“Not Protective but . . . Restrictive”: ERA Advocates Oppose Protective Legislation for Women
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“Not Protective but . . . Restrictive”: ERA Advocates Oppose Protective Legislation for Women

In the years following the 1920 ratification of the 19th Amendment extending voting rights to women, the National Woman’s Party, the radical wing of the suffrage movement, advocated passage of a constitutional amendment to make discrimination based on gender illegal. The first Congressional hearing on the equal rights amendment (ERA) was held in 1923. Many female reformers opposed the amendment in fear that it would end protective labor and health legislation designed to aid female workers and poverty-stricken mothers. A major divide, often class-based, emerged among women’s groups. While the National Woman’s Party and groups representing business and professional women continued to push for an ERA, passage was unlikely until the 1960s, when the revived women’s movement, especially the National Organization for Women (NOW), made the ERA priority. The 1960s and 1970s saw important legislation enacted to address sex discrimination in employment and education—most prominently, the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, and Title IX of the 1972 Higher Education Act—and on March 22, 1972, Congress passed the ERA. The proposed amendment expired in 1982, however, with support from only 35 states—three short of the required 38 necessary for ratification. Strong grassroots opposition emerged in the southern and western sections of the country, led by anti-feminist activist Phyllis Schafly. Schlafly charged that the amendment would create a “unisex society” while weakening the family, maligning the homemaker, legitimizing homosexuality, and exposing girls to the military draft. In the following 1970 Senate hearing, a representative of working women and members of the National Woman’s Party, including founder Alice Paul (1885–1977), argued that protective legislation harmed, rather than helped, working women by restricting their opportunities to acquire higher-paying jobs.


I am Georgianna Sellers of Clarksville, Ind., speaking on behalf of the Indiana and Kentucky unit of the League for Working Women known as LAWW. I am acting chairman for this organization. We have other chapters in California, Oklahoma, Nevada, and Kentucky, and other States are rapidly forming new chapters. LAWW’s basic purpose is to work for and achieve equality of rights for women. It is not confined to working women, although most of our members are factory workers.

The women in our organization wholeheartedly support the equal rights amendment. We do not expect the amendment to do the impossible but we do feel sure that the immediate passage of the ERA would at least knock the props out from under employers who are using the so-called protective labor laws for women only as an excuse to discriminate against women employees.

I agree with Myra Wolfgang, that “sex prejudice does parade in the cloth of tradition and American working women are aware that it is tailored to the patterns of ignorance and special interest.” But there the agreement between us ends. Instead of seriously working for the benefits of real working women, she is traveling round sponsored by a male dominated union, overlooking conveniently the fact that the very women she is supposed to be representing are the most underpaid, downtrodden, discriminated-against women in the whole work force. Women union officials should be working for the betterment of working women and men instead of trying to kill a constitutional amendment that would be the first step toward a very realistic end of discrimination.

I would like also to put in evidence a letter written by Barbara Ireton which recently appeared in the Washington Post, under the title of “Aunt Tom.” I quote:

    How strange. While Myra Wolfgang, vice president of the Hotel and Restaurant Employees and Bartenders’ Union was busy putting down equal rights for women, waitresses in Coronado, California had to fight to hold their jobs simply because they are women and dubbed replaceable by President Nixon for his state dinner. These hard-working non-executive union members should inform Mrs. Wolfgang that union dues entitle them to full and equal representation. Apparently she thinks waitresses (and other women) don’t want equal employment rights. So much for this Aunt Tom’s credibility. She should resign.

There is no doubt in my mind that State laws that are “protective” and apply to women only are not protective but are restrictive. They strongly aid and abet employers to discriminate against women. As our personnel director at Colgate-Palmolive Co. testifying in Indianapolis during our title VII trial said (see subcommittee hearings, page 580 for the court of appeals decision in our case):

Oh, there were finishing labor jobs throughout the plant that we could have placed these women in rather than lay them off, but we were protecting our ladies.

They protected us right out of our jobs for 6 months and had been doing this for 12 years previous to the passage of title VII.

I say this—Tillie the Toiler may not have a college education, but she has intelligence, feelings, commonsense, and knows of her rights to equality under the law. Rather than give her sympathy and restrictive State laws, give her equal rights.

LAWW of course does not oppose good labor standards laws that apply to both sexes equally, like the Federal Fair Labor Standards Act. But we do oppose laws that apply only to women employees because they limit employment opportunities of working women. Special restrictive laws for women workers have got to go regardless of whether or not the equal rights amendment is passed.

Our union contract provides that all overtime is strictly on a voluntary basis for both males and females. We support such a provision either in union contracts or in the law, but it must apply to both sexes equally, or it will only serve to hurt women. The equal rights amendment would encourage good labor standards laws for both sexes rather than just limiting women.

The Supreme Court has thus far not extended to any female citizen the protection of the fifth or the 14th amendments. Title VII of the Civil Rights Act of 1964 has helped tremendously to get women into court to end discrimination. But why should working women like myself have to spend thousands of dollars on litigation and wait years for a Federal judge to make up his mind as to how he will rule, and perhaps even after all this still have to take cases to the Supreme Court. The equal rights amendment, while it may not solve all ills, would at least give women the rights due them without so much expensive litigation.

We further support the equal rights amendment because it would have a restraining effect on those who abuse and discriminate against women. We need the amendment to further implement the present constitutional provisions, to strengthen the language so no one, and no court, can ever misinterpret the correct language which says women as individuals have equal rights. I agree with a statement made also in the subcommittee hearings last May by Dr. Boyer, when she said:

    Opposition is still evinced by those groups whose interest is economic, and who benefit most by keeping women as a cheap labor pool. (Subcommittee hearings, page 442).

The passage of the equal rights amendment at this time would serve many purposes—it would demonstrate a serious effort at a readjustment of our system of jurisprudence to meet the changes that have taken place over the years. These changes having put responsibilities upon women which the drafters of the Constitution almost two centuries ago never dreamed of. We need the amendment to bolster the various legal actions now in progress.

Senator Ervin has contended that the amendment will keep women with dependent children from receiving alimony. The fact is that most of the women I know, who are divorced, must work to support their children because the child support, if they get any at all, is not adequate for their children’s needs. If the equal rights amendment makes it possible for a man to divorce his wife, get custody of the children and alimony and child support, and this is done legally, I say bully for him.

I cannot see that passage of the equal rights amendment would have any effect on grass widows with children who want to remarry. Their chances look better to me with the amendment.

I feel sure also that the passage of the amendment would only make it easier for the Social Security Act to provide more equitable retirement benefits for families with working wives, and to provide benefits to husbands and widowers of women workers under the same circumstances as are provided to wives and widows of men workers.

One of the persons testifying here previously called all people supporting the equal rights amendment militants. If this is true, and it may well be, I suggest he get on the bandwagon and start waving banners, because the days of antifeminism are drawing to a close and the antiquated laws allowing discrimination against women are passe.

The opponents of the equal rights amendment claim that it is the business and professional women who are pushing for the amendment and imply this shows that industrial women workers should be against it. Nothing could be further from the truth. This tactic of the opponents is for the purpose of trying to divide women who are working together for their rights. I am glad business and professional women are for the amendment. In our area, the business and professional women recognizes all women as persons whether or not they are in the professional field, and some of use, while we are factory workers, have been invited to join business and professional women.

In conclusion, let me state that the men who are being discriminated against also will be benefited by the passage of the equal rights amendment. I firmly believe this has been a large factor in the minds of the 81 Senators giving their support to this amendment. They are farsighted enough to see that men and women working together will lessen their load of decisionmaking and worrying. I hope this is true, and that the intelligent men and women we have elected to office will continue to “keep the faith” and pass this amendment now.

Thank you.


. . .

Miss PAUL. Mr. Chairman, our organization, the National Woman’s Party, supports and works for the equal rights amendment as passed by the House, and House Resolution 264.

With regard to the amendments offered by Senator Ervin, with all due respect to Senator Ervin, we want to say that we oppose them because we think that all of them would write inequality sections into the Constitution rather than equality. That is, just briefly, our position on the subject before you.

We were asked, we understood, to bring legal experts and confine our experts to the legal aspects of this whole question. . . .

Of our speakers, Mrs. Caruthers Berger is from Virginia and Mrs. Berger is one member of the National Council of the National Woman’s Party, and a very devoted worker in trying to help women who themselves are in difficulty because of special labor laws applying to women and not to men.

Mrs. Berger.

Senator COOK. Proceed.

Mrs. BERGER. I appreciate this opportunity to speak on behalf of the National Woman’s Party in support of the equal rights amendment and to urge its immediate passage. I am an attorney who for many years has been a member of the National Council of the National Woman’s Party and a member of its legal committee.

The National Woman’s Party has been in the vanguard of women’s fight for equality. Its founders achieved the passage of the suffrage amendment, and in 1964 its members initiated and conducted the successful drive which persuaded Congress to include a prohibition against sex discrimination in employment in title 7 of the Civil Rights Act.

My experience as a lawyer has afforded me an unusual opportunity to become aware of the great need for the equal rights amendment. In collaboration with other attorneys, I have rendered legal services without fee to a number of women plaintiffs who were litigating suits under title 7 of the Civil Rights Act. . . .

In these cases, I had contact with women working on assembly lines and performing other industrial jobs. These plaintiffs are all women who were supporting or had supported or helped support families. They are brave women who had the courage to oppose in court economically powerful employers and labor unions. My contacts with them are dramatic proof of the need for the equal rights amendment.


The equal rights amendment would be a giant step forward for American women for the following reasons:

    1. It would nullify State and Federal restrictive laws which cause employers to discriminate against women in employment by denying them employment in many of the better paid jobs and by denying them opportunity to earn overtime compensation.
    2. It would prohibit restrictions of public schools to students of one sex and prohibit public institutions from requiring higher admission standards for women.
    3. Special legal restrictions on the property rights of married women would be invalidated and married women would engage in business as freely as men and manage their separate property.
    4. Benefits conferred by law to persons of one sex would be extended to the other; similarly responsibilities and obligations of citizenship imposed by law on one sex would likewise be imposed upon the other.[1]


There is little doubt that one of the greatest areas of discrimination against women is in employment. Restrictions placed on women by discriminatory State laws are a major basis for such discriminations. These laws, limited to women only, fall in three general classifications:

    1. Laws that limit the hours that women may be permitted to work either on a daily or weekly basis—existing in 35 States and the District of Columbia;
    2. Laws limiting the weights that women may be permitted to lift—existing in 10 States and Puerto Rico; and
    3. Laws prohibiting women from working at night—existing in six States and Puerto Rico.[2]
It is noteworthy that with the exception of hours laws, most States do not have such restrictions on the liberty of women citizens. These laws were originally enacted around the turn of the century when women were not permitted to vote and were not seriously considered as citizens or as a part of the American labor force. The enactment of these laws was supported by organized work men ostensibly for the benefit of women. However, in reality they were motivated by three reasons:
    1. The unionized men hoped that by securing shorter hours for women through legislation they would secure shorter hours for themselves;
    2. They believed that the shortening of hours for women would make standard the shorter hours so that the weaker unions could obtain for their male members the same advantages already acquired by the strong ones; and
    3. They hoped to prevent women from working in some trades and thus eliminate all competition from them.[3]

Sixty percent of women but only 20 percent of men earned less than $5,000.

Sex discrimination in employment is one of the major bases of the national poverty problem. Numerically, women are a significant part of the labor market. The separate but unequal treatment afforded them has had brutal effects. For instance, 35 percent of the families headed by women live in poverty; 61 percent of the Nation’s poor children live in families headed by women (U.S. Department of Labor, “Fact Sheet on the American Family in Poverty,” April 1968).

A comparison on the basis of sex and race shows that 53.2 percent of the families headed by black women, 25.2 percent of the families headed by white women, 19.9 percent of the families headed by black men, and 6.3 percent of the families headed by white men live in poverty (U.S. Department of Commerce, Bureau of the Census: CPR-60, No. 68, table D).

Thus, poverty is much more common among women and their dependents. Contrary to the positive misrepresentations that have been made by opponents of the equal rights amendment, white women in professional and managerial positions are victims of gross employment discrimination as the following comparison of the median earnings of year-round professional and managerial workers in central cities shows:

White men $9,545; Negro women $6,209; Negro men $6,208; and white women $5,910 (U.S. Department of Commerce, Bureau of Census: CPR-23, No. 27, 1967 statistics). . . .

The reasons for these differentials is more often not because women are receiving unequal pay for equal work but because women are more likely than men to be confined by the discriminatory tactics of employers to low-paid, undesirable jobs. The excuse most often given by such employers is that women must be confined to such jobs to protect them.

Employers who are sued by women plaintiffs under title VII of the Civil Rights Act frequently make the specious, seemingly humanitarian defense that the denial of job opportunities to women is occasioned by a desire to “protect” them. For instance, in the case of Mengelkoch v. Industrial Welfare Commission, supra, now pending in the ninth circuit, Velma Mengelkoch was denied employment in the positions of running functional test equipment, of working as a final assembler and holding supervisory positions because of California’s law prohibiting employers from employing women over 8 hours a day or 48 hours a week. In the Rosenfeld case, supra, Leah Rosenfeld was denied the position of agent-telegrapher on four different occasions because of the same California hours laws and California’s weight-lifting law under which women employees were not permitted to carry objects weighing 10 pounds or more up stairways rising more than 5 feet from the base thereof.

In Bowe v. Colgate Palmolive Company, supra, women employees in a plant having 600 potential jobs were confined to less than 100 of the lowest paid jobs. The defendant company did not have the phony excuse of a State law on which it could defend its discriminations since Indiana, where its plant was located, has no such laws. In desperation it argued that because there were weight-lifting prohibitions against women in other States it could adopt a private policy of adopting weight limitations for women employees to “protect” them.

The insincerity of this claim was demonstrated by the fact that some women workers were required to lift 17 tons of soap products a day while men operated automatic machines or handled empty plastic bottles. The women plaintiffs lost their case in the district court but won it in the seventh circuit, which held that the discriminations against them were “blatant.”

However, after 5 years of administrative proceedings and litigation the women plaintiffs in this case are still struggling to have the company’s discriminatory system of department seniority replaced with a nondiscriminatory system of plant seniority. . . .

None of the women involved in these cases were professional women. All of them were family breadwinners. The Mengelkoch and Bowe cases were class actions involving hundreds of women working for large corporations. In the Bowe case, the highest rate of pay for female jobs was identical with the lowest rate of pay for the so-called male jobs, from which women were excluded. . . .

Obviously restrictive laws like California’s law prohibiting women from carrying 10 pounds up steps 5 feet high are not to “protect” women but to restrict them. Any woman who has ever carried a small baby or a pail of water knows that this restriction is absurd. All these cases are clear examples of how State restrictive laws and the insincere claim of “protection” are used to deny women the right to earn their own livelihoods and to support their dependents.

These laws are one of the greatest obstacles to women who are entitled to prompt relief from employment discrimination under title VII. As the discussion above demonstrates, the advocates of restrictive laws fall in three classifications:

    1. Male-dominated labor unions who wish to keep women from competing for some of the more interesting and higher paid jobs;
    2. Employers who find sex segregation in employment to their economic self-interest, since women who lack bargaining power in the job market can be confined to tedious, low-paid jobs; and
    3. Unenlightened Government officials and legislators who mistakenly assume that some benefit remains in such laws.

Unions and employers in groups one and two above cannot afford to admit that they wish to keep women relegated to poorly paid positions because of their selfish economic interests. They, therefore, wish to rely on the “protective” law defense as a cloak for sex discrimination.

It is much more “chivalrous” to claim that “we want to protect the little women” than to admit that it is lucrative to cheat them.

Restrictive laws are used to defend and promote sex segregation in employment. American industry has thousands of jobs from which women are arbitrarily excluded. There is no humanitarian justification for sex segregation in employment. The earmarking by employers, unions, and employment agencies of all well-paid interesting jobs as “male” jobs and most poorly paid tedious jobs as “female” jobs is a cruel means of keeping women in a condition of poverty and degradation.

The difference in strength between an “average” woman and an “average” man is not relevant in any fair program of job placement.

The relative strength of persons of both sexes varies so greatly that only a system of job placement based on individual qualifications is nondiscriminatory. It is a myth that certain jobs must be reserved for “males only” because of their alleged superiority. The Department of Labor’s studies of approximately 75,000 job situations rated such jobs in terms of physical strength required as “sedentary,” “light,” “medium,” “heavy,” and “very heavy.” (Selected Characteristics of Occupations by Worker Traits and Physical Strength, supplement 2 to the Dictionary of Occupational Titles—U.S. Department of Labor, U.S. Employment Service, 3d edition 1968).

The low-paid job of “charwoman,” which is traditionally considered a “female” job was rated as “heavy,” while highly paid “male” jobs such as “concrete-mixing truck driver” and “power-excavator operator” are rated as “light,” and the “male” job of “power shovel operator” is rated as “medium.” Very few jobs are rated as “heavy” and a negligible number of them were listed as “very heavy.” In this machine age differences in strength between men and women as a class are not relevant in employment situations. In today’s economy able-bodied persons of both sexes can perform practically all jobs.

The equal rights amendment would be of tremendous aid in eliminating employment discriminations and the traditional concept that women should be confined to lowly jobs. In the first place, it would eliminate all the limitations in employment imposed against women by State or Federal statutes so that honest employers would not run the risk of violating such laws in employing qualified women for the jobs which they prefer.

In the second place, while not directed toward prohibiting private discriminations, the equal rights amendment would have a tremendous psychological effect on sex-bigoted employers and unions who could no longer delay and frustrate women litigants in sex discriminations cases pleading restrictive laws as a defense. Without these spurious defenses, the sex bigots would have to give up and comply with the anti-discrimination laws. . . .

[1] “The Proposed Equal Rights Amendment,” a memorandum of the Citizens’ Advisory Council on the Status of Women, published in hearings on “The Equal Rights Amendment (S. 61)” before the Subcommittee on Constitutional Amendments, Judiciary Committee, U.S. Senate, 91st Cong., second sess. (1970), pp. 369, 382–386. References to these hearings will hereinafter be made as follows: “Subcommittee hearings, p. —".

[2] “Sex Discrimination and "Protective’ Labor Legislation,” Susan Deller Ross, Subcommittee hearings, p. 397.

[3] Of the goals mentioned above, the first two have already been achieved since Federal legislation has had the effect of establishing a 40-hour workweek. The only remaining motivation of the male-dominated unions who strive to perpetuate restrictive laws for women is the third one mentioned above—they desire to retain the competitive advantage which they now have over women by confining them to the lower paid jobs. The management of many large employers have also been glad to exploit the fact that women, who are excluded from many jobs because of their sex, are severely disadvantaged in the labor market and are forced to accept hard, tedious jobs at a low rate of pay. Accordingly, the median wage for women in 1968 was only $4,457 or 58 percent of the median wage of men. (Fact sheet on the Earnings Gap. U.S. Department of Labor, Women’s Bureau (1970).)

Source: Congress, Senate, Committee on the Judiciary, Equal Rights 1970: Hearings before the Committee on the Judiciary, 91st Cong., 2d sess., September 9, 10, 11, and 15, 1970 (Washington: U.S. Government Printing Office, 1970).