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.

8

* 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 workers 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.

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).

6 Baker, p. 444.

7 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).

of women in society combined forces to create protective labor laws that in general excluded certain male workers from safeguards vital to their health and safety and denied certain female workers the right to equal employment opportunities in the field of their choice. Passage of the Equal Rights Amendment would be a first step toward righting this stubbornly long injustice against both women and men workers.

Senator Cook. I wish you would go just a little bit more in depth in reply to the suggestion of Dean Pollak because I believe that, I think it only fair that we get something into the record. I am delighted that you feel the same way that Professor Emerson does.

For instance, do you have any fear, as has been stated before this committee on many occasions, that all of the many laws throughout the United States, at the respective State levels, would automatically be repealed, or do you believe that the doctrine of constitutional reasonableness should apply to them as it applies to other fields of law? Mr. DORSEN. Well, I think there is no doubt that these laws would not be automatically repealed. The courts are well equipped, long training and experience, well able to deal with the kind of problems that this amendment would raise. There are legal problems. They are problems that have been dealt with under other amendments of the Constitution. I see no reason to take the Cresanda-like approach.

I apologize for the fact that Cresanda was a woman, but she was a pessimist.

I do not think that Dean Pollak's concern is at all warranted in this respect. I think that the enforcement clause would give States the opportunity to implement the broad purposes of this amendment to the extent that those implementing statutes were consistent with Federal law that might be passed, and with the amendment they would stand. If the Federal Congress, if the U.S. Congress decided to implement any aspect of this amendment and did so in a way which was inconsistent with the State laws, the overriding power of the supremacy clause would govern as it does under the commerce laws, as it does under other parts of the Constitution, and the State law would be inoperative.

But this is old hat. It is nothing new. And I do not think it presents a serious impediment to the passage of this amendment.

Senator Cook. Let me ask you, Professor, how many of the real serious problems that you feel, for instance, have been expressed by Mrs. Miller, by Mrs. Wolfgang last week, how many problems where you feel that they have received a degree of protection by legislative authority in regard to women are matters that could just as easily be negotiated?

Mr. DORSEN. Within the factory, for example?

Well, from all I have been able to glean from the literature on the subject and from my study of the problem, women are in really no position to negotiate from a position of strength. They are not able, really, to do the kind of things for themselves on a piecemeal basis that an amendment of this kind could do by laying down a broad principle.

I think it is unrealistic in the extreme to think that in every factory or every union throughout the land detailed negotiations could take place which would solve the problem. On the other hand, if the amendment is passed, then I think the women who are interested, the work

ing women, women of all professional and working groups would be in a position armed with this expression of principle, this constitutional amendment, to negotiate then from a position of equality and to secure for themselves and their colleagues the kind of benefits that they are entitled to.

Senator Cook. Do you think under this equal rights amendment, for instance, that any of the regulations presently within the framework of the Department of Labor and the State of California would automatically be repealed, or do you think they would be extended to everybody?

Mr. DORSEN. My inclination would be to think that they could be extended. I think that when there is protective legislation the courts would read it that way.

This is in contrast with the example given before of restrictions on holding jobs. Those restrictions would fall away-for example, the restrictions on women holding certain types of jobs such as bartender or any other. They should fall away. That would be a principal purpose of this amendment. But the protective legislation would not necessarily fall away. They could be interpreted reasonably in light of their overriding purpose to provide protection for all classes of workers.

Senator Cook. Do you believe, like many people have testified, including many remarks of the chairman, that the fifth and the 14th amendments provide for equal opportunity and equal rights for all citizens in this country?

Mr. DORSEN. I think they do, but they have not so far been interpreted to provide equal rights for women.

Senator Cook. As a matter of fact, on that basis, do you know of any legislative history in regard to the congressional debates on the 14th amendment that in any way at any time during the entire debate included the idea in the framework of the legislative intent that it would apply to women?

Mr. DORSEN. No.

Senator Cook. Thank you very much, Professor, and I have enjoyed your being here.

Our next witness is Mrs. Ruth Moss Easterling, national president of the National Federation of Business and Professional Women. Is she here?

STATEMENT OF LUCILLE SHRIVER, FEDERATION DIRECTOR; ACCOMPANIED BY PHYLLIS O'CALLAGHAN, LEGISLATION DIRECTOR, NATIONAL FEDERATION OF BUSINESS AND PROFESSIONAL WOMEN'S CLUBS, INC.

Mrs. SHRIVER. Senator Cook, I am Mrs. Lucille Shriver, testifying on behalf of Mrs. Ruth Moss Easterling, national president of the National Federation of Business and Professional Women.

I have with me today Dr. Phyllis O'Callaghan, our legislation di

rector.

Senator Cook. Let me ask you if either of you would like to make any comments, would it be agreeable with you if we put Mrs. Easterling's testimony in full into the record, and then if there is any com

ment that either one of you would like to make in regard to it, you could do so.

Mrs. SHRIVER. I would appreciate that, Senator.

Senator Cook. Fine.

Let the record show that.

And by the way, Professor Dorsen left one or two things out of his statement, and let the record show that it will be printed in full. You may proceed.

Mrs. SHRIVER. Thank you.

For those on the committee who are not familiar with our organization and, therefore, might not be aware of whom we represent, our organization is composed of 53 federations representing the 50 States, the District of Columbia, the Virgin Islands, and Puerto Rico. Any working woman may belong to our organization and, therefore, we represent women who are teachers, secretaries, consultants, doctors, lawyers, salesladies, clerks, government workers, nurses, housekeepers, beauticians, and hundreds of other occupations. These women are married, single, divorced, widowed; they are mothers and grandmothers.

Our members adopted a legislative platform at our annual national convention, following proposals made by the States, by our legislation committee and by our legislative platform committee the latter representing all 53 of the federations.

Thus, we do not approach legislation lightly, without profound consideration and the assent of the representatives of all our members. When we testify before the Congress, we have the assent of that whole membership for we are confined to the items actually on our legislative platform. We were first organized in 1919 and we have supported the equal rights amendment since the 1930's.

With the support of 180,000 working women, then, I appear before you today to reaffirm our dedication to the equal rights amendment, which reads:

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

This amendment has passed the House of Representatives in the form of House Joint Resolution 264 and is embodied essentially in Senate Joint Resolution 61. We oppose the substitute proposed by Senator Ervin, Senate Joint Resolution 231.

In all candor, we cannot accept Senate Joint Resolution 231 as a substitute for the House-passed bill or for Senate Joint Resolution 61. We feel that since Senate Joint Resolution 231 explicitly provides so many exceptions to the original declaration of equality before the law of the sexes, it would serve no purpose. It guarantees nothing except the continuance of discriminatory legislation and policies. We hardly need such a guarantee. Additionally, we would add that the present wording of the House-passed equal rights amendment would not begin to cause the amount of adjudication as Senate Joint Resolution 231 would likely entail.

Some individuals have belabored this amendment with extraneous and irrelevant remarks about the difference between men and women, the sanctity of the home, the grandeur of womanhood, and the like. I say extraneous and irrelevant for such matters are simply not in