Pierre Lemieux argues here that when it comes to questions of working hours, feminists have, from the beginning, allied themselves with the State in order to “enslave men equally.” In doing so, he overlooks a long history of women fighting against “equal enslavement” rather than freedom for all, demonizes all early feminists at one swoop, and overlooks the real bad guys–the unions.

For example: 

In 1903 the state of Oregon passed a law forbidding female employees of laundry services, factories, and mechanical manufacturers from working more than 10 hours a day. On September 4th, 1905 Mrs. E. Gocher worked more than 10 hours at the Grand Laundry, owned by Curt Muller. The state stepped in and sued Mr. Muller, and the case found its way to the Supreme Court. In a 9-0 decision, the court found the Oregon law constitutional, stating that: 

..the physical wellbeing of woman is an object of public interest. The regulation of her hour of labor falls within the police protective power of the State…and is not affected by other laws of the State granting or denying to women the same rights as to contract and the elective franchise as are enjoyed by men.

The court’s justification for this right of the State, as given in the opinion written by Justice Brewer, is that women’s

…physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence … This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race. …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.

Even for modern women who are, like myself, inclined to be patient with the medical and scientific misconceptions of other eras and to allow for the possibility that the court legitimately felt there was a medical danger to women who engaged in this kind of work, there are problems with the Muller decision. Labor historian Ava Baron points out “a whole series of laws and cases” sprang from the Muller decision, through which women’s working hours and schedules were regulated. Most famously, night work for women was illegal in all but a few industries. Baron notes, as well, that “the language used in the Muller decision was also cited in laws which excluded women from juries, schools, and various occupations.” Muller was still being cited into the 1970s. Baron argues as well that, despite the paternalistic but arguably kindly language of Muller, we are wrong to think of Muller and related decisions as coming only from a noble impulse to protect women’s health and stop exploitation. Instead they arose, at least as much, from a desire to protect masculine work outside the house from competition from lower-priced female laborers and to legally enshrine women’s work to domestic and maternal labor. As Baron adds, it is worth noting that women laboring in domestic service were left untouched by protective legislation. It was only laundry done outside a home that was dangerous, evidently. And scrubbing floors at home or in offices had no health consequences at all.

 In a similar fashion, part of the early reasoning for the minimum wage—which originated as a “family wage or living wage”—was its intent to allow a worker to “keep his wife and children out of competition with himself…” and presumably all other women as well. 

Ruth Milkman, Martha May, Alice Kessler-Harris, and other scholars of the history of women in the labor movement have long noted these and other cases and issues as parts of the problematic way in which, from its earliest days, much of the business of the labor movement was to protect organized white male labor from competition against immigrant labor, or female labor, or non-union labor. There are subtleties to this generalization, of course, and Milkman identifies four historical waves of the labor movement that have differing commitments (and lack thereof) to a more diverse vision of labor rights. But unions—as do so many other institutions–work on the “Get up and bar the door” principle. Get up as high as you can, and then bar the door behind you against any further entrants who might cut into the goodies you have grabbed for yourself. Charles Baird notes that “Unions depend on capture. They try to capture employers by cutting them off from alternative sources of labor; they try to capture workers by eliminating union-free employment alternatives; and they try to capture customers by eliminating union-free producers. Successful capture generates monopoly gains for unions.” Protection is the name of the game. 

With this history in mind, we then need to ask the question posed by Alice Kessler-Harris “How do we… come to terms with the failures of organized labor with regard to women? How do we explain the persistent failure of women to make their way to positions of power inside trade unions? [Ruth Milkman] laid the absence of common goals at the door of an exclusionary and male-oriented trade union movement and pleaded with feminists not to turn their backs on it. But her description of organized labor’s years of neglect of women and their concerns yields no source for optimism and her argument offers few hints of any possibility of change. Whether the trade union movement can ever become a vehicle for non-sexist activity on behalf of all its members is still a major question for women.” (111) Part of Kessler-Harris’s problem is that her question ignores the issue of capture in unions as Baird describes it. It ignores the “get up and bar the door” problem.

About 50 years before the push for an Equal Rights Amendment in the 1970s, there was another push for an Equal Rights Amendment in America. Written by Alice Paul, the amendment was an attempt to leverage the newly recognized voting power of women into a policy that guaranteed men and women shall have equal rights throughout the United States and every place under its jurisdiction.”  Doris Stevens noted that there were three main objections to the amendment. First, there was the familiar plea for gradual, rather than sweeping change. Second, there were concerns over lost pensions for widows and mothers. And in Stevens’s words in a piece titled “Suffrage Does Not Give Equality”:

The final objection says: Grant political, social, and civil equality to women, but do not give equality to women in industry. …Here lies the heart of the whole controversy. It is not astonishing, but very intelligent indeed, that the battle should center on the point of woman’s right to sell her labor on the same terms as man. For unless she is able equally to compete, to earn, to control, and to invest her money, unless in short woman’s economic position is made more secure, certainly she cannot establish equality in fact. She will have won merely the shadow of power without essential and authentic substance. 

 Rheta Childe Dorr (in Good Housekeeping, of all places!) pointed out again the logic behind labor’s opposition to the equal rights amendment:

The labor unions are most opposed to this law, for few unions want women to advance in skilled trades. The Women’s Trade Union League, controlled and to a large extent supported by the men’s unions, opposes it. Of course, the welfare organizations oppose it, for it frees women wage earners from the police power of the old laws. But I pray that public opinion, especially that of the club women will support it. It’s the first law yet proposed that gives working women a man’s chance industrially. “No men’s labor unions, no leisure class women, no uniformed legislators have a right to govern our lives without our consent,” the women declare, and I think they are dead right about it. 

Organized labor—founded to ensure the collective right to contract—refused to stand up for the right of individual women to contract. From their point of view, it was only sensible. And the women in organized labor refused to stand up for the women on the outside. Organized male and female labor’s fight against the ERA was at least as much about protectionism as it was about sexism. Maybe more. Ethel M. Smith attended the debates on the ERA to report on it for the Life and Labor Bulletin, and women she spoke with did not even attempt to gloss over the protectionist agenda of the unions:

Miss Mary Goff of the International Ladies’ Garment Workers Union, emphasized the seriousness of the effect upon organized establishments were legal restrictions upon hours of labor removed from the unorganized. “The organized women workers,” she said, “need the labor laws to protect them from the competition of the unorganized. Where my union, for instance, may have secured for me a 44-hour week, how long could they maintain it if there were unlimited hours for other workers? Unfortunately, there are hundreds of thousands of unorganized working women in New York who would undoubtedly be working 10 hours a day but for the 9-hour law of New York.”  

So labor unions excluded women as long as they could, then let in a privileged few, and barred the doors behind them. Lemieux may be right that we have ended up equally enslaved, but he is wrong to think that the relevant distinction is one based on gender rather than one based on a union ID card.


(A shorter version of this blogpost appeared at LearnLiberty.org under the title “How the State Became the American Woman’s Real Enemy.”)