Under the Law

ED: Throughout American history, there have been many debates among women about the best way to protect women. The 1920s saw one particularly interesting example of this. It’s centered on what was commonly referred to as protective legislation, laws setting things like minimum wages and maximum working hours specifically for women.

The case in favor was that these laws help protect women from exploitative working conditions. But this was the very same time that many women were fighting for women’s equality in all walks of life, from voting to labor, and they opposed any laws that treated women and men differently.

BRIAN: In matters of legal history, we often turn to Risa Goluboff, here at the University of Virginia School of Law. We asked Risa to explain where these laws came from and why they were so controversial.

RISA GOLUBOFF: So the protective legislation begins in the late 19th century, with the rise of industrialization, and factory work, and long hours, and poor conditions. State legislatures respond to that by trying to regulate the wages, and hours, and conditions of work. So protective legislation, initially, didn’t have to mean only protective legislation for women.

BRIAN: It was regulation of the workplace.

RISA GOLUBOFF: Right. Exactly. Regulation of the workplace for the protection of the workers. And to some extent, people thought it was more important to regulate women and children, because they were physically different, they were weaker, they were not as capable of performing hard work.

BRIAN: And would most women at the time have agreed with that?

RISA GOLUBOFF: Yes, I think they would have. The assumption that men and women were physically different, biologically different, constitutionally different, was pervasive. And most people would have agreed with that. Absolutely. But one of the reasons that protective legislation becomes gendered and becomes so much more affiliated with women than being for everyone is the state of Constitutional Law in the late 19th and especially the early 20th century.

BRIAN: And what was that state?

RISA GOLUBOFF: So once states start regulating the conditions of labor– and the federal government too, start regulating the conditions of labor– the courts begin to worry about people’s rights to contract, their liberty of contract. And the courts say, wait a second. People have a right to contract as they please. If they want to work 12 hours a day, if they want to work for low wages–

BRIAN: For $0.12 an hour.

RISA GOLUBOFF: –for $0.12 an hour, that’s their prerogative. That’s their constitutional right. But that constitutional right is limited to people who were thought to be capable of contracting on their own behalves.

BRIAN: So we’re not talking about physically capable now, we’re talking about intellectually and mentally capable.

RISA GOLUBOFF: Exactly. The thinking was that women required more paternalistic intervention. And part of the reason that they required that paternalistic intervention was precisely because they were physically different. They were more susceptible to coercion. They were more susceptible to bad conditions, and illness, and especially their reproductive capacity. So they were at heart, even women who were factory workers, were at heart mothers and potential mothers. And so there was a fear that, if you worked them too hard, they wouldn’t be able to propagate the race.

BRIAN: By the time of the New Deal in the 1930s, this notion of protecting workers is extended to all employees. After all, this is when we get the minimum wage, for instance.

RISA GOLUBOFF: That’s exactly right.

BRIAN: What kind of new protective legislation emerges, if any, after World War II?

RISA GOLUBOFF: So one big question is whether you would call the protective legislation that emerges after World War II “protective,” because a lot of it is really aimed at excluding women from jobs that they held during the war. So women go into work during the war in huge numbers, as men are away at the war. And war industry is in service jobs that they hadn’t had before. And after the war, some of them retreat to the home. Some of them are pushed into the home by spouses and other things. And some are pushed into the home by laws.

So for example, bartending. A lot of women go into bartending. And after the war, states passed laws to restrict women and exclude them from bartending.

BRIAN: So women had been bartending.

RISA GOLUBOFF: They had been during World War II.

BRIAN: So this is clearly opening up jobs.

RISA GOLUBOFF: Yes. Clearly opening up jobs for men, in order to keep women out. But the justification for that exclusion is it’s dangerous to be a woman bartender.

BRIAN: So those were, kind of, wink, wink, nod, nod, protections.

RISA GOLUBOFF: Yes. I think that’s right.

BRIAN: When does this whole regime of protecting women begin to unravel? I’m assuming we don’t have laws today that limit the number of hours that women can work, or the kinds of occupations they can go into.

RISA GOLUBOFF: We don’t have those kinds of laws, for the most part. And they start to crumble in the 1960s.

BRIAN: Why is that?

RISA GOLUBOFF: So the real watershed is the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of sex in the workplace.

BRIAN: Was there any pushback? Were there women who felt that some genuine protections for women were in order, and that these protective laws should stay in place?

RISA GOLUBOFF: Absolutely. There were different kinds of pushback. So some of the pushback was from people who thought that women really belonged in the home. And so they weren’t that excited about protecting women or giving women equal rights, because they thought women and men were going to become too similar and too equal, and that there was value to women and men playing different roles in society. So Phyllis Schlafly was the main proponent of the idea, the conservative idea, that women’s place was in the home. And there was a real embrace of that among social conservatives in the 1970s, the 1980s.

The other kind of pushback in the 1960s was about the real differences between men and women. And worry that, if we start to break down protective laws, if we start to break down discriminatory legislation, we would begin to treat men and women too similarly, and that that would actually harm women. And we’ve seen that in recent years, that there have been examples of those kinds of effects.

BRIAN: Pregnancy. Pregnancy strikes me as an instance. Tell us about the case or the legislation on pregnancy.

RISA GOLUBOFF: Pregnancy is very complicated. On the one hand, women want to be treated the same as men. A lot of feminists want women to be treated the same as men. And yet, pregnancy is a real physiological difference between men and women.

Now, a lot of the historical protective legislation has gone beyond the physically determined limitations of women, to base it on stereotypes. So you can’t work after your fifth month of pregnancy, no matter what your job, and no matter what your physical condition. Those laws are gone, but it’s still the case that there are various kinds of discrimination on the basis of pregnancy.

So there’s a case at the Supreme Court right now in which a woman UPS driver asked for an accommodation for her pregnancy. And she was denied that. So she couldn’t do the job of lifting heavy boxes. She was told not to lift more than 20 pounds. The job required lifting up to 70 pounds. But she could do the job of a driver, which is what she asked for. UPS gives accommodations for all kinds of people who can’t do one job, but can do another.

BRIAN: They hurt their back, for instance.

RISA GOLUBOFF: Particularly, they hurt their backs, yes. Exactly. Or they had a drunk driving accident, and they’re not allowed to drive anymore. And they do something else.

And they would not give accommodations for pregnancy. And so she was put on unpaid leave. She lost in both lower courts at a very early stage in the process. And the court has recently heard the arguments in the case, but we don’t know what will happen.

BRIAN: So do you think that this is an instance of the elimination of protective legislation gone too far?

RISA GOLUBOFF: Do I think?

BRIAN: Yes.

RISA GOLUBOFF: I think it’s complicated. [LAUGHS]

BRIAN: Oh, don’t turn law professor on me. What do you think?

RISA GOLUBOFF: I think it’s gone too far. I think it’s gone too far. I do think that, for a long time, the real worry was the amplification of differences. On the other hand, I don’t think we should pretend that women and men are the same, because often, when we pretend that women and men are the same, we hold women to male standards. And there are parallels to the disability rights movement that say, in order to have equality, you must have accommodation. And I think that is in order, but I think it’s always tricky to figure out what’s truly protective and what’s liberating.

BRIAN: Thanks, so much, for joining us on BackStory today.

RISA GOLUBOFF: Thank you, for having me.

BRIAN: Risa Goluboff is a legal historian at the University of Virginia School of Law.