An interview with Nancy Woloch, author of A Class by Herself

Nancy Woloch’s new book, A Class by Herself: Protective Laws for Women Workers 1890s-1990s, looks at the historical influence of protective legislation for American women workers, which served as both a step toward modern labor standards and as a barrier to equal rights. Recently, Nancy took the time to answer some questions about the book, her reasons for writing it, and the modern day legacies of this legislation, from pregnancy law, to the grassroots movement to raise the minimum wage.

Woloch jacketWhy did you write this book?

NW: Conflict over protective laws for women workers pervades twentieth-century US women’s history. These laws were everywhere. Since the early 1900s, almost every state enacted some sort of women-only protective laws—maximum-hour laws, minimum wage laws, night work laws, factory safety laws. Wherever one turns, the laws spurred debate, in the courts and in the women’s movement. Long drawn to the history of these laws and to the arguments that they generated, I saw the opportunity to carve out a new narrative: to track the rise and fall of protective laws from their roots in progressive reform to their collapse in the wake of Title VII of the Civil Rights Act of 1964, and beyond. Here was a chance to fuse women’s history and legal history, to explore social feminism, to reconstruct a “constitutional conversation,” and to ferret around all the topics that protective laws touch — from transatlantic connection to social science surveys to the rise of equal rights. Above all, the subject is contentious. Essentially, activist women disrupted legal history twice, first to establish single-sex protective laws and then to overturn them. This was irresistible.

What is your book’s most important contribution?

NW: My book shows the double imprint that protective laws for women workers left on US history. The laws set precedents that led to the Fair Labor Standards Act of 1938 and to modern labor law, a momentous achievement; they also sustained a tradition of gendered law that abridged citizenship and impeded equality until late in the century.

Which groups of women activists first supported women-only protective laws?

NW: I focus on members of the National Consumers’ League, a pressure group formed in 1898 and led as of 1899 by reformer Florence Kelley. One of the most vibrant and successful reform organizations of the Progressive Era, the NCL enabled the campaign for protective laws to move forward. I also focus on the federal Women’s Bureau, started in 1920, which inherited the mission of the NCL: to preserve and promote protective laws. Other women’s associations, too, were involved; so were women labor leaders. But the NCL and the Women’s Bureau were most crucial. Women who promoted women-only protective laws endorsed a dual rationale: the laws would redress disadvantages that women faced in the labor force and provide “industrial equality”; they would also serve as an “entering wedge” to labor standard for all workers. The dual rationale persisted, with variations, for decades.

 How did you come up with the title?

NW: “A Class by Herself” is a phrase used by Justice David J. Brewer in Muller v. Oregon, the landmark Supreme Court decision of 1908 that upheld a state ten-hour law for women workers in factories and laundries. Woman, Justice Brewer stated, “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.” Two issues intersect in the Muller case: Can the state impose labor standards? Is classification by sex constitutional? The fusion of issues shapes my narrative.

The Muller case remains fascinating. I am stunned with the exceptional leverage that Florence Kelley grasped when she intervened in the final appeal of the case. I am struck with the link that Muller’s lawyers posited between employers’ interests and equal rights; with the fragile relationship between the famous Brandeis brief and the Brewer opinion; and with the way that Justice Brewer challenged Brandeis for dominance. I still ask myself: Who took advantage of whom? Looking back on Muller, I find an intriguing contrast between that case and the Supreme Court case that terminally rejected the Muller principle, UAW v. Johnson Controls (1991). This is when single-sex protective laws definitively expired. Johnson Controls also offers a counter-image of the 1908 case.

Did classification by sex ever help women workers?

NW: Yes, of course. Women-only state protective laws might provide benefits to women workers. In many instances, they provided shorter hours, higher wages, or better working conditions, just as reformers envisioned. But women-only laws always had built-in liabilities. Laws based on “difference” perpetuate difference. They entail hierarchy, stratification, and unequal power. They can quash opportunity, advancement, and aspiration. Once embedded in law, classification in sex might be adapted to any goal conjured up by lawmakers, or, as a critic in the 1920s pointed out, used to impose whatever restrictions “appeal to the caprice or prejudice of our legislators.”

What sort of challenges did you face as an author?

NW: Protective laws were tough customers. They fought back; they resisted generalization; they defied narrative. Part of the challenge was that I deal with a great mass of legislation –several hundred state laws — and each type of law followed its own trajectory. I also cover the laws and their ramifications over many decades. To estimate the impact of protective laws on women workers at any given time was a hazardous undertaking; one could not easily measure the negative effects, or what one critic called the “debit side.” Changing circumstances compound the problem; the effects of the laws were always in flux. Not least, protective laws generate controversy among historians; to tackle this subject is to stroll through a minefield. A special challenge: to cope with the end of protective laws in the 1960s and 1970s.

What was the biggest surprise you encountered in writing this book?

NW: The role of “surprise” itself was a surprise. Progressive reformers who promoted women-only labor laws in the early 1900s could not see around corners, anticipate shifts in the economy, or envision changes in the female work force. Nor could their successors or their opponents. Much of my narrative is a story of close calls and near misses, of false hopes and unexpected consequences, of accident and unpredictability. The theme of the unforeseen peaks with the addition of “sex” to Title VII of the Civil Rights bill of 1964; the impact of the amended Title VII on women-only protective laws was yet more of a surprise. I was surprised myself, as narrator, by the complexity of the downfall of protective laws. I was also surprised to discover the key role that “overtime” played in my story and the gradual mutation in its meaning over the decades.

Does your subject have present-day legacies?

NW: Definitely. In a sense, single-sex protective laws sank totally out of sight when they capsized in the 1970s. But in another sense, many facets of the history of protective laws reverberate; the echoes pervade current events. Labor standards are now a global issue, as illustrated in Bangladesh in 2012 and 2013. The fire in a garment factory on the outskirts of Dhaka that killed 117 workers, so reminiscent of the 1911 Triangle fire, and the yet more lethal collapse of an 8-story building, with garment production on its upper floors, underline the need for safety regulation everywhere. Closer to home, the drive to improve labor standards continues. Most recently, we have seen a grassroots movement to raise the minimum wage and efforts to revise federal law on the threshold for overtime. Reconciling work and parenthood impels discussion. Pregnancy law remains a challenge; enforcement of the Pregnancy Discrimination Act of 1978 has spurred more litigation than anyone expected. A recent case is Young v. United Parcel Service (2015). Beyond that, demands for compensated parental leave proliferate. President Obama’s proposal to fund parental leave, though unlikely to move forward right now, at least keeps the issue on the table. Finally, equal employment opportunity cases remain a challenge, from the Lily Ledbetter case of 2007 to the dismissed Wal-Mart case of 2011. Title VII, which catalyzed the end of single-sex protective law, turns out to be a work in progress.