Protection, Patriarchy, and Capitalism: The Politics and Theory of Gender-Specific Regulation in the Workplace

55 Pages Posted: 9 Mar 2007

See all articles by Laura E. Oren

Laura E. Oren

University of Houston Law Center


"Class first" or "sex first"? Sex equality or worker safety? By pairing two stories removed in place and time, this article seeks to illuminate the perils of false choices and the importance of a strategy that rejects that dichotomy.

The first story is about the campaign for a Ten Hours' Day for workers in the factories of Britain in the nineteenth century. Britain experienced great economic and social changes, and many other political changes seemed possible, perhaps even revolution. In the midst of burgeoning class conflict, the Parliamentary campaign for the Ten Hours' Day was conducted in expressly gendered terms. While the debate on the floor centered on the need to protect women, who had to bear double responsibilities in the factories and at home, the practical impact of withdrawing women from the factory labor force necessarily was to ensure a ten hours' day for everyone employed there. Out on the hustings, in speeches before crowds of working-class supporters (who could not vote for Parliament at this time), the class purpose was quite clear. The ten hour day clearly was a class victory. By the same token, the willingness to achieve class gain through a sex-based hierarchy in the workplace left an unfortunate legacy that persists until this day.

The second story is about the campaign against "fetal protection policies" initiated by corporate America in the 1970s to ban women from occupations where they might be exposed to lead or other substances potentially harmful to fetuses. To keep their high-paying jobs, women of child-bearing years had to give proof of infertility, some of them even resorting to medical sterilization. Although some education of union officials was necessary, a class and gender strategy emerged. A proposed interpretation of Title VII would have legalized "fetal protection policies." Validation of sex-based "protection" in the workplace, however, also would allow employers to avoid cleaning up the workplace for all their workers. That is why a broad-based coalition of feminist and workers' and other progressive organizations united in supporting litigation before the Supreme Court in the Johnson Controls v. UAW case designed to establish that companies may not "protect" women out of their jobs.

There are two theoretical and strategic morals of these stories: The first is about autonomy or agency: When women cannot or do not speak for themselves, their interests will be sacrificed to someone else's end. Thus solutions which put remedies directly into the hand women themselves should be favored. The second is a warning about free markets and laissez-faire. The unregulated market in the image of "laissez-faire" (letting each woman act as a free agent in theory) is also not the answer to these complex problems. In addition to the Johnson Controls result ("choice" for women to work in hazardous workplaces), there was another necessary part of the equation: "Clean up the workplace, not the worker" was the right battle cry, but unfortunately in a regressive regulatory environment it was easier said than done.

Keywords: Sex Equality, Fetal Protection Policies, Johnson Controls v. UAW, Great Britain—History, Factory Reform Movement, Title VII, Feminist Jurisprudence

Suggested Citation

Oren, Laura E., Protection, Patriarchy, and Capitalism: The Politics and Theory of Gender-Specific Regulation in the Workplace. UCLA Women's Law Journal, Vol.6, p. 321, 1996, Available at SSRN:

Laura E. Oren (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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