There are undoubtedly other matters in which protective legislation for women might be extended for reasons not involving any deficiency of constitutional status. Without indulging in speculation regarding social needs or moral dangers, we may point to the provisions of the German trade code, which recognize the special needs of working women. The right given to women who manage their household, to ask for an extra half hour at noon, if the period of noon rest is less than an hour and a half, is probably, like all other privileges made dependent upon special request, of little practical value. The rule that women must not be employed after five o’clock in the afternoon on Saturdays and the eve of holidays, is, however, mandatory, and is likewise clearly dictated by a regard for household duties. Above all there is the prohibition of employment before and after confinement, altogether for eight weeks, the return to work requiring proof that at least six weeks have elapsed since confinement. In accordance with the recommendations of the Berlin Conference of 1890, England in 1891 likewise placed a restriction upon the employment of women for four weeks after childbirth, but the enforcement of the law seems to suffer from administrative difficulties.[66]
The present scarcity of similar legislation in this country seems to be due, not so much to constitutional doubts or difficulties, as to the fact that there does not appear to have been the same demand, or perhaps, owing to the less common employment of married women, the same occasion for such a restriction. Should the necessity for such legislation arise there ought to be no fear that the constitutions stand in the way of appropriate and adequate protection. Our present statutes by no means exhaust the permissible field of state interference.
III
If the validity of some particular form of regulation for a particular purpose be conceded, another difficulty arises in determining the proper range and scope of the proposed law. The equal protection of the laws guaranteed by the fourteenth amendment does not demand a mechanical equality of treatment of all persons irrespective of the conditions of their occupation or employment; but this equality is inconsistent with arbitrary or partial discrimination. Ever since the Supreme Court of the United States declared the Illinois anti-trust law unconstitutional, because it made an exception from its prohibitions with reference to agricultural products or live stock in the hands of the producer or raiser,[67] there has been a feeling of uncertainty as to the extent of permissible classification. The tendency of the federal Supreme Court has been on the whole to concede to state legislatures a considerable latitude in the selection of objects of police restraint; but the risk of contest on this ground is a factor to be reckoned with in framing any restrictive legislation. Some of the states, as Illinois, are inclined to apply the principle rather strictly against the singling out by statute of certain groups, when other groups might be liable to similar dangers or evils.
The categories which we find mentioned in the American statutes restricting the hours of labor of women, are factories (by this or some other equivalent designation), mechanical establishments (not clearly differentiated from factories), mercantile establishments, laundries, hotels and restaurants. In most of the states having laws on the subject only some of these are covered. No law has as yet undertaken to regulate with particular reference to women either industrial home work or domestic or semi-professional service. Only one state (Oregon) includes the important transportation and transmission employments, especially the telephone and telegraph service, in which so many women are engaged, while Montana confines its restriction to the public telephone service. Up to the present time no law relating to women’s work has been declared unconstitutional by reason of the specification of particular employments; the law sustained by the Supreme Court of the United States applied to manufacturing and mechanical establishments and laundries. It seems reasonable enough to differentiate these employments from those in which there is an element of personal service, such as waiting on customers or rendering direct assistance to the employer, and which are therefore free from the monotonous routine of purely mechanical work. It might be difficult on the other hand to justify the omission of such work as dishwashing or scrubbing in restaurants or hotels. Again, where the restriction applies to employment in mechanical, but not in mercantile establishments, a question might be raised concerning the clerical positions of both classes which are filled by women, and which are subject to different treatment, while not differing in the character of the work done. The difficulty can perhaps be avoided by construing the statute as applying only to mechanical employments in mechanical establishments.
Where, as in Missouri, the law is limited to cities above a certain size, it may be argued plausibly that the loss of time in going to and from work in large cities is apt to be considerable and may be taken into account in determining the territorial application of the law.
Another difficulty is presented by the demands created by conditions of emergency or an exceptional pressure of business. In condemning the New York ten-hour law for bakers, the Supreme Court of the United States referred disapprovingly to the absence of an emergency clause. On the other hand the constitutionality of the fifty-four-hour law for women of the state of Michigan is said to have been attacked on the ground that it makes an exception for employment in preserving perishable goods in fruit and vegetable canning establishments. Massachusetts allows a limited amount of excess work in seasonal industries, and the same is true under the German law.
The following comment by the New York commissioner of labor[68] on the New York law regulating the hours of women is instructive in this respect:
In its original bill form this act made an exception, adopted from the English law, in favor of factories manufacturing perishable and seasonal articles or the products of such articles, and allowed them to employ females over 18 for sixty-six hours a week in not to exceed six weeks a year. Similar exceptions are contained in the laws of almost all the nations of Europe and are permitted by the recent international labor treaty signed at Berne. They are based upon necessity and equity and are consonant with health, for the reason that in such industries limited overtime during rush periods or seasons would be counterbalanced by reduced hours in slack periods or seasons. But the provision aroused such a violent public protest that it was temporarily abandoned. That was the cause of great regret to me, for I believe that the health provisions of our factory laws should be limited to the reasonable requirements of health, and that particular industries should not be unnecessarily and unreasonably embarrassed for the sole purpose of keeping a regulation general and uniform. In those industries where the supply of the raw material, the fitness of the material or the ability to work is determined by the weather, it is impossible to divide the week, the month and the year into working days or weeks of approximately equal duration, as our law presupposes; and it is not a necessary or even a reasonable health regulation that forbids time lost by such cause to be in any degree made up when the weather permits. Reasonable variations from the more regular limitations imposed upon those industries in which work is or can be made regular should be allowed for those in which it cannot. I do not want to be understood as condoning the excessive hours per day and per week that are now occasionally worked in those factories to which such an exception would apply. On the contrary they should be sharply restricted according to health requirements. But I believe that if those factories were allowed such variations from the general rule as would not be injurious to health, it would render the law more easily and generally enforcible as to them and would in fact reduce their hours of labor, and it would avoid the danger of an adverse decision from the courts as to the constitutionality of the provisions limiting the hours of women’s labor.
It is not easy to see why any emergency provision should be regarded as in itself violating the principle of equality, but there may be some danger in not treating alike different emergencies which are entitled to equal consideration.