By Sally Greenberg, NCL Executive Director
Last month, at Georgetown University Law Center in Washington, DC, the National Consumers League (NCL) hosted a historic gathering of labor leaders, labor historians and gender discrimination lawyers to debate the 100th Anniversary of a landmark Supreme Court Case, Muller v. Oregon, which set a 10 hour workday for women in the state of Oregon. Decided by the Court in 1908, the great Louis Brandeis, 8 years before he ascended to the Supreme Court himself, argued Muller at the urging of Florence Kelley, general secretary of the League, and her right hand, Josephine Goldmark, who also happened to be Brandeis’ sister-in-law. They say his argument was so brilliant that the Justices didn’t interrupt him once – very unusual for the Supreme Court – and decided the case unanimously. The case involves Portland laundry owner Curt Muller, who in violation of Oregon law required one of his female laundry employees to stay at work beyond 10 hours. She objected. The Oregon courts supported her, upholding the state’s 10 hour workday, and Muller appealed to the Supreme Court. Which raises the question, why did the NCL support hours regulations for women only? Because three years earlier the U.S. Supreme Court had struck down a New York law regulating the hours men could work. Kelley and Goldmark determined that the choice was either getting the Court to uphold a law regulating hours for women only or getting no law at all. They considered Muller to be an “entering wedge” – if laws regulating hours for women were adopted, soon those rules would apply to all workers. They were right, the entering wedge strategy worked, and in the next decade hours regulations for men were upheld by the court.
The Muller case contributed something else invaluable to social reformers. The brief that Kelley and Goldmark wrote with Brandeis didn’t use law to persuade the Court – instead, it contained reams of social evidence gathered from England and other industrial countries about the evils of 15, 16, or 17 hour work days on women, on their children, their families, their health, and their communities. This style of brief – long on social documentation but short on law – is called a “Brandeis Brief.” And when Thurgood Marshall argued Brown v. Board of Education before the Supreme Court, he and his team of lawyers submitted a Brandeis Brief.
At the conference NCL hosted, labor leaders talked about Muller’s place in history and the problem today of Americans working long hours, often two jobs, to make ends meet. Gender discrimination lawyers talked about Muller’s appeal to sexist stereotypes about women in the workplace and the specific cases in which subsequent court decisions relied on Muller to discrimination against women. A board member of the NLRB cited the need for overhauling our labor laws, which haven’t been updated or upgraded in decades. Other panelists talked about the need for passage of the Employee Free Choice Act, which will restore the rights of workers join unions free from intimidation by employers. According to workplace surveys conducted by professors Richard Freeman of Harvard University and Joel Rogers of the University of Wisconsin, 42 million employees who are not represented by a union would like to have representation at work, but under the National Labor Relations Board election process, management has almost unlimited and mandatory access to employees, while union supporters have almost none. According to a survey of 400 NLRB election campaigns in 1998 and 1999, 36 percent of workers who vote against union representation explain their vote as a response to employer pressure. The problem of “wage theft” workers toiling long hours without getting their due compensation continues today.
Though Muller remains controversial today, we come down on the side of the historians, who argued at the conference that Muller did far more good than harm. It was all the women of the NCL had – get hours regulated for women or get nothing for any workers. And they picked a brilliant lawyer whose record of winning cases before the Court was impeccable. Finally, in their work on behalf of workers, Kelley, Goldmark, and other NCL leaders fought not just for white women and men– they fought for the lowest paid workers as well, black women and black men, whom the unions were not interested in representing at the time. That should be a source of pride for all who support the NCL today. The legacy of Muller lives on today in the struggles that working families face as they try to earn a living wage.