Regulating the Family by Regulating Labor

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Scholar argues that U.S. labor regulation historically has been grounded in gendered assumptions about families.

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The family unit has long been viewed as sacrosanct—an institution that should be safe from the intrusions of regulation. For example, it is a pillar of family law, the U.S. Supreme Court has explained, that government should not intervene in familial relations.

But in a recent paper, a legal scholar from Israel challenges what she calls the “mythical” view that the family is off limits from government intervention in the United States.

Arianne Renan Barzilay, a professor at Israel’s Haifa University Faculty of Law, argues that labor regulation has historically played a critical role in promoting a type of family in the United States that she refers to as “the husband-as-breadwinner and wife-as-dependent model.”

Barzilay uses the Fair Labor Standards Act (FLSA), passed by President Franklin D. Roosevelt’s Administration during the Great Depression, as a starting point for her argument that federal labor regulation effectively serves as family regulation.

A backbone of New Deal legislation, the FLSA was in part concerned with detrimental labor conditions, and it established a right to a minimum wage and overtime pay. It served as a vehicle for protecting a certain standard of living by providing a guarantee of “decent work,” which usually meant decent conditions of work, pay, and job security.

Barzilay, however, argues that the concept of “decency” requires more exploration. She contends that the FLSA and other labor regulations of that time period were characterized by a tension between the “productive decency” of better wages, hours, and working conditions and a concept that she refers to as “repressive decency.” “Repressive decency,” Barzilay states, “pertains to women’s chastity, family decency, and gendered domestic roles.”

In their quest to provide “decent work,” New Deal reformers justified regulations that indirectly advocated for a certain model of the “decent family,” namely one that exhibited values like female domesticity and sexual purity, Barzilay argues. She says that one of the motivations behind the establishment of many of the FLSA’s regulations was to curb the perceived sexual deviancy and immorality that had arisen as a result of more women’s entering the workforce. She claims that, as more women entered the low-paying workforce, some women—often factory workers who struggled to make ends meet—entered into “urban subcultures in which they gave men sexual ‘favors’ in return for limited economic support.”

With the surge of brothels and red-light districts in ever-growing working class neighborhoods, the progressive reformers of the New Deal era thought that marriage and the traditional “decent family,” a cornerstone of society, were under attack, argues Barzilay. She claims that reformers believed that “poverty and economic constraint led to vice” and that, to lessen the “social evils” of prostitution and sexual immorality, every girl and woman needed to be able to support themselves with a living wage.

Similarly, Barzilay argues that reformers as well as judges saw the regulation of women’s working hours as a safeguard for future motherhood, again advocating for a repressive vision of what women’s roles in the family ought to be. Barzilay writes that the reasons given by middle-class women reformers are representative of some the New Deal era arguments about women’s working hour regulation. The reformers emphasized the necessity of labor regulation “for its protection of women’s future child-bearing and child-rearing maternal functions.”

These middle-class reformers held a traditional view of the “decent family,” argues Barzilay, one that held that women should work only when they had to, and that their primary roles were as mothers. An awareness of the toll that long hours and meager pay had on the domestic role of women fueled support for labor regulation.

At the same time, concerns also grew that the growing workforce of women was making men’s employment opportunities increasingly scarce, turning the traditional husband-as-breadwinner familial model on its head. Barzilay explains that, because the Great Depression was a time of “dire” unemployment, “women’s work came under massive heat.” Indeed, during the drafting of the FLSA, congressional debates often turned on the diminishing ability of men to support a family and uphold their traditional gender roles due to the influx of women entering the workforce. Barzilay states that this meant that the FLSA was designed not just to spread work and save the economy, but also to promote “decent” standards of living by reinstating the “decent” family, “with its husband-as-breadwinner and the wife-as-dependent model.”

Extending her argument, Barzilay states that understanding labor regulation as family regulation is key to formulating better regulation in the future. She explains that labor law has advocated for an anachronistic family model, and the FLSA’s major hour and wage provisions have gone unmodified since their conception. Contemporary understanding of gender roles both in the workplace and outside of it has changed radically since the 1930s, and Barzilay concludes that “it is time to redesign labor law to better correspond with current ideas about gender roles within the family.”