Toward legislation limiting the hours of labor of women the attitude of the courts has on the whole been favorable. Ten-hour laws have been sustained in Massachusetts, Pennsylvania, Nebraska, Washington and Oregon, and the Oregon decision has been affirmed by the Supreme Court of the United States. Against these decisions must be set that of the supreme court of Illinois, rendered in 1895, declaring an eight-hour day for women to be unconstitutional. A ten-hour law, modeled upon that of Oregon, was enacted in Illinois in 1909, and a case involving its constitutionality is now awaiting the decision of the supreme court of the state.[57] The decision in the earlier Illinois case has been much criticized, and the opinion contains statements which at the present day would find the approval of few courts. Stripped of superfluous dicta, and reduced to its vital points, the decision stands for two things: that the adult woman is entitled to the same measure of constitutional right as the adult man, and that the court did not believe that an eight-hour day was a sanitary requirement even for women. “There is no reasonable ground,” the court said, “at least none which has been made manifest to us in the arguments of counsel, for fixing on eight hours in one day as the limit within which woman can work without injury to her physique, and beyond which, if she work, injury will necessarily follow.”
This skepticism should not cause great surprise or indignation. Notwithstanding the rapid change of opinion within the last two decades in favor of restricting the hours of labor of women, an eight-hour maximum day for women workers is even now unknown in America or in Europe, and in Germany it took eighteen years, from 1892 to 1910, to reduce the workday of female factory hands from eleven to ten hours. It is easy to understand that a compulsory eight-hour day in 1893 or 1895 should have appeared to the court as an unreasonable and even arbitrary interference with private rights. To say the least the case for such a measure had not yet been made out.
The limitation of the hours of women workers had become a part of English factory legislation as early as 1844. A factory report of the previous year had pointed out that women were physically incapable of enduring a continuance of work for the same length of time as men, and that deterioration of their health was attended with far more injurious consequences to society.[58] The need of hygienic protection had thus been brought to the attention of the legislature. At the same time the economic aspect of the measure appears to have been the more prominent. The men desired shorter hours for themselves, but thought an appeal to parliament hopeless; thus women and children were put forward in the hope, which events justified, that the legal reduction of their worktime would accomplish without legislation the same purpose for men.[59] The agitation was in fact conducted as one for shorter hours all around, although the bills as drawn did not include adult men. There appears on the other hand to have been some apprehension on the part of women that the men sought to impose restrictions upon them to make them less desirable employes and thus crowd them out of work, and for a long time the equal treatment of adult women and men was demanded by the leaders of the women themselves.
Factory legislation, as first conceived, was to apply only to those who were not free agents, namely to children. True, the married woman was not legally a free agent, but she was struggling for emancipation, which eventually came, and the female sex as such labored under no disabilities. Prominent economists urged that the state had no business to dictate to the adult woman the terms of her employment. But the exclusion of woman from underground mines paved the way for her subjection to state control, and the act of 1844 put her in the same class with children and young persons. The separate and distinct treatment of women thus became an established feature of English factory legislation.
In America the sanitary or hygienic argument in the movement for limitation of hours of female labor in factories was prominent from the beginning. The legislation in Massachusetts enacted in 1874 had been preceded by official investigations and reports concerning the detrimental effect of long hours upon the constitution of women. If woman was to be accorded the fulness of individual liberty and equality with man,—and barring the denial of the active political franchise, the tendency as manifested in married women’s legislation and in admission to business and professional pursuits, was in that direction—a peculiar danger in her case from overwork and a special need of protection had to be made out.
In the earlier judicial decisions sustaining the ten-hour laws for women the existence of this special danger and need was rather assumed than supported by evidence. The argument for the Oregon law before the Supreme Court of the United States for the first time laid all stress and emphasis upon the documentary testimony which had been accumulated in scientific treatises and official publications, showing the evil effects of overexertion and overfatigue upon women employed in the monotonous routine of mechanical labor. In marshaling medical, social and economic, instead of legal authorities, Mr. Brandeis, the counsel for the state of Oregon, clearly recognized that if the principle of freedom of contract is to be accepted as part of the constitution, the validity of the limitation of hours of labor becomes a question of fact, which must be answered upon the basis of observation and experience. The same line of argument was presented still more elaborately (and again by Mr. Brandeis) in the Illinois case.
Attention was called to the extreme monotony of labor attending the minute subdivision of manufacturing processes, to the increasing strain of factory work due to the speeding of machinery, and to the general baneful effects, moral as well as physical, of overexertion and overfatigue. It is impossible to glance over the array of extracts from authoritative sources gathered from different countries without realizing that an entirely new light is thrown upon the subject of long hours in industry, with primary and specific reference to the work of women. A case for the exercise of the police power, even upon its most conservative basis, is made out such as had never before been presented when the validity of labor legislation was at issue. A showing of facts such as this might well induce a court to sanction state interference with the freedom of contract, while insisting to the fullest extent upon the same measure of constitutional right for women and men.
It is a remarkable fact that American constitutional law is still unsettled as to the constitutional equality of women with men, so far as liability to restrictive legislation is concerned. The few judicial utterances on the subject are conflicting. Illinois in the first case of Ritchie v. The People[60] made no distinction between men and women with reference to personal rights and the freedom of contract. New York is quite explicit: “Under our laws men and women now stand alike in their constitutional rights, and there is no warrant for making any discrimination between them with respect to the liberty of person, or of contract.”[61] On the other hand the supreme court of Nebraska, in sustaining the ten-hour law, frankly speaks of women as wards of the state, and the passage in question is quoted with apparent approval by the supreme court of Oregon; and the Supreme Court of the United States, instead of planting its decision squarely upon the facts presented in the brief for the state of Oregon, mingles considerations drawn from physical conditions with others resting upon the general status of the female sex in such a way as to give an apparent preponderance to the latter. The court, speaking through Mr. Justice Brewer, said:
Still, again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the school room are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs, it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained. It is impossible to close one’s eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions—having in view not merely her own health, but the well-being of the race—justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her.
We have not referred in this discussion to the denial of the elective franchise in the state of Oregon, for while it may disclose a lack of political equality in all things with her brother, that is not of itself decisive. The reason runs deeper, and rests in the inherent difference between the two sexes, and in the different functions in life which they perform.[62]