Protective Labor Legislation

The commission could not easily insist on full equality for women in hiring and training, but it was able to come closer to affirming nondiscriminatory treatment for women under protective labor laws, the coverage of which could be extended to men rather than withdrawn from women.

Because employers had always used labor laws to justify discrimination, advocates of the Equal Rights Amendment had for a long time urged that such legislation either apply to men as well as women or be eliminated. The Women's Bureau, in contrast, had traditionally maintained that protective labor laws helped the overwhelming majority of women and hurt only a few. When faced with the imminent threat of the ERA, advocates of protective labor legislation, fearing that the amendment would result not in extension but in obliteration of the labor laws, fought the amendment vigorously and defended the laws for women. With the Committee on Civil and Political Rights working on a method for achieving constitutional equality while still safeguarding protective laws for women, the Committee on Protective Labor Legislation was free to consider the laws themselves, undisturbed by the heated ERA controversy. By the 1960s many of those most committed to protective labor laws were willing to acknowledge that some of the more restrictive and rigid rules did more harm than good. It was up to the Committee on Protective Labor Legislation to determine the difference between the laws still useful

and those now antiquated and to find a way to reconcile the demand for equal opportunity for women and the expectation of special protection.

Consideration of the laws apart from the Equal Rights Amendment produced a ready accord; in most cases the Committee on Protective Labor Legislation, and the commission as a whole, concurred in principle with ERA proponents. The most desirable outcome, committee members concluded, was the extension to men of the laws in effect protecting women. However, whereas ERA adherents saw constitutional equality as causing the beneficial changes in state laws, the Committee on Protective Labor Legislation strongly believed that laws pertaining to women should remain in force until they were superseded by better laws covering men as well.

This judgment did not present any problems for the committee in most areas of discussion, which were quickly decided by consensus. At the first meeting, members endorsed the extension of minimum wage legislation with premium pay for overtime at both federal and state levels to men and women workers presently uncovered; likewise for equal pay legislation. The committee also agreed that industrial homework should be eliminated. Later the committee voted in favor of a flexible weight-lifting law pertaining to both men and women. Cash maternity benefits under disability programs and the right to maternity leave also met with approval.^[36]

The sticking point came over hours legislation. Most members concurred that state law should establish an absolute number of hours for workers, but committee member Henry David, a prominent labor historian, adamantly and successfully resisted a proposal to recommend extending prohibitions on women's hours to male workers. He contended both that the PCSW had no mandate to recommend laws for men and that proposing a limit to the number of hours men could work would elicit "howls of rage." Furthermore, David argued, hours laws for women were well established; applying them to men would raise "a whole new series of questions which we certainly are not able to deal with and on which we have seen no basic data at all."^[37] Ultimately, after David's vehement argument, the committee recommended that hours laws set a definite maximum

for women, that they be administered "flexibly," and that women in administrative, executive, and professional jobs be exempted.^[38]

Commission members greeted the committee recommendation with varying degrees of satisfaction. Margaret Hickey said she had hoped the time had come to apply these standards equally to men. Henry David explained to her the reasoning of the committee—which was in fact his own—that hours laws for men would not gain public acceptance. Hickey responded that such a consideration did not appear to be a very good reason to burden women. Many commission members, including Peterson, expressed the view that overtime pay as a deterrent might be preferable to maximums, but David argued strongly for his position, insisting that the commission was making trouble for itself on the matter and that to come out against maximum hours for women would be breaking with "a body of history which meant something and conceivably still does mean something." Sarcastically, he admitted that the original resolution did have a weakness; it was, he said, "realistic."^[39]

Faced with an apparent deadlock, Peterson had a statement drawn up before the next meeting detailing the Department of Labor's position on the issue. According to this position paper, the department desired adequate labor standards for all workers, and it judged premium pay for additional hours for both men and women as the best way to shorten the workday. The Department concluded that, where special hours laws for women represented the best attainable protection at present, they should be "maintained, strengthened and expanded."^[40] The commission adopted this position almost verbatim, adding the exemption of professional and executive women from the committee's original recommendation. Although David believed that the commission had adopted his position, this statement differed in that it spoke of maximum hours laws only as interim measures, to be eliminated when states enacted laws requiring premium pay for overtime. Hours laws constituted the only area of conflict with respect to protective labor legislation and, except for pregnancy and maternity leave, became the only kind of labor legislation about which the committee and the commission proposed differential treatment of women workers—and even

this remaining distinction was to be temporary. The gap between the Women's Bureau coalition and proponents of the ERA was growing smaller.^[41]

Taken all together, the commission's proposals on employment revealed its ambivalence toward women's roles. While continuing to endorse equality in the civil service, in private employment, and in labor law, the commission also spoke of "justifiable" discrimination and extending and strengthening hours laws for women. Recognizing that private employers were unlikely to change their behavior without federal direction, it nevertheless declined to specify the action the White House should take. Because it was caught between the fundamentally contradictory ideals of traditional womanhood and equality, the commission could not make a clear statement.