Hal Draper & Stephen F. Diamond

The Hidden History of the
Equal Rights Amendment

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5. The Investigation:
Facts versus Claims

Out of the shambles of the Second Conference on Women in Industry came one positive result.

Since the N.W.P. had hardened its position on rejecting all labor legislation for women on principle, it had begun developing a number of claims purporting to strengthen its view. One claim was that tens and hundreds of thousands of women had lost their jobs because of such legislation. (Proof: Gladys Smith had lost her job at Brown & Jones ... etc.) One of the N.W.P. leaders gave out the figure of 150,000 women in New York State alone; another dropped the first digit of this figure when testifying before a Senate Committee; but a survey by the Women’s Bureau of the claimed situations turned up only 149 ticket sellers and eight printers. Anyone with experience with labor legislation in general would understand that every piece of such legislation has a minimum shakeout effect, which has to be reviewed for ad-hoc injustices and remedied. It was the imaginative size of its claimed figures that the N.W.P. relied on for effect.

Mary Anderson of the Women’s Bureau made sure that the Second Conference mandated such an investigation; the difficulty was that so many of the women there were so incensed against the N.W.P. that they were reluctant to vote for anything that might appear to be a concession to the disrupters.

The investigation into the effects of special labor legislation for women was carried out, and it was the most extensive and expensive inquiry ever conducted by the Women’s Bureau, using the entire staff and the money provided by two years’ worth of appropriations. The facts were laid out in the report published in 1928. Following is a summary. [1]

Covered were eleven states, with reports “secured from more than 1,600 establishments, employing more than 660,000 men and women, and personal interviews were held with more than 1,200 working women who had experienced a change in the law or who were employed under conditions or in occupations prohibited for women in some other State.” The facts thus presented constituted a crushing refutation of the claims made by the Pure E.R.A. proponents about the alleged harmful effects of the legislation being investigated.

There was a telltale controversy at the beginning of the inquiry that both sides agreed was necessary. To ensure objectivity throughout, the Women’s Bureau suggested that two advisory committees be formed: one technical in nature, “composed of persons having experience in carrying forward industrial investigations”; the second, made up of representatives from organizations on both sides of the dispute. Right off, however, the N.W.P. representatives on this second committee argued against the length and detailed investigation proposed by the Women’s Bureau. The Party stalwarts “urged that the investigation be conducted from the beginning mainly from public hearings.” (Our emphasis added.)

The meaning of this proposal was clear. If the “facts” were to be sought through a parade of witnesses each claiming whatever he or she felt like claiming, the Pure forces could get as many such testifiers to march through the hearing room as anyone else. In fact this was, in effect, precisely what had been happening up to now: everyone making whatever claim seemed impressive, with no way of checking on anyone. But this “public hearing” format was much more the style of the N.W.P. than of the socialfeminists. The N.W.P. could (and would) parade movie stars like Gloria Swanson to testify from her expert knowledge of labor legislation, and the newspaper headlines would bury the six-point references to Florence Kelley. After all, besides its activists the N.W.P. was systematically composed of elite names – prominent socialites, wives and daughters of politicians, celebrities like the daughters of William Jennings Bryan, and so on. An “investigation” of the sort proposed by the Paulites would be a farce, scientifically speaking, but it would be a high-circulation farce from the press’s standpoint and a media-jubilee from the standpoint of the Pure amendment. At the end, to be sure, no one would know any more than at the start about the factual effects of labor legislation – but who exactly wanted to know, anyhow?

The Women’s Bureau did not comment on the scheme in the way done here. It merely objected that the process proposed by the N.W.P. “could not be relied upon to bring out all the facts.” The National Woman’s Party people then moved to destroy this second advisory committee. In a campaign of pressure against Congressional representatives, they charged the Bureau with prejudice – before the study had even begun. That is, the Bureau was “prejudiced” because it had refused to accept their scheme to scuttle the investigation. The advisory committee in question was then dissolved, but the study proceeded under the guidance of the technical committee.

The difference was this: it could no longer be said that the investigation was carried out under the superintendence of N.W.P. representatives themselves; the N.W.P. had made sure this couldn’t be said, by torpedoing the proposed committee of superintendence.

The beginning of the report pointed out that the center of the investigation was not some special question about women but rather this:

The validity and effectiveness of the legislative method of regulating and standardizing [working] conditions ... Does legislation set up an arbitrary standard at the expense of individual liberties? Where it applies only to limited groups of localities or persons, by curtailing individual freedom does it handicap such competitive efforts as are essential to curtail progress? Or does it, by establishing a minimum standard for some groups, raise the level for the whole so that competition may proceed on a fairer basis and higher plane?

The report moved on to discuss the historical context in which the controversy arose: the context was not declining opportunities for women to work, but just the opposite. A steady increase in employment for women outside the home and off the farm was registered from 1870 to 1920. At the start of this fifty-year span, some 11.8% of women were working, while at the close of the five decades the figure was 23.8%. In those industries that were most important in relation to labor legislation, manufacturing and mechanical industries, there was to be found a big jump in female employment, just from 1910. (A number of figures for given industries were detailed here.) “The most striking increase” was that of women operatives in auto factories: 1,408%. In the entire iron and steel industry, women as semiskilled operatives increased over 145%; in electrical supply factories, over 148%. These figures showed that the rates of increase/decrease for the two sexes had been “entirely disproportionate” – in favor of women by far. “These huge increases ... indicate that more and more industrial opportunities are being offered to women.”

The report did not go on to claim that women’s improving employment status had been due to labor legislation; the two developments were going on side by side. What did it show? Women’s place in industrial work was a fact. The advantages that such opportunities offered were to be welcomed. But the drawbacks entailed had to be dealt with, also: the Women’s Bureau wished that women could continue working, and not be forced back out of the workplace because of intolerable hours, wages, and working conditions. Had labor legislation made this possible?

About the legal regulation of the hours that women might work, the report came to a clear conclusion:

Not only have there been practically no instances of actual decreases in women’s employment as a result of hour legislation, but the general status of their opportunity seems not to have been limited by this type of law. Women were employed as extensively in California as in Indiana, in Massachusetts as in New York.

Indeed, because of the ceiling on hours of work, the Bureau found that more women were able to find employment than before because it was “not unusual for establishments to employ additional women when there is extra work or else to carry a larger force of women the year around ...” (Let it be said parenthetically that that anecdotal story about a Gladys Smith still might be true enough; but the facts meant that such cases were individual cases, to be handled and remedied on an ad-hoc basis, like a thousand other anecdotal problems.)

Similar conclusions were reached from the facts when other forms of regulatory legislation were examined. Laws mandating rest rooms, seating, or improved ventilation were not a serious handicap to women’s employment, though difficult to investigate separately because of their close relationship to developing standards of efficient management.

The report did find some restrictions on women’s legitimate economic opportunity and occupations where legal prohibitions against night work or against work in certain fields were in effect. In most situations the lost opportunities were either minimal or else absolutely necessary to the woman worker’s health. Especially in the latter case, the Bureau argued, steps should be taken to extend the health and safety protections also to men. Where job opportunities were eliminated unnecessarily, the legislation should be more carefully drawn.

In short, whatever grievances were felt in this field could become the target of a separate campaign, without throwing everything else out. The Bureau was not arguing that everything was already ideal; far from it. It was pointing out that there was obviously a different road than that of total-destruct.

So much for the anecdotal statistics that had been so freely employed by the Paulites. The report pointed in another important direction. The real source of the lost opportunities to women was not the legal enactment of prohibitions on employment, but the prevailing attitudes of the employers, and also of some part of the male workers. (Reminder to the reader: remember the B.R.T. case, and the exposure of the employer’s role in that affair ...) [2] The report charged:

Far more important, however, than any possible limitation of opportunity resulting from night-work legislation is the limitation of women’s work at night that results from the general managerial policies of most employers of women. There are conspicuous examples of establishments where night work for women is enthusiastically indorsed by the management, but the more usual attitude is disapprobation from the standpoint of industrial efficiency.

A similar attitudinal barrier (involving employers’ attitudes) was found in specific occupations where opportunities for women were limited. The report agreed that restrictive laws for women’s employment in pharmacy were a problem; but it also went on to point out that “as far as concerns the actual position of women pharmacists the removal of such legislation would have very little effect.” It pointed to two reasons here: the employers’ attitudes and those of the public in dealing prejudicially with male and female pharmacists.

Employers’ attitudes were also a target of the report with respect to work in restaurants and as elevator operators. The report concluded that

In almost every kind of employment the real forces that influence women’s opportunity are far removed from legislative restrictions of their hours or conditions of work.

It would be useful, though space-consuming, to cite the passages in which the report tried to emphasize that the question of legislative restrictions, no matter how important one thinks it is, is only one of several factors affecting women’s employment. The report’s emphasis on the employers’ role is heavy, as mentioned; but no less significant is its stress on the role of an enlightened or unenlightened public and the public’s acceptance or rejection of women in certain jobs. Obviously, here it was saying that the job was that of influencing public opinion – which also brings the employers right back in again. In contrast, the N.W.P.’s favorite mode of approach let the employers off scot-free, even though employers like to talk as if the jobs were “theirs.” The formal alliance between the N.W.P. and the National Association of Manufacturers was a good deal for the latter; all the N.A.M. paid was lip-service to a constitutional amendment which (most lawyers were ready to explain) meant little in practice.

The report answered some other important questions.

(1) We have seen the answer with respect to employment; how about effect on wage level? The report replied that “the legal reduction of women’s hours had not resulted in any general decrease” in workingwomen’s wages. To be sure, some workingwomen might consider the advantage of a shorter workday as less important than a slightly higher pay packet at the end of the week. But even among the small number of women reporting decreased wages as a result of shorter hours “three of every four definitely state[d] that the decrease in earnings was not looked on as a hardship in view of the benefits that accompanied shorter hours.”

(2) The tendency has been for women’s gains to be extended to men.

There is no doubt that legislation limiting women’s hours of work has reacted to establish shorter hour standards generally and to eliminate isolated examples of long hours. Also, in a large majority of cases, when hours were shortened for women because of the law they were also shortened for men.

The Women’s Bureau gave a number of examples, not only in this report but also in other bulletins. [3]

(3) The report examined the impact of legislatively determined work-hours limitations on the employment and promotion opportunities of women in supervisory capacities. Here, one of its findings was surprising to some: many women were reluctant to consider the promotions that were in fact open to them, “as they [the promotions] frequently involve a change from a wage based on production to a regular weekly wage, and some women are reluctant to give up the seemingly larger weekly amount they can earn through piecework.” One of the elements here was a feeling of group solidarity or sense of class: “Other women sometimes are unwilling to undertake the duties of supervising the work of others as they are reluctant to assume a different relationship with their fellow workers.”

But at the bottom of the problem was, here too, the reluctance of the employers to open up supervisory opportunities to women:

Labor legislation does not hinder promotion, as there is practically no promotion to hinder ... [I]n comparison with the opportunity open to men for such work, women’s opportunity is very slight and is dependent not on the limitations, legal or otherwise, that surround women’s work, but on the individual attitude of the employer and what he thinks is the attitude of their fellow workers.

Another important feature of the report was about a personal survey of over 900 women who worked in a variety of manufacturing and non-manufacturing industries at the time when a shorter-hours law went into effect. What effects did the change have on an individual’s “opportunity”? The women’s comments were revealing.

“There was not one woman,” the report stated, “who felt that legislation had handicapped her in getting work or promotion ...” Quite the opposite! The interviews indicated that many of the women felt the shorter hours increased opportunity for themselves and women workers generally. A jewelry and optical-goods worker stressed that a woman could not work a 48-hour week “and get through her home duties,” especially if she had a family to care for. A steel-plant inspector thought that opportunities for women have improved, “as it is [now] possible for more married women to work with shorter hours.” A Massachusetts shoe worker ranged a little further in her interview with the investigator:

I had rather work a short week. You get time to accomplish other things. Life is not all labor, and with shorter working hours, you may accomplish many things to broaden your mind. Money is not everything, it does not buy all. One who is confined to work can not broaden out and is narrow and unhappy.

The reader is invited to wonder how much of the Women’s Bureau report on real workingwomen could be understood by the glamorous and celebrated women whom the N.W.P. liked to trot out in its publicity: women like Gloria Swanson or Mrs. O.H.P. Belmont or Bryan’s daughters ...

The report paid particular attention to the impact of labor laws on women employed in urban transit – the field that had given rise to the B.R.T. case. The situation in this industry best exemplified the Bureau’s argument that no wholesale conclusions about protective legislative were possible apart from an examination of particular industries, localities, and political conditions. The report’s findings were based on two earlier reports which examined seven different cities’ transit systems and new research conducted by the Bureau in 1926. [4]

The report discussed a number of cases where women had suffered the loss of significant job opportunities or outright dismissal, and argued – as already indicated – that the determining factors were not legislative protections but the attitudes held by the employers and the male employees involved. Throwing the blame on the labor legislation was an employers’ ploy to misdirect attention. In known cases where women employed as streetcar conductors lost their jobs, “the companies involved did not intend to keep them on permanently for this work” and the legislation perhaps accelerated their firings by providing them with a pretext. One way of testing what really happened was to compare the New York City pattern with other cities.

There were, the Bureau found, important differences among women transit workers from city to city. Women ticket agents and conductors faced a particularly difficult situation in New York. Though several hundred women were hired into the transit system during the war, these women immediately began losing their jobs when the Armistice was signed in November 1918. The regulatory law limiting work-hours came along several months later, in May 1919. Besides limiting hours (to nine a day, 54 a week, with no night work 10 p.m. to 6 a.m.), the New York law had a provision not found elsewhere: women’s daily shifts had to be consecutive; that is, they could not work two rush hours with time off in between.

This last provision, the Bureau charged, was unnecessary to women’s health, and allowed the transit companies to accelerate their dismissals of women workers. The Bureau could not prove that this out-of-line provision was there precisely to expedite the dismissals, but it said as much in the following words: “In the last analysis, the fact of the situation is that the policy of the company can not be divorced from the effects of certain kinds of laws.” The obvious remedy was not to destroy the useful labor legislation but to make the legislation more “carefully drawn” by eliminating this provision of the New York law.

This point is underlined when, with the Bureau’s report, we compare the New York case with that of other cities’ labor legislation on women streetcar employees. In Boston and Chicago, the Bureau found in its 1921 study, “the 8-hour day and 6-day week, without night work, and with a wage far superior to that paid women in many other occupations ... is an accepted and permanent fact” for women ticket agents and conductors.

Similar conditions were found in Detroit and Kansas City. In Detroit, for example, “there was no evidence to show that women had been dismissed because of the difficulty of complying with the terms of the law.”

What made the difference? This, said the report:

Perhaps the most significant fact about the employment of women as ticket agents and collectors in [Boston and Chicago] is the way in which better hours and wages for them have been achieved. Women are members of the union in both Chicago and Boston, and it is with the assistance of the union that their hours have been shortened and their wages increased. In Chicago at the time when the 10-hour law for women was about to be passed in Illinois the union worked for this law, appearing before the legislature in favor of it, although its members were threatened with a reduction in pay. In subsequent strikes on the street railways the women have stood with the men in their efforts to improve conditions. The result in Chicago has been that conditions for women employed on the elevated railways are far ahead of the maximum legal requirement, and adjustments have been made, as in the elimination of night work for women, which can serve as an example to many other communities. [5]

Lemons summarizes the results of the 1928 report in very positive terms.

Most significantly, the Bureau found that the laws usually enforced upon the entire industry what the most advanced elements were already doing; in short, the laws tended to protect the most progressive tendencies in American business. [6]

The element in the situation that was constituted by male workers’ prejudices could be counteracted by trade-unionism and conditions of common struggle, as we have seen in the case of the transit workers in several cities. But the main determinant of women’s job opportunities was not labor legislation but rather employers’ conceptions of what “women’s jobs” were. In short, the main enemy was the N.W.P.’s ally, the gentlemen of the National Association of Manufacturers and the U.S. Chamber of Commerce, who at this point were the only significant organizations supporting the N.W.P.’s symbol of equal rights, the Amendment designed to kill all social legislation for workingwomen in one fell swoop.

The report made clear that there were cases of women who were dismissed because of special laws. These cases could be reduced by careful drafting, or redrafting, of the laws; such changes had even been made already, as in 1919 among the printers. Nightwork regulations had caused a few women to lose jobs, but daytime opportunities had greatly increased. The report opposed the passage of any restrictive laws for hazardous jobs unless the hazard could be shown to be sex-related.

“The report,” concludes Lemons, “effectively countered the NWP’s factual arguments about protective legislation. All they had left was the ideological conviction that such laws promoted a sense of inferiority among women.” [7] But this is what Alice Paul and her circle had started with.

This “argument” against labor legislation for women workers is still heard as often as ever, in the pages of Ms magazine and the statements of N.O.W. It is an argument of intense sociological interest. If a group of women workers are “granted” higher wages than men, they are urged by the N.W.P. types to resent this largesse as patronizing; but consider the entirely opposite kind of “psychology” among (say) trade-unionists. Any organized group of workers feel quite serene about winning higher wages than unorganized trades or shops; among other things, they know that the latter will be stimulated to win the raises (or conditions) for themselves. This is ABC in the labor movement, and even outside of it. As already mentioned, women trade-unionists feel no less content in conscience at making a gain for themselves, and turn some attention to extending the same gain to all others.

What then is this “psychology” of career-women (to use a conveniently vague term) that makes them look on a legislation victory as an “insult”? For one thing, it is very doubtful that the size of the “insult” will determine, for these women, what they can feed their families the next day ... But this sociological investigation is not our present subject, and we willingly leave it to the reader’s excogitation.

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1. Unless otherwise noted, the source is the Women’s Bureau Bulletin, No. 65, The Effects of Labor Legislation on the Employment Opportunities of Women, Washington, D.C., 1928.

2. On the B.R.T. case, see Chap. 2, p. 15f.

3. See Women’s Bureau Bulletin, No. 15, Some Effects of Legislation Limiting Hours of Work for Women, Washington, D.C., 1921.

4. Women’s Bureau Bulletin, No. 11, Women Street Car Conductors and Ticket Agents, Washington, D.C., 1921. – Dept. of Labor, Bureau of Women in Industry. Brief submitted to the State Industrial Commission, New York, June 17, 1919.

5. This passage is from Bulletin, No. 11, the first listed in the preceding note.

6. Lemons, op. cit. (1: n.1), 195. The beneficial effects of “protective” legislation for women were also documented in Pidgeon, Women in the Economy of the U.S.A.

7. Lemons, ibid., 196.

Last updated on 12 September 2020