want to be understood as condoning the excessive hours per
day and per week that are now occasionally worked in those factories
to which such an exception would apply. On the contrary they should
be sharply restricted according to health requirements. But I believe
that if those factories were allowed such variations from the general
rule as would not be injurious to health, it would render the law more
easily and generally enforcible as to them and would in fact reduce
their hours of labor, and it would avoid the danger of an adverse
decision from the courts as to the constitutionality of the provisions
limiting the hours of women’s labor.
It is not easy to see why any emergency provision should be regarded as
in itself violating the principle of equality, but there may be some
danger in not treating alike different emergencies which are entitled
to equal consideration.
The absence of an emergency clause may expose the law to the charge of
creating unnecessary hardships and thereby creating an unreasonable
interference with liberty. If however in this as in other matters
perfect justice and adaptation of means to the end might be thought to
require a more minute differentiation than our statutes provide, it
should be borne in mind that one very legitimate element in considering
the reasonableness of a statute is the possibility or facility of its
administration. A certain degree of mechanical uniformity of rules
is essential to the successful operation of any act. Experience has
demonstrated that it is extremely difficult to control compliance with
legal limitations of hours of labor, if the permitted number of hours
may be arranged at any time within a range of fourteen or fifteen
hours, or if the employer is permitted to employ two shifts of working
women, or if he is allowed to distribute 54 or 60 hours through the
week as he pleases. On the other hand Dr. Jacobi quotes the labor
commissioner of New York as saying: “Except for the administrative
reason that it makes it easier to enforce the prohibition against
overtime, there is no present necessity in this state for the
prohibition of night work by adult women. On the other hand, if
enforced, it would deprive some mature working women, employed by night
only at skilled trades, for short hours and for high wages, of all
means of support. And the prohibition, in its application to factories
only, seems rather one-sided when we consider that probably the hardest
occupations of women, those of hotel laundresses and cleaners, are not
limited as to hours in any way.”[69] The relevancy of administrative
considerations has received very little judicial discussion in
connection with the problem of discrimination, and deserves serious
consideration. While important rights should not be allowed to be
sacrificed to mere official convenience, effectiveness and even the
cost of administrative supervision should be regarded as legitimate
factors in determining the reasonableness of restrictive measures.
The whole problem of discrimination depends so much upon the varying
conditions of different industries that an intelligent judgment of
what is legitimate and what is arbitrary is possible only upon the
basis of a close study of facts. There ought to be some guaranty that
legislation in this respect shall proceed upon a careful and impartial
survey of all relevant conditions, and in the notorious absence of
such guaranties, the courts may well demand to be convinced that
discriminations are not arbitrary, and that the denial of exemptions
is necessary from an administrative point of view. It is a further
question whether it is possible for the legislature to do full justice
to the varying needs of industries by making direct provision for all
cases, or whether powers of dispensation or permit must not be vested
in administrative authorities. Such powers should not go beyond the
province of what constitutes, properly speaking, administration. As
soon as they assume the character of subsidiary regulations, there
arises a constitutional difficulty in the principle that legislative
powers must not be delegated. A statute of California which left it
to the judgment of the labor commissioner to determine whether the
inhalation of noxious gases could be prevented by the use of some
mechanical contrivance, and if so, to direct its installation, was on
that ground declared unconstitutional.[70] There are also, however,
decisions sustaining the delegation to administrative authorities
of the power to specify standards in pursuance of a general policy
indicated by the legislature.[71] At present it is not clear to what
extent the delegation of powers of regulation can be safely carried,
nor is it probably in accordance with prevailing sentiment that it
should extend to provisions that can be dealt with intelligently and
effectually by legislation.
IV