The economic position of women

by Academy of Political Science in the City of New York

THE CONSTITUTIONAL ASPECT OF THE PROTECTION OF WOMEN IN INDUSTRY

ERNST FREUND

University of Chicago

I

A brief survey of the American legislation for the protection of women in industry will facilitate the discussion of the constitutional principles by which the action of legislatures is controlled. The following types of statutes should be distinguished:

1. Those which provide that no person shall be precluded, debarred or disqualified from any lawful occupation, profession or employment on account of sex. Illinois and Washington so provide by statute (making exceptions for military employment and public office), while California enacts the same principle in the form of an article of her constitution. A statute of this kind can at most have the effect of removing some supposed bar existing by virtue of law of custom. The statute of Illinois was in fact the consequence of a decision of the supreme court of that state which denied a woman a license to practise law, and against which the Supreme Court of the United States had been appealed to in vain.[46] The incorporation of the principle into the constitution will, on the other hand, control future as well as past legislation, and may prove an embarrassment in the way of carrying out other protective policies. The wording of the provisions does not seem to affect any possible disqualifications by reason of marriage and coverture.

2. Those which bar women from certain employments altogether. It is noteworthy that only five days after removing the disabilities of sex with reference to employment in general, Illinois prohibited the labor of women in coal mines, and the same prohibition is now found in the principal mining states (Indiana, New York, Pennsylvania, Washington, West Virginia, Wyoming). The other employment from which women are sometimes debarred (in about a dozen states) is the dispensing of intoxicating liquors. So under the liquor-tax law of New York (§31) no woman not a member of the keeper’s family may sell or serve liquor to be consumed on the premises. In California, under the constitutional provision above quoted, an ordinance making it a misdemeanor for a female to wait on any person in any dance cellar or barroom was held invalid,[47] but later on an ordinance prohibiting the sale of liquor in dance cellars or other places of amusement where females attend as waitresses was sustained,[48] as was also the refusal of licenses to those employing females,[49] upon the ground that the clause of the constitution did not prevent the prescribing of conditions upon which the business of retailing liquor shall be permitted to be carried on. The court evidently felt that the object to be gained justified a narrow construction of the constitution.

3. Statutes which prohibit the employment of women in cleaning machinery while in motion, or in work between moving parts of machinery. Such legislation, according to the digest of labor laws prepared by the United States Commissioner of Labor in 1907, is found in Missouri and West Virginia.

4. Statutes which compel the provision of sanitary and other conveniences for females in industrial or mercantile establishments. Beside certain obvious requirements in the interest of decency, particular mention should be made of the legislation found in the great majority of states, under which seats must be provided for female employes and their use permitted when the women are not engaged in active duty.

5. Statutes which prohibit night work in various kinds of industrial establishments. They are to be found in about half a dozen states (Connecticut, Indiana, Massachusetts, Missouri, Nebraska). A corresponding provision of the law of New York was declared unconstitutional.[50] The only authority cited was the case of Lochner v. New York;[51] and it should be noticed that at the date of the decision (June, 1907), the supreme court of the United States had not yet promulgated its very liberal views as to the power to control women’s work which subsequently appeared in the case of Muller v. Oregon.[52] The New York Court treated the prohibition also as a sanitary measure exclusively, and did not advert to possible moral considerations. The decision stands, however, unrevoked, and the law of New York must be treated as annulled.