Brief for the Defendant in Error, Muller v. Oregon

Brief for the Defendant in Error, Muller v. Oregon

Louis D. Brandeis, October Term, 1907

The World's Experience Upon Which the Legislation Limiting the Hours of Labor for Women is Based

In muller v. oregon in 1908, the U.S. Supreme Court upheld an Oregon law that prohibited the employment of women for more than ten hours a day. The decision was based in large part on a brief submitted by louis d. brandeis in support of the law. The brief emphasized the differences between women and men and presented information showing that long work hours could have injurious effects on the health and welfare of women and their children, including their unborn children. The Court unanimously agreed, noting that "woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence."

The Brandeis brief signaled a change in the type of evidence a court would consider in determining a case. With the growth of the social sciences, quantitative and qualitative studies conducted by researchers would increasingly find their way into U.S. courtrooms.

Brief for the Defendant in Error, Muller v. Oregon


A. Causes

(1) Physical Differences Between Men and Women. The dangers of long hours for women arise from their special physical organization taken in connection with the strain incident to factory and similar work.

Long hours of labor are dangerous for women primarily because of their special physical organization. In structure and function women are differentiated from men. Besides these anatomical and physiological differences, physicians are agreed that women are fundamentally weaker than men in all that makes for endurance: in muscular strength, in nervous energy, in the powers of persistent attention and application. Overwork, therefore, which strains endurance to the utmost, is more disastrous to the health of women than of men, and entails upon them more lasting injury.

Report of Select Committee on Shops Early Closing Bill, British House of Commons, 1895.

Dr. Percy Kidd, physician in Brompton and London Hospitals:

The most common effect I have noticed of the long hours is general deterioration of health; very general symptoms which we medically attribute to over-action, and debility of the nervous system; that includes a great deal more than what is called nervous disease, such as indigestion, constipation, a general slackness, and a great many other indefinite symptoms.

Are those symptoms more marked in women than in men?

I think they are much more marked in women. I should say one sees a great many more women of this class than men; but I have seen precisely the same symptoms in men, I should not say in the same proportion, because one has not been able to make anything like a statistical inquiry. There are other symptoms, but I mention those as being the most common. Another symptom especially among women is anemia, bloodlessness or pallor, that I have no doubt is connected with long hours indoors.

Report of the Maine Bureau of Industrial and Labor Statistics, 1888.

Let me quote from Dr. Ely Van der Warker (1875):

Woman is badly constructed for the purposes of standing eight or ten hours upon her feet. I do not intend to bring into evidence the peculiar position and nature of the organs contained in the pelvis, but to call attention to the peculiar construction of the knee and the shallowness of the pelvis, and the delicate nature of the foot as part of a sustaining column. The knee joint of woman is a sexual characteristic. Viewed in front and extended, the joint in but a slight degree interrupts the gradual taper of the thigh into the leg. Viewed in a semi-flexed position, the joint forms a smooth ovate spheroid. The reason of this lies in the smallness of the patella in front, and the narrowness of the articular surfaces of the tibia and femur, and which in man form the lateral prominences, and thus is much more perfect as a sustaining column than that of a woman. The muscles which keep the body fixed upon the thighs in the erect position labor under the disadvantage of shortness of purchase, owing to the short distance, compared to that of man, between the crest of the ilium and the great trochanter of the femur, thus giving to man a much larger purchase in the leverage existing between the trunk and the extremities. Comparatively the foot is less able to sustain weight than that of man, owing to its shortness and the more delicate formation of the tarsus and metatarsus.

Report of the Massachusetts Bureau of Labor Statistics, 1875.

A "lady operator," many years in the business, informed us: "I have had hundreds of lady compositors in my employ, and they all exhibited, in a marked manner, both in the way they performed their work and in its results, the difference in physical ability between themselves and men. They cannot endure the prolonged close attention and confinement which is a great part of typesetting. I have few girls with me more than two or three years at a time; they must have vacations, and they break down in health rapidly. I know no reason why a girl could not set as much type as a man, if she were as strong to endure the demand on mind and body."

Report of the Nebraska Bureau of Labor and Industrial Statistics, 1901–1902.

They (women) are unable, by reason of their physical limitations, to endure the same hours of exhaustive labor as may be endured by men without injury to their health would wreck the constitution and destroy the health of women, and render them incapable of bearing their share of the burdens of the family and the home. The State must be accorded the right to guard and protect women as a class against such a condition, and the law in question to that extent conserves the public health and welfare.

In strength as well as in rapidity and precision of movement women are inferior to men. This is not a conclusion that has ever been contested. It is in harmony with all the practical experience of life. It is perhaps also in harmony with the results of those investigators …who have found that, as in the blood of women, so also in their muscles, there is more water than in those of men. To a very great extent it is a certainty, a matter of difference in exercise and environment. It is probably, also, partly a matter of organic constitution.

The motor superiority of men, and to some extent of males generally, is, it can scarcely be doubted, a deep-lying fact. It is related to what is most fundamental in men and in women, and to their whole psychic organization.

There appears to be a general agreement that women are more docile and amenable to discipline; that they can do light work equally well; that they are steadier in some respects; but that, on the other hand, they are often absent on account of slight indisposition, and they break down sooner under strain.

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It has been estimated that out of every one hundred days women are in a semipathological state of health for from fourteen to sixteen days. The natural congestion of the pelvic organs during menstruation is augmented and favored by work on sewing machines and other industrial occupations necessitating the constant use of the lower part of the body. Work during these periods tends to induce chronic congestion of the uterus and appendages, and dysmenorrhea and flexion of the uterus are well known affections of working girls.

VII. Laundries

The specific prohibition in the Oregon Act of more than ten hours' work in laundries is not an arbitrary discrimination against that trade. Laundries would probably not be included under the general terms of "manufacturing" or "mechanical establishments"; and yet the special dangers of long hours in laundries, as the business is now conducted, present strong reasons for providing a legal limitation of the hours of work in that business.


Chapter XLVII. Laundry Workers

It is perhaps difficult to realize that the radical change which has everywhere transformed industrial conditions has already affected this occupation (laundry work) also, and that for good or for evil the washerwoman is passing under the influences which have so profoundly modified the circumstances of her sister of the spinning-wheel and the sewing needle. When the first washing machine and ironing roller were applied to this occupation, alteration in the conditions became as much a foregone conclusion as it did in the case of the textile or the clothing manufactures, when the spinning frame, the power loom, or the sewing machine appeared.

Meanwhile, few industries afford at the present time a more interesting study. From a simple home occupation it is steadily being transformed by the application of power-driven machinery and by the division of labor into a highly organized factory industry, in which complicated labor-saving contrivances of all kinds play a prominent part. The tremendous impetus in the adoption of machinery, and the consequent modification of the system of employment so striking in the large laundries, is not greater than the less obvious but even more important development in the same direction among small laundries. Indeed the difference is rapidly becoming one of degree only. In the large laundries may be found perhaps more machinery and a greater number of the newest devices, but the fundamental change has affected all alike.

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Report of British Chief Inspector of Factories and Workshops, 1900.

One of the most unsatisfactory results of the present system of lack of working hours in laundries is the unfortunate moral effect on the women and girls….Women who are employed at arduous work till far into the night are not likely to be early risers nor given to punctual attendance in the mornings, and workers who on one or two days in the week are dismissed to idleness or to other occupations, while on the remaining days they are expected to work for abnormally long hours, are not rendered methodical, industrious, or dependable workers by such an unsatisfactory training. The self-control and good habits engendered by a regular and definite period of moderate daily employment, which affords an excellent training for the young worker in all organized industries, is sadly lacking, and, instead, one finds periods of violent overwork alternating with hours of exhaustion. The result is the establishment of a kind of "vicious circle"; bad habits among workers make compliance by their employers with any regulation as to hours very difficult while a lack of loyal adherence to reasonable hours of employment by many laundry occupiers increases the difficulty for those who make the attempt in real earnestness.

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