Danielle Kraus

HIS 303
Final Paper
12/09/14
Separate or Equal: The Debate Over the Equal Rights Amendment and Womens Protective
Labor Legislation.
The Industrial revolution brought many changes to the United States both technologically
and socially, this included the emergence of women seeking wages in jobs that fell outside of the
domestic sphere as a sector of the labor market. At the dawn of the twentieth century labor
conditions in factories and mills where many women sought employment were hazardous, hours
were long, wages were low, and on top of that women faced discrimination on the grounds that
females by nature were subservient to men. The notion that a womans status was lower than a
mans was not new, it is one that stems from a centuries old tradition of patriarchal dominance
within the legal, economic, and social framework of society. However, the dangers of an
industrialized work place were a new and very real problem. Womens labor activism sought to
combat these dangers by pushing protective legislature- laws that ensured minimum wage,
limited work days, and safer conditions. By the 1920s some feminist groups were proposing an
Equal Rights Amendment (ERA) - this act ensured women full equality to men under the law.
While championed by some as a solution to many struggles women faced, the Equal Rights
Amendment was strongly opposed by others who just achieved gaining protective legislature for
women. They feared that gender blind equality under the law would eliminate these protections
due to the fact that there were no similar laws protecting men in the workplace. Throughout the
twentieth century, activists have debated the pros and cons of protective legislature, which rooted
its self in the idea that there are differences between men and women which must be taken into

account versus the pros and cons of an Equal Rights Amendment which, if passed, would
demand equal treatment of both genders regardless of any differences, perceived or otherwise.
The fight for legislature aimed at protecting women has changed throughout the twentieth
century as American society experienced radical changes caused by war, economics, and a
variety of social movements that have in turn changed the way people view women and the roles
they play. This fight can trace its roots to the Progressive Era- a broad based reform movement
that aimed at addressing many issues in society, including those focused on women. By the
1890s most skilled trade unions had negotiated limited hour work days however women were
excluded from these trades and directed into unskilled occupations where they were easily
replaced. Due to being expendable, employers were able to exploit the female labor force by
requiring them to work long hours for low wagesi.
At a time where laissez-faire economics reigned supreme the cries for labor reforms were
met with government opposition at every turn.ii Reformers such as Florence Kelly worked
tirelessly to educate the public on the deplorable working conditions women faced; by 1907
Kelly and her National Consumers League were ready to take the task of defending labor laws
before the nations Supreme Court.iii In the case of Lochner vs. New York, 1905 the US Supreme
Court refused to uphold New York Legislation limiting bankers to a ten hour work day, dashing
progressive hopes of achieving labor legislation for all workers.iv In 1908 activists rallied behind
the cause of protective legislature during the Supreme Court case of Muller vs. Oregon and
succeeded in helping to sway the decision to one in favor of a ten hour work day for women. The
case in favor of a ten hour work day rested mainly on the idea of female vulnerability and
traditional gender roles, the physical constitution of females and the burden of their maternal
nature arguably justified the legislation.v

It is important to keep in mind that protective legislation was won using the argument that
women, who play a role as mothers and wives are inherently different both physically and
socially from men by nature and therefore require different treatment under the law. As the
twentieth century progressed this argument reared its head time and time again, at times it was an
advantage to the female population and at other times it undermined and stalled their progress.
As the nineteenth century gave way to the twentieth the push for female rights did not
stop at the ten hour work day. During the first decades the US Supreme Court handled made
many decisions regarding the status of women within the political state. White women born in
America were traditionally considered naturalized citizens by right of birth, however this became
subject to debate after Congress extended naturalized citizenship to foreign women who married
American men. In 1907 congress passed a statute that declared any naturalized American woman
would lose her citizenship should she marry a man who was not an American citizen.vi When in
1915, Ethel Mackenzie challenged her loss of citizenship the Court ruled in favor of upholding
the congressional statute. One of the best known acts of the Supreme Court in regards to the
rights of women is the 1920 ratification of the nineteenth amendment, granting equal suffrage.
Again it is important to note that this, like the decision to uphold a ten hour work day, was based
on the argument of female difference rather than equality.vii In 1923 the issue of minimum wage
was taken to court in Adkins v. Childrens Hospital. The case argued on behalf of the negative
social impact that substandard wages for women had on society but the court ruled that in light
of the nineteenth amendment further protective legislation for women was unnecessary.viii This
gave rise to the idea that differential treatment may not be the best avenue for women looking to
seek an improvement in their treatment.

After achieving suffrage, activists turned to the problem of legal discrimination on the basis of
gender. The solution, sponsored by the National Womens party, to sex-based discrimination was
to suggest an amendment aimed at eliminating the legal justification for discrimination and
allowing congress to enact further legislation to ensure the equality of rights to men and
women.ix In 1921 the NWPs Equal Rights Amendment states, No political, civil or legal
disabilities or inequalities on account of sex, or on account of marriage unless applying alike to
both sexes, shall exist within the United States or any place subject to their jurisdiction.x While
this seemed like a simple solution it would meet opposition before it even reached Washington
DC. Activists such as Florence Kelly who won protective legislation were able to do so only
because they argued their case on the justification that women due to their childbearing nature
were different than men and therefore must legally be treated as such, they feared that an
amendment granting men and women equal rights would invalidate all of their work since labor
legislation was not extended to their male counterparts.
Would protective legislation in favor of women be considered sex discrimination?xi
Pauline Newman, leader of the WTUL thought so, claiming that before protective legislature was
put in place, we were free and equal to work long hours for starvation wages, or free to leave
the job and starve!xii Others, like Alice Paul stood by the idea that by eliminating sex
discrimination within the law they could eliminate the subjugation of women in the United
States. She argued that enacting labor laws along sex lines is erecting another handicap for
women in the economic struggle.xiii Similarly Gail Laughlin of the NWP asserted that if women
could enact legislation in their favor based on sex differences than it left available the
opportunity for legislation using the same justification to be enacted that imposed special
restrictions on women.xiv The debate was further complicated by male unionists that viewed

women in the work force primarily as wives and mothers and wished to keep women from out of
male dominated unions and labor organizations. Finally opponents worried that taking a federal
approach to equality would step on the toes of states and their legislative rights.xv
The fundamental difference in opinion on how to approach the legal improvement of
female treatment under the law lies in how the two groups viewed women and their social roles.
This was true in the 1920s and would a key component in the debate over the Equal Rights
Amendment (ERA) all the way through 1982 when the bill failed to be ratified by the required
number of states. The NWP and other advocates of the ERA viewed women as individuals who
were eager to participate in a labor market with the widest number of opportunities available to
them. Their difference from men was not a natural one but rather originated from a social
construct. The NWPs views were in many ways a few decades ahead of their time and as a result
they often overlooked the existing exploitation that labor laws did in fact help protect women
from. Opponents of the ERA such as the NAWSA and LWV saw women as a vulnerable group of
mothers, wives, daughters, and widows. In the short term the solution of laws protecting female
difference were the best solution, however in the long run these laws perpetuated the idea of
gender stereotypes and sex based inequalities. Despite the Fair Labor Standards Act of 1938which mandated the regulation hours and of fair wages for all workers, labor groups and the
LWV still maintained their position against the ERA.xvi
Gail Laughlins fears that the use of female difference as a justification for the passing of
legislation would prove to be a real concern in the 1930s when in 1935 the Social Security Act,
one of- if not the most important piece of social legislation in United States history went into
effect.xvii In order to pass the Social Security Act through congress concessions were made
including the limitation of what citizens were eligible to receive benefits. The legal framework

the act rests upon traditional views on family, gender, and race. During the depression wage
seeking women who had fathers or husbands who could support them were met with distain. In
an effort to avoid bruising the egos of beneficiaries who saw receiving public assistance as a
challenge to the aspect of masculinity that designated them as the breadwinner- gender constructs
were relied upon. By employing the language of family through the addition of a widows
pension it soothed public anxiety.xviii On the topic of expanding benefits, one that women, despite
not receiving their own coverage, played an important role, it was the ideas of masculinity and
femininity that drove the decision of policy makers and so called family protection. The idea of a
widows pension rested on the idea that she was to remain home and raise her children and
therefore was in need of assistance- even after death the father and or husband would serve as the
income provider.xix Douglas Brown of the Social Security Boards Advisory Council stated that
lower rates for women made sense because A woman is able to fit herself into the economy of
the home of the child much better than the single man,xx
Social reformers at this time had accepted that due to gender inequality the best way to
ensure protection or rights for women was to achieve them for the family. Women were again
viewed not as individuals but as potential wives and mothers who would become dependent on
husbands for support and therefore were not in need of their own coverage. By 1939 the act had
provisions that took care of widows and fatherless children but not widowers and motherless
children of women who were covered by Social Security. In 1975s Weinberger v. Wiesenfield
ruling the Supreme Court extended benefits to widowers due to the fact that the existing
provisions discriminated against women workers because their contributions to Social Security
did not buy the same coverage that a mans did. Martha Griffiths stated that The income
security programs of this nation were designed for a land of male and female stereotypes,xxi This

decision was significant for the fact that the Court overruled constructs of the role women play
and their place in the family. Moving forward classifications of gender must serve important
governmental objectives.xxii
The result of the Weinberger v. Wiesenfield case is an example of protective legislation,
one that was necessary due to the gender stereotypes those who pushed such legislation in the
early part of the twentieth century used as their platform to gain support.
World War II and the surge of women in areas of the labor market that were until that
time dominated by men brought about change in regards to the American attitude on working
women. During the first seven months after Pearl Harbor the proportion of jobs available to
women rose from 29 to 55 percent.xxiii However, despite managers reporting that they were
pleased with female workers who were paid less than men in the same position, as the war came
to an end they were eager to push them out of the work place and back into the home. The post
war resurgence of domesticity was a huge blow to the permanent transformation of the gendered
division of labor.xxiv The resurgence of domesticity relied heavily on the differences between men
and women as justification for the prevailing idea that women belonged inside the home and
where house work and child rearing were top priorities. Despite this backwards shift in attitude
women would not stay shut indoors for long.
In the late 1960s the simmering frustration many women felt when it came to
discrimination and treatment in the work place finally came to a boiling point. Out of this
frustration grew the second wave feminist movement which sought to change a number of sex
and gender related issues that women faced in the post WWII era. Title VII of the Civil Rights
Act, 1964 was what many women hoped would be the end of workplace discrimination for

women. Title VII outlawed labor discrimination on the basis of sex, race, color, religion, and
national origin.xxv To ensure that the Civil Rights act was being upheld the Kennedy
administration created an Equal Employment Opportunity Commission (EEOC). Section 703 of
the law stated that for employers to have a legitimate claim in justifying their sex passed
discrimination they must prove that sex is a bona fide occupational qualification no longer
would it suffice to say that the job was traditionally held by a male or female.xxvi Unfortunately
the EEOC in practice showed very little concern for the discrimination of females and treated
their inclusion in the act as if it were a silly fluke. It was not until 1972 and 1978 when the
statute was amended that womens issues were addresses as a more serious matter.
Throughout the early 1970s the Supreme Court made a serious of decisions extending
rights to women in education, abortion, and in cases of sex based discrimination they placed the
burden of proof on those who tried to discriminate. Title IX of the 1972 Education Amendments
forbids sex discrimination in admissions policy, career training, employment, and against
pregnant or parenting students.xxvii In the 1973 Frontiero v. Richardson a case similar to
Weinberger v. Wiesenfield in which Ginsberg argued that men and women both benefit from
gender blind protection under the law, the Court ruled in favor of stricter standards in reviewing
cases of sex discrimination. in part because of the highly visible nature of the sex characteristic,
women still face pervasive, although at times more subtle, discrimination in our educational
institutions, in the job market, and perhaps most conspicuously the political arenaWith these
considerations in mind, we can only conclude that classifications based upon sex, like
classifications based on race, alienage, or national origin, are inherently suspect, and must
therefore be subjected to strict judicial scrutiny.xxviii

By the late 1960s and early 1970s the movement in protective legislature appeared to
aim less at laws that afforded females special protection and more at ensuring they were treated
equally under the law. If there ever was a time in the twentieth century that the Equal Rights
Amendment would be welcomed it would have been this time and many did in fact welcome the
idea of the amendment but like in the 1920s not everyone was in favor of it. By 1971 the
National Organization for Women (NOW), the Womens Equity Action League (WEAL), and the
National Womens Political Caucus (NWPC) were in support of the Equal Rights Amendment. It
became abundantly clear to feminists looking to gain equal rights that it was no longer a matter
solely rooted in legal protection but instead one that would require transforming the existing
system in the United States.
Those in favor of the ERA quickly found support within congress and saw states eager to
ratify the bill in its early stages, only to witness progress come to a halt in face of anti-ERA
proponents such as Phyllis Schlafly. Despite ERA supporters clearly pointing out that the
amendment had no bearing on personal relationship or the nature of family, those opposed to it
were unable to move past what they perceived as an attack on the American family, states rights
and a destruction of traditional gender roles.xxix ERA supporters point out that treating women as
individuals under the law would not affect the relationship between men and women but the
anxiety associated with social change caused their cried to fall on deaf ears. According to women
such as Schlafly a post ERA society would be one in which mothers, no longer financially able
to remain at home, would be forced to surrender their children to government- sponsored day
care centers. There childcare personnel would supplant paternal authority and family
identification with loyalty to the state.xxx In 1982, after reciving an extension from the Court, the

Equal Rights Amendment failed to meet ratification in the required number of states and
therefore was not put into effect.
In the 1970s, like in the 1920s the struggle to separate the idea of sex blind legal
protection and social gender roles ultimately was the biggest downfall of the Equal rights
Amendment. Although the 1970s saw a great increase in the number of protective legislature
passed in the US the context surrounding female labor and the need for protective laws changed.
In the 1920s there existed no protection for men in the labor force under the law however, by the
1970s minimum wage, limited work days, and equal pay statutes would have eliminated the
need for gender specific laws of protection had an amendment providing equal rights have been
brought into fruition. Aside from highlighting the divide within the feminist movement and
among the opinion of women on oppression the failure of the ratification of the ERA exemplifies
how deep gender roles have been internalized in the American Psyche.

i Kathryn Kish Sklar, Florence Kelly and Womens Activism in the Progressive Era, in Linda Kerber,

Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed.
(Oxford: University of Oxford Press, 2011), pg 407.
ii Kathryn Kish Sklar, Florence Kelly, pg 407.
iii Kathryn Kish Sklar, Florence Kelly, pg 409.
iv Protecting Women Wage-Workers in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes

Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press,
2011), pg 415.
v Protecting Women Wage-Workers, 415.
vi Dimensions of Citizenship I Mackenzie v. Hare, 1925, in Linda Kerber, Jane Sherron De Hart,

Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford: University of
Oxford Press, 2011), pg427.
Dimensions of Citizenship I Equal Suffrage (nineteenth) Amendment, in Linda Kerber, Jane
Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed.
(Oxford: University of Oxford Press, 2011), pg 429.
vii

viii Dimensions of Citizenship I Adkins v. Childrens Hospital, in Linda Kerber, Jane Sherron De

Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford:
University of Oxford Press, 2011), pg 429.
ix Dimensions of Citizenship III Equal Rights Amendment, 1972, in Linda Kerber, Jane Sherron De

Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford:
University of Oxford Press, 2011), pg 719.
x Nancy F. Cott, Equal Rights and Economic Roles: The Conflict Over the Equal Rights Amendment

in the 1920s, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens
America: Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 444.
xi Cott, Equal Rights and Economic Roles,pg 441.
xii Cott, Equal Rights and Economic Roles,pg 445.
xiii Cott, Equal Rights and Economic Roles,pg 443.

xiv Cott, Equal Rights and Economic Roles,pg 444.

xv Cott, Equal Rights and Economic Roles,pg 445
xvi Cott, Equal Rights and Economic Roles,pg 445-449
xvii Alice Kessler-Harris, Designing Women and Old Fools: Writing Gender into Social Security

Law, in Linda Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America:
Refocusing the Past, 7th ed. (Oxford: University of Oxford Press, 2011), pg 519-20.
xviii Kessler-Harris, Designing Women and Old Fools, 521-22.
xix Kessler-Harris, Designing Women and Old Fools,523.
xx Kessler-Harris, Designing Women and Old Fools,523.
xxi Kessler-Harris, Designing Women and Old Fools,527.
xxii Kessler-Harris, Designing Women and Old Fools,528.
xxiii Ruth Milkman, Gender at Work: The Sexual Division of Labor during WWII, in Linda Kerber,

Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed.
(Oxford: University of Oxford Press, 2011), pg550.
xxiv Ruth Milkman, Gender at Work,561.
xxv Dimensions of Citizenship II Civil Rights Act, Title VII,1964 in Linda Kerber, Jane Sherron De

Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed. (Oxford:
University of Oxford Press, 2011), pg 651.
xxvi Civil Rights Act, Title VII, 1964, 651.
xxvii Dimensions of Citizenship III Title IX, Education Amendments of 1972 in Linda Kerber, Jane

Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed.
(Oxford: University of Oxford Press, 2011), pg 721.
xxviii Mr. Justice William J. Brennan, Jr. Frontiero v. Ricardson, 1973 in Linda Kerber, Jane

Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past, 7th ed.

(Oxford: University of Oxford Press, 2011), pg 723.

xxix Jane Sherron De Hart, Second-Wave Feminists and the Dynamics of Social Change, in Linda

Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, eds. Womens America: Refocusing the Past,
7th ed. (Oxford: University of Oxford Press, 2011), pg 684
xxx De Hart, Second-Wave Feminists and the Dynamics of Social Change, 684.