It was not just another day on the job for Miss O'Byrne, a little
Scottish girl. After she had been employed in the clay mill for only nine
days, and was just getting used to the rattle and hum of the machinery,
her supervisor ordered her to remove clay from between some rollers while
the rollers were running. Of course, her clothing became caught in the
machinery and she was horribly mangled. Yet unlike many other injured workers
from the early industrial period who remain nameless to us, the girl made
her mark in the historical record by suing her employer.
Surprising all, and overturning the historical precendent of both English and American common law, the Scottish judge in the girl's case ruled in her favor. He did so not on the grounds that a worker had some abstract right to a safe workplace, but rather because she was a child, and a female child at that. "She was an inexperienced girl employed in a hazardous manufactory, placed under the control, and, it may be added, the protection, of an overseer, who was appointed by the defendant, and intrusted with the duty; and it might well be considered that by employing such a helpless and ignorant child, the master contracted to keep her out of harm's way in assigning her to any work to be performed."
While the incidence of serious workplace accidents in both Britain and the United States is thought to have increased sharply after about 1840, in response to the building and running of the early railroads and to the mechanization of the textile industry, workers had little legal recourse before 1880, when the first employers' liability legislation was passed. Courts generally defined an employer's duty of care to his employees narrowly, refusing to hold him liable when fellow workers or managers were at fault for accidents, or where there was any contributory negligence on the part of the injured worker. In this time of burgeoning technology, the law considered workers to be free agents, who entered into contracts for employment fully cognizant of ordinary risks.
Yet even as workers as a category were construed as free agents -- in a discourse which fed into the political definition of "free labor" -- not all workers fit under the rubric. In particular, slaves, women, and child workers occupied a liminal position, in which the total rejection of employer responsibility was unacceptable. The distinction forged in law between white male free agents and lesser beings was two edged. Labor advocates might use the more generous treatment meted out to women and children in order to undermine the idea that employers owed no responsibility to their workers for their injuries incurred on the job. After all, a legal precedent was a legal precedent. But these differences might also be deployed to forge a common definition of masculinity across class lines -- preventing workers who were always conscious of the importance of "manliness" from seeking legal redress. Every description of workplace accidents and their aftermath which dates from this period -- sources from court cases, to newspaper accounts, to private letters, brims with ideas about gender in the workplace. My paper examines the language of gender in the workplace as it relates to workplace accidents, and offers an analysis of the way in which this language was deployed in the period of the Early Republic.