The economic position of women

by Academy of Political Science in the City of New York

6. Statutes which in other respects limit the hours of labor of female employes. The establishments to which the laws apply vary, as they do in the case of night work, manufacturing establishments being the most common. The number of states having such laws has rapidly increased in recent years, there being now over twenty in all parts of the country, not counting those which apply only to females under age, or those which forbid only the compelling of work for longer hours. The number of hours is usually ten per day, often with a reduction for the total of the week, so as to make a shorter day on one day of the week; but sometimes also providing only a maximum number for the entire week.

II

When we compare these statutes enacted on behalf of women workers with the general body of labor legislation, we note the almost total absence of any interference with purely economic arrangements: there is nothing analogous to store-order or weekly-payment acts applying to women in particular, nor any attempt to control the rate of wages. The most controversial field of labor legislation from the constitutional point of view has thus been avoided.

Health, safety and morals have always been undisputed titles of the police power, where it is a question of protecting the public at large. The control of the internal arrangements of the workshop in the interest of the employes, who, in theory, entered into it voluntarily, was the great extension of the power of the law achieved by the English factory acts. It is a strange anachronism when we find American courts in the end of the nineteenth century questioning the legitimacy of restrictive legislation intended only for the benefit of the employed, who may be willing to assume the risk,[53] but it is true that it was not until after the middle of the nineteenth century that the English law sanctioned sanitary requirements on behalf of adult employes, and the singling out of adult women for the purpose of such protection met with opposition.[54] At present the validity of the sanitary and safety provisions of factory acts is, in principle, unquestioned, and opponents of such acts have to scrutinize them for constitutional defects in non-essential features. Where such provisions apply to women in particular it is generally because the danger or evil arises out of conditions peculiar to the sex.

The limitation of hours of labor is at present the most conspicuous phase of restrictive labor legislation. As applied to men, it has in general been confined to special occupations. In some cases the reason why they were singled out is not apparent. This is true of the laws of some southern states with regard to the employes of cotton or woolen mills, which have not been passed upon by the courts of last resort; in other cases, the inducing motive was the consideration of public safety, as in the limitation of hours of trainmen; in the remaining cases—those of miners and bakers—the legislation sought to justify itself as a measure for the protection of the health of the employes.

It is well known that there is a conflict of judicial opinion regarding the validity of this legislation, strongly emphasized by the vacillating attitude of the Supreme Court of the United States, which sustained an eight-hour day for miners and annulled a ten-hour day for bakers.[55] The inconsistency of these two rulings is particularly striking, since it is generally believed that the occupation of bakers is exceptionally unsanitary, and was singled out as such under the delegated powers of regulation committed to the federal council by the German trade code, while the mining of coal under modern conditions is regarded as remarkably immune from occupational disease. In Colorado the eight-hour day for miners was declared unconstitutional.[56]

The difficulty which American courts have experienced with regard to the treatment of hours of labor is easily understood. They assume the existence of a constitutional principle which protects what is called the freedom of contract. This means that the state must leave the economic side of the labor contract to the free bargaining of the parties concerned; it means from the point of view of the employer that his business is not to be regulated by law in order to secure satisfactory terms to the employe, as the railroad business is regulated to secure fair terms to the shipper or the traveling public; from the point of view of the employe it means that he is free to make the most of his earning capacity, and to work as long as he pleases, or rather, conceding the limited sphere of the police power, as long as is consistent with proper standards of health and safety. The movement for the eight-hour day has, generally speaking, been frankly an economic movement, designed to advance the workman in the social scale, to give him time for recreation, culture, the enjoyment of his home, everything, in short, that is supposed to go with rational leisure, and it has generally been accepted as a principle of American constitutional law, that this consummation was not to be brought about by legislative compulsion. The state was to further the movement only in so far as it had the right to dictate the conditions of employment on work done for the public.

Notwithstanding the recognition of this constitutional limitation, there have at all times been large sections of organized labor who would have been glad to enlist the power of the law in the struggle for the shorter workday, and who would welcome any reduction on constitutionally valid grounds as a step in that direction. Hence the appeal for the eight-hour day on public works; and hence the appeal to the police power of the state for the purpose of shortening hours of labor.

There has always been greater difficulty in furnishing legal protection against the risk of disease in industrial employment than against the risk of accident. The common-law liability of the employer for illness contracted by the employe in consequence of defective arrangements may be regarded as a negligible factor, owing to the difficulty of legally proving the cause of disease and to the operation of the doctrine of assumption of risk. It is only since 1906 that a statutory liability for disease has, within a very narrow range, been established in England, and such a thing is not even agitated in this country. For protection against occupational disease and its consequences our laws rely upon preventive regulation entirely. No system of protective devices, however, can banish altogether the baneful effect of certain occupations upon the general health and strength of the worker, and it is against these inevitable risks that reliance must be placed upon diminishing the amount of exposure, i. e., reducing the hours of labor. This reduction is, of course, also the only remedy against the specific evil effects upon the human system of overexertion and fatigue.

A demand which has generally been understood to serve economic or social purposes may thus assume the character of a sanitary requirement, and the confusion of purposes is aggravated by the fact that of all sanitary risks that of a mere prolongation of effort under undesirable conditions is the least tangible, as well as the most variable according to individual constitutions, and that the legal maximum of duration of work must be more or less haphazard and arbitrary. The resulting difficulty in the application of constitutional principles is obvious. If the courts are expected to protect the freedom of contract, as the legislature is expected to protect the public welfare, can the mere enactment of a statute be accepted as conclusive as to the requirements of the public health and safety? Up to the present time the courts have not succeeded in evolving any definite theory with reference to this problem; it is a matter of speculation whether in a given case they will acquiesce in the legislative judgment or override it.