1. A New York statute prohibiting employment of women in
restaurants in large cities (cities of the first and second class)
between the hours of 10 p.m. and 6 a.m.
held not an
arbitrary and undue interference with the liberty of contract of
the women and their employers, but justifiable as a health measure.
P.
264 U. S. 294.
Adkins v. Children's Hospital, 261 U.
S. 525, distinguished.
2. Whether this kind of work is so substantially and especially
detrimental to the health and welfare of women engaging in it as to
justify its suppression in their case is a question of fact as to
which the Court is unable to say that the finding of the
legislature was clearly unfounded.
Id.
3. The regulation does not deny the equal protection of the laws
either (a) because it applies only to first and second class
cities, or (b) because it does not apply to women employed in
restaurants as singers and performers, to attendants in ladies'
cloak rooms and parlors and those employed in hotel dining rooms
and kitchens, or in lunch rooms or restaurants conducted by
employers solely for the benefit of their employees. P.
264 U. S.
296.
4. To be violative of the Equal Protection Clause, the
inequality produced by a statute must be actually and palpably
unreasonable and arbitrary.
Id.
234 N.Y. 518 affirmed.
Error to a judgment entered in the City Court of Buffalo upon
remittitur from the Court of Appeals affirming a conviction of
plaintiff in error for violating a statute forbidding night
employment of women.
Page 264 U. S. 293
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Plaintiff in error was convicted in the City Court of Buffalo
upon the charge of having violated the provisions of a statute of
the State of New York prohibiting the employment of women in
restaurants in cities of the first and second class between the
hours of 10 o'clock at night and 6 o'clock in the morning. Laws of
New York, 1917, c. 535, p. 1564.
*
An appeal was prosecuted through intermediate appellate courts
to the Court of Appeals, where the judgment was affirmed without an
opinion. The record having been remitted to the City Court, the
writ of error was allowed to that court.
Aldrich v.
Aetna Co., 8 Wall. 491,
75 U. S. 495;
Hodges v. Snyder, 261 U. S. 600,
261 U. S.
601.
The validity of the statute is challenged upon the ground that
it contravenes the provisions of the Fourteenth Amendment in that
it violates (1) the due process clause, by depriving the employer
and employee of their liberty of contract, and (2) the equal
protection clause by an unreasonable and arbitrary
classification.
1. The basis of the first contention is that the statute unduly
and arbitrarily interferes with the liberty of two
Page 264 U. S. 294
adult persons to make a contract of employment for themselves.
The answer of the state is that night work of the kind prohibited
so injuriously affects the physical condition of women, and so
threatens to impair their peculiar and natural functions, and so
exposes them to the dangers and menaces incident to night life in
large cities that a statute prohibiting such work falls within the
police power of the state to preserve and promote the public health
and welfare.
The legislature had before it a mass of information from which
it concluded that night work is substantially and especially
detrimental to the health of women. We cannot say that the
conclusion is without warrant. The loss of restful night's sleep
cannot be fully made up by sleep in the daytime, especially in busy
cities, subject to the disturbances incident to modern life. The
injurious consequences were thought by the legislature to bear more
heavily against women than men, and, considering their more
delicate organism, there would seem to be good reason for so
thinking. The fact, assuming it to be such, properly may be made
the basis of legislation applicable only to women. Testimony was
given upon the trial to the effect that the night work in question
was not harmful, but we do not find it convincing. Where the
constitutional validity of a statute depends upon the existence of
facts, courts must be cautious about reaching a conclusion
respecting them contrary to that reached by the legislature, and if
the question of what the facts establish be a fairly debatable one,
it is not permissible for the judge to set up his opinion in
respect of it against the opinion of the lawmaker. The state
legislature here determined that night employment of the character
specified was sufficiently detrimental to the health and welfare of
women engaging in it to justify its suppression, and, since we are
unable to say that the finding is clearly unfounded, we are
precluded from reviewing the legislative
Page 264 U. S. 295
determination.
Holden v. Hardy, 169 U.
S. 366,
169 U. S. 395.
The language used by this Court in
Muller v. Oregon,
208 U. S. 412,
208 U. S. 422,
in respect of the physical limitations of women is applicable and
controlling:
"The limitations which this statute places upon her contractual
powers, upon her right to agree with her employer as to the time
she shall labor, are not imposed solely for her benefit, but also
largely for the benefit of all. Many words cannot make this
plainer. The two sexes differ in structure of body, in the
functions to be performed by each, in the amount of physical
strength, in the capacity for long continued labor, particularly
when done standing, the influence of vigorous health upon the
future wellbeing of the race, the self-reliance which enables one
to assert full rights, and in the capacity to maintain the struggle
for subsistence. This difference justifies a difference in
legislation and upholds that which is designed to compensate for
some of the burdens which rest upon her."
Adkins v. Children's Hospital, 261 U.
S. 525, is cited and relied upon, but that case
presented a question entirely different from that now being
considered. The statute in the
Adkins case was a
wage-fixing law, pure and simple. It had nothing to do with the
hours or conditions of labor. We held that it exacted from the
employer "an arbitrary payment for a purpose and upon a basis
having no causal connection with the business, or the contract or
the work" of the employee, but, referring to the
Muller
case, we said (p.
261 U. S. 553)
that
"the physical differences [between men and women] must be
recognized in appropriate cases, and legislation fixing hours or
conditions of work may properly take them into account."
See also Riley v. Massachusetts, 232 U.
S. 671;
Miller v. Wilson, 236 U.
S. 373;
Bosley v. McLaughlin, 236 U.
S. 385,
and compare Truax v. Raich,
239 U. S. 33, and
Coppage v. Kansas, 236 U. S. 1,
236 U. S.
18-19.
Page 264 U. S. 296
2. Nor is the statute vulnerable to the objection that it
constitutes a denial of the equal protection of the laws. The
points urged under this head are (a) that the act discriminates
between cities of the first and second class and other cities and
communities, and (b) excludes from its operation women employed in
restaurants as singers and performers, attendants in ladies' cloak
rooms and parlors, as well as those employed in dining rooms and
kitchens of hotels and in lunch rooms or restaurants conducted by
employers solely for the benefit of their employees.
The limitation of the legislative prohibition to cities of the
first and second class does not bring about an unreasonable and
arbitrary classification.
Packard v. Banton, ante,
264 U. S. 140;
Hayes v. Missouri, 120 U. S. 68. Nor
is there substance in the contention that the exclusion of
restaurant employees of a special kind and of hotels and employees'
lunchrooms renders the statute obnoxious to the Constitution. The
statute does not present a case where some persons of a class are
selected for special restraint from which others of the same class
are left free (
Connolly v. Union Sewer Pipe Co.,
184 U. S. 540,
184 U. S.
564); but a case where all in the same class of work are
included in the restraint. Of course, the mere fact of
classification is not enough to put a statute beyond the reach of
the equality provision of the Fourteenth Amendment. Such
classification must not be "purely arbitrary, oppressive or
capricious."
American Sugar Refining Co. v. Louisiana,
179 U. S. 89,
179 U. S. 92.
But the mere production of inequality is not enough. Every
selection of persons for regulation so results in some degree. The
inequality produced, in order to encounter the challenge of the
Constitution, must be "actually and palpably unreasonable and
arbitrary."
Arkansas Natural Gas Co. v. Railroad
Commission, 261 U. S. 379,
261 U. S. 384,
and cases cited. Thus, classifications have been sustained which
are based upon differences between fire insurance and other kinds
of insurance,
Orient
Insurance
Page 264 U. S. 297
Co. v. Daggs, 172 U. S. 557,
172 U. S. 562;
between railroads and other corporations,
Tullis v. Lake Erie
& Western R. Co., 175 U. S. 348,
175 U. S. 351;
between barber shop employment and other kinds of labor,
Petit
v. Minnesota, 177 U. S. 164,
177 U. S. 168;
between "immigrant agents" engaged in hiring laborers to be
employed beyond the limits of a state and persons engaged in the
business of hiring for labor within the state,
Williams v.
Fears, 179 U. S. 270,
179 U. S. 275;
between sugar refiners who produce the sugar and those who purchase
it,
American Sugar Refining Co. v. Louisiana, supra. More
directly applicable are recent decisions of this Court sustaining
hours of labor for women in hotels, but omitting women employees of
boarding houses, lodging houses, etc.,
Miller v. Wilson,
supra, at
236 U. S. 382,
and limiting the hours of labor of women pharmacists and student
nurses in hospitals but excepting graduate nurses.
Bosley v.
McLaughlin, supra at
236 U. S.
394-396. The opinion in the first of these cases was
delivered by Mr. Justice Hughes, who, after pointing out that in
hotels women employees are for the most part chambermaids and
waitresses, that it cannot be said that the conditions of work are
the same as those which obtain in the other establishments, and
that it is not beyond the power of the legislature to recognize the
differences, said (pp.
236 U. S.
383-384):
"The contention as to the various omissions which are noted in
the objections here urged ignores the well established principle
that the legislature is not bound, in order to support the
constitutional validity of its regulation, to extend it to all
cases which it might possibly reach. Dealing with practical
exigencies, the legislature may be guided by experience.
Patsone v. Pennsylvania, 232 U. S. 138,
232 U. S.
144. It is free to recognize degrees of harm, and it may
confine its restrictions to those classes of cases where the need
is deemed to be clearest. As has been said, it may 'proceed
cautiously, step by step,' and 'if an evil is
Page 264 U. S. 298
specially experienced in a particular branch of business,' it is
not necessary that the prohibition 'should be couched in
all-embracing terms.'
Carroll v. Greenwich Insurance Co.,
199 U. S.
401,
199 U. S. 411. If the law
presumably hits the evil where it is most felt, it is not to be
overthrown because there are other instances to which it might have
been applied.
Keokee Coke Co. v. Taylor, 234 U. S.
224,
234 U. S. 227. Upon this
principle, which has had abundant illustration in the decisions
cited below, it cannot be concluded that the failure to extend the
act to other and distinct lines of business, having their own
circumstances and conditions, or to domestic service, created an
arbitrary discrimination as against the proprietors of hotels."
The judgment below is affirmed.
*
"3. In cities of the first and second class no female over the
age of sixteen years shall be employed, permitted, or suffered to
work in or in connection with any restaurant more than six days or
fifty-four hours in any one week, or more than nine hours in any
one day, or before six o'clock in the morning or after ten o'clock
in the evening of any day. This subdivision shall, however, not
apply to females employed in restaurants as singers and performers
of any kind, or as attendants in ladies' cloak rooms and parlors,
nor shall it apply to females employed in or in connection with the
dining rooms and kitchens of hotels, or in or in connection with
lunch rooms or restaurants conducted by employers solely for the
benefit of their own employees."