On February 24, 1908, the Supreme Court issued its decision in Muller v. Oregon. This landmark decision upheld the idea that, at least for women, laws restricting the hours of work were constitutional. This would be a major victory in the long fight to bring working hours down to eight hours nationally, a dream that had already extended for more than two decades and would not be realized for another thirty years. It also created gender inequities in labor law with implications that continue today.
In 1903, Oregon had passed a law limiting the hours of women to ten hours a day and sixty hours a week. Curt Muller, a laundry business owner in Portland, sued the state. Muller believed, for good reason given the predominant legal climate of the time, that he signed legal contracts with individual workers when he hired them and that those workers freely agreed to the terms of hours and wages when they took the job. Yet, these ideas were increasingly challenged during the Progressive Era, as activists sought to create a more fair America that protected basic rights of workers to a decent life. This was especially true for women workers, who many Progressives saw as both uniquely exploited and mothers responsible for raising the next generation of Americans. Progressives argued that whatever the merits of the freedom of contract interpretation of labor legislation, the state had a unique interest in excepting women from that principle. Progressives were especially prominent in states like Oregon, as well as Wisconsin and Washington, which would see the first workers’ compensation legislation a few years later. The Oregon Supreme Court upheld the the state’s law and Muller then appealed to the Supreme Court.
Supporting Oregon’s case was Louis Brandeis, who filed a lengthy brief, mostly created by his sister-in-law, Josephine Goldmark, an activist with the National Consumers League, about women’s working conditions and lives, helping to sway the case. Brandeis employed this paternalistic ideal of women as mothers to justify upholding the law because the state had an interest in the health of future generations of Americans. He used four specific arguments. First, women were physically different and weaker than men. Second, damage to women’s health on the job might affect their reproductive capacity. Third, the health of children might be damaged if the mother was overworked. Fourth, long workdays deprived family members of their wife and mother.
The Court ruled unanimously in favor of the law’s constitutionality. David Brewer wrote the opinion. Part of the reason this was such a landmark decision was its partial repeal of Lochner v. New York , decided just three years before. Lochner invalidated state laws on the hours of bakers and thus hours legislation nationwide based on the idea of the liberty of contract that it read into the 14th Amendment. But Brewer was clear that this was no rejection of Lochner. Rather women were different than men and thus deserved protection:
That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.
In short, the justices had a gendered construction of freedom of contract. They held to the Gilded Age belief that individual male workers freely signed agreements with employers (thus making labor legislation unconstitutional because it would violate that freedom of contract) but for women workers the state’s interest was greater than this freedom. This was not completely unprecedented however, for as early as 1876, the Massachusetts Supreme Court had founded similarly, as had several additional states between then and 1908, although Illinois had overturned a law restricting women’s hours that applied freedom of contract to women as well as men.
The legacy of Muller is complicated because of the paternalism at its core. It fit the ideals of many Progressive reformers, who used ideas of femininity and motherhood to protect women and children in a number of ways, but especially at the workplace. For people like Jane Addams and Florence Kelley, these sorts of decisions were validations of their larger campaigns to protect poor women from the ravages of industrial life. But the small more explicitly feminist movement disliked the decision because it created artificial differences between the sexes.
Still, placing Muller in the context of the time, we should see it as an important victory because of its precedent setting approval of hours laws for anyone. Lochner reinforced the idea so prevalent in American business that corporations had no responsibility to anyone and that the halls of Congress and federal courtrooms would reinforce this if necessary. Even if Muller was sexist, for a lot of labor activists getting these principles applied to women laid the groundwork for all workers, which may not have been the goal of all Progressives, but was for labor activists. Establishing this principle did indeed start chipping away at the freedom of contract idea and within a decade, many industries would have 8-hour days.
States followed up on Mueller by passing night work laws for women to ensure they were not laboring during hours deemed by the state to be hours when they should be taking care of their children. Between 1909 and 1917, 19 states passed new legislation limiting the hours of women’s work, leaving only 9 states in 1917 that lacked any restrictions at all, a number that decreased to 5 by the mid-1920s. However, in most if not all of these states, the laws did not cover domestic or agricultural workers. The decision itself was rendered irrelevant by the Fair Labor Standards Act in 1938 since it provided equal coverage for men and women. Yet gender inequities on the job have never fully been overcome, not even though Title VII of the Civil Rights Act of 1964. The struggle for real equality on the job continues today.
I relied on Andrea Tone, The Business of Benevolence: Industrial Paternalism in Progressive America and Nancy S. Jackson, “Muller v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract” in Labor History, September 1989.
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