Men May Work from Sun to Sun, But Women's Work is Never Done: International Law and the Regulation of Women's Work at Night

Abstract

At the turn of the century in both the United States and in Europe, governments enacted laws to protect women from the most harmful aspects of industrialization. One such piece of protective legislation was the ban on the employment of women at night. Discovering that regulation of working hours had a negative effect on their competition in the world market, these western states looked to impose this standard internationally. Thus in 1919 the International Labor Organization enacted the Convention Concerning Employment of Women During the Night.

By the time the International Labor Organization responded to complaints that the convention was discriminatory to women in 1990, many states had already denounced the convention. It is unlikely that others will choose to ratify the newer convention as it would prohibit widespread use of shiftwork, the most economical form of labor. Given this trend, it must seriously be considered whether the former special legislation should be denounced or whether it has any use today.

The U.S. experience of protective legislation for women has been mixed and complicated. From the beginning there has existed a fundamental tension between labor standards that protect the rights of working women and standards that promote equality of opportunity. Although regulation of women's work may have been enacted because of notions about women's place in society, and championed by labor unions because it protected men's jobs, women for the most part still supported these safeguards as a protection against a system of exploitation in which they were the most vulnerable. It was not long, however, before many women concluded that these laws not only protected them from some lucrative and convenient employment, but also reinforced dangerous stereotypes about women's abilities. Even though most protective legislation in the U.S. was repealed long ago, the debate over whether these measures are helpful or harmful to women continues, especially in contexts in which men and women are not similarly situated.

The tension between special treatment and equality is more pronounced in the developing world than it is in the West, where most issues have been resolved on the side of equality. In the West, the "emancipation" of women has rendered many protective statutes obsolete and discriminatory. However, women workers in the developing world, as western women were at the turn of the century, are reluctant to accept the removal of a safeguard until similar protection is provided by other means.

Women workers in the developing world are neither similarly situated to men in their country nor to women in the West. In developing countries where employers are often unfettered by regulations and trade unions are relatively weak, women fear that without protection, employers will be free to schedule women onto the night shift where the danger of harassment and sexual exploitation is great. Given the unequal status of women in developing countries and the extra exploitation they face, should the prohibition on night work be lifted for them?

Keywords: regulation of working hours, women, international law