Equal Rights Amendment and Protective Legislation

United States 1923

Synopsis

After the ratification of the Nineteenth Amendment in 1920, differences arose among women's rights advocates over strategy. One group of social reformers, most notably the National Consumers' League (NCL) and its allies, favored continuation of the 30-year campaign of multifaceted reform including protective legislation for women workers. A smaller group led by Alice Paul and her National Women's Party (NWP) came to embrace a more narrow strategy to achieve gender equality by passing a constitutional amendment to erase all surviving legal impediments to equality, including gender-specific protective legislation. The ensuing debate between proponents of the Equal Rights Amendment (ERA) and opposing reformers came to focus on the issue of protective legislation, increasingly defined by the NWP as discriminatory and a positive harm to women's economic opportunity. At the heart of the debate was the question of "equality vs. difference" in the workplace: was the common goal of equality best served by insuring women access to the same rights and conditions as men, or did substantive equality require that women be treated differently? ERA opponents staked their positions on women's differences, arguing that women's unique maternal functions necessitated special treatment, including in the workplace; ERA proponents advocated equal access on equal terms to all. The debate was marked by extraordinary vituperation; even after passage of the Fair Labor Standards Act (1938) made gender-specific protective legislation moot, the labor and reform movements remained largely opposed to the ERA until the 1970s.

Timeline

• 1907: At the Second Hague Peace Conference, 46 nations adopt 10 conventions governing the rules of war.
• 1912: Titanic sinks on its maiden voyage, from Southampton to New York, on 14 April. More than 1,500 people are killed.
• 1917: In Russia, a revolution in March (or February according to the old Russian calendar) forces the abdication of Czar Nicholas II. By July, Alexander Kerensky has formed a democratic socialist government, and continues to fight the Germans, even as starvation and unrest sweep the nation. On 7 November (25 October old style), the Bolsheviks under V. I. Lenin and Leon Trotsky seize power. By 15 December, they have removed Russia from the war by signing the Treaty of Brest Litovsk with Germany.
• 1919: With the formation of the Third International (Comintern), the Bolshevik government of Russia establishes its control over communist movements worldwide.
• 1922: Inspired by the Bolsheviks' example of imposing revolution by means of a coup, Benito Mussolini leads his blackshirts in an October "March on Rome," and forms a new fascist government.
• 1922: Great Britain establishes the Irish Free State as a dominion of the British Empire.
• 1922: With the centuries-old Ottoman Empire dissolved, Mustafa Kemal, a.k.a. Atatürk, overthrows the last sultan and establishes the modern Turkish republic.
• 1922: Union of Soviet Socialist Republics (USSR) is formed.
• 1922: Published this year James Joyce's novel Ulysses and T. S. Eliot's poem The Waste Land will transform literature and inaugurate the era of modernism.
• 1925: European leaders attempt to secure the peace at the Locarno Conference, which guarantees the boundaries between France and Germany, and Belgium and Germany.
• 1927: Charles A. Lindbergh makes the first successful solo nonstop flight across the Atlantic, and becomes an international hero.
• 1932: When Ukrainians refuse to surrender their grain to his commissars, Stalin seals off supplies to the region, creating a manmade famine that will produce a greater death toll than the entirety of World War I.

Event and Its Context

Proponents of women's rights in the United States historically linked political and economic rights; indeed, women's exclusion from political life had been premised in part on their status as economic dependents. Late-nineteenth-century advocates argued that the right to labor and to economic independence was a necessary prerequisite of women's political independence. Women's rights advocates thus widely shared the pervasive outrage at horrific conditions of labor under industrial capitalism and at the particular exploitation of women workers. Social reformers and suffrage activists found common cause in support of measures to alleviate workers' distress. Social reformers desired the vote for women as a means of furthering the reform agenda; suffrage advocates viewed protective legislation for women as a useful mechanism to attract working women to the cause. The American Federation of Labor (AFL) came to support protective legislation for women for a variety of reasons. Reluctant to organize women, male unionists viewed state protection as a viable alternative to collective bargaining for women, and they also saw the laws' utility in protecting traditionally male jobs from female competition.

Efforts to regulate conditions of labor in the United States had a history reaching back to the earliest days of the Republic and were generally not gender-specific. Working people fought throughout the nineteenth century to negotiate or legislate limits on the workday for the general welfare. By the 1870s, 13 states had passed either mandatory or nonbinding 10-hour workday statutes. Such attempts to regulate working conditions by exercising state police power, however, were increasingly struck down by the Supreme Court as violations of freedom of contract. The famous Lochner v. New York (1905) decision was a critical turning point. The Court in Lochner decisively rejected traditional arguments based on general welfare and overturned a New York State law mandating the 10-hour workday for bakers as violating liberty of contract.

Even before Lochner, social reformers, often working out of settlement houses like Chicago's Hull House, had begun to pressure state legislatures to pass protective legislation specifically targeting women and children. The Illinois Factory Act of 1893, for example, limited hours for women, prohibited child labor, and regulated sweatshop conditions. Florence Kelley of Hull House was a prime motivator of this legislation. Though the hours limitation for women was struck down in 1895 (Ritchie v. People), Kelley carried the fight for protective legislation to the national level from her new post as general secretary of the National Consumers' League (NCL).

After the Lochner setback, social reformers began to espouse protective legislation for women as an "entering wedge" to secure general protections that would apply to all. The NCL, in alliance with other reform organizations such as the Women's Trade Union League (WTUL), spearheaded such efforts; the organization won hours limits and night work restrictions in 18 states. In 1908 the NCL rose to defend its work when Muller v. Oregon threatened to strike down Oregon's 10-hour law for women workers. Kelley recruited Louis Brandeis to argue Oregon's case; the famous "Brandeis Brief" produced by Brandeis and Josephine Goldmark consisted of 110 pages of sociological data justifying hours limitations as necessary to protect women's unique physiology and reproductive functions. Brandeis argued successfully that the state's interest in protecting the health of mothers of the race superceded freedom of contract doctrine. Muller served as precedent for state courts to uphold a variety of protective laws for women, including hours limits, night work bans, and minimum wage laws. Frequently, however, such laws effectively restricted access to better-paying night work and reinforced women's relegation to lower-paid, gender-segregated jobs. Consistent with its "opening wedge" strategy, the NCL in Bunting v. Oregon (1917) used the same sort of argument advanced in Muller to support successfully a maximum hours law for all workers.

Ratification of the Nineteenth Amendment in 1920 spelled the end of the social reform-suffrage coalition. The largest suffrage organization, the National American Woman Suffrage Association (NAWSA), reorganized as the League of Women Voters (LWV) and continued to work on electoral issues. The militant wing, led by the charismatic Alice Paul, reconstituted itself as the National Women's Party (NWP) and devised a new strategy: another constitutional amendment, an Equal Rights Amendment (ERA), to sweep away remaining legal impediments to women's equality. Paul recruited wealthy supporters such as Alva Vanderbilt Belmont to bankroll the effort, thereby opening the party to later accusations of class bias and insensitivity to working-class women.

Initially, Paul explored the possibility of adding language to the ERA specifically to exempt protective legislation. She favored maintaining such laws and extending the benefits to men. Others in the NWP, however, were adamantly opposed to protective legislation. Harriet Stanton Blatch, daughter of Elizabeth Cady Stanton, and Gail Laughlin, president of the National Federation of Business and Professional Women's Clubs, considered protective legislation inherently discriminatory and restrictive. Laughlin chaired the NWP Lawyers' Committee that drafted the amendment, and her views convinced Paul; the resulting language did not exempt protective legislation from the sweeping ambit of the amendment.

Social reformers were alarmed at the implications. In December 1921 Florence Kelley of the NCL initiated a meeting of women's rights activists to discuss the issue. Representatives from the NWP, the LWV, the WTUL, the Women's Christian Temperance Union (WCTU) and the General Federation of Women's Clubs (GFWC) attended. Kelley formally requested that the ERA language be altered to preserve protective legislation; Paul refused. By mid-1922 the NCL, the LWV, and the WTUL had all publicly announced their opposition to the "blanket equal rights amendment," and the split in the women's rights movement became painfully evident.

In 1923 the NWP took its growing antipathy to protective legislation to a new level. The party filed an amicus curiae brief in Adkins v. Children's Hospital, arguing against a Washington, D.C., minimum wage law for women. The Court ruled that the D.C. statute was unconstitutional, thereby restoring Lochner's freedom of contract standard and jeopardizing existing and future legislation, to the dismay and anger of reformers. The NWP capped the year with a huge conference in November 1923 at Seneca Falls, New York, where the party commemorated the 75th anniversary of the Declaration of Sentiments by officially launching the ERA. The amendment was introduced in Congress on 10 December 1923.

The NWP made opposition to protective legislation for women a key element of its campaign, appealing to women who had been adversely affected by the legislation, particularly professional women and skilled workers who competed directly with men. The NWP's Industrial Council claimed some 400 members who spoke for working women in support of the ERA. The NWP stood nearly alone, however. Only the National Federation of Business and Professional Women's Clubs allied with them, and opponents were legion. Virtually every major women's organization publicly repudiated the ERA. Joining the NCL, the LWV, the WCTU, the WTUL in opposition were the National Association of University Women, the PTA, the YWCA, the National Federation of Federal Employees, the Department of Labor's Women's Bureau, and a host of others.

The Women's Bureau proved to be a formidable opponent. The bureau's director, Mary Anderson, was a former factory worker and long-time proponent of labor legislation with an instinctive distrust of non-working-class feminists of the NWP. Her office, plus her working relationship with both women's reform groups and the trade unions, made her a pivotal figure in the debate. At a 1926 Women's Bureau conference, the NWP forced through a resolution directing the bureau to undertake an investigation to explore the effects of protective legislation. The ensuing investigation was marked by extraordinary conflict as Anderson sought to placate all sides while arriving at conclusions that would support the need for legislation. Indeed, the final report, The Effects of Labor Legislation on the Employment of Women, constituted an overwhelming if somewhat suspect endorsement of protective legislation that functioned to define the bureau's stance on the issue through the 1930s. The 1938 passing of the Fair Labor Standards Act finally settled the issue by extending protection to all workers, regardless of gender.

In the end, both sides in the debate proved right: protective legislation did afford the "greatest good to greatest number" as its supporters argued, but it also left women at a disadvantage in significant occupational sectors and functioned to reinforce the gender-segregated workforce with its inherent inequalities. Perhaps the most lasting outcome of the conflict over the ERA and protective legislation was the split in the feminist movement that reverberated through the decades to present, and is still evident in the periodic revival of the "equality v. difference" debate.

Key Players

Kelley, Florence (1859-1932): Born in Philadelphia and raised as a Quaker, Kelley graduated from Cornell University in 1882 and then studied in Zurich, where she became acquainted with European socialism. She was the daughter of William "Pig Iron" Kelley, a 15-term congressman whose career is said to have instructed Kelley in the efficacy of legislative action. A lifelong socialist, Kelley resided at Hull House from 1891 to 1899, where she energetically undertook the investigation of factory conditions and became the first chief factory inspector for Illinois. Kelley served as secretary general of the National Consumers' League from its founding in 1899 until her death in 1932. Perhaps the foremost proponent of protective legislation for women, Kelley quit the NWP over the ERA and became its most adamant opponent.

Paul, Alice (1885-1977): Born to a wealthy Quaker family in Moorestown, New Jersey, Paul attended Quaker schools and graduated from Swarthmore College in 1905. She spent three years in London doing settlement work; while there, she joined the militant wing of the British suffrage movement and was jailed three times. Paul joined the National American Woman Suffrage Association (NAWSA) on her return but, impatient with the group's decorous tactics, left NAWSA in 1913 to form the British-styled Congressional Union, later renamed the National Women's Party (NWP). After the passing of the Nineteenth Amendment, Paul devised the "clean sweep" strategy to remove remaining legal restrictions via an Equal Rights Amendment. She devoted the rest of her life to its enactment.

See also: Fair Labor Standards Act; Lochner v. New York; Muller v. Oregon.

Bibliography

Books

Becker, Susan. The Origins of the Equal Rights Amendment: American Feminism Between the Wars. Westport, CT: Greenwood Press, 1981.

Cott, Nancy F. The Grounding of Modern Feminism. New Haven, CT: Yale University Press, 1987.

Dye, Nancy Schrom. As Equals and as Sisters: Feminism, the Labor Movement, and the Women's Trade Union League of New York. Columbia: University of Missouri Press, 1980.

Fry, Amelia R. "Alice Paul and the ERA." In Rights of Passage: The Past and Present of the ERA, edited by Joan Hoff-Wilson. Bloomington: Indiana University Press, 1986.

Kessler-Harris, Alice. Out to Work: A History of Wage-Earning Women in the United States. New York: Oxford University Press, 1982.

——. In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-Century America. New York: Oxford University Press, 2001.

Lehrer, Susan. Origins of Protective Labor Legislation for Women, 1905-1925. Albany: State University of New York Press, 1987.

Newman, Louise Michelle. White Women's Rights: The Racial Origins of Feminism in the United States. New York: Oxford University Press, 1999.

O'Connor, Karen. Women's Organizations' Use of the Courts. Lexington, MA: Lexington Books, 1980.

Sklar, Katherine Kish. "Why Were Most Politically Active Women Opposed to the ERA in the 1920s?" In Rights of Passage: The Past and Present of the ERA, edited by Joan Hoff-Wilson. Bloomington, IN: Indiana University Press, 1986.

Other

Skaler, Katherine Kish, and Thomas Dublin, eds. "Who Won the Debate over Equal Rights in the 1920s?" In Women and Social Movements in the United States, 1775-2000.State University of New York at Binghamton. 2000 [cited 18 November 2002]. <http://www.binghamton.edu/womhist/era/intro.htm>

—Lisa Kannenberg