Corps de l’article
Lawmaking in the employment arena in the U.S. and Canada has both converged and diverged, depending on the subject. On the one hand, provincial lawmakers looked to the U.S. National Labor Relations Act (NLRA) as a model for labour relations laws in Ontario and other provinces. Cross-border relationships among social movements and unions led to the development of similar human rights acts and commissions in both U.S. states and Canadian provinces. On the other hand, when the U.S. Congress passed the 1963 Equal Pay Act, Canadian provinces were already moving beyond similar equal pay models that had been passed as early as 1951 in Ontario. Currently, Canadian equal pay and pay equity law is recognized as one of the most advanced in the world, while the U.S. Equal Pay Act has not changed in 40 years.
In 2001, the synergy between U.S. and Canadian labour and employment law was brought into stark relief by the Canadian Supreme Court decision, Dunmore v. Ontario ( S.C.J. No. 87). In Dunmore, the Canadian Supreme Court decided that Ontario’s 1995 repeal of the Agricultural Labour Relations Act violated the Canadian Charter of Rights. Prior to 1994, Ontario’s Labour Relations Act excluded farm workers from organizing and collective bargaining protection—as did the U.S. NLRA upon which it was in part modelled.
The synergy, convergence and divergence of Canadian and U.S. labour and employment law and policy make Alice Kessler-Harris’ 2001 book In Pursuit of Equity a must-read for both Canadians and Americans. Kessler-Harris’ book works on at least two levels. On one level, it views the development of social protection and employment policy through the prism of gender and race. On another level, it provides a colourful history of the formation of most of the major U.S. laws affecting the employment relationship developed in the last century. Thus the book can appeal both to gender scholars and to labour scholars.
In Pursuit of Equity is a carefully researched book for which the author combed through oral history interviews, congressional records, administrative agency documents, advisory council minutes and other primary sources. Her careful combing uncovers provocative gendered tidbits like an exchange Senators had about a proposed job promotion bill where they disagreed on whether housewives should have the same opportunities as others or whether a law would, “take the housewives out of the home and put them into industry …” (pp. 19-20). The author peppers the book with salient facts about the primary architects of the laws that house the U.S. employment relationship – such as where they attended school, what they studied and how this influenced their views on and contributions to the development of laws and institutions. For example, Barbara Nachtrieb Armstrong was a Berkeley law school professor who worked with the 1934 Committee on Economic Security and affected policy through her expertise in European social insurance systems and her particular interest in unemployment insurance.
Chapter One lays the groundwork for the next chapters (and the next century) by discussing the gendered views of work in the U.S. in the 19th century. Wage work was a manly prerogative that allowed men to view themselves as men—and distinguish themselves from more lowly beings such as women, slaves and children. During this time the concept of a “family wage” developed—whereby a man would earn enough to support his family. In this world, women did not own their own labour and were limited in the kinds of work they could do. Work-related policies and employer programs reflected the cultural view that women were primarily wives and mothers. For example, in 1905 the U.S. Supreme Court rejected work hour protections for men because it interfered with their freedom and power to contract, but in 1908 it rejected the same argument and allowed work hour protections for women, finding that women are at a disadvantage physically and contractually. Part of the U.S. Supreme Court’s reasoning was that it wanted to protect women’s role as mothers (pp. 28-31).
Chapter Two builds on the concepts of masculinity and femininity in the development of the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) in the 1930’s. Kessler-Harris argues that the American Federation of Labor (AFL) did not support protective wage and hour legislation because it wanted to preserve its power (and that of its male membership) to contract and bargain for what the men wanted, without being constrained by protective laws. Nor did the AFL want an administrative board with the power to intervene in the wage bargaining process by setting a minimum wage rate (p. 103). It was precisely the values of self-determination and independence, which were seen as masculine values, that the AFL wanted to preserve in the battle for the passage of the NLRA.
On the other hand, the FLSA, passed in 1938, was designed to protect all of the workers who were unable to protect themselves—women and blacks, children and other groups likely to be exploited. The chapter recounts the story of a number of incongruous groups who opposed the passage of the FLSA, including the National Negro Congress and southern social conservatives. In fact, Kessler-Harris asserts that the minimum wage established in the FLSA has never been a living wage and that the AFL supported lowering the wage rate set in the legislation from 40 cents to 25 cents/hour (pp. 112-113). Canadian readers who are interested in the gender and race dimensions of excluding farm and domestic workers from labour legislation should read pp. 103-116.
Chapter Three discusses how the Social Security Act (SSA), especially provisions concerning old age insurance and unemployment insurance, was developed as part of a deeply gendered and racialized policy debate. The chapter focuses on the debate that began in 1937 when policy makers realized that the original 1934 SSA did not adequately cover retired persons, especially widows and wives (p. 113). One problem in the U.S. social security system that continues to this day is the lower benefits retired women receive after years of unpaid work in the home, since receipt of the benefits is tied to wage work. Kessler-Harris discusses this issue historically and theoretically. The other well-known problem retired women encounter is receipt of lower benefits due to systemic problems of receiving lower pay throughout their working lives. Once again, Canadians who are interested in the racial element of the exclusion of farm workers and domestic workers from U.S. laws should read pp. 141-150. In this section, Harris-Kessler asserts that of the 5 million coloured or African American workers in the labour market in 1938, 3.5 million were excluded from coverage under the SSA because farm workers and domestic workers were excluded from coverage (p. 148). The exclusion of domestic workers had a particularly sharp effect on women who worked in factories during World War II. Many of these women returned from covered factory jobs to uncovered domestic service jobs having paid into the social security system, but having not achieved enough quarters (at least 10 years’ worth) to collect benefits based on their contributions.
Chapter Four talks about the development of federal taxation policy in the mid-1900’s and how taxation policy affected women. One interesting thread in the gendered debate was the role that congressional representatives from community property states (most of which were states that became U.S. territory after the U.S.-Mexico war which ended with the Treaty of Hidalgo in 1848) played. In community property states, wives own equally the married couple’s property including income earned during the marriage (p. 176). Chapters Five and Six discuss the development of federal legislation governing equal pay for equal work for men and women and other civil rights laws.
In Pursuit of Equity is a complex and interesting exposition on the way policymakers’ gendered views affected policy debates and outcomes. It shows the way systemic discrimination seeped into almost all of the legislation that governs the workplace to this day—from tax policy to unemployment insurance to the establishment of a national minimum wage. The book is also a cautionary tale for this century’s policymakers. Human beings may never be able to see beyond the cultures and ideologies that formed us. Nevertheless, when we set ourselves to the task of designing laws and institutions that affect working people’s lives, we must take extra care to avoid systematizing our prejudices into those laws and institutions.