Equal by What Measure: Masculinity, Antidiscrimination Law, and Labor Protection, 1964-1991

In the 1960s and 1970s, the rise of antidiscrimination law prompted the erosion of sex-specific protective labor laws that regulated the hours and conditions of women’s work. As maternalism waned, however, the question arose: what legal regime would take its place? The dominant narrative in the historical scholarship is that the elimination of maternalist labor laws marked the dawn of a new era of sex equality. But this narrative overlooks the activism of labor feminists, who sought to fuse a civil rights era commitment to antidiscrimination with an older tradition of labor protection that dated to the progressive era and New Deal.

This paper argues that labor feminists lost struggles to augment state and federal labor laws because of obstacles to redefining male workers as legal subjects in need of state protection. The paper examines two historical moments. The first was the struggle in Michigan during the late 1960s and in California during the early 1970s for voluntary overtime rules, which would have given non-professional employees greater control over their hours of work. The second was labor feminists’ campaign a decade later against fetal hazard policies and for reproductive health in the workplace. In both instances, labor feminists faced tremendous difficulty translating arguments about the need to protect mothers into gender-neutral arguments about the need to protect men, as well. The ideal of universal labor protections was lost as U.S. law overlaid sex equality upon a neoliberal rather than a social democratic labor market.