The theory, apparently, is that some mystical essence in foundry weight lifting will injure women, while lifting the same weights in other industries will not. Possibly it is the male workers in foundries who are being protected-from job competition.

Thus, when all of the state laws applying only to women are examined closely, it becomes clear that they do not provide a coherent system of meaningful protection. Nor do they deal with the real problem for women-exploitation by being underpaid and funneled into the lowest-paying, most menial jobs of the society. State labor laws have never dealt with this problem. Furthermore, the premise that real protection can be based on legislating by sex is fallacious. Sex is an insufficient criterion to predict with accuracy who needs what protection. If injury due to lifting weights is a problem the answer is to forbid employers to fire individuals-both men and women-who refuse to lift weights above a safe limit. If some men and women don't want to work overtime, laws should be passed forbidding employers to fire those who refuse overtime; but men and women who do want overtime pay should not be penalized.

In short, analysis of state laws that apply exclusively to women does not establish that they protect women in any important way. In fact, these laws do not protect women in the one area clearly applicable to them alone— maternity benefits and job security; they are ineffective in dealing with the exploitation of women through lower pay than men; and they are used to discriminate against women in job, promotion, and higher-pay opportunities. They do not form a reliable basis for opposition to the Equal Rights Amendment. Second. In light of the above it is not surprising that the Equal Employment Opportunity Commission, the federal agency charged with interpreting and administering Title VII, has concluded that state "protective" laws were superseded by Title VII and could not lawfully be enforced. The Commission stated that:

66

. . such States laws and regulations, although originally promulgated for the purpose of protecting females, have ceased to be relevant to our technology for the expansion role of the female worker in our economy. The Commission has found that such laws and regulations do not take into account the capacities, preferences, and abilities of individual females and tend to discriminate rather than protect." 29 C.F.R. § 1604.1(b)

The federal courts are apparently moving in the same direction. Three federal district courts-including one within the last month-have now squarely held that Title VII supersedes such restrictive state laws. In addition, both the Fifth and Seventh Circuits have held that company-imposed restriction paralleling state laws-that is, placing private weight limits on women's jobs-also violate Title VII. For instance, in Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969), the court set a stringent standard for establishing a "bona fide occupational qualification" exception to Title VII. This is the exception under which employers have argued that state laws allow them to discriminate against women workers. The Weeks court held that "the employer has the burden of proving that he has reasonable cause to believe, that is a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved."

Some states have also taken action under Title VII. Delaware has repealed all its labor laws for women only. So far, there has been no outraged cry from women workers. Five states have repealed their hours laws; in six states and the District of Columbia, the Attorneys General have ruled that state laws are superseded by Title VII or state fair employment practices laws; in another six states, women workers covered by the Fair Labor Standards Act are exempted from the state laws; in two states, there are no prosecutions under state laws; in two states, there are exemptions from laws if the employee volunarily agrees; and in one, the weight lifting regulation has been extended to men. In other words, twenty-two states and the District of Columbia have already repealed or greatly weakened the effect of the state labor laws on women. Given this action of the EEOC, of the federal courts, and of the states, can we really say that the impact of the proposed Amendment on state labor laws furnishes any basis for opposition to it? We must recognize that these laws are already invalidated or being invalidated. It appears that opponents of the Amendment are trying to erect bridges which were crossed five years ago, when Title VII went into effect.

Third and finally with respect to state labor legislation. There is abundant evidence that if the Amendment is ratified it would result in the general extension of certain benefits to men that are now available only to women rather than invalidating them altogether. I recognize that this issue has been the subject of some controversy before the Committee. Nevertheless, I suggest there is ample precedent already on the books, as Professor Emerson indicated, to substantiate the conclusion that the fears of wholesale elimination of benefits for women are unwarranted.

In the first place, under Title VII the EEOC has consistently held that laws giving women benefits-such as a lunch break-must be extended to men. The Seventh Circuit has indicated it would do the same, when it held in Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969), that the company-imposed weight limit could be validly extended to men under Title VII, provided the company allowed members of either sex to show he or she could perform the job in question. And as the chairman mentioned, Georgia took a similar approach to its weight-lifting regulation, which was extended to men and rephrased to prohibit "strains or undue fatigue" rather than a set weight limit.

In other areas of the law, courts have also indicated a willingness to extend benefits to a class of people unconstitutionally excluded from the benefit, rather than voiding the law under which the class was improperly excluded. As long ago as 1880, in Neal v. Delaware, 103 U.S. 370, the Supreme Court ruled that a state constitution giving whites only the vote was not void under the Fifteenth Amendment, but rather that the right to vote must be extended to blacks. Likewise, in Levy v. Louisiana, 391 U.S. 68 (1968), when a Louisiana statute denied illegitimate children the right to recover for their mother's wrongful death, the Supreme Court held that the Fourteenth Amendment required the extension of protection to them rather than voiding the legitimate children's right to recover. Clearly, if the courts have authority to extend benefits to an excluded class under the Fourteenth and Fifteenth Amendments, they will have the same authority to extend benefits under the proposed Equal Rights Amendment. Moreover, courts have a general obligation to interpret instruments reasonably. If this means granting a day of rest to men, rather than destroying this right for women, the courts should and presumably will follow that path, especially in view of the very ample expression of opinion by members of the Congress and witnesses that some protective laws should be extended to both sexes rather than voided.

Finally, with respect to this problem, we should not lose sight of the fact that the Congress and state legislatures will have the opportunity to enforce the Amendment and fashion its general command to specific situations in a comprehensive and reasonable manner.

I would now like to turn to another major area singled out by opponents of the Equal Rights Amendment-family law. Concern has been voiced that women would lose their right to support and alimony if the Equal Rights Amendment passes. There are several answers to this concern. First, as already noted, the right to alimony and support can be extended to men by legislative act or as a matter of interpretation of the Amendment. Indeed, in one-third of the states alimony can be awarded to either spouse and is based on the circumstances of the particular case, such as relative economic needs, duration of the marriage, and relative contributions to the marriage.

As for the right to support, although it has been much relied on, it is of somewhat illusory value to women. In the first place, in most jurisdictions not until the parties are separated, or sometimes even divorced, does a wife have the right to get a court order for a specific amount of support money. (See H. H. Clark Law of Domestic Relations 181, 186 (1968).) More important, the chief legal remedy for the wife during marriage the ability to purchase household "necessaries" and charge them to the husband-is of far less value than is generally believed. As one authority has stated; Professor Clark:

"The doctrine of necessaries may once have been an effective way of supporting wives and children (though one doubts it). Today, however, it is hedged about with so many limitations that few merchants would wish to rely on it. More importantly, it is of least value to those most in need of support, those wives and children too poor to be able to get credit. For these reasons the doctrine is of little practical value in the solution of the non-support problem." Clark, supra at p. 192.

The National Conference of Commissioners on Uniform State Laws recently adopted a Uniform Marriage and Divorce Act which takes an approach similar to that contemplated by the Equal Rights Amendment. It provides for alimony or maintenance for either spouse, and child support by either or both spouses, by defining all duties neutrally in terms of functions and needs of the people involved, rather than in terms of their sex.* The action by the Commissioners, a respected and prudent body, deserves special consideration.

Their approach-based on individual circumstances and needs-underlies the Equal Rights Amendment also. Put another way, laws which differentiate on the basis of sex are unjust because they arbitrarily treat all members of a class without looking at individual qualifications. State labor laws are unjust and do not protect women because they arbitrarily assume all women have stereotyped and uniform characteristics, which many individual women in fact do not have. Alimony and support laws also have unjust consequences for both men and women when they assume that all women are weak, dependent, caretakers of children. Just as some men may need alimony, some women may prefer to pay maintenance to allow their husbands to be caretakers of children. In this connection, it is worth observing that several states already require a wife to support a husband unable to support himself.

The Uniform Marriage and Divorce Act eliminates definitions based on sex and substitutes those based on function. This is what the Equal Rights Amendment is intended to do. By passing it, we will help insure more genuine protection for those who really need it, and end the many injustices women still face. The final issue I would deal with concerns the draft and military service. Critics of the proposed Amendment point to this as the reductio ad absurdam of the equal rights idea, saying that it is ridiculous to draft women into our armed services as the Amendment presumably would require.

I disagree with this point of view. Putting to one side the question whether either men or women should be subject to a draft, I see no reason to put the exclusive onus on men. It is now a commonplace that women can and do perform useful functions in the services; and that appropriate physical examinations can weed out-as they do in the case of males-those who are unfit to serve. For example, pregnant women should be exempt.

As far as the draft is concerned there is double discrimination. There is discrimination against the men who are taken from their homes and placed in the armed forces against their will. This is a form of discrimination that can easily be appreciated. But there is also discrimination against women of a more subtle character. This takes place in three ways.

First, women are denied the opportunity to obtain the job training and experience available to servicemen from working class and minority group backgrounds. It is well known that the armed services serve as a "college" for many of the nation's poor; I fail to see why women should be deprived of this opportunity.

Second, as is well known, there are laws providing extensive benefits to veterans of the armed service. They relate to the essentials of life-education, housing, employment, life insurance, and hospital care. These are now distributed almost exclusively to men.

*Section 308, which deals with maintenance, is typical of the Act's approach: "(a) In a proceeding for dissolution of marriage or legal separation the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

"(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and

"(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

"(b) The maintenance order shall be in such amount and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors including:

"(1) the financial resources of the party seeking maintenance, ability to meet his needs independently....;

... and his

(2) the time necessary to acquire sufficient education or training to enable the

party seeking maintenance to find appropriate employment;

"(3) the standard of living established during the marriage;

"(4) the duration of the marriage;

"(5) the age, and the physical and emotional condition of the spouse seeking maintenance; and

"(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance."

Third, on a deeper level, when women are excluded from the draft-the most serious and onerous duty of citizenship—their status is generally reduced. The social stereotype is that women should be less concerned with the affairs of the world than men. Our political choices and our political debate often reflect a belief that men who have fought for their country have a special qualification or right to wield political power and make political decisions. Women are in no position to meet this qualification.

It is no answer to the above to say that if military service is such benefit, women are always free to enlist in one of the Women's Armed Service Corps. It is not really that simple. The law limits the size of the Women's Corps to two percent of their parent services, and even this level is not being met; in 1969 women were only about 1% of the armed forces.

For the above reasons I believe that the Equal Rights Amendment should be approved by this Committee and by the Senate as a whole as an overdue measure to eliminate discrimination on account of sex.

TESTIMONY FOR EQUAL RIGHTS AMENDMENT

(By Ann Corinne Hill)

The Equal Rights Amendment can improve state protective labor laws by extending the benefits of such laws to all in need of protection and by removing restrictions placed on women workers by allegedly protective laws.

The Equal Rights Amendment provides the long-awaited opportunity to fashion progressive protective labor legislation that would cover all workers in need of certain health and safety protections, whether they be male or female, adult or child. This idea is not new or revolutionary; it was suggested by Elizabeth Faulkner Baker in 1925 at the end of her thorough account of the influences on and effects of protective labor legislation adopted by New York in the first two decades of this century.1

At the time that Baker was doing research for her study, the controversy over the utility and desirability of protective labor laws for women only was already raging among members of the State legislatures, courts, women's groups, unions, and philanthropic groups, such as the National Consumers League (NCL) and Women's Trade Union League (WTUL). This controversy over protective labor laws was multi-faceted, just as the beliefs and motives of groups on both sides of this issue were often complex.

Florence Kelley, secretary of the National Consumers' League, stated that "night-work and overtime should be the monopoly of men who are better able to protect their interests in regard to it than either women or children, because men can both vote and expedite legislation for their protection, and also organize and thus enforce their demands." This statement is very telling of Kelley's own beliefs and motives for supporting protective labor laws for women only; in addition it reflects the various currents of thought on the subject that were prevalent in the early twentieth century. For example, Kelley's grouping of women and children into the category of workers needing protection was common to all supporters of protective labor laws.

1 Baker, Elizabeth Faulkner, Protective Labor Legislation (New York: Columbia University, 1925). Baker reports that in England, male trade unionists favored labor regulations for men as well as women as early as 1920. In New York at the same time, the Chief of Inspection of the Labor Department (whose duty it was to enforce protective labor laws) stressed the importance of granting special protection to those individuals who want and need it-rather than presuming that all women are incapable of doing certain jobs and all men are able to perform those jobs. (Baker, p. 452.)

2 For the record, these last two groups have been acknowledged by historians as the most effective women's groups working for protective labor laws. (See William O'Neill, Everyone Was Brave (Chicago: Quadrangle Books, 1969), pp. 95-6.) It may be of further interest that the National Consumers League is described as "a small, elite organization of welleducated women." In fact, O'Neill states that "no other feminist group seems to have attracted upper-class women in such numbers." The women founders and leaders of the WTUL were also members of the wealthy, professional classes. But it should certainly come as no surprise that working class women and men have always had less time and money to spend bringing court suits or lobbying with State legislatures than members of the middle and upper class. It does, however, dispel the false belief that women of different classes cannot work in each other's interest for the common improvement of woman's economic, social and political position in this society.

3 Quoted in Baker, Protective Labor Legislation, at p. 158.

One of the reasons for the women-children grouping was that the majority of women workers in the early part of the century were under 25-and still regarded as children.* A second reason was that most of the children working in factories were concentrated in women-dominated industries such as textiles factories and mercantile establishments. Thus, reformers who pushed for governmental supervision of child labor came to include women in the legislation, because it was thought that control of women's work hours was essential to successful control of children's hours in the same factories. Without such a safeguard young girls tended to lie about their age in order to work as long as their older sisters and mothers.

The strategy of protecting women and children together has been successful in those industries dominated by these two groups; in addition, male minorities in these industries have directly or indirectly enjoyed the same economic benefits and greater health protection conferred on women and children by various protective labor laws.5

The reverse phenomenon has occurred in male-dominated industries, where protective labor legislation has been used by men's unions to drive women work ers from their jobs or to exclude women altogether. The most active men's unions in New York lobbying for such specious protective laws were the molders' union (representing foundry workers), the transit employees union, and the printers' union. These unions successfully supported maximum hours laws and nightwork laws for women only; at the same time they developed elaborate reasons (based on thinly veiled prejudices against women) for why their jobs required the overtime and nightwork forbidden to women, thus closing off even the possibility of readjusting the work load to permit women to hold shorter daytime shifts. Furthermore, by driving some of the most skilled women workers out of their jobs in foundry work, transportation and printing, they forced them to seek work in "women's industries," at unskilled, low-paying jobs, thus further glutting the labor market in these industries and further depressing women's wages overall. All of their efforts were done in the name of "chivalry and decency" and a desire to "protect" the health of women workers in these industries.

Florence Kelley-and many other women-saw through this ruse to identify the male union members' genuine motives:

"In many cases, men who saw their own occupations threatened by unwelcome competitiors, demanded restrictions upon the hours of work of those competitors for rendering women less desirable as employees.'

Yet, the demands of these men's unions were met by sympathetic legislators and upheld by likeminded courts with little difficulty, since most protective labor laws were passed before women had the right to vote. Thus, although Kelley stated (supra, p. 2) that protective labor legislation was especially important in the absence of women's suffrage, it is also apparent that protective labor laws passed before suffrage were ultimately drafted by men, approved by men and interpreted by courts dominated by men-whose intentions, as I have indicated, were not always honorable.

997

The male fear of economic competition was augmented by a deeply rooted attitude in American society that women belonged in the home. United States Secretary of Labor James L. Davis said just that in a 1922 speech, when he also indicated that "women in industry would not exist in an ideal social scheme." The view of women workers as transients contributed to the belief of Florence Kelley that women workers did not stay in the labor force long enough to organize unions to protect themselves. For that reason, Kelley and others considered protective labor legislation as a substitute for unions and as a pragmatic, short-range solution to the much greater problem of gaining acceptance of women in the labor force.

In summary, the narrow interest in short-term economic gains by women's groups and men's unions and the willingness on the part of legislatures and courts to pass laws and write decisions based on rigid ideas about the proper role

4 In contrast, 1968 figures from the Women's Bureau of the U.S. Department of Labor show that the median age of women workers is 40 years old.

5 See Chapter VI, "Some Effects of Protective Legislation for Women," in Baker, pp. 351428 (especially p. 425).

Baker, p. 444.

Quoted in Baker, p. 442 (taken from an article in a series entitled "safeguarding the Mothers of Tomorrow," by James L. Davis, for the Gazette in Colorado Springs, November 5, 1922).