Hal Draper & Stephen F. Diamond

The Hidden History of the
Equal Rights Amendment

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1. The Two Kinds
of Feminism

The Equal Rights Amendment was launched in 1921 by an offshoot group of the women’s suffrage movement, which had achieved its immediate objective two years before with the passage of the nineteenth Amendment. The main front on which the suffragists had fought had now been won: where next?

The movement split along lines that had been implicit in the history of the struggle, but not into equal parts. One group of activists, led by Alice Paul, wanted to work out another one-plank platform – a single-shot concentration like the vote issue just won. These people organized themselves as the “National Woman’s Party” and decided that their new single shot was going to be a brief and abstract statement of “equal rights” for both sexes, put forward as a constitutional amendment. They were going to be concerned with nothing else.

Most of the then existing women’s movement turned in a quite different direction. In this postwar period of new social ferment – of sociopolitical disappointments and hopes – they looked forward to extending their range from narrow interests to important social change and reforms. This tendency is called the social-feminists [A] by the historian J.S. Lemons, who has covered this history most profoundly. [1]

One of the pillars of this social-feminism was the Women’s Trade Union League, which comprised active trade-unionists and their liberal and leftist allies. Women trade-unionists have always had to fight for women’s rights and workingwomen’s interests not only against the employers but also against the officialdoms of many unions and against the entrenched prejudices of male workers. (This was still one of the chief reasons for the organization of Union W.A.G.E. even in the 1960s and later.) Another pillar was early formed by the Women’s Bureau set up in the Department of Labor as the result of outside pressure. This was a very exceptional case: under an outstanding trade-unionist, Mary Anderson, the Bureau functioned more as an arm of the women’s movement than of the current administration, which sought to negate its work by starving it for funds. It should no more be confused with other government departments than the Women’s Trade Union Leagues could be confused with Samuel Gompers and the American Federation of Labor – many of whose unions barred women, or discriminated against workingwomen, and usually made only half-hearted efforts to organize them.

In general terms: the social-feminists saw the lot of workingwomen in the forefront of the “woman question” of the day, even in those cases where the feminists themselves were middle-class in origin. One of the leavening influences was the significant socialist women’s movement; and indeed this movement liked to think of itself as a workingwomen’s movement. In contrast, the other current, crystallizing around the one-plank Amendment, tended to appeal more and more to business and professional women (“career women” so called). And as this current grew in numbers and self-confidence in American life, so also did its type of feminism. It was a self-consciously middle-class feminism, more and more impatient of being held back by the alien needs of the majority working women.

This difference in outlook was concretized above all on the issue of “special protective legislation” for women workers.

It was a matter of ABC that trade-union workers fought for immediate economic gains, with whatever weapons they possessed; and it was ABC for women workers as much as for any others. Every more or less militant organization of male workers tried to improve conditions in its special sphere, as well as (theoretically at least) for the working population as a whole. But when this ABC conception was acted out by women workers, there was an outcry from certain circles.

In the case of male workers, the question of “special” protective legislation has been so long worked out that it no longer seems to be controversial. “Protection” on the job was and is a typical labor demand. The term has nothing derogatory about it, in origin. Yet protective legislation for men was once a difficult issue inside the trade-union movement. It is almost forgotten that, at one time, the leaders of the A.F. of L. attacked the legislative imposition of (say) a minimum wage – on the ground that it would redound against labor’s interests. They argued inter alia that a minimum wage might tend to become the maximum wage, thereby hurting better-paid workers even if it improved the position of the lowest strata.

There was a kernel of truth to this fear; it could be sensibly maintained by a united front of employers and conservative unionists. For such special protective legislation as a minimum-wage law could be used by employers for their own purposes. This argument is of such wide application that it negates itself; for in fact there is no conceivable labor legislation which cannot be turned against workers, and which has not indeed been so utilized in the course of its history. We can put this even more strongly: it is well-nigh inevitable that even pro-labor legislation will be used in practice against labor’s interests unless the labor movement is organized to effectively police the way the law is applied. The historical moral is this: labor legislation (“protective legislation”) is not a substitute for trade-unionism and workers’ organization; it is one weapon of trade unions, and where trade unions do not exist as yet it is an added reason for building them.

In modern experience there has been no lack of cases in which basic labor gains, painfully acquired by decades of struggle, have been used at times by employers (or their allies in the government and trade-union bureaucracies) to discriminate against minority workers and disadvantaged sectors of labor for the benefit of an entrenched job trust. Seniority on the job, as a defense against willful firing, is one of these painfully acquired gains, but everyone knows that the seniority issue has been used to squeeze black workers and other minorities out of the labor market. This issue has had to be met, but from the workers’ point of view one way of not meeting the issue is to destroy every seniority system holus-bolus and indiscriminately.

No one today argues on principle against “special protective legislation” for men workers. There are real problems of application; there are different solutions for various cases; yet no one but the traditional anti-labor element advocates that all our labor laws (“protective legislation”) be thrown out in a heap and destroyed, turning the clock back more than a hundred years. (For example, through so-called “Right to Work” laws.)

But the picture is altogether different when it comes to special protective legislation for women workers. What is taken for granted on behalf of laboring men is bitterly fought when it comes to laboring women. Why?

The bitter opposition comes not only from employers (who are understandably reluctant to favor any new labor laws for anyone) but also from the middle-class feminists whose core rests on the business and professional career-women primarily. In this connection there is an analogue with the world of male labor: consider the opposition of traditional “labor aristocracy” elements against upgrading the conditions of unskilled or lesser-skilled labor. The highly skilled and “near-professional” machinist may even feel “degraded” by being regarded as “labor”; it is an elitist mind-set that has played a large part on the negative side of labor history. It is a mind-set that will be immediately recognized by anyone reading about the indignant opposition of professional women to “special protective legislation” designed to benefit their poorer “sisters.”

Protective laws for the benefit of women workers in factories or fields may help to make their work a little more bearable, but such laws are usually irrelevant to upper-echelon women trying to compete with men in a profession. Worse, these laws may introduce restrictions that get in their way. Sometimes the complaints of the career-women may well be justified, in cases where a poorly drawn law introduces thorough irrelevancies into occupations not targeted by the law. The remedy is plain enough: alleviation of these cases by ad-hoc changes. But this has not been the course taken by the middle-class feminist movement in America. Off with their heads! Destroy all these inconveniences to the proper advancement of women-in-competition-with-men! Down with all special laws to help workingwomen! But this sweeping destruction, which is the very point of the E.R.A. as presently formulated, is justified only by a narrow-spirited group egoism.

Protective legislation for women workers is denounced, rather abstractly, as a form of “sex discrimination” (or “gender discrimination” in the newer jargon). True, isn’t it? To understand this, we should go back to the older days when any labor legislation (primarily for male workers, of course) was routinely labeled a form of “class legislation” and denounced as such. True, wasn’t it?

Pro-labor legislation is indeed “class legislation” – only, in civilized countries today this is no longer said as a denunciation (in fact, no one bothers to say it). Everybody knows that labor legislation is nothing but an attempt to achieve a slightly closer approach to equality on the part of workers. It is not an offense against “equality”; it is a step toward it – and usually a miserably tiny step at that. A law calling for a minimum wage so small that no family can live on it: this is hardly going to revolutionize society, but still it is class discrimination. It really is.

If (to hark back to the indecencies of the Preface) women workers in the fields are accorded the amenity of a portable toilet, this will be sex discrimination indeed – but these workingwomen will still be light-years from equality. They can yell Sex discrimination all they wish, but this sex discrimination is a very tiny step toward equality, not away from it.

Social-feminists have been in the forefront of such causes as opening up medical colleges to female students; if they tend to regard the issues directly affecting the lives of women workers as more important, this is only because the latter affects far more women. There is another side to this picture. The fine women who, rightly and bravely, aspired to crash into the medical profession were to be applauded – and they have gotten at least their fair share of applause – but at the same time one must recognize that many of these types tended to look on the “lower” interests of workingwomen as an embarrassment to their own lofty cause. There have been too many cases where objectively, like many strivers from the upper strata, they were quite willing to get ahead over the backs of the mass of their sisters. The best of them explained that as soon as they had it made, they would do good for the less fortunate; but – first things first; and they were the first things ...

So even insofar as “special protective legislation” for women workers did in fact provide immediate benefits only to women, it was still a step toward sex equality. And we have already touched on the second link between such legislation and real equality: the tendency for this special legislation to be extended to all workers, not only women. This tendency has worked itself out, historically, in several ways.

  1. In the case aforementioned (toilets in the field), the concession itself cannot, by its very nature, be provided only for women; once in existence, it benefits all workers. Another example is the demand for the installation of elevators to obviate a long climb on factory stairs.
  2. There are cases where, once a concession has to be provided to women workers, economic considerations make it wise for the employer to provide it also for all.
  3. When the women workers win a concession, this fact alone lends impetus to the men workers (through a trade union or otherwise) to launch a struggle for the same gain, perhaps by union contract rather than legislation. Thus the whole labor front advances by a stride.
  4. On the juridical front, “special” legislation for women workers has often been the entering wedge for a court’s approval of advanced social legislation for all.

The social-feminists of the 1920s were exceedingly conscious of these possibilities and their meaning both for improvement in workingwomen’s conditions and for the furtherance of sex equality in general. Around the turn of the century, Supreme Court decisions had already shown what could happen. In Holden v. Hardy – 169 U.S. 366 (1898) – the Court upheld the eight-hour day for coal miners, all men; and to do so, relied for support on state legislative limits of women’s working hours. In turn, the Holden decision was cited in the Court’s opinion in Muller v. Oregon – 208 U.S. 412 (1908) – when the ten-hour day for women was upheld. Finally, Felix Frankfurter referred to both of these decisions in his arguments to the Court in Bunting v. Oregon – 243 U.S. 426 (1917). The Court agreed with Frankfurter and legalized the ten-hour day for all workers.

At least three out of the four factors listed above were involved, mutually supporting each other, in one of the most famous of American labor struggles: the Lawrence Textile Strike of 1912.

It is remarkable how many labor histories and other works relate the stirring events of this strike movement, including the great role played by I.W.W. organizers, without however mentioning what had precipitated the strike. This great strike started because of a victory gained in “special protective legislation” for women workers – a victory which inexorably produced a battle to defend the conditions of all workers, who were engaged in the decades-long drive for a shorter work-day. Here is what happened.

In 1911 the Massachusetts state legislature yielded to labor’s pressure on what seemed a minor point: it reduced the maximum work-week for women and under-18 children from 56 to 54 hours. In the textile mills, these workers constituted over fifty percent of the labor force. The Lawrence mill owners announced that, in their calculations, “it would not be economy to manage their force on dissimilar periods of labor,” and that the hours reduction would be applied to all workers, men, women and children.

Only – there was a catch: the week’s pay would be accordingly reduced. Here they were breaking with their own precedent. Two years before this, when they had had to reduce the work-week from 58 to 56 hours, they had changed the hourly wage to maintain the week’s take-home pay at the same level. This level was already on the poverty floor, and typically a whole family, husband, wife and child, had to work in the mills in order to maintain an existence. The mill owners were confident that this time the workers were in no position to protest effectively. They found out otherwise, but the story of the great battle is not our subject. [2]

If you look back to the four ways in which special women’s gains have led to generalization for all workers, you will see that the Lawrence strike involved the last three, in one form or another. This is quite typical; the cases are seldom “pure.” The issue before us is not an exercise in abstract political theory or, even less, abstract ethics. What is typically involved is interests, often spelled out in dollars and cents. Even the provision of human dignity, as in the case of toilets in the field, has a price tag for at least one side of the argument. Equality is a great human goal, but it is not merely an abstraction: it too has a price tag in our society.

It will be a good idea to keep this in mind when we see an abstract kind of Equality raised as a banner in 1921.

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A. It must be noted that Professor Hewlett, as discussed in the Preface, uses the term social-feminism with a meaning and connotation quite different from Lemons: Hewlett counterposes any concern with social issues (like maternity leave) to the issue of equal rights. Hewlett’s conception of social-feminism is, therefore, as blinkered and stunted a notion as her opponents’ conception of abstract equal rights. Lemons makes it historically clear that the social-feminists of the 1920s were proponents of equal rights, but gave equality a more profoundly social interpretation. Our own use of the term will follow Lemons.

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1. J. Stanley Lemons, The Woman Citizen, Social Feminism in the 1920s (Urbana, Univ. of Illinois Press, 1973). This is the authoritative treatment of this ill-understood but fateful period.

2. Summary based on Samuel Yellen, American Labor Struggles (N.Y., Harcourt Brace, 1936, repr. S.A. Russell, 1956), Chap. 6, esp. 171f; and P.S. Foner, History of the Labor Movement in the United States (N.Y., International Pub., 1947+), 4: 315f.

Last updated on 12 September 2020