A Troubled Relationship: Sex Equality and the Limits of Law

Abstract

A Troubled Relationship:Sex Equality and the Limits of Law Deborah Dinner (bio) Katherine Turk. Equality on Trial: Gender and Rights in the Modern American Workplace. Philadelphia: University of Pennsylvania Press, 2016. 284 pp.; ill. ISBN 978-08-12248-20-3 (cl). Nancy Woloch. A Class by Herself: Protective Laws for Women Workers, 1890s-1990s. Princeton: Princeton University Press, 2015. 337 pp.; ill. ISBN 978-0-691-00259-0 (cl); 978-06-91176-16-1 (pb); 978-14-00866-36-6 (epub). The legal regulation of women's work underwent a sea change from the early twentieth to the twenty-first century. It is indeed difficult to name a shift in modern American legal culture more dramatic or one bearing more profound social and economic consequences. In the 1908 case Muller v. Oregon, the US Supreme Court upheld a state law capping the number of work hours an employer could demand of a female employee. The decision entrenched ideas about women's difference—the supposed biological frailty associated with female reproductive capacity as well as women's social role as mothers and disadvantage in the labor market—in constitutional jurisprudence. At the same time, Muller affirmed state legislation redressing the imbalance of power between workers and employers. Nearly a century later, in the 1991 case United Auto Workers v. Johnson Controls, the court struck down a private employer's "fetal protection policy." The exclusion of nonsterile women from hazardous jobs, the court reasoned, violated women's rights under the federal statute that guarantees nondiscrimination in employment. The decisions were mirror opposites along several different axes: gender, federalism, and conceptions of individual rights and collective responsibility. Muller reified sex difference, affirmed states' importance to welfare policy, and valued protection over autonomy. By contrast, Johnson Controls denied the legal relevance of pregnancy to workers' rights, affirmed the authority of a federal statutory regime, and valued individual women's choices over corporate paternalism. These twin decisions also serve as bookends for the two histories under review. Both Nancy Woloch and Katherine Turk examine the troubled relationship between gender, workplace organization, and the law. Deftly analyzing a century of complicated legal doctrines, Woloch traces the creation and dissolution of a legal regime that set the female worker apart as A Class by Herself. The strength of Woloch's book is its comprehensiveness, [End Page 134] especially in its analysis of debates among feminists, their allies, and opponents, from the late nineteenth century through the mid-1960s. Woloch offers the definitive treatment of the contest between women's protection and equality in this period, synthesizing primary source research with exhaustive review of historical, political science, and legal scholarship. Turk zeroes in on the late twentieth century, which no longer serves only as the denouement to histories of earlier periods but rather has emerged as a focus in its own right of women's legal history. Equality on Trial analyzes interpretive contests about sex equality, specifically Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment "on account of sex" (as well as race, color, national origin, and religion). While existing histories focus on the arguments of attorneys and social movement advocates, Turk investigates how workingwomen at the grassroots level responded to and endeavored to shape enforcement of the law. Turk's empathic and nuanced analysis of the archival record yields a revisionist argument—that sex discrimination law undermined the economic security of working-class people even as it created new opportunities for professional women. Together, these two books depart from triumphalist accounts of civil rights and offer sobering insights into the limits of law—conceptualized as court-adjudicated rights—to empower women. Woloch shows how in the early twentieth century, constitutional doctrine came to link sex equality with free contract and to code labor protection as feminine. Social feminists, who sought to augment the state's role in protecting working-class women, embraced sex-specific labor standards for dual purposes: to help women who faced exploitation in the labor market and also worked a double shift in the home and to serve as an "entering wedge" for protective laws for all workers (19). In the late nineteenth century, state courts began...