In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th Century America (review)

In 1984, three employees of Johnson Controls, a manufacturer of automobile batteries, filed a Title VII sex-discrimination suit against their employer. Batteries contain lead, which irreparably harms fetuses and reduces the reproductive abilities of both men and women. Johnson had a "fetal-protection" policy that barred women from occupations that exposed them to unacceptable levels of lead unless they were infertile. In International Union v. Johnson Controls, Inc., 499 U.S. 187 (1991), the Supreme Court upheld a lower-court decision that Johnson's policy was discriminatory. Modern labor law required that firms heed the discrimination repercussions of their employment policies. The Court thereby reversed its long history of protecting women and the unborn.

The most notable of the early protective cases is the landmark Muller v. State of Oregon, 208 U.S. 412 (1908), in which the Court upheld an Oregon maximum hours act that applied only to women. The lengthy brief prepared by Louis Brandeis and Josephine Goldmark contended that long hours fatigued women and rendered them and their yet unborn children unhealthy. Because the unborn could not make their own decisions, the state had to protect them. According to Kessler-Harris, the Muller decision led to laws that "excluded women from some jobs and defined when they might work at others, for how many hours each day, at what wages, and under what conditions of safety and health." Even though many received "tangible benefits in health, safety, and reduced working hours ... women paid a high price for protective legislation" (32). The price that women paid was that their future economic independence was trammeled.

In Pursuit of Equity examines the ways that the state created a gendered (and racist) legislative agenda. The ostensible purpose of the legislation was often to protect women, their children, and the family. But its real purpose, according to Kessler-Harris, was to keep women in the home and protect jobs for men.

Many of the major social programs of the twentieth century are covered in the volume, and the origins of their presumed gendered and racist aspects are scrutinized. These histories are interesting, but the relevance for the volume often gets lost. There are twenty-five pages on unemployment insurance, for example, but some of the historical details are obscure. Why is Paul Douglas excoriated for stating that women who leave the labor force upon marriage with no intention to return should not get unemployment benefits? What was the real difference between the Douglas and the Commons Plans? ¹ Regarding other social programs, what changes should have been made to the Fair Labor Standards Act, which contains the minimum wage and overtime pay, to make it less gendered and racist, if it was either in the first place? Kessler-Harris devotes thirty pages to the progressive income tax, as weighty as the code itself.

Kessler-Harris makes an important point that should be heeded by current policymakers: When social policies are created, they often look back in time; they should look forward and anticipate change. They often codify current social relations and social norms and thus prevent future social change. But Kessler-Harris may have overstated the point and missed many of the subtleties of the legislation. For example, the intent of the Muller v. Oregon brief was to recognize that hours of work were high for both men and women. Ever since Lochner (1905), the U.S. Supreme Court had interpreted the restriction of hours as a restraint on labor's right to contract freely and refused to uphold them. Brandeis and Goldmark chose, instead, to promote and defend legislation that restricted the hours of agents who, they could credibly claim, could not contract freely. The brief was a progressive ploy to get around the conservative Court. The law...