From Muller v. Oregon
to the Family Medical Leave Act:
Then and Now
February 13, 2009 — Rutgers-Newark Law School Symposium on the Role of Women and Rutgers-Newark Law School in Reshaping American Law, Newark NJ
[Because Justice Ginsburg was unable to attend, Wendy Williams delivered this speech]
This year marks the 100th anniversary of the Supreme Court’s decision in Muller v. Oregon. In that historic case, the Supreme Court upheld the constitutionality of a 1903 Oregon statute prohibiting employment of women in industrial jobs for more than ten hours per day. Still celebrated as the occasion for the initiation of the Brandeis brief, Muller was characterized by equal rights advocates in the 1970’s as a “roadblock to the full equality of women.” Was the decision right for its time although anachronistic today? How would we now appraise judicial recognition of women as a vulnerable class in need of special legislation “to secure a real equality of right”? In these remarks, I invite your consideration of those questions.
I will begin with an account of Muller v. Oregon, including the brief filed in the case by Louis Dembitz Brandeis. Next, I will describe how legislation framed to protect women gave way to legislation designed to protect all workers. Finally, I will take up the advent of legislation facilitating engagement by women and men in both paid work and family life.
Muller and the Brandeis Brief
In 1903, Oregon adopted a law prescribing a ten-hour work day for women “employed in any mechanical establishment, or factory, or laundry.” Proponents of the law first sought an eight-hour day for all workers. When that proposal failed to garner support, they settled on a measure limiting the hours blue-collar women could engage in paid labor. The hope was that a law covering women would serve as an “opening wedge,” leading, in time, to coverage of all workers.
Portland laundry owner Curt Muller was prosecuted for violating the law. He had allowed his overseer to require Emma Gotcher to work more than ten hours on September 4, 1905, the day the State had designated as Labor Day to encourage employers to give their workers a holiday. The timing, and Gotcher’s lead role in the Laundry Workers Union, suggest that Muller and fellow members of the Laundry-Owners’ Association sought to create a test case. After the State prevailed in the Oregon courts, Muller asked the U. S. Supreme Court to take the case and invalidate the 1903 statute.
He had cause to be hopeful. In 1905, the Court had ruled, 5-4, in Lochner v. New York, that New York’s law limiting the hours bakers could work to ten per day, 60 per week, interfered with the right of bakery owners and bakers to contract freely, a liberty the Court lodged in the Fourteenth Amendment’s Due Process Clause.
The National Consumers League, led by ardent social reformer Florence Kelley, wanted to ensure that Oregon would have the best possible representation. Kelley’s first choice was Brandeis, but the League, while she was out of town, had set up an appointment for her with New York bar leader Joseph H. Choate. To Kelley’s relief, Choate refused to take the case. He told Kelley that he saw no reason why “a big husky Irishwoman should [not] work more than ten hours a day in a laundry if she and her employer so desired.” Kelley then went to Boston to see Brandeis, accompanied by Josephine Goldmark, who was Brandeis’ sister-in-law and Kelley’s associate in the League.
Brandeis had previously consulted with Kelley and Goldmark on issues of concern to the League. At the time he was asked to take on Muller, he was hardly new to pro bono representation. Then age 51, Brandeis was often called “the people’s attorney,” descriptive of his activity in the social and economic reform movements of his day.
Brandeis said yes to the League’s invitation on one condition. He wanted to be Oregon’s special counsel, not an amicus curiae, and to argue the case orally on the State’s behalf. Kelley and Goldmark made that happen. Brandeis then superintended a brief unlike any the Court had seen. It was to be loaded with facts and spare on formal legal argument.
Josephine Goldmark, aided by her sister Pauline and several researchers, scoured the Columbia University and New York Public Libraries in search of the materials Brandeis wanted — facts and figures on dangers to health, safety, and morals from excessive hours, and on benefits from shortened hours, with heavy emphasis on women in the labor force. Data was to be extracted from reports of factory inspectors, physicians, trade unions, economists, and social workers. Within a month, Goldmark’s team compiled information that would ultimately fill 98 of the 113 pages in Brandeis’ brief.
To show that Oregon was no outlier, Brandeis first set out the statutes of the 20 States that had restricted women’s on-the-job hours. He also listed similar hours laws in force in Europe. Only two pages of his brief presented formal legal analysis. His basic contention, for which he cited Lochner: The due process right to contract for one’s labor is subject to reasonable restraints to protect health, safety, morals, and the general welfare.
Bakers, most of whom were men, were “in no sense wards of the state,” the Court had noted in Lochner. Women, Brandeis urged, were more susceptible than their male counterparts to the maladies of industrialization, and their unique vulnerabilities warranted the State’s sheltering arm. The brief’s pattern: After a line or two of introduction, Brandeis quoted long passages from the sources Goldmark supplied.
Some of the excerpts from medical experts, it should be acknowledged, look dubious to the modern eye. One source, for example, reported that, “in the blood of women, so also in their muscles, there is more water than in those of men.” Less fanciful, Brandeis emphasized the effect of overworking women on the general welfare: “Infant mortality rises, while the children of married working-women, who survive, are injured by the inevitable neglect. The overwork of future mothers thus directly attacks the welfare of the nation.”
On the benefit side, Brandeis stressed that shorter hours allowed women to attend to their family and household responsibilities. According to one source: “[F]ree time is not resting time, as it is for a man. . . . For the working-girl on her return from the factory, there is a variety of work waiting. She has her room to keep clean and in order, her laundry work to do, clothes to repair and clean, and, besides this, she should be learning to keep house if her future household is not to be disorderly and a failure.” To allay the concern that shorter hours were bad for business, the brief excerpted studies showing that hours laws improved productivity.
The brief’s bottom line: Decades of well documented experience at home and abroad showed that Oregon’s Legislature had good reason to believe that public health, safety, and welfare required limitation of women’s work to ten hours per day.
The brief for laundry owner Muller scarcely anticipated the voluminous documentation the State, through Brandeis, would present. But it struck one chord that might resonate with today’s readers. Most of the disadvantages facing women in the labor market derive from society, not biology, Muller argued. “Social customs [not inferior ability] narrow the field of [their] endeavor.” “[O]stensibly,” Oregon’s law was “framed in [women’s] interest.” But was it intended perhaps “to limit and restrict [their] employment,” and thereby give a boost to “[women’s] competitor[s] among men?”
The Supreme Court heard argument in the Muller case only five days after receiving the voluminous Brandeis brief. Less than six weeks later, the Supreme Court unanimously upheld Oregon’s law. Justice Brewer, who was a member of the 5-4 majority in Lochner, authored the relatively short opinion. Brewer took the unusual step of acknowledging the “copious collection” of statutes and reports, domestic and foreign, in Brandeis’ brief.
Brewer put his own gloss on the materials gathered by Goldmark and presented by Brandeis. The brief purported to present “scientific” facts. Brewer, by contrast, saw the data as confirming eternal, decidedly unscientific truths about men and women. According to Brewer, “history [shows] that woman has always been dependent upon man.” “[I]n the struggle for subsistence she is not an equal competitor with her brother.” “[S]he is so constituted that she will rest upon and look to him for protection.” Brewer then stated, somewhat inconsistently perhaps, that woman’s “physical structure and a proper discharge of her maternal functions . . . justify legislation to protect her from the greed as well as the passion of man.”
Did the Justices rule in Oregon’s favor in Muller because they were impressed by the extraordinary quality of the Brandeis brief? Or did they hold for Oregon because the Brandeis brief seemed to confirm their preconceptions about the relationship between the sexes, the physical superiority of men, women’s inherent vulnerability, and society’s interest in “the well-being of wom[e]n” as actual or potential mothers? Had the reports excerpted in the Brandeis brief been inconsistent with the prevailing wisdom about women’s confined place in man’s world, the Court may well have viewed the material with a more skeptical eye.
The Demise of Women-Only Protective or Restrictive Labor Legislation
Post Muller, women-only protective legislation proliferated: maximum hours and minimum wage laws, health and safety regulations, laws barring women from night work, mandating break time for them, limiting the loads they could carry, and excluding them from certain occupations altogether. Recall that laws of this genre were adopted or maintained in the shadow of Lochner‘s barrier to worker protective laws. Twelve years after Lochner, however, the Court began a slow and unsteady retreat from that decision’s laissez-faire, due process/liberty to contract underpinning.
Another case from this state, Bunting v. Oregon, decided by the U. S. Supreme Court in 1917, was the first signal that Lochner might not have staying power. In 1913, going beyond the 1903 statute involved in Muller, Oregon enacted a law limiting the workday to ten hours for all “persons” employed in mills, factories, and manufacturing establishments. The law contained an exception for overtime — up to three hours per day at a pay rate of time and half. Oregon prosecuted a flour mill owner, Franklin Bunting, for violating the law by employing a male worker for a 13-hour day with no overtime pay. The State prevailed in the Oregon courts, and the National Consumers League again enlisted the Brandeis-Goldmark team to present the State’s case in the U. S. Supreme Court. In 1916, while preparation in Bunting was well underway, Brandeis was appointed to the Court. Felix Frankfurter, then a professor at Harvard Law School, whose pro bono work was financially supported by Brandeis, took up the reins as Oregon’s counsel. The brief filed in Bunting was enormous, running nearly 1000 pages. It documented, exhaustively, the ill effects of long hours on men and women alike.
The Court’s opinion in Bunting was as spare as the brief was elaborate. Without so much as a citation to Lochner, the Court upheld Oregon’s worker-protective hours-of-work statute. Quoting from the Oregon Supreme Court’s opinion, the U.S. Supreme Court concluded: “In view of the well-known fact that the custom in our industries does not sanction a longer service than 10 hours per day, it cannot be held, as a matter of law, that the legislation is unreasonable.”
Had Lochner received a silent burial? Not yet, the Bunting opinion indicated, for the Court left open the question whether minimum wage legislation could be sustained. When wage regulation was squarely contested, the Court seesawed.
First, in 1923, in Adkins v. Children’s Hospital, the Court struck down the District of Columbia’s minimum wage law for women. The Brandeis-style brief in Adkins, superintended by Felix Frankfurter, emphasized the evils of inadequate wages for women, and catalogued the positive effects of minimum wage laws in other countries. Describing the hefty brief as “interesting but only mildly persuasive,” the Court distinguished Bunting on the ground that wages, unlike hours, go to the very heart of a labor contract. Muller had upheld special legislation “to secure [to women] a real equality of right.” Times had changed, the Adkins majority observed. “[T]he ancient inequality of the sexes, other than physical,” the Court said, had come “almost, if not quite, to the vanishing point.”
Thirteen years later, in West Coast Hotel Co. v. Parrish, the Court reconsidered Adkins. The State of Washington statute at issue in West Coast Hotel was virtually identical to the District of Columbia law struck down in Adkins. Writing for the Court in West Coast Hotel, Chief Justice Hughes upheld Washington’s law and expressly overruled Adkins. Prime among the reasons Hughes gave: Women received “the least pay” and were “ready victims of those who would take advantage of their necessitous circumstances.” But the Court also spoke more inclusively. It noted the imbalance of bargaining power between employers and workers, and read liberty sheltered by due process to mean, not “do as you please,” but “liberty in a social organization which requires the protection of law against the evils which menace the [people’s] health, safety, morals and welfare.”
With West Coast Hotel as the Court’s latest return, Secretary of Labor Frances Perkins decided the time was right to introduce the bill that became the Fair Labor Standards Act of 1938, which prescribed a national minimum wage in certain job categories for workers of both sexes, coupled with enhanced overtime pay for work exceeding eight hours per day. In a 1941 decision, United States v. Darby, the Court unanimously upheld the FLSA. Wages and hours were appropriate subjects for Commerce Clause legislation, the Court ruled. And the law was in line with the scaled back due process doctrine the Court had advanced in West Coast Hotel. Citing Bunting, the Court added that “the statute is not objectionable because applicable alike to both men and women.”
Although the Lochner impediment to worker-protective laws had been removed, States retained labor laws applicable only to women for decades after the Darby decision. Prominent social reformers and partisans of working women continued to believe that women needed special protection against exploitation, including shields against long hours and night work. Other feminists considered women-only protective laws dangerous — measures that contributed to the confinement of women to a special, distinctly subordinate place in the paid labor force. As feminist lawyer Blanche Crozier quipped in 1933: If night work by women was “against nature,” starvation was even more so.
At this point, a personal note about Muller and women-only protective legislation may be in order. As a law student in the late 1950’s, I learned in my Constitutional Law class that Muller marked a first break from the Court’s refusal to uphold social and economic legislation attacked as invading the liberty to contract once thought to be secured by the Due Process Clauses. It was a decision to applaud, we were taught.
Just over a decade later, briefing gender discrimination cases in or headed for the U. S. Supreme Court, I assessed Muller differently. The decision, I recognized, was responsive to “turn of the 20th century conditions when women labored long into the night in sweat shop operations.” But, I observed, “[a]s the work day [for industrial workers, male and female] shortened from twelve hours to eight, and the work week from six days to five,” laws limiting only women’s work were in many instances “‘protecting’ [women] from better-paying jobs and opportunities for promotion.” However well intended, such laws could have a perverse effect — they could operate to protect men’s jobs from women’s competition. (That same point was made by Curt Muller’s lawyer, but it carried less weight in 1908, when unregulated work weeks, with no overtime pay, could run 72 hours or more.)
In briefs and commentary, I included Muller in a trilogy of cases that “b[ore] particularly close examination for the support they appear[ed] to give [to] . . . perpetuation of the treatment of women as less than full persons within the meaning of the Constitution.” The other decisions in the trilogy were Goesaert v. Cleary, which, in 1948, upheld a Michigan statute prohibiting women from working as bartenders; and Hoyt v. Florida, which, in 1961, upheld a state statute excluding women from the obligation to serve on juries.
Eventually, Title VII of the Civil Rights Act of 1964 trumped Muller-style protective legislation. At first, however, the efficacy of Title VII’s ban on job market sex discrimination was anyone’s guess. Sex had been added to the list of categories shielded against employment discrimination by a last minute floor amendment sponsored by a representative who saw it as a way to defeat the entire bill. There was no accompanying legislative history.
The provision most puzzled over was the so-called BFOQ defense, which applies to sex-based classifications but not to racial classifications. That prescription allowed employers to make sex-based employment decisions upon showing that sex is a “bona fide occupational qualification necessary to the normal operation of th[e] particular business or enterprise.” Many feminists feared that expansive interpretation of the BFOQ defense could severely undermine the antidiscrimination thrust of the statute. In contrast, labor advocates, who were still proponents of special protection for women, worried that a narrow reading of the BFOQ provision would kill legislation they had long championed.
Did state women-only protective laws give rise to a BFOQ? If an employer refused to hire a woman because state law prohibited her from lifting required loads, did that law make maleness a BFOQ? The Equal Employment Opportunity Commission, charged with the enforcement of Title VII, debated the issue in the statute’s early years without coming to a firm conclusion. By 1969, however, the EEOC got off the dime. In revised Guidelines on Discrimination Because of Sex, it declared that state laws “prohibit[ing] or limit[ing] the employment of females . . . ha[d] ceased to be relevant to our technology or to the expanding role of the female worker in our economy.” Such laws, the Commission stated, were in conflict with Title VII and did not fit within the EEOC’s narrowed interpretation of the BFOQ exception.
Influenced by the EEOC’s interpretation and court decisions holding that Title VII superseded women-only protective laws, state legislatures in large numbers repealed or modified such laws, and state attorneys general in nearly half of the States advised that Muller-style laws did not apply to employers covered by Title VII. The hope of the proponents of Oregon’s 1903 law, one might conclude, had at last been realized. The “opening wedge” strategy paved the way for laws that protected workers without limiting women’s opportunities.
The Newer-Style Protection: Legislation on Childbirth, Childrearing, and the Potential for a Balanced Work and Family Life
Even after Title VII spelled the end of labor legislation applicable to women only, a pregnant problem remained. Could employers treat women differently because of their childbearing capacity and their primary responsibility for childrearing?
In the very first Title VII sex discrimination case to reach the Supreme Court, Phillips v. Martin Marietta Corp., the Court addressed a child-rearing issue: Could an employer refuse to accept applications from women with pre-school-age children while employing, without reservation, men with pre-school-age children? The Court’s answer in 1971 was wobbly. The employer’s practice, on its face, conflicted with Title VII’s ban on sex discrimination, the Justices recognized. But the majority hedged. If the employer could prove that “conflicting family obligations” were “demonstrably more relevant to job performance for a woman than for a man,” the Court said, then arguably the employer might have a valid BFOQ defense.
Justice Marshall, concurring in the judgment, chided his brethren for suggesting that the BFOQ defense might excuse the company’s practice. Title VII, he wrote, allowed no room for discrimination based on “ancient canards about the proper role of women.” Marshall’s position eventually prevailed, first in lower courts, ultimately in the Supreme Court. Just as the BFOQ defense could not be used to shield women-only protective or restrictive labor legislation, so it could not be used to perpetuate the notion that women with young children belong at home and are unfit for gainful employment.
Parenthood is not unique to women, but pregnancy is a condition no man can experience. The Court dealt with the plight of pregnant women ready, willing, and able to work, yet denied the opportunity to do so, in Cleveland Bd. of Ed. v. LaFleur. Decided in 1974, LaFleur and a companion case involved pregnant public school teachers forced to leave work well in advance of childbirth. The teachers challenged their school boards’ policies as state action impermissible under the Fourteenth Amendment. They prevailed, but the Court did not respond to their equal protection pleas. Instead, the Court held they were denied due process because they were irrebuttably deemed unfit to work, even if, in truth, they were ready, willing, and able to remain on the job.
Six months after ruling in favor of pregnant teachers still fit for work, the Court resolved a case involving women seeking disability benefits when their pregnancies in fact required them to stop working. That case, Geduldig v. Aiello, concerned exclusion of pregnant women from California’s disability plan for public sector employees. Again, the rubric was the Fourteenth Amendment, not Title VII. This time, the Court did treat the case as one arising under the Equal Protection Clause. California’s plan easily survived the Court’s review. All “nonpregnant persons,” the Court observed — a class that includes members of both sexes — were treated alike.
The same reasoning held sway in a Title VII case decided in 1976, General Electric Co. v. Gilbert. The Court there dealt with a GE plan that paid workers part of their wages for up to three weeks of absences due to any disabling condition save one — disability caused by pregnancy. The Equal Employment Opportunity Commission had wrestled with the issue and, in 1972, issued Guidelines declaring that practices classifying employees based on pregnancy-related conditions were “prima facie violations of Title VII.” Pregnancy-related disabilities, the Commission advised, qualify for any and all benefits provided for other temporarily disabling conditions. By the mid-1970s, every federal court presented with the issue agreed with the EEOC’s position. The Supreme Court, however, disagreed and determined that GE’s exclusion of pregnancy from disability benefits “is not a gender-based discrimination at all.”
I have a suspicion about the Court’s diverse rulings in LaFleur on the one hand, and Aiello and Gilbert on the other. The pregnant woman ready, willing, and able to work met a reality check. She sought, and was prepared to take on, a day’s work for a day’s pay. But the woman who sought benefits for a disability caused by pregnancy may have sparked doubt in the Justices’ minds: Was she really a member of the labor force, or was she a drop out who, post-childbirth, would retire from the paid labor force to devote herself to the care of her home and family?
Almost immediately after the Supreme Court rejected the Title VII challenge to GE’s disability plan, action shifted to a different forum. A coalition that eventually encompassed over 200 organizations — including women’s equality advocates, labor unions, civil rights proponents, pro-life as well as pro-choice groups — formed under the umbrella of the Campaign to End Discrimination Against Pregnant Workers. Less than two years after the coalition was launched, the Campaign achieved its goal: Congress passed the Pregnancy Discrimination Act, a measure notable for its simplicity. Congress declared in the PDA that pregnancy-based classifications were indeed sex-based for Title VII purposes. Pregnant workers, the Act provided, “shall be treated the same for all employment-related purposes, including . . . benefit programs, as other persons not so affected but similar in their ability or inability to work.”
How did the Court respond to the PDA? I will describe two of the leading decisions. One was uniformly applauded by PDA proponents; the other divided them.
Automobile Workers v. Johnson Controls, Inc., decided in 1991, was the controversy on which PDA proponents agreed. The employer in that case followed a policy common in industries involving toxic substances: women “capable of bearing children” were excluded from well paid but hazardous jobs based on a purported concern for the well-being of the fetus the woman might conceive. In accord with that policy, Johnson Controls excluded all fertile women — but not fertile men — from jobs exposing workers to lead toxins. Briefs attacking the policy warned against a revival of Muller‘s placement of women in a special class because of their “physical structure” and “maternal functions.” The Court grasped the point: “Concern for a woman’s existing or potential offspring,” the Court wrote, “historically has been the excuse for denying women equal employment opportunities. Congress in the PDA prohibited discrimination on the basis of a woman’s ability to become pregnant. We do no more than hold that the PDA means what it says.”
Unlike Johnson Controls, a case decided four years earlier sparked dissension among members of the PDA coalition. Titled California Federal Savings & Loan Association v. Guerra, and commonly called Cal Fed, the case posed this question: Does Title VII, as amended by the PDA, permit preferential treatment for pregnant workers? California had adopted a law under which women returning to work after pregnancy leave were afforded job security unavailable to other temporarily disabled workers, i.e., a superior right to reinstatement in the woman’s former post or a similar job. Some feminists urged that under the PDA, California’s enhanced job security could not be confined to women seeking reinstatement after childbirth leave. Protective legislation for women only, they stressed, “has historically reinforced sex-role stereotypes and reduced women’s employment opportunities.” Feminists on the other side emphasized the uniqueness of pregnancy. As a distinguished scholar explained:
Men do not experience a conflict between their right to engage in reproductive conduct and their right to be free of discrimination based on sex at work. Women, however, have experienced such a conflict and will continue to do so unless pregnant workers are safeguarded from the loss of employment opportunities during pregnancy.
The Court essentially agreed with that view. States, the Court ruled, may require employers to grant special job protections to pregnant workers, for “Congress intended the PDA to be a floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise.”
Seeds of a rapprochement were planted in briefs filed in Cal Fed by the ACLU and NOW. The job security California provided for pregnant workers, the briefs maintained, should not be taken away from them, but should be extended to all workers on return from leave. Such a sweeping extension would be a tall order for a court to decree, but it was well within Congress’ ken. Moreover, favorable treatment for women returning after childbirth was merely permissive under the Cal Fed decision, and was of small comfort to a woman whose sick child, husband, or parent required her temporary absence from paid employment.
A second coalition formed during the Cal Fed litigation, a campaign seeking more durable protection for people with family care responsibilities. The result of the new campaign: Congress, in 1993, passed the Family and Medical Leave Act. The FMLA requires employers of 50 or more employees to provide up to 12 weeks of unpaid, but job-protected leave to employees, male or female, who are parents of newborns or newly adopted children, or who need to attend to their own serious health condition or that of a family member. In lieu of protecting women only, the FMLA protects families; its stated purposes, “to promote the goal of equal employment opportunity for women and men,” and “to balance the demands of the workplace with the needs of families.”
The Justice who, in 1976, announced in Gilbert that Congress had not made disadvantageous treatment of pregnant workers “gender-based discrimination at all,” responded in 2003 to a clear signal from the Legislature. The FMLA, Chief Justice Rehnquist wrote for the Court in Nevada Department of Human Resources v. Hibbs, was a proper exercise of Congress’ authority to enforce the Equal Protection Clause. As phrased by the Chief Justice:
Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination . . . . Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men.
The FMLA, the Court concluded, was a fitting prophylactic, appropriately binding public as well as private employers, for it homed in on “the fault line between work and family — precisely where sex-based overgeneralization has been and remains strongest.”
To conclude, I will turn from description to my own opinion. Having grown up in years when women, by law or custom, were protected from a range of occupations, including lawyering, and from serving on juries, I am instinctively suspicious of women-only protective legislation. Family-friendly legislation, I believe, is the sounder strategy. The FMLA and state analogs move in that direction. In time, I expect, their scope will be expanded. Devising means to facilitate a balanced work and personal life, however, is First Branch work; such arrangements are beyond the province of the judiciary to shape and decree. Future developments in this area, I anticipate, may be influenced by the growing numbers of women seated in state and federal legislative chambers, in top-level executive posts, in courts responsible for interpreting and applying legislation, on law faculties, and in law school classes.
Source: Supreme Court of the United States.