Women in Industry (Brandeis Brief)

As counsel in Muller v. Oregon (1908), Louis D. Brandeis, then a well‐known attorney and social activist, submitted a lengthy brief supporting the constitutionality of an Oregon statute that limited the hours per day that women could work in laundries and other industries. The Brandeis brief led to important changes in legal analysis and Supreme Court litigation.

The Muller brief devoted a mere two pages to discussion of legal issues; the remaining 110 pages presented evidence of the deleterious effects of long hours of labor on the “health, safety, morals and general welfare of women.” This evidence was culled from medical reports, psychological treatises, statistical compilations, and conclusions of various legislative bodies and public committees by Brandeis's sister‐in‐law, Josephine Goldmark, and several of her colleagues from the National Consumers' League. Surprisingly, the conservative David J. Brewer, who wrote for the majority in Muller, noted the contribution of the brief favorably.

The Brandeis brief was unprecedented. Brandeis used it to demonstrate that there was a reasonable basis for the Oregon statute. In several prior decisions, most notably Lochner v. New York (1905), conservative Supreme court justices were only too willing—as Brandeis and other Progressives complained—to impose their own beliefs about what constituted reasonable legislation. The Muller brief's analysis was consonant with the fact‐oriented “sociological jurisprudence” of the Progressive era. It forced the Court to consider data that state legislators employed in drafting reform laws.

The success of the Brandeis brief led to subsequent efforts by Brandeis and other lawyers to support of a wide range of economic legislation. Even lawyers representing interests opposed to Progressive regulation used the Brandeis techniques to attack such laws. The Brandeis brief has also seen service in contexts far removed from economic regulation and thus has become a staple of litigation before the Supreme Court.

See also Gender; Progressivism.

— John W. Johnson

In 1908 Louis D. Brandeis, as counsel for the state of Oregon in Muller v. Oregon, prepared a new kind of brief in support of an Oregon law that limited the number of hours that a woman could work each day in laundries and other industries. The brief included only two pages of discussion of the legal issues of the Muller case. The other 95 pages of this brief presented evidence about the harmful impact of long hours of strenuous labor on the “health, safety, and morals of women.” The sociological evidence presented by Brandeis convinced the Court to support the Oregon law in order to protect public health and safety.

The success of the new kind of brief submitted by Brandeis in the Muller case influenced other lawyers to use sociological evidence, when appropriate, to make their arguments. This new kind of brief was named the Brandeis brief in honor of its creator, who later became a highly regarded justice of the U.S. Supreme Court.

See also Brief

The progressive reform movement of the early twentieth century grew out of the social health and welfare crises caused by rapid urbanization and industrialization. In 1908, future Supreme Court Justice Louis D. Brandeis defended before the court a 1903 Oregon law that forbade women from working longer than ten hours a day. The case, Muller v. Oregon, represented laundry owner Curt Muller's appeal of a $10 fine he received when one of his fore-men forced Mrs. E. Gotcher to work longer than ten hours. The law stood. In his groundbreaking brief, Brandeis referred only briefly to legal precedent, providing instead voluminous sociological evidence to support his claim that "women are fundamentally weaker than men in all that makes for endurance." Brandeis, a millionaire corporate lawyer who was moved in mid-life to become "the people's lawyer" and fight for social and legal reforms, was a leader in the progressive movement. The National Consumer's League, a middle-class workers' organization which enlisted Brandeis for the Oregon case, was so impressed with his sociological study that it published it in book form as Women in Industry, from which this excerpt is taken.

Decision of the United States Supreme Court in Curt Muller vs. State of Oregon Upholding the Constitutionality of the Oregon Ten Hour Law for Women and Brief for the State of Oregon

Brief for the Defendant in Error

This case presents the single question whether the Statute of Oregon, approved Feb. 19, 1903, which provides that "no female [shall] be employed in any mechanical establishment or factory or laundry" "more than ten hours during any one day," is unconstitutional and void as violating the Fourteenth Amendment of the Federal Constitution.

The decision in this case will, in effect, determine the constitutionality of nearly all the statutes in force in the United States, limiting the hours of labor of adult women,—namely:

Massachusetts

First enacted in 1874 (chap. 221), now embodied in Revised Laws, chap. 106, sec. 24, as amended by Stat. 1902, chap. 435, as follows:

No woman shall be employed in laboring in a manufacturing or mechanical establishment more than ten hours in any one day, except as hereinafter provided in this section, unless a different appointment in hours of labor is made for the sole purpose of making a shorter day's work for one day of the week; and in no case shall the hours of labor exceed fifty-eight in a week.…(Held constitutional in Comm. v. Hamilton Mfg. Co., 120 Mass. 383.)

Rhode Island

First enacted in 1885 (chap. 519, sec. 1), now embodied in Stat. 1896, chap. 198, sec. 22 (as amended by Stat. 1902, chap. 994), as follows:

… No woman shall be employed in laboring in any manufacturing or mechanical establishment more than fifty-eight hours in any one week; and in no case shall the hours of labor exceed ten hours in any one day, excepting when it is necessary to make repairs or to prevent the interruption of the ordinary running of the machinery, or when a different apportionment of the hours of labor is made for the sole purpose of making a shorter day's work for one day of the week.

Louisiana

First enacted in 1886 (Act No. 43), and amended by Acts of 1902 (No. 49); now embodied in Revised Laws (1904, p. 989, sec. 4):

… No woman shall be employed in any factory, warehouse, workshop, telephone or telegraph office, clothing, dressmaking, or millinery establishment, or in any place where the manufacture of any kind of goods is carried on, or where any goods are prepared for manufacture, for a longer period than an average of ten hours in any day, or sixty hours in any week, and at least one hour shall be allowed in the labor period of each day for dinner.

Connecticut

First enacted in 1887 (chap. 62, sec. 1), now embodied in General Statutes, Revision 1902, sec. 4691, as follows:

… No woman shall be employed in laboring in any manufacturing, mechanical, or mercantile establishment more than ten hours in any day, except when it is necessary to make repairs to prevent the interruption of the ordinary running of the machinery, or where a different apportionment of the hours of labor is made for the sole purpose of making a shorter day's work for one day of the week.…In no case shall the hours exceed sixty in a week.

Maine

First enacted in 1887 (chap. 139, sec. 1), now re-enacted in Revised Statues, 1903, chap. 40, sec. 48, as follows:

… No woman shall be employed in laboring in any manufacturing or mechanical establishment in the State more than ten hours in any day, except when it is necessary to make repairs to prevent the interruption of the ordinary running of the machinery, or when a different apportionment of the hours of labor is made for the sole purpose of making a shorter day's work for one day of the week; and in no case shall the hours of labor exceed sixty in a week.

There is a further provision that any woman "may lawfully contract for such labor or number of hours in excess of ten hours a day, not exceeding six hours in any one week or sixty hours in any one year, receiving additional compensation therefor."

New Hampshire

First enacted in 1887 (chap. 25 sec. 1), now re-enacted by Stat. 1907, chap. 94, as follows:

No woman … shall be employed in a manufacturing or mechanical establishment for more than nine hours and forty minutes in one day except in the following cases: I. To make a shorter day's work for one day in the week. II. To make up time lost on some day in the same week in consequence of the stopping of machinery upon which such person was dependent for employment. III. When it is necessary to make repairs to prevent interruption of the ordinary running of the machinery. In no case shall the hours of labor exceed fifty-eight in one week.

Maryland

First enacted in 1888 (chap. 455), now embodied in Public General Law, Code of 1903, art. 100, sec. 1:

No corporation or manufacturing company engaged in manufacturing either cotton or woollen yarns, fabrics or domestics of any kind, incorporated under the law of this State, and no officer, agent or servant of such named corporation, … and no agent or servant of such firm or person shall require, permit, or suffer its, his, or their employees in its, his, or their service, or under his, its, or their control, to work for more than ten hours during each or any day of twenty-four hours for one full day's work, and shall make no contract or agreement with such employees or any of them providing that they or he shall work for more than ten hours for one day's work during each or any day of twenty-four hours, and said ten hours shall constitute one full day's work.

Section 2 makes it possible for male employees to work longer either to make repairs, or by express agreement.

Virginia

First enacted in 1890 (chap. 193, sec. 1), now embodied in Virginia Code (1904), chap. 178a, sec. 3657b, as follows:

No female shall work as an operative in any factory or manufacturing establishment in the State more than ten hours in any one day of twenty-four hours. All contracts made or to be made for the employment of any female … as an operative in any factory or manufacturing establishment to work more than ten hours in any one day of twenty-four hours shall be void.

Pennsylvania

First enacted in 1897 (No. 26), and re-enacted in Laws of 1905, No. 226, as follows:

Section 1, That the term "establishment," where used for the purpose of this act, shall mean any place within this Commonwealth other than where domestic, coal-mining, or farm labor is employed; where men, women, and children are engaged, and paid a salary or wages, by any person, firm, or corporation, and where such men, women, or children are employees, in the general acceptance of the term.

Section 3.…No female shall be employed in any establishment for a longer period than sixty hours in any one week, nor for a longer period than twelve hours in any one day.

(Certain exceptions covering Saturday and Christmas.)

(Held constitutional in Comm. Beatty, 15 Pa. Superior Ct. 5.)

New York

First enacted in 1899 (chap. 192. sec. 77), now embodied in Stat. 1907, chap. 507, sec. 77, sub-division 3:

… No woman shall be employed or permitted to work in any factory in this State … more than six days or sixty hours in any one week; nor for more than ten hours in one day.…

A female sixteen years of age or upwards … may be employed in a factory more than ten hours a day; (a) regularly in not to exceed five days a week in order to make a short day or holiday on one of the six working days of the week; provided that no such person shall be required or permitted to work more than twelve hours in any one day or more than sixty hours in any one week, etc.

Nebraska

First enacted in 1899 (chap. 107), now embodied in Complied Statutes (1905, sec. 7955a):

No female shall be employed in any manufacturing, mechanical, or mercantile establishment, hotel, or restaurant in this State more than sixty hours during any one week, and ten hours shall constitute a day's labor. The hours of each day may be so arranged as to permit the employment of such female at any time from six o'clock A. M. to ten o'clock P. M.; but in no case shall such employment exceed ten hours in any one day.

(Held constitutional in Wenham v. State, 65 Neb. 400.)

Washington

Enacted in 1901, Stat. 1901, chap. 68, sec. 1, as follows:

No female shall be employed in any mechanical or mercantile establishment, laundry, hotel, or restaurant in this State more than ten hours during any day.

The hours of work may be so arranged as to permit the employment of females at any time so that they shall not work more than ten hours during the twenty-four.

(Held constitutional in State v. Buchanan, 29 Wash. 603.)

Argument

The legal rules applicable to this case are few and are well established, namely:

First: The right to purchase or to sell labor is a part of the "liberty" protected by the Fourteenth Amendment of the Federal Constitution.

Lochner v. New York, 198 U. S. 45, 53.

Second: The right to "liberty" is, however, subject to such reasonable restraint of action as the States may impose in the exercise of the police power for the protection of health, safety, morals, and the general welfare.

Lochner v. New York, 198 U. S. 45, 53, 67.

Third: The mere assertion that a statute restricting "liberty" relates, though in a remote degree, to the public health, safety, or welfare does not render it valid. The act must have a "real or substantial relation to the protection of the public health and the public safety."

Jacobson v. Mass, 197 U. S. 11, 31.

It must have "a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate."

Lochner v. New York, 198 U. S. 45, 56, 57, 61.

Fourth: Such a law will not be sustained if the Court can see that it has no real or substantial relation to public health, safety, or welfare, or that it is "an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family."

But "If the end which the Legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the Court cannot interfere. In other words, when the validity of statute is questioned, the burden of proof, so to speak, is upon those" who assail it.

Lochner v. New York, 198 U. S. 45–68.

Fifth: The validity of the Oregon statute, must therefore be sustained unless the Court can find that there is no "fair ground, reasonable in and of itself, to say that there is material danger to the public health (or safety), or to the health (or safety) of the employees (or to the general welfare), if the hours of labor are not curtailed."

Lochner v. New York, 198 U. S. 45, 61.

The Oregon statute was obviously enacted for the purpose of protecting the public health, safety, and welfare. Indeed it declares:

"Section 5. Inasmuch as the female employees in the various establishments are not protected from overwork, an emergency is hereby declared to exist, and this act shall be in full force and effect from and after its approval by the Governor."

The facts of common knowledge of which the Court may take judicial notice—

See Holden v. Hardy, 169 U. S. 366

Jacobson v. Mass, 197 U.S. 11

Lochner v. New York, 198 U.S. 481.

establish, we submit, conclusively, that there is reasonable ground for holding that to permit women in Oregon to work in a "mechanical establishment, or factory, or laundry" more than ten hours in one day is dangerous to the public health, safety, morals, or welfare.

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 health of women than of men, and entails upon them more lasting injury.

Such being their physical endowment, women are affected to a far greater degree than men by the growing strain of modern industry.

The evil of overwork before as well as after marriage upon childbirth is marked and disastrous.

When the health of women has been injured by long hours, not only is the working efficiency of the community impaired, but the deterioration is handed down to succeeding generations … The overwork of future mothers thus directly attacks welfare of the nation.

In order to establish enforceable restrictions upon working hours of women, the law must fix a maximum working day.

We submit that in view of the facts above set forth and of legislative action extending over a period of more than sixty years in the leading countries of Europe, and in twenty States, it cannot be said that the Legislature of Oregon had no reasonable ground for believing that the public health, safety, or welfare did not require a legal limitation on women's work in manufacturing and mechanical establishments and laundries to ten hours in one day.

Louis D. Brandeis
Counsel for State of Oregon

SOURCE: From Women in Industry: Decision of the United States Supreme Court in Curt Miller v. State of Oregon, Upholding the Constitutionality of the Oregon Ten Hour Law for Women and Tried for the State of Oregon. New York: National Consumer's League, 1908 (reprint).