Part 23

It may be of interest to note that the work we are trying thus to do in Cincinnati chanced to come to the notice of Governor Harmon and C. H. Wirmel, the commissioner of labor of Ohio. Both have evinced the greatest interest in the experiments and have asked for suggestions as to how the work of the state bureau in Cincinnati can be made more effective. Mr. Wirmel will attempt to use our system of records and in other ways to test the practicability of our methods. While, as Mr. Devine points out, a state or federal bureau can never do aggressive work, because the citizen can protest against “discrimination,” public bureaus can give most valuable coöperation in the matter of records.

A number of such adjustments would go a long way toward righting the general maladjustment which so evidently exists between the supply and the demand for labor.

The second justification for the existence of these employment bureaus is unquestionably to assist in the development of industrial education--a problem which is now presenting itself in a formidable manner. That we are still far from adjusting education to woman’s life is lamentably apparent. The public schools seem averse to training her for a trade lest they unadvisedly throw her into the employer’s hands. The plea is still loudly heard that the girl must be trained for home life and for home life alone. If a girl goes into a trade, the school will not assume the responsibility of placing her under the deadening influences she is sure to encounter there. Hence she enters her trade untrained, with every possibility that trade experience will make her unfit for the home--not because of the nature of the occupation, but because of her own lack of intelligence concerning the occupation. While the trade itself may not be essentially deadening, to permit a girl to be a purely mechanical worker in the trade, without an informing mind and a cultivated imagination, as Miss Addams has expressed it, leads inevitably to mental and moral stupefaction.

Not long since, a man of deep mental and spiritual insight said to the writer that he considered all legislation for making women’s industrial life easier a mistake, because intolerable conditions in the factory and workshop will ultimately force women back into the home. Just where “back into the home” is, no one seems to know! With the industrial processes in which woman has worked from time immemorial taken from the home, the exhortation to stay at home and follow the example of her industrious grandmother seems a bit hard to follow. This fear, however, on the part of educators, this restiveness on the part especially of men concerning women and the trades, should not be altogether ignored, though part of it is due to plain cowardice in refusing to face things as they are. The few courageous leaders who are trying to work out an adequate system of vocational training for women feel that they need definite knowledge of the effect of industrial work upon her. This can be supplied only by learning the specific needs and characteristics of the girl, the actual happenings in her working life, and the wants and demands of the employer, who, whether we like it or not, is bound to determine finally all plans for training the wage-earning girl. We can lessen his injustice and his lordship over conditions by refusing him skilled workers unless he agrees to reasonable terms; but we can never lessen his authority as to the actual work to be done and the method the worker is to pursue. Much patient study is needed. The immediate task is to bring together the employer and the educator, who for too long have walked apart when their path, which led to the making of the worker, should have been a common one.

The need for a mediary to bring about this coöperation is clearly felt at the present time. After a recent interview dealing wholly with educational questions, Mr. Hamerschlag, Director of the Carnegie Technical Schools, said to the writer: “Do you suppose your fund would consider establishing some center or bureau that would be able to furnish really definite information concerning the occupations of girls? Don’t spend your time over present education--spend it in finding out what we should do! If some one could tell us as much about trades for women as the Anti-Tuberculosis League can tell us about that disease, we might accomplish better results. We simply do not know the effect of our present legislation upon women, or whether this or that trade means health, mental development, and reasonable pay.”

The employment bureau must become, it seems to me, this mediary; it must give this help to the educator, to the employer, and above all, to the girl. It will undoubtedly demonstrate that many occupations in which women are now engaged are eminently unsuitable, failing entirely to reach the standard set by Miss Marshall that they shall “develop that kind of efficiency which will be of value to the woman as a home maker, and which will not be detrimental physically or morally.” By careful study authoritative knowledge must be gained of the girl’s experience, and of the possibility of readjustment of methods by the employer. The few of us who have attempted such intensive work have uniformly found the employer willing to discuss such readjustment with us, because he realizes that we are honestly trying to furnish him with efficient workers and that we realize the difficulty of dealing with the individual. The industrial record of a girl covering a period of three or four years may show that she was a shiftless, inert, indifferent worker, and hence drifted from job to job. Here the distinct vocational function of the bureau must be brought into play, the girl’s school record studied, and her temperament noted. She may be a “misfit” or she may need a stimulation which no amount of trade training will give, possibly a stimulation of the imagination by literature or history. If this girl could be released a few hours a week, or better, two days a week, from her employment, without the loss of pay which she cannot afford, she might be made into a valuable worker. Many employers are not averse to considering such an experiment. The records may show, however, not a shiftless worker, but one who has been laid off because of irregular work. This girl must have training for a skilled trade which is successful enough to give full employment to efficient workers. It is apparent that the contact of the bureau with the school must be exceedingly close. Perhaps here the bureau can help prevent the waste which is now so evident in the issuing of work certificates; the waste of opportunity for information concerning the girl and her work.

We are as yet too young in the field to state positively the outcome of the experiment. It is not an easy experiment and there are many possibilities of failure. But in any case it is better to fail trying than to be idly distrustful of the possibility of good coming out of the present conditions under which woman is living. The ignorant, the foolish and the cowardly are in despair because she is becoming base and sordid through the fate laid upon her by industrial evolution. They refuse to see that if she were assisted to a sane adaptation of her life to this fate, she would become only a finer and truer type of womanhood. And perhaps, heretical though it be to say so, it may be discovered that a woman who has missed opportunity for development through wifehood and motherhood, has often been able to reach the full fruition of her womanhood through wisely chosen work. To direct girls judiciously into vocations which may be theirs not for three or five years, but for life, and which may enable them, even without marriage, to fulfil the promise which their girlhood gave of a wise, tender, courageous womanhood, is in itself no mean task. As a precedent condition, the employment-vocation bureau, must help us to discover what is the best work for women to do, and under what conditions they can do it. It will thus aid them to perform that work intelligently, efficiently, and enthusiastically. Then, and then only, will come the just remuneration, the living wage for which women at present struggle in vain.

FOOTNOTES:

The Alliance Employment Bureau, New York City; the Coöperative Employment Bureau for Women and Girls, Cleveland; Council of Jewish Women Employment Bureau, Pittsburg; Schmidlapp Bureau for Women and Girls, Cincinnati.

A Handbook of Employments, by Mrs. Ogilvie Gordon, Aberdeen: The Rosemount Press; Report on the Desirability of Establishing an Employment Bureau in the City of New York, by Edward T. Devine, Russell Sage Foundation; The Chicago Employment Agent and the Immigrant Worker, by Grace Abbott, University of Chicago Press; Annual Reports of the Alliance Employment Bureau, Reports on Investigations, Mary A. Van Kleeck.

An excellent selected bibliography on employment bureaus and unemployment is contained in the report of Mr. Devine above referred to.

Besides private trade schools, interesting experiments have been made in continuation and coöperative training in Boston, Chicago and Cincinnati. In Cincinnati, the coöperative plan inaugurated by Dean Schneider in the university has been remarkably successful.

Florence M. Marshall: Industrial Training for Women, Bulletin No. 4 National Society for the Promotion of Industrial Education, p. 17.

THE CONSTITUTIONAL ASPECT OF THE PROTECTION OF WOMEN IN INDUSTRY

ERNST FREUND

University of Chicago

A brief survey of the American legislation for the protection of women in industry will facilitate the discussion of the constitutional principles by which the action of legislatures is controlled. The following types of statutes should be distinguished:

1. Those which provide that no person shall be precluded, debarred or disqualified from any lawful occupation, profession or employment on account of sex. Illinois and Washington so provide by statute (making exceptions for military employment and public office), while California enacts the same principle in the form of an article of her constitution. A statute of this kind can at most have the effect of removing some supposed bar existing by virtue of law of custom. The statute of Illinois was in fact the consequence of a decision of the supreme court of that state which denied a woman a license to practise law, and against which the Supreme Court of the United States had been appealed to in vain. The incorporation of the principle into the constitution will, on the other hand, control future as well as past legislation, and may prove an embarrassment in the way of carrying out other protective policies. The wording of the provisions does not seem to affect any possible disqualifications by reason of marriage and coverture.

2. Those which bar women from certain employments altogether. It is noteworthy that only five days after removing the disabilities of sex with reference to employment in general, Illinois prohibited the labor of women in coal mines, and the same prohibition is now found in the principal mining states (Indiana, New York, Pennsylvania, Washington, West Virginia, Wyoming). The other employment from which women are sometimes debarred (in about a dozen states) is the dispensing of intoxicating liquors. So under the liquor-tax law of New York (§31) no woman not a member of the keeper’s family may sell or serve liquor to be consumed on the premises. In California, under the constitutional provision above quoted, an ordinance making it a misdemeanor for a female to wait on any person in any dance cellar or barroom was held invalid, but later on an ordinance prohibiting the sale of liquor in dance cellars or other places of amusement where females attend as waitresses was sustained, as was also the refusal of licenses to those employing females, upon the ground that the clause of the constitution did not prevent the prescribing of conditions upon which the business of retailing liquor shall be permitted to be carried on. The court evidently felt that the object to be gained justified a narrow construction of the constitution.

3. Statutes which prohibit the employment of women in cleaning machinery while in motion, or in work between moving parts of machinery. Such legislation, according to the digest of labor laws prepared by the United States Commissioner of Labor in 1907, is found in Missouri and West Virginia.

4. Statutes which compel the provision of sanitary and other conveniences for females in industrial or mercantile establishments. Beside certain obvious requirements in the interest of decency, particular mention should be made of the legislation found in the great majority of states, under which seats must be provided for female employes and their use permitted when the women are not engaged in active duty.

5. Statutes which prohibit night work in various kinds of industrial establishments. They are to be found in about half a dozen states (Connecticut, Indiana, Massachusetts, Missouri, Nebraska). A corresponding provision of the law of New York was declared unconstitutional. The only authority cited was the case of Lochner v. New York; and it should be noticed that at the date of the decision (June, 1907), the supreme court of the United States had not yet promulgated its very liberal views as to the power to control women’s work which subsequently appeared in the case of Muller v. Oregon. The New York Court treated the prohibition also as a sanitary measure exclusively, and did not advert to possible moral considerations. The decision stands, however, unrevoked, and the law of New York must be treated as annulled.

6. Statutes which in other respects limit the hours of labor of female employes. The establishments to which the laws apply vary, as they do in the case of night work, manufacturing establishments being the most common. The number of states having such laws has rapidly increased in recent years, there being now over twenty in all parts of the country, not counting those which apply only to females under age, or those which forbid only the compelling of work for longer hours. The number of hours is usually ten per day, often with a reduction for the total of the week, so as to make a shorter day on one day of the week; but sometimes also providing only a maximum number for the entire week.

When we compare these statutes enacted on behalf of women workers with the general body of labor legislation, we note the almost total absence of any interference with purely economic arrangements: there is nothing analogous to store-order or weekly-payment acts applying to women in particular, nor any attempt to control the rate of wages. The most controversial field of labor legislation from the constitutional point of view has thus been avoided.

Health, safety and morals have always been undisputed titles of the police power, where it is a question of protecting the public at large. The control of the internal arrangements of the workshop in the interest of the employes, who, in theory, entered into it voluntarily, was the great extension of the power of the law achieved by the English factory acts. It is a strange anachronism when we find American courts in the end of the nineteenth century questioning the legitimacy of restrictive legislation intended only for the benefit of the employed, who may be willing to assume the risk, but it is true that it was not until after the middle of the nineteenth century that the English law sanctioned sanitary requirements on behalf of adult employes, and the singling out of adult women for the purpose of such protection met with opposition. At present the validity of the sanitary and safety provisions of factory acts is, in principle, unquestioned, and opponents of such acts have to scrutinize them for constitutional defects in non-essential features. Where such provisions apply to women in particular it is generally because the danger or evil arises out of conditions peculiar to the sex.

The limitation of hours of labor is at present the most conspicuous phase of restrictive labor legislation. As applied to men, it has in general been confined to special occupations. In some cases the reason why they were singled out is not apparent. This is true of the laws of some southern states with regard to the employes of cotton or woolen mills, which have not been passed upon by the courts of last resort; in other cases, the inducing motive was the consideration of public safety, as in the limitation of hours of trainmen; in the remaining cases--those of miners and bakers--the legislation sought to justify itself as a measure for the protection of the health of the employes.

It is well known that there is a conflict of judicial opinion regarding the validity of this legislation, strongly emphasized by the vacillating attitude of the Supreme Court of the United States, which sustained an eight-hour day for miners and annulled a ten-hour day for bakers. The inconsistency of these two rulings is particularly striking, since it is generally believed that the occupation of bakers is exceptionally unsanitary, and was singled out as such under the delegated powers of regulation committed to the federal council by the German trade code, while the mining of coal under modern conditions is regarded as remarkably immune from occupational disease. In Colorado the eight-hour day for miners was declared unconstitutional.

The difficulty which American courts have experienced with regard to the treatment of hours of labor is easily understood. They assume the existence of a constitutional principle which protects what is called the freedom of contract. This means that the state must leave the economic side of the labor contract to the free bargaining of the parties concerned; it means from the point of view of the employer that his business is not to be regulated by law in order to secure satisfactory terms to the employe, as the railroad business is regulated to secure fair terms to the shipper or the traveling public; from the point of view of the employe it means that he is free to make the most of his earning capacity, and to work as long as he pleases, or rather, conceding the limited sphere of the police power, as long as is consistent with proper standards of health and safety. The movement for the eight-hour day has, generally speaking, been frankly an economic movement, designed to advance the workman in the social scale, to give him time for recreation, culture, the enjoyment of his home, everything, in short, that is supposed to go with rational leisure, and it has generally been accepted as a principle of American constitutional law, that this consummation was not to be brought about by legislative compulsion. The state was to further the movement only in so far as it had the right to dictate the conditions of employment on work done for the public.