TABLE 1.-DISTRIBUTION OF WOMEN FACULTY AT LEADING AMERICAN LAW SCHOOLS Note: The following table is a breakdown of the number of women faculty (35) according to professorial title: nstructor or lecturer... Librarian or librarian-assistant professor.. Professor.... Research assistant professor. fisiting associate professor.. Total... 169514 35 Source: All of the above statistics have been compiled from the Association of American Law Schools Directory of Law eachers, 1968-70. Note: The above statistics are taken from Law Schools and Bar Admission Requirements in the United States, published by the section of Legal Education and Admissions to the Bar, fall 1969. SEX DISCRIMINATION AND "PROTECTIVE" LABOR LEGISLATION (By Susan Deller Ross, Arthur Garfield Hays Civil Liberties Fellow, New York University Law School) PART I.-INTRODUCTION In 1970, the Equal Rights Amendment to end sex discrimination against women has gained new political impetus. Yet many continue to oppose the proposed Amendment-or equal legal treatment for women under the 14th Amendment to the Constitution-because they fear that it would invalidate a great variety of State labor laws applying only to women workers. These laws have traditionally been considered to be important labor standards legislation, providing genuine protection to women workers. Recent developments have thrown doubt on that proposition. The most important of these is Title VII of the 1964 Civil Rights Act, which prohibits job discrimination on the basis of sex. Title VII has had a decisive effect on these State laws. In addition, both the Equal Employment Opportunity Commission (EEOC) and numerous States have challenged the laws. Finally, women's groups and labor unions have also gone on record against the State labor laws. It is therefore imperative to reexamine that opposition to the Equal Rights Amendment which has been based on the need to preserve State labor laws for women. This paper sets forth the new factors to be considered in that reevaluation. PART II.-BACKGROUND INFORMATION Before turning to the analysis of these various factors, some background information about employed women should be presented. More than one-third of the nation's working force is female. But women are funneled into low-paying, lowprestige jobs with little or no chance for advancement. Sex is as important as race in determining salaries. Thus, the full-time employed white male had a median income in 1968 of $7,870; the black male, $5,314; the white woman, $4,580; and the black woman, $3,487. Women college graduates employed year-round fulltime earned less than men high school dropouts. Women high school graduates earned less than men with less 8 years of education.1 As EEOC has pointed out, the difference between the average work-life expectancy of men and women has narrowed significantly. Yet: In 1968, the unemployment rate for women was much greater than for men, 4.8% compared to 2.9%. Many women hold jobs which are far below their training and talent. In 1968, approximately one-fifth of working women who had completed four years of college were non-professional; employed in clerical, sales, service worker or semi-skilled operative categories. Women not only are concentrated in the lower-level jobs, but are paid relatively less than men for comparable work. The median income of yearround full-time workers in 1966 was: Men, $6,848 Women, $3,973 In 1966, less than 1% of women earned salaries of $10,000 or more; the proportion for men was almost 20 times greater." In response to this kind of situation, Title VII of the Civil Rights Act of 1964 was passed. Broadly speaking, it prohibits discrimination in employment on the basis of sex. There are numerous exceptions to this doctrine, but the most important one is the "bona fide occupational qualification" exception of § 703 (e), otherwise known as a "bfoq." Under this section, an employer is allowed to discriminate on the basis of sex if he can show that sex is an occupational qualification for the job in question. Thus, a broad interpretation of the bfoq (which the courts have ultimately refused to adopt) would have practically nullified the prohibition on sex discrimination, since many admitted cases of discrimination could thereby have been excused as necessary to a business. In the context of the bfoq, then, State "protective" labor legislation, “protecting" women only against various supposed evils, was of crucial importance, since it was originally possible to interpret these laws as coming within the bfoq exception, thus allowing employers to refuse to hire or promote women where violation of a State law would occur. For example, if a State prohibits women from working more than 48 hours a week, and a woman applies for a higher paying job requiring work of 50 hours a week, the employer could refuse her the job under a broad interpretation of the bfoq exception. His sole ground would be that she is a woman, and because of the State law and the requirements of the job for 50 hours of work, only men can fill the job; that is, the male sex is a bfoq for any job requiring more than 48 hours of work per week. 1 U.S. Department of Commerce, Bureau of the Census, CPR 60, No. 66. 2 EEOC. "Toward Job Equality for Women" (1969), 1-2. Broadly speaking, employers and labor unions having fewer than 25 employees or members, and employment agencies dealing with such employers are not covered. In addition, the national, State, and local governments and agencies are exempted, as well as U.S. public corporations. Other exempt categories include Indian tribes, private clubs, religious groups, and educational institutions. Communist employees are not protected. Finally, where sex, religion, or national origin (but not race or color) is a "bona fide occupational qualification," discrimination is permitted. See §§ 701, 702, 703 of the Act. Restrictive labor legislation applicable to women only offered a way out to employers bent on discrimination, then, and it was not a minor out. In order to understand this out, these State laws should be analyzed more closely. PART III.-RESTRICTIVE STATE LAWS APPLICABLE TO WOMEN ONLY There are many categories of such State legislation, but basically it can be broken down into two broad types: 1) laws conferring supposed benefits, such as minimum wages, a day of rest, a meal or rest period, maternity benefits, provision of chairs for rest periods, and; 2) laws prohibiting women from working in certain jobs, such as in mining or bartending, or under certain conditions-i.e., weight limits and hour limits have been imposed on women's jobs, and nightwork and work before and after childbirth is either prohibited or restricted. At first glance, it might appear that these laws would help women, and indeed, the rubric of "protective legislation" augments that impression. The President's Commission on the Status of Women and some labor unions have accepted that interpretation. The EEOC originally subscribed to a version of that view, although, as will be shown later, it has now categorically rejected it. But closer analysis of the State legislation is required before a favorable interpretation can be accepted. Initially, it should be noted that business “observers of the early legislative period . . allege that the motivation for 'protecting' child and female labor was more the protection and advancement of the male's status at work than a humanitarian attitude for the women and children in our society. The National Safety Council subscribes to this view by describing unreasonable statutory limitations and tacit unfair employment practices as a deliberate attempt to exclude the possibility that a large group of workers [women] may enter into competition with those already in the trade [men].”* Two Congresswomen, speaking in support of the sex amendment to Title VII subscribed to the same view. Representative Griffiths stated: "Some people have suggested to me that labor opposes 'no discrimination on account of sex' because they feel that through the years protective legislation has been built up to safeguard the health of women. Some protective legislation was to safeguard the health of women, but it should have safeguarded the health of men, also. Most of the so-called protective legislation has really been to protect men's rights in better paying jobs." 5 Representative St. George, speaking against nightwork prohibitions for women, stated: "Protective legislation prevents, as my colleague from the State of Michigan just pointed out-prevents women from going into the higher salary brackets."* Support for this view can also be gathered from situations where all male or male-dominated labor unions have clearly sought to exclude women from work or from the most remunerative job categories. For example, the Bartender's League of America once picketed a restaurant and tavern owner to secure a union shop agreement which would exclude women members and therefore force the employer to fire three female employees. It is no accident that labor unions are often co-defendants with employers in suits charging sex discrimination under Title VII, since they engineer collective bargaining agreements which clearly discriminate against their women members. For example, one might point to the description of the collective bargaining agreement in Bowe v. Colgate-Palmolive Co., 272 F. Supp. 332, 340-47 (S. D. Ind. 1967), reversed 416 F. 2d 711 (7th Cir. 1969), which reserved the highest paid jobs for men only. (This raises the interesting question of whether labor unions are fulfilling their duty of fair representation as to their female members.) However, even aside from the question of the motivation for the legislation, a closer examination of the legislation will show that it often actively hurts women, and fails to help where help is needed. The most obvious harm is that both categories of State legislation have been used as an excuse not to hire women or not to promote them to better paying jobs. This should be clear as to the whole second class of legislation, which, it will be remembered, actually Cromer, "Sex Discrimination in Private Employment: The Conflict Between the Civil Rights Act of 1964 and State Labor Laws for Women." An advanced Study Project in Industrial Relations for degree of Master of Business Administration (1967), 13. 5 110 Cong. Rec. 2580 (1964). 6 Id. 7 Wilson v. Hacker. 101 N.Y.S. 2d 461 (1950); see also. Kanowitz, supra, at 278. n. 11 for other examples of discriminatory collective bargaining agreements. 8 Examples are the Rosenfeld and Bowe cases, cited and discussed, infra, at 11-14. prohibits the employment of women in specified situations; and a study of the case law reveals the details of how this system works to deny jobs to women (for the case law, see Part V of this memorandum). The discriminatory effect is also true as to the first category of "benefit" legislation, since even when an employer complies with the applicable laws, compliance can hurt women's employment opportunities. For example, in one EEOC case, a Washington State law requiring 30-minute lunch breaks for women only was used by an employer to create different work shifts for men and women. The men received no formal lunch break-but ate "on the fly"-and worked in three regular 8-hour shifts. In contrast, women were given a lunch break, but to do this, the employer cut the day's third shift to 6 hours and 45 minutes. With a weekly rotating schedule of shifts, every third week a woman's pay check would be cut from pay for 40 hours to pay for 334 hours. Over a work year of 50 weeks, the "protection" of a lunch break would thus cost a woman employee the loss of 2% weeks of take-home pay-rather a costly lunch break. And in the bargain, if lunch breaks are really considered that important to a worker's health, all the male employees were exploited by the denial of a formal lunch break. Ironically enough, the EEOC found that the State law did not require this result-but the important fact for our attention is how the employer had interpreted State law. Another example of the harm caused by this kind of benefit is found in Richards v. Griffith Rubber Mills, 300 F. Supp. 338 (D. Ore. 1969), where one of the grounds relied on by the employer to deny a woman's application for the job of Press Operator B (and give it to men with less seniority) was a union contract requiring two 10-minute rests periods for women. It can be seen then, that such "benefit" laws hurt women by denying them job opportunities and hurt men by denying them the "benefit". The same cannot be said about the prohibitory category of laws, since to confer their "protection" on men would not help men but would only serve to eliminate many jobs-e.g., bartending, mining, jobs requiring the lifting of 25 pounds, jobs requiring overtime work (with premium pay rates), and so forth. These laws hurt only women then: those women who are perfectly capable of fulfilling the prohibited jobs, and in fact, anxious to do so for the pay, the pay increase, the improvement in status, the increased job satisfaction, the preferred hours, or whatever factor may motivate a particular woman to want a particular job. Turning to a more detailed analysis of State laws, further inadequacies can be discovered. The following tables show the patterns of these laws. The tables are based on information available in December 1968, but even though they are not completely current, they do indicate the general trends. U.S. Department of Labor, Women's Bureau, Summary of State Labor Laws for Women (March 1969). |