Danielle KrausHIS 303Final Paper12/09/14Separate or Equal: The Debate Over the Equal Rights Amendment and Womens Protective Labor Legislation. The Industrial revolution brought many changes to the United States both technologically and socially, this included the emergence of women seeking wages in jobs that fell outside of the domestic sphere as a sector of the labor market. At the dawn of the twentieth century labor conditions in factories and mills where many women sought employment were hazardous, hours were long, wages were low, and on top of that women faced discrimination on the grounds that females by nature were subservient to men. The notion that a womans status was lower than a mans was not new, it is one that stems from a centuries old tradition of patriarchal dominance within the legal, economic, and social framework of society. However, the dangers of an industrialized work place were a new and very real problem. Womens labor activism sought to combat these dangers by pushing protective legislature- laws that ensured minimum wage, limited work days, and safer conditions. By the 1920s some feminist groups were proposing an Equal Rights Amendment (ERA) - this act ensured women full equality to men under the law. While championed by some as a solution to many struggles women faced, the Equal Rights Amendment was strongly opposed by others who just achieved gaining protective legislature for women. They feared that gender blind equality under the law would eliminate these protections due to the fact that there were no similar laws protecting men in the workplace. Throughout the twentieth century, activists have debated the pros and cons of protective legislature, which rooted its self in the idea that there are differences between men and women which must be taken into account versus the pros and cons of an Equal Rights Amendment which, if passed, would demand equal treatment of both genders regardless of any differences, perceived or otherwise.The fight for legislature aimed at protecting women has changed throughout the twentieth century as American society experienced radical changes caused by war, economics, and a variety of social movements that have in turn changed the way people view women and the roles they play. This fight can trace its roots to the Progressive Era- a broad based reform movement that aimed at addressing many issues in society, including those focused on women. By the 1890s most skilled trade unions had negotiated limited hour work days however women were excluded from these trades and directed into unskilled occupations where they were easily replaced. Due to being expendable, employers were able to exploit the female labor force by requiring them to work long hours for low wages[endnoteRef:1]. [1: Kathryn Kish Sklar, Florence Kelly and Womens Activism in the Progressive Era, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 407.]

At a time where laissez-faire economics reigned supreme the cries for labor reforms were met with government opposition at every turn.[endnoteRef:2] Reformers such as Florence Kelly worked tirelessly to educate the public on the deplorable working conditions women faced; by 1907 Kelly and her National Consumers League were ready to take the task of defending labor laws before the nations Supreme Court.[endnoteRef:3] In the case of Lochner vs. New York, 1905 the US Supreme Court refused to uphold New York Legislation limiting bankers to a ten hour work day, dashing progressive hopes of achieving labor legislation for all workers.[endnoteRef:4] In 1908 activists rallied behind the cause of protective legislature during the Supreme Court case of Muller vs. Oregon and succeeded in helping to sway the decision to one in favor of a ten hour work day for women. The case in favor of a ten hour work day rested mainly on the idea of female vulnerability and traditional gender roles, the physical constitution of females and the burden of their maternal nature arguably justified the legislation.[endnoteRef:5] [2: Kathryn Kish Sklar, Florence Kelly, pg 407.] [3: Kathryn Kish Sklar, Florence Kelly, pg 409.] [4: Protecting Women Wage-Workers in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 415.] [5: Protecting Women Wage-Workers, 415.]

It is important to keep in mind that protective legislation was won using the argument that women, who play a role as mothers and wives are inherently different both physically and socially from men by nature and therefore require different treatment under the law. As the twentieth century progressed this argument reared its head time and time again, at times it was an advantage to the female population and at other times it undermined and stalled their progress.As the nineteenth century gave way to the twentieth the push for female rights did not stop at the ten hour work day. During the first decades the US Supreme Court handled made many decisions regarding the status of women within the political state. White women born in America were traditionally considered naturalized citizens by right of birth, however this became subject to debate after Congress extended naturalized citizenship to foreign women who married American men. In 1907 congress passed a statute that declared any naturalized American woman would lose her citizenship should she marry a man who was not an American citizen.[endnoteRef:6] When in 1915, Ethel Mackenzie challenged her loss of citizenship the Court ruled in favor of upholding the congressional statute. One of the best known acts of the Supreme Court in regards to the rights of women is the 1920 ratification of the nineteenth amendment, granting equal suffrage. Again it is important to note that this, like the decision to uphold a ten hour work day, was based on the argument of female difference rather than equality.[endnoteRef:7] In 1923 the issue of minimum wage was taken to court in Adkins v. Childrens Hospital. The case argued on behalf of the negative social impact that substandard wages for women had on society but the court ruled that in light of the nineteenth amendment further protective legislation for women was unnecessary.[endnoteRef:8] This gave rise to the idea that differential treatment may not be the best avenue for women looking to seek an improvement in their treatment. [6: Dimensions of Citizenship I Mackenzie v. Hare, 1925, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg427.] [7: Dimensions of Citizenship I Equal Suffrage (nineteenth) Amendment, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 429.] [8: Dimensions of Citizenship I Adkins v. Childrens Hospital, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 429.]

After achieving suffrage, activists turned to the problem of legal discrimination on the basis of gender. The solution, sponsored by the National Womens party, to sex-based discrimination was to suggest an amendment aimed at eliminating the legal justification for discrimination and allowing congress to enact further legislation to ensure the equality of rights to men and women.[endnoteRef:9] In 1921 the NWPs Equal Rights Amendment states, No political, civil or legal disabilities or inequalities on account of sex, or on account of marriage unless applying alike to both sexes, shall exist within the United States or any place subject to their jurisdiction.[endnoteRef:10] While this seemed like a simple solution it would meet opposition before it even reached Washington DC. Activists such as Florence Kelly who won protective legislation were able to do so only because they argued their case on the justification that women due to their childbearing nature were different than men and therefore must legally be treated as such, they feared that an amendment granting men and women equal rights would invalidate all of their work since labor legislation was not extended to their male counterparts. [9: Dimensions of Citizenship III Equal Rights Amendment, 1972, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 719.] [10: Nancy F. Cott, Equal Rights and Economic Roles: The Conflict Over the Equal Rights Amendment in the 1920s, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 444.]

Would protective legislation in favor of women be considered sex discrimination?[endnoteRef:11] Pauline Newman, leader of the WTUL thought so, claiming that before protective legislature was put in place, we were free and equal to work long hours for starvation wages, or free to leave the job and starve![endnoteRef:12] Others, like Alice Paul stood by the idea that by eliminating sex discrimination within the law they could eliminate the subjugation of women in the United States. She argued that enacting labor laws along sex lines is erecting another handicap for women in the economic struggle.[endnoteRef:13] Similarly Gail Laughlin of the NWP asserted that if women could enact legislation in their favor based on sex differences than it left available the opportunity for legislation using the same justification to be enacted that imposed special restrictions on women.[endnoteRef:14] The debate was further complicated by male unionists that viewed women in the work force primarily as wives and mothers and wished to keep women from out of male dominated unions and labor organizations. Finally opponents worried that taking a federal approach to equality would step on the toes of states and their legislative rights.[endnoteRef:15] [11: Cott, Equal Rights and Economic Roles,pg 441. ] [12: Cott, Equal Rights and Economic Roles,pg 445.] [13: Cott, Equal Rights and Economic Roles,pg 443.] [14: Cott, Equal Rights and Economic Roles,pg 444.] [15: Cott, Equal Rights and Economic Roles,pg 445]

The fundamental difference in opinion on how to approach the legal improvement of female treatment under the law lies in how the two groups viewed women and their social roles. This was true in the 1920s and would a key component in the debate over the Equal Rights Amendment (ERA) all the way through 1982 when the bill failed to be ratified by the required number of states. The NWP and other advocates of the ERA viewed women as individuals who were eager to participate in a labor market with the widest number of opportunities available to them. Their difference from men was not a natural one but rather originated from a social construct. The NWPs views were in many ways a few decades ahead of their time and as a result they often overlooked the existing exploitation that labor laws did in fact help protect women from. Opponents of the ERA such as the NAWSA and LWV saw women as a vulnerable group of mothers, wives, daughters, and widows. In the short term the solution of laws protecting female difference were the best solution, however in the long run these laws perpetuated the idea of gender stereotypes and sex based inequalities. Despite the Fair Labor Standards Act of 1938- which mandated the regulation hours and of fair wages for all workers, labor groups and the LWV still maintained their position against the ERA.[endnoteRef:16] [16: Cott, Equal Rights and Economic Roles,pg 445-449]

Gail Laughlins fears that the use of female difference as a justification for the passing of legislation would prove to be a real concern in the 1930s when in 1935 the Social Security Act, one of- if not the most important piece of social legislation in United States history went into effect.[endnoteRef:17] In order to pass the Social Security Act through congress concessions were made including the limitation of what citizens were eligible to receive benefits. The legal framework the act rests upon traditional views on family, gender, and race. During the depression wage seeking women who had fathers or husbands who could support them were met with distain. In an effort to avoid bruising the egos of beneficiaries who saw receiving public assistance as a challenge to the aspect of masculinity that designated them as the breadwinner- gender constructs were relied upon. By employing the language of family through the addition of a widows pension it soothed public anxiety.[endnoteRef:18] On the topic of expanding benefits, one that women, despite not receiving their own coverage, played an important role, it was the ideas of masculinity and femininity that drove the decision of policy makers and so called family protection. The idea of a widows pension rested on the idea that she was to remain home and raise her children and therefore was in need of assistance- even after death the father and or husband would serve as the income provider.[endnoteRef:19] Douglas Brown of the Social Security Boards Advisory Council stated that lower rates for women made sense because A woman is able to fit herself into the economy of the home of the child much better than the single man,[endnoteRef:20] [17: Alice Kessler-Harris, Designing Women and Old Fools: Writing Gender into Social Security Law, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 519-20.] [18: Kessler-Harris, Designing Women and Old Fools, 521-22.] [19: Kessler-Harris, Designing Women and Old Fools,523.] [20: Kessler-Harris, Designing Women and Old Fools,523.]

Social reformers at this time had accepted that due to gender inequality the best way to ensure protection or rights for women was to achieve them for the family. Women were again viewed not as individuals but as potential wives and mothers who would become dependent on husbands for support and therefore were not in need of their own coverage. By 1939 the act had provisions that took care of widows and fatherless children but not widowers and motherless children of women who were covered by Social Security. In 1975s Weinberger v. Wiesenfield ruling the Supreme Court extended benefits to widowers due to the fact that the existing provisions discriminated against women workers because their contributions to Social Security did not buy the same coverage that a mans did. Martha Griffiths stated that The income security programs of this nation were designed for a land of male and female stereotypes,[endnoteRef:21] This decision was significant for the fact that the Court overruled constructs of the role women play and their place in the family. Moving forward classifications of gender must serve important governmental objectives.[endnoteRef:22] [21: Kessler-Harris, Designing Women and Old Fools,527.] [22: Kessler-Harris, Designing Women and Old Fools,528.]

The result of the Weinberger v. Wiesenfield case is an example of protective legislation, one that was necessary due to the gender stereotypes those who pushed such legislation in the early part of the twentieth century used as their platform to gain support. World War II and the surge of women in areas of the labor market that were until that time dominated by men brought about change in regards to the American attitude on working women. During the first seven months after Pearl Harbor the proportion of jobs available to women rose from 29 to 55 percent.[endnoteRef:23] However, despite managers reporting that they were pleased with female workers who were paid less than men in the same position, as the war came to an end they were eager to push them out of the work place and back into the home. The post war resurgence of domesticity was a huge blow to the permanent transformation of the gendered division of labor.[endnoteRef:24] The resurgence of domesticity relied heavily on the differences between men and women as justification for the prevailing idea that women belonged inside the home and where house work and child rearing were top priorities. Despite this backwards shift in attitude women would not stay shut indoors for long. [23: Ruth Milkman, Gender at Work: The Sexual Division of Labor during WWII, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg550.] [24: Ruth Milkman, Gender at Work,561.]

In the late 1960s the simmering frustration many women felt when it came to discrimination and treatment in the work place finally came to a boiling point. Out of this frustration grew the second wave feminist movement which sought to change a number of sex and gender related issues that women faced in the post WWII era. Title VII of the Civil Rights Act, 1964 was what many women hoped would be the end of workplace discrimination for women. Title VII outlawed labor discrimination on the basis of sex, race, color, religion, and national origin.[endnoteRef:25] To ensure that the Civil Rights act was being upheld the Kennedy administration created an Equal Employment Opportunity Commission (EEOC). Section 703 of the law stated that for employers to have a legitimate claim in justifying their sex passed discrimination they must prove that sex is a bona fide occupational qualification no longer would it suffice to say that the job was traditionally held by a male or female.[endnoteRef:26] Unfortunately the EEOC in practice showed very little concern for the discrimination of females and treated their inclusion in the act as if it were a silly fluke. It was not until 1972 and 1978 when the statute was amended that womens issues were addresses as a more serious matter. [25: Dimensions of Citizenship II Civil Rights Act, Title VII,1964 in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 651.] [26: Civil Rights Act, Title VII, 1964, 651. ]

Throughout the early 1970s the Supreme Court made a serious of decisions extending rights to women in education, abortion, and in cases of sex based discrimination they placed the burden of proof on those who tried to discriminate. Title IX of the 1972 Education Amendments forbids sex discrimination in admissions policy, career training, employment, and against pregnant or parenting students.[endnoteRef:27] In the 1973 Frontiero v. Richardson a case similar to Weinberger v. Wiesenfield in which Ginsberg argued that men and women both benefit from gender blind protection under the law, the Court ruled in favor of stricter standards in reviewing cases of sex discrimination. in part because of the highly visible nature of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market, and perhaps most conspicuously the political arenaWith these considerations in mind, we can only conclude that classifications based upon sex, like classifications based on race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.[endnoteRef:28] [27: Dimensions of Citizenship III Title IX, Education Amendments of 1972 in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 721.] [28: Mr. Justice William J. Brennan, Jr. Frontiero v. Ricardson, 1973 in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 723.]

By the late 1960s and early 1970s the movement in protective legislature appeared to aim less at laws that afforded females special protection and more at ensuring they were treated equally under the law. If there ever was a time in the twentieth century that the Equal Rights Amendment would be welcomed it would have been this time and many did in fact welcome the idea of the amendment but like in the 1920s not everyone was in favor of it. By 1971 the National Organization for Women (NOW), the Womens Equity Action League (WEAL), and the National Womens Political Caucus (NWPC) were in support of the Equal Rights Amendment. It became abundantly clear to feminists looking to gain equal rights that it was no longer a matter solely rooted in legal protection but instead one that would require transforming the existing system in the United States.Those in favor of the ERA quickly found support within congress and saw states eager to ratify the bill in its early stages, only to witness progress come to a halt in face of anti-ERA proponents such as Phyllis Schlafly. Despite ERA supporters clearly pointing out that the amendment had no bearing on personal relationship or the nature of family, those opposed to it were unable to move past what they perceived as an attack on the American family, states rights and a destruction of traditional gender roles.[endnoteRef:29] ERA supporters point out that treating women as individuals under the law would not affect the relationship between men and women but the anxiety associated with social change caused their cried to fall on deaf ears. According to women such as Schlafly a post ERA society would be one in which mothers, no longer financially able to remain at home, would be forced to surrender their children to government- sponsored day care centers. There childcare personnel would supplant paternal authority and family identification with loyalty to the state.[endnoteRef:30] In 1982, after reciving an extension from the Court, the Equal Rights Amendment failed to meet ratification in the required number of states and therefore was not put into effect. [29: Jane Sherron De Hart, Second-Wave Feminists and the Dynamics of Social Change, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 684] [30: De Hart, Second-Wave Feminists and the Dynamics of Social Change, 684.]

In the 1970s, like in the 1920s the struggle to separate the idea of sex blind legal protection and social gender roles ultimately was the biggest downfall of the Equal rights Amendment. Although the 1970s saw a great increase in the number of protective legislature passed in the US the context surrounding female labor and the need for protective laws changed. In the 1920s there existed no protection for men in the labor force under the law however, by the 1970s minimum wage, limited work days, and equal pay statutes would have eliminated the need for gender specific laws of protection had an amendment providing equal rights have been brought into fruition. Aside from highlighting the divide within the feminist movement and among the opinion of women on oppression the failure of the ratification of the ERA exemplifies how deep gender roles have been internalized in the American Psyche.