Hours and Wages: The Gendering of Labor Standards in America

Hours and Wages: The Gendering of Labor Standards in America Sybil Lipschultz My generation, in its quest for feminist change, has faced many of the same struggles and obstacles in the American legal process as our historical predecessors. We have both become enamored of law as an agent of change, and in the process we have been shaped by the law's existing categories. The limiting effect of legal discourse, which demands social problems be put into legal language plagues feminists today. And there is a tendency to reject as "antifeminist" proposals that attempt to include equality-in-difference because they might fail in court.1 While feminists of different stripes disagree, all feminists must face a changing Supreme Court and an increasingly antifeminist conservatism. On the one hand, the lesson of gendered labor laws seems clear: difference can mean inequality at law. On the other hand, these claims on the law have been a feminist attempt to change society. In America, the history of labor standards is as closely linked to gender as it is to class.2 And the gendering of these standards is rooted in legal ideology and the development of Constitutional law as well as in the political context of that development. Although many contexts are important , my purpose here is to anchor the gendering of labor standards in law to the gendering of the reform community that sponsored and defended these laws. The Progressive Era's politically active women approached the state differently than men, mostly because they were situated to state power differently. As nonvoting citizens and as political activists who had come together to fight for their rights, women approached the state with a heightened sense of possibility. To them the state was the agency that should make past wrongs right; it was the locus of democracy and equality.3 Influenced as well by female reform activity, women political activists extended and greatly expanded their own feminist politics to the broader society. Employing themselves as "social feminists," they sponsored policies that created a kind of social democracy for poor mothers, impoverished working women, victims of industrial accidents, and exploited homeworkers.4 In so doing they re-visioned the notion of "rights." In a sense they were social democrats and feminists of a certain type. As feminists, they were interested in achieving substantive equality, or different legal treatment in order to gain equal results.5 © 1996 Journal of Women's History, Vol. 8 No. ι (Spring) 1996 Sybil Lipschultz 115 Previous historians have suggested these social feminists looked away from rights and emphasized needs. I would like to suggest that they redefined satisfaction of social and economic needs as rights, and attempted to get that definition written into American law. Nowhere is this more evident than in efforts to obtain maximum hours and minimum wage regulations for women, and eventually for all workers.6 The efforts to attain both reforms were linked by the same group of social feminists who assumed that one would lead to the other, indeed, that the two would supplement one another. In my argument, hours and wages are also inextricably linked. Men involved in reform movements to humanize the workplace were primarily interested in stopping socialism and revolution. Expanded state activity in the workplace, they hoped, would limit the abuses of the factory system (particularly "sweating") enough to quell worker dissent and legitimate the industrial economy of the early twentieth century.7 Motivated by humanitarian concerns as well, these members of the "Wisconsin School" of industrial reform and active members of national reform organizations , did not focus on gender concerns.8 These men, especially social scientists John Commons, Richard Ely, and John Andrews, sought new avenues of social change. Concerned with blending new social science methods and findings with government action, these men focused on reform for workers. Their definition of work revolved around men's jobs; their image of the "worker" was a robust man involved in a labor union, who had a family to support. For them interest grew in the new "sociological jurisprudence," so named by Harvard law professor Roscoe Pound. His colleague, Louis Brandeis, and later, Felix Frankfurter, together forged new avenues for social change through...