men: (1) as to the computation of their benefits based on age 65 retirement even if they choose an earlier retirement and (2) as to special pendency requirements made of man but not women. These should be changed. Is it fair to a husband and wife that she should work, accrue survivor benefits, yet on her death the benefits are not available to him? BPW has long urged removal of these inequities and we would hope that the passage of the Equal Rights Amendment would require a total re-evaluation of our current social security legislation. The possible revocation by the Equal Rights Amendment of state labor laws undoubtedly disturbs some of you, as your letters to us indicate. I turn to that issue now. A summary of state labor laws for women was published March, 1969, by the U.S. Department of Labor.2 These laws establish maximum daily or weekly working hours, require certain lunch and rest periods and seating facilities, establish weight-lifting limitations, restrict the kinds and places of employment. Mr. Chairman, the term "protective" no longer applies to this kind of legislation. At one time special labor regulations for women were protective because these were the only labor laws on the books; there were not federal or state laws protecting a worker as to the hours of employment, wages due, or health and safety working conditions. The movement for special labor legislation for women was encouraged by the famous Muller case in which the Supreme Court upheld Oregon's 10 hour day limitation on working hours for females only, after three years before invalidating a N.Y. Statute limiting working hours of bakery employees of both sexes to 10 hours a day.* 3 Today however the sweat shap conditions, the dawn to dusk hours, the subsistence level pay are to a large degree sins of the past. Judicious legislation and courageous labor organization have helped to amend that situation. I would think labor organization would be the first to call attention to this fact. Women do not today need protection against oppressive conditions which have ceased to exist. They need the same things men workers need; broad coverage by federal wage and hour legislation; adequate guarantees against occupational hazards, the right to apply for any job based on individual capacity, the right to take special training, managerial training programs, in a word, equal employment opportunities. Today state labor laws for women impose additional considerations for the employer who hires women; they give him an adequate reason for paying women less for the same work, or refusing to hire a woman who must have a 30 minute lunch hour, who must have special seating arrangements, or must depart from the factory without a minute of illegal (for her) overtime regardless of her own financial needs and/or choice. Increasingly this view of state legislation for women is being adopted. On March 5, 1970 Illinois Bell Telephone filed a suit against the Illinois Director of Labor regarding the Illinois Maximum Hours Act. A similar suit was filed at the same time by Caterpillar Tractor Co., also a large employer of women. Illinois Bell took that opportunity to explain that such hours legislation for women is discriminatory and means "that if overtime work becomes necessary-at preminum pay-it is available to men but not to women, even on identical jobs. Neither can women be promoted or assigned to jobs which regularly require extended hours of work." On March 25, 1970, the Corporation Counsel, District of Columbia issued the following opinion on this Federal City's "8 Hour Law for Females": Because of its restrictions on the hours of employment of women, and number of days in each week they may be employed, the "Female 8 Hour Law" may result in discrimination against female employees, as compared 2 Summary of State Labor Laws for Women, March, 1969, (Washington, D.C. U.S. Department of Labor, Wage and Labor Standards Administration, Women's Bureau, 1969), pp. 8-19. Of 39 state hours laws, only 6 apply to men and women. Twenty states have established a 6 day maximum work-week for some or all industries. Only 8 of these apply to men as well. Twelve states require rest periods for women workers. In 18 states night work for adult women is prohibited and/or regulated in certain occupations. Twenty-six states have laws or regulations prohibiting the employment of adult women in specified occupations or industries or under certain working conditions. Forty-five states have seating laws or orders, all but one apply exclusively to women. Then states also specify maximum weight women employees may lift, carry, etc. 3 Muller v. Oregon, 208 U.S. 412 (1908). 4 Lochner v. N.Y.. 198 U.S. 45 (1905). 5 See Illinois Bell Telephone Company v. Barney J. Grabiec, Director of Labor of the state of Illinois. Civil Action No. 4550 (S.D. Ill. 1970). 6 See Illinois Bell Telephone Company, News Service Division, March 5, 1970, p. 1. with male employees performing essentially similar duties, since it operates to deny female employees the opportunity of working more than eight hours a day, more than six days a week, or more than forty-eight hours a week, as the male employees may do, and earning overtime compensation to the same extent as male employees. Also, the "Female 8 Hour Law" could conceivably result in a female not being employed by a business which needs employees who are able to work a certain amount of overtime, or work a limited number of hours seven days a week." In 1970 special so-called protective legislation for women is restrictive, burdensome, and discriminatory. We support passage of the Equal Rights Amendment to eliminate such laws as they apply to women only. These laws prohibit women from being bartenders but allow them to be barmaids, to serve the drinks they cannot mix-the pay they receive happens to be less in these sexually exclusive categories. In some states women cannot work overtime in factories but laundry, hotel, and restaurant workers, agricultural and domestic laborers are often exempt from the hours limitation. At the other end of the scale 27 states (out of 39 with maximum hours laws) exempt some or all women in administrative, executive and professional positions from hours limitation. We emphasize the restrictions imposed on women by this legislation because some continue to oppose the Equal Rights Amendment in order to continue such legislation. Special female labor legislation operates to prevent millions of women from competing on equal terms with men; they prevent women from providing for themselves and their dependents with the proper support and care. Yet women, are working today because they must. The 1969 Handbook on Women Workers reveals that today there are some 29,000,000 women in the labor force-38% of the total labor force and that "financial reasons are usually the strongest motivation for work for most women." Widowed, single and divorced women must support themselves and often dependents. Almost 3 out of 5 women workers are married and 38% of all women in the labor force are mothers. In 1967, 11% of all families were headed by a woman. In 1966, 14% of our 48.9 million families had incomes of less than $3,000, sometimes defined as poverty level and 46% received less than $7,000, considered a level of "modest adequacy." Thus women, work for the same reasons as men, to provide for their families—their educational, housing, health care needs-for themselves and other dependents. Through special labor legislation for women, employers have been able to deny these women jobs, promotions, seniority benefits, wage increases and overtime; to prevent these women from being hired, promoted, transferred. Often employers prefer to give overtime to men who are already at the maximum deductible earnings for social security, thus the employer does not contribute more whereas with women he would have to do so. Special hours legislation protected his interest, not that of the women employees. This means these women are also denied maximum pensions. They lose the chance to pay into social security the payments necessary for maximum pensions while their company pension, based on their earnings, is affected also. These same women may be forced to hold down two jobs instead of one since hours legislation affects employer, not employee. 10 We must ask, then, whom does such legislation protect? The men who get the jobs unavailable to women due to hours of work or weight lifting requirements or special conditions of employment? If the protections imposed by this labor legislation are so good, we see no reason why they should not cover all workers, not only women. In fact, were the Equal Rights Amendment adopted such legislation would be either nullified or extended to include men.' If what the poor need, as one eminent sociologist has pointed out, is more money in their pocket— why should poor women accept a substitute? Why should they accept maximum hours, no overtime, no lifting of certain amounts of weight, when what they need and want is more cash in their pockets, more food and housing and education for their families? 7 Opinion of the Corporation Counsel, District of Columbia. March 25. 1970, p. 1-2. 8 1969 Handbook on Women Workers, Bulletin 294, U.S. Department of Labor, Wage and Labor Standards Administration, Women's Bureau (Washington, D.C.: GPO, 1969), pp. 3, 8. 9 Ibid., pp. 28, 3, 128. 10 Just such an interpretation of a law was issued by the Wage and Hour Administrator of the U.S. Department of Labor in connection with the Equal Pay Act of 1963. Interpretive Bulletin, Part 800 of the Code of Federal Regulations. Section 800.162 "Overtime Payments Required by State Law." The obvious fact that women are physiologically different from men does not justify legal restrictions imposed on women. With labor laws for women it should be asked whether the restriction is reasonable, given first, the physical capacity of women, and second, the industrial conditions which prevail in the particular industry to which the law is being applied and in the U.S. in general. We do not think the restrictions reasonable nor that a need can be demonstrated. A study published by the National Safety Council in 1954 made the following observations concerning the ability of women to perform arduous labor: There are probably no tasks that somewhere and at sometime women have not done. They have done farm labor, working in the fields with the men. In early coal mining operations in Europe, women as well as men went into the mines. . . In many countries women rebuild war-leveled cities, lay railroad tracks, and run street cars. The first textile mills in the United States hired mostly women. And in all ages, women have done heavy, exhausting work around their homes."1 11 In the Bowe case, Thelma Bowe and others sued the Jeffersonville, Indiana plant of Colgate-Palmolive on the grounds that they were being excluded from better paying jobs on the excuse that these jobs required the lifting of 35 pounds or more and that women had to be "protected" from such work. The women lost their first round in the Federal District Court for the Southern District of Indiana, but that decision was reversed in their favor September 26, 1969 by the U.S. Court of Appeals for the Seventh District. The Court at that time concluded: If anything is certain in this controversial area, it is that there is no general agreement as to what is a maximum permissible weight which can safely lifted by women in the course of their employment. The states which have limits vary considerably. Most of the state limits were enacted many years ago and most, if not all, would be considered clearly unreasonable in light of the average physical development, strength and stamina of most modern American women who participate in the industrial work force.12 Evidently Thelma Bowe and the women who joined in the suit did not think they were being "protected", nor did Leah Rosenfeld, who applied for a position as "agent-telegrapher" with Southern Pacific Company only to find that California laws and weight lifting regulations prevented her advancement to a position she sought.18 Passage of the Equal Rights Amendment would open doors for these women. Hours and other restrictions for women alone are not only unreasonable but also fundamentally inconsistent with Title VII of the Civil Rights Act of 1964. This Title prohibits employment discrimination on account of race, color, religion, national origin or sex. An exception is made whenever sex is a bona fide Occupational qualification (bfoq) necessary to the normal operation of a particular business or enterprise. There is an irreconcilable conflict between the sex discrimination provisions of Title VII and state labor regulations for women. In August, 1969, the EEOC, after earlier assuming a possible valid purpose for these laws, reversed itself and concluded that these laws which "prohibit or limit the employment of females" as to certain occupations, night work, maximum weekly hours of work, weightlifting regulations tend to discriminate rather than protect." The Commission explained that: Such state laws and regulations, although originally promulgated for the purpose of protecting females, have ceased to be relevant to our technology or to the expanding value 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. Accordingly, the Commission has concluded that such laws and regulations conflict with Title VII of the Civil Rights Act of 1964 and will not be considered a defense to an otherwise established unlawful employment practice or as a basis for the application of the bona fide occupational qualification exception.1 11 National Safety Council. The Woman On The Job: Her Health and Safety (Chicago: The National Safety Council, 1954) p. 1-2. 12 Bowe v. Colgate-Palmolive Company, 416 F. 2d 711 (7th cir., 1969). 13 Rosenfeld v. Southern Pacific Company 293 F. Supp. 1219 (C.D. Calif., 1968) Appeal pending Nos. 23,983 and 23.984 (C.A. 9). 14 34 Fed. Rg. 13367, 8 (August 19, 1969). Increasingly women are testing the validity of these laws since the Civil Rights Act of 1964 prohibits employment discrimination by sex. The State Attorneys General in six states (S. Da., N. Da., Ohio, Pa., Mich., Okla.) have said they will not enforce Hours Laws for women in view of that conflict. In the Rosenfeld and the Richards case two federal district courts have rendered decisions against state protective laws (Oregon and California). The hours laws and weight-lifting regulations were deemed superseded by Title VII of the Civil Rights Act of 1964.15 When the District of Columbia's chief legal officer ruled this March that the D.C. "8 Hour Law for Females" conflicts with the sex discrimination provisions of the Civil Rights Act of 1964, he explained his position in detail: It is apparent therefore, that Title VII of the Civil Rights Act and the "Female 8 Hour Law" are in conflict-the former among other things, requires that there be no discrimination in employment based on sex, the latter operates to deny to females employment opportunities available to males, with respect to working more than eight hours a day, six days a week, or forty-eight hours a week. Regardless of the protective purpose for which the "Female 8 Hour Law" may have been originally enacted, the fact is that today the law tends to result in adverse discrimination against women, insofar as certain employment is concerned, rather than to protect them. On the other hand, Title VII of the Civil Rights Act of 1964 was enacted with the liberal objective of alleviating just such discriminatory practices. In light of this, it is obvious that well-established principle of statutory construction favoring statutes enacted to alleviate discriminatory conditions should be applied in favor of the later and more general Civil Rights Act of 1964 as against the earlier "Female 8 Hour Law." 16 He concluded that, to the degree the 8 Hour Law results in adverse discrimination, by denying to women employment opportunities available to males, it is superseded by Title VII. Thus for all practical purposes the Minimum Wage and Industrial Safety Board, which enforces this legislation has determined that the hours law for women is superseded by Title VII. We believe if any of these cases reaches the Supreme Court that body will determine that all such special labor legislation just for women irreconcilably conflicts with Title VII and thus is void. We need passage of the Equal Rights Amendment however, to speed the process, more than that, to help insure the end result: namely, nullification of special labor legislation for women alone; assurance that labor legislation will affect workers regardless of sex. We hope this Congress will pass this historic legislation-the Equal Rights Amendment enabling women to assume their full rights and responsibilities. Senator COOK. I want to thank you for a very fine statement. I might say for those parts that were deleted during the course of the statement, they will be included in full into the record. Mrs. SHRIVER. Thank you. Senator Cook. We have discussed this before in the earlier hearings, and I really have no questions except to thank you very much for your statement, with the hopes that we can continue to move on and come to a conclusion sometime before this day is over. Mrs. SHRIVER. We thank you for your time. Senator Cook. Thank you very much. I am wondering, maybe we have somebody here who might like to have some kind of a bite of lunch. I am willing to limit it to 30 minutes if everybody else is, and be back here at 2 o'clock. We have one, two, three, four, five, six, and possibly seven more witnesses. I might say that I would hope that if some have statements they would like to put into the record in toto, and then make any comments they might like to make, that it might speed up the afternoon's 15 See Rosenfeld v. Southern Pacific Company 293 F. Supp. 1219 (C.D. Calif., 1968) appeal pending Nos. 23, 983 and 23, 984 (C.A. 9); Richard v. Griffith Rubber Mills, 300 F. Supp. 338 (D.C. Oregon, 1969). 16 Opinion of the Corporation Counsel at 7. proceedings, so that we could come to some conclusion before the day is over. However, if it is the desire of witnesses to read their statement in full, I want you to know that I will be here, and we will treat it on that basis. Suppose we recess until 2 o'clock. I might also say that if there is anyone who wishes to submit their statement to be put directly into the record, they may certainly do so and it will be put into the record as if given before the committee, because I am the only one here and I will read it. So we will be back here at 2 o'clock. (Whereupon, at 1:30 p.m., the committee recessed, to reconvene at 2 p.m., this same day.) AFTERNOON SESSION Senator Cook. We will come to order, if we may. I would like at this time to put into the record the 1960 Bill of Rights of Canada. Under part I, I would like to read, it says as follows: It is hereby recognized that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms; namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and the protection of the law; (c) freedom of religion; (d) freedom of speech; (e) freedom of assembly and association; and (f) freedom of the press. (The document referred to follows:) WE ARE 10 YEARS BEHIND CANADA THE 1960 CANADIAN BILL OF RIGHTS-8-9 ELIZABETH II CHAPTER 44 An Act for the Recognition and Protection of Human Rights and The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law; And being desirous of enshrining these principles and the human rights and fundamental freedoms derived from them, in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada; Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: PART I BILL OF RIGHTS 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist wtihout discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namley, |