Inside & Out

BRIAN: We’re back, with BackStory. I’m Brian Balogh.

PETER: I’m Peter Onuf.

ED: And I’m Ed Ayers. We’re talking today about the history of women in the American workplace. Before the break, we were discussing what working life would have to looked like for African-American women in the decades following the end of slavery. We’re going to go back a little bit further now and consider the workplace picture from another perspective, that of young white women.

PETER: In the first half of the 19th century, they too were leaving the home in what might strike you as surprising numbers. By 1850 some 20% of unmarried white women were working outside the home. And what many of them encountered all too often was the unwanted sexual attention of their employers. One of our producers, Nina Earnest, got to wondering about the options available to women in this situation. Here’s Nina to tell us what she discovered.

NINA EARNEST: The first thing I found when I started looking into this story is that the thing we would call sexual harassment was all over the place in the 19th century.

LEA VANDERVELDE: I think this might have been one of the greatest things that women feared.

NINA EARNEST: This is Lea VanderVelde. She’s a law professor at the University of Iowa who has written about sexual predation in this period.

LEA VANDERVELDE: And that’s one of the reasons that there were so many limitations on the jobs that women could even take. One of the ways to cut down on sexual harassment was simply not to permit women to go to work in certain places, keep them away from men.

NINA EARNEST: When economic necessity forced their families to send them out into the world as laundresses, domestic servants, and sometimes as factory workers, it was very clear who was responsible for keeping them safe, the women themselves, because people at the time believed that chaste women would not consent to sex before marriage, no matter the circumstances. Men were naturally lecherous, women were not.

LEA VANDERVELDE: If the man pursued, even with physical force, or even with the threat that you will be dismissed if you do not submit, the woman was simply instructed to refuse. Her ability to say no may not be listened to, it may not even have been heard, but that was the only thing she could do.

NINA EARNEST: Why? It’s like this. VanderVelde says the relationship between workers and their employers was that of master and servant. Early American law said that no one could interfere with that relationship. If another employer tried to entice a servant away with better pay or better working conditions, the master could sue that would-be employer. A working woman’s ability to work, in other words, was basically owned by her employer.

LEA VANDERVELDE: Anyone who interfered with the woman sexually has seduced her away, has interfered with the vitality with which she can provide her services to the master. Even a husband who proposes marriage to her could be sued by the master who she worked for.

NINA EARNEST: The master could sue under something called the tort of seduction. It could be invoked when a young working woman was coerced into sex, especially if she became pregnant. Raising the question, of course, what happens when it was the boss himself who was doing the coercion. In that case, says VanderVelde, there was only one other course of action.

LEA VANDERVELDE: The only way that she could get any protection at all was this long shot of having her father sue on her behalf.

NINA EARNEST: Consider the 1858 case of Dane v. Wyckoff in New York. Sally Dane was indentured at age 14 to a wealthy man named Wyckoff. In her first year on the job, she became pregnant with his child. She then returned to her father’s house to give birth.

LEA VANDERVELDE: She can no longer work to support the household economy. She’s become a burden on his household, so he has a right to recover for his loss of her services.

NINA EARNEST: Not only for the wages lost during her pregnancy, but also because her marriage prospects would be shot. In this case, the New York Courts eventually sided with her father. And in similar cases, other courts often did the same.

Over the next few decades, some of this began to change. A handful of states started allowing women to have rights over themselves and to sue for their own seduction. But that didn’t mean all women started benefiting from the protection of the law.

Even in those states where they could sue, seduction claims were viewed with a lot of suspicion. Was the woman telling the truth? Or was she simply trying to bring down an upstanding man? It didn’t help that Victorian attitudes about sex were gradually falling away. The more women were seen as sexual actors, the more they were expected to deal with negative sexual experiences as personal problems.

And that was the prevailing attitude, until the 1970s. It was then that women’s groups finally gave a name to this workplace behavior, sexual harassment. In 1979, a young lawyer named Catherine MacKinnon wrote a groundbreaking book, making the case of sexual harassment qualified as discrimination under the 1964 Civil Rights Act. That argument was accepted by the courts and is the basis for sexual harassment law as it exists today. Finally, working women had an effective legal option to tackle a problem they’d been facing, well, since forever.

LEA VANDERVELDE: The change is revolutionary, really. We now have a cause of action. And I think that that means that women are freer to consent now, if they choose, because they also know that they can refuse, if they choose. And all of this goes to a greater degree of freedom for everybody.

NINA EARNEST: The battle for equality in the workplace is hardly over, but American women are now at least in a position where they can own their ability to work and the rights to their own sexuality.

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PETER: That’s Nina Earnest. She’s one of our producers. Helping her tell that story was Lea VanderVelde, a professor at the University of Iowa College of Law.

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