Lavatory and Liberty: The Secret History of the Bathroom Break

8 Mar

Inspired by all this libertarian talk, I dug out an old piece of mine from 2002, in the Boston Globe, that talks about a little known fact: many workers in the United States aren’t able to exercise their right to pee on the job—due to lack of government enforcement—and it wasn’t until 1998 (!) that they even got that right, thanks to the federal government. The piece pivots from there to a more general discussion about coercion in the workplace and its history.

I wish academics, journalists, intellectuals, and bloggers had a more concrete sense of what it’s like to work in an actual workplace in America (not to mention elsewhere). Sometimes, it seems that scholars and writers, if they think about it at all, simply assume the typical workplace to be a seminar room, a newsroom, the cafe around the corner, or their office at home.

The piece isn’t long, so I’m reproducing it here in its entirety:

IN HIS NEVER-ENDING quest for control of the workplace, Henry Ford confronted many foes, but none as wily or rebellious as the human digestive tract. Hoping to tame what he called the body’s ”disassembly line,” Ford wheeled lunch wagons into his auto plant in Highland Park, Mich., and forced workers to wolf down a 10-minute sandwich on the job. So industrialized was ingestion at the plant that workers growled about their ”Ford stomach.” But where Ford sought to speed up the meal’s entrance into the body, his successors – from store managers in the Midwest to fashion moguls in New York – have concentrated on slowing down its exit.

Today’s workplace can sometimes seem like a battlefield of the bladder. On the one side are workers who wanna go when they gotta go; on the other are employers who want to stop them, sometimes for hours on end. Just this past month, a Jim Beam bourbon distillery in Clermont, Ky., was forced to drop its strict bathroom-break policies after the plant’s union focused negative international attention – from ABC News to Australia – on Jim Beam and its parent company, Fortune Brands, Inc. According to union officials, managers kept computer spreadsheets monitoring employee use of the bathroom, and 45 employees were disciplined for heeding nature’s call outside company-approved breaks. Female workers were even told to report the beginning of their menstrual cycles to the human resources department, said one union leader.

In their 1998 book ”Void Where Prohibited: Rest Breaks and the Right to Urinate on Company Time,” Marc Linder and Ingrid Nygaard of the University of Iowa – he’s a law professor, she’s a urogynecologist – trace the long and ignoble history of the struggle for the right to pee on the job. In 1995, for instance, female employees at a Nabisco plant in Oxnard, Calif., maker of A-1 steak sauce and the world’s supplier of Grey Poupon mustard, complained in a lawsuit that line supervisors had consistently prevented them from going to the bathroom. Instructed to urinate into their clothes or face three days’ suspension for unauthorized expeditions to the toilet, the workers opted for adult diapers. But incontinence pads were expensive, so many employees downgraded to Kotex and toilet paper, which pose severe health risks when soaked in urine. Indeed, several workers eventually contracted bladder and urinary tract infections. Hearing of their plight, conservative commentator R. Emmett Tyrrell Jr. advised the workers to wear special diapers used by horses in New York’s Central Park carriage trade.

How does a country that celebrates the joy of unfettered movement tolerate such restrictions on this most basic of bodily motions? Why do the freedoms that we take for granted outside the workplace suddenly disappear when we enter it? ”Belated Feudalism,” a study by UCLA political scientist Karen Orren, suggests a surprising, and shocking, answer. According to Orren, long after the Bill of Rights was ratified and slavery abolished – well into the 20th century, in fact – the American workplace remained a feudal institution. Not metaphorically, but legally. Workers were governed by statutes originating in the common law of medieval England, with precedents extending as far back as the year 500. Like their counterparts in feudal Britain, judges exclusively administered these statutes, treating workers as the literal property of their employers. Not until 1937, when the Supreme Court upheld the Wagner Act, giving workers the right to organize unions, did the judiciary relinquish political control over the workplace to Congress.

Prior to the ’30s, Orren shows, American judges regularly applied the ”law of master and servant” to quell the worker’s independent will. According to one jurist, that law recognized only ”the superiority and power” of the master, and the ”duty, subjection, and, as it were, allegiance” of the worker. Medieval vagrancy statutes forced able-bodied males into the workplace, while ancient principles of ”entire” contract kept them there. A worker hired for a period of time – often five to 10 years and beyond – was legally not entitled to any of his earnings unless and until he completed the entire term of his contract. When rules of vagrancy and entirety failed, judges turned to other precedents, some dating from the time of Richard II, requiring workers seeking employment to obtain a ”testimonial letter” from their previous employer. Because employers were under no legal obligation to provide such letters, judges could effectively stop workers from ever trying to move on.

As soon as workers entered the workplace, they became the property of their employers. Judges enforced the 13th-century rule of ”quicquid acquietur servo acquietur domino” (whatever is acquired by the servant is acquired by the master), mandating that employees give to their employers whatever they may have earned off the job – as if the employee, and not his labor, belonged to the employer. If an outside party injured an employee so that he couldn’t perform his duties, the employer could sue that party for damages, ”as if the injury had been to his chattel or machines or buildings.” But if the outside party injured the employer so that he could not provide employment, the employee could not likewise sue. Why? Because, claimed one jurist, the ”inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior.”

”Belated Feudalism” set off multiple explosions when it appeared in 1991, inflicting serious damage on the received wisdom of Harvard political scientist Louis Hartz. In his 1955 classic ”The Liberal Tradition in America,” still taught on many college campuses, Hartz argued that the United States was born free: Americans never knew feudalism; their country – with its Horatio Alger ethos of individual mobility, private property, free labor, and the sacred rights of contract – was modern and liberal from the start. For decades, liberals embraced Hartz’s argument as an explanation for why there was no – and could never be any – radicalism in the United States. Leftists, for their part, also accepted his account, pointing to the labor movement’s failure to create socialism as evidence of liberalism’s hegemony.

But as Orren shows, American liberalism has never been the easy inheritance that Hartz and his complacent defenders assume. And the American labor movement may have achieved something far more difficult and profound than its leftist critics realize. Trade unions, Orren argues, made America liberal, laying slow but steady siege to an impregnable feudal fortress, prying open this ”state within a state” to collective bargaining and congressional review. By pioneering tactics later used by the civil rights movement – sit-ins, strikes, and civil disobedience – labor unions invented the modern idea of collective action, turning every sphere of society into a legitimate arena of democratic politics. It’s no accident that when the factory walls came tumbling down, other old regimes – of race, gender, and sexual orientation – began to topple in their wake.

If there’s one flaw in ”Belated Feudalism,” it may be Orren’s optimism about the irreversibility of feudalism’s demise and labor’s gains. For in today’s workplace, as Linder and Nygaard show, the spirit, if not the letter, of the old regime persists. And it may be gaining ground. According to the Bureau of Labor Statistics, in 1979, 25 percent of employees in medium- to large-sized companies did not have paid rest breaks during which they could go to the bathroom. By 1993, the last year for which there are statistics, that number had jumped to 32 percent. (In 1992, 51 percent of employees working at small firms did not receive paid rest breaks; there are no statistics for earlier years.) Not until April 1998 did the federal government, under pressure from the labor movement, even maintain that employers had to grant employees an ill-defined ”timely access” to the bathroom.

Though most reviewers haven’t picked up on this theme, Barbara Ehrenreich’s recent bestseller ”Nickel and Dimed” offers a startling inventory of contemporary workplace feudalism, where workers are constantly forced to hand over body and soul to employers. Even before workers are hired, drug tests ask for their bodily fluids, surrendered in company bathrooms to proprietary supervisors. Personality tests insist on deep confession: Is the worker prone to self-pity? Does he think people talk about him behind his back? Once hired, employees confront the upstairs-downstairs world of old Europe. One advertisement for a corporate cleaning service brags, ”We clean floors the old-fashioned way – on our hands and knees.” At a Minnesota Wal-Mart, workers are punished for ”time theft” – doing anything besides work on company time – bringing to mind Frederick Douglass’s famous description of himself as a piece of stolen property. (It may be Wal-Mart itself that is stealing time. In class-action lawsuits across 28 states, employees are challenging a ”zero-tolerance” overtime policy that forces employees to clock out at the end of their shifts but then keep working.)

Like so much else in the contemporary economy, feudalism has gone upscale and high tech, eliminating liberal freedoms of speech and association in the wired workplace. Exxon Mobil and Delta have installed a software program on their company computers to ferret out any sign of employee opposition to management authority. The program forwards to managers all employee documents and e-mails – saved or unsaved, sent or unsent – containing ”alert” words like ”boss” or ”union.” As a supervisor explained to the Wall Street Journal, ”The workplace is never free of fear – and it shouldn’t be. Indeed, fear can be a powerful management tool.” So repressive is today’s workplace, wired or not, that Human Rights Watch recently sent Lance Compa of Cornell’s School of Industrial and Labor Relations there to investigate. What did he find? In the last decade alone, according to federal government statistics, almost 200,000 employees punished for exercising their right to form and participate in a union.

When Walt Whitman heard ”America singing,” he thought he heard the ”varied carols” of independent workers, ”each singing what belongs to him or her and to none else.” As Orren shows, it’s not clear that was ever true. But today, with the pink slips flying, it’s all too easy for corporate managers to make sure that employees sing only company tunes. As unions start to organize the low and high ends of the service economy, it may prove labor’s task, once again, to force a measure of modernity on this obstinate medieval world.

This story ran on page D1 of the Boston Globe on 9/29/2002.

53 Responses to “Lavatory and Liberty: The Secret History of the Bathroom Break”

  1. Iuncta Iuvant March 8, 2012 at 12:07 pm #

    I realized the other day that I was following your work back before you did this internet stuff. In my humble little opinion, it’s amongst the most non-trivial, necessary social science work being produced in our era.

    Back when I was a kid in the mid-1990s I wrote a writing sample on how academics, sociologists of whom were busily celebrating the freedom supplied by computer technology, were shockingly, critically divorced from the experience of the majority of technology users, working class women. It was easy to write because I was working for American Express’ highly-feminized group billing department in Minneapolis at the time. As far as I could see or feel, from the middle of a vast sea of cubicles, the relationship of workers to computers at the time was almost exclusively that which Braverman had observed between workers and previous managerial technology: physically- and mentally-constraining and damaging deskilling, surveillance, and dehumanizing discipline. I was scandalized by how feminist academics of the time had somehow not noticed.

    Once I had to leave work, as I’d scheduled for a month previous, to catch a plane, though my replacement was 20 mn late. And so the processing of American Express group bills was delayed by 20 mn (You’ll recall how Western civilization fell apart back in 1994. That was me). When I returned I was naturally put on a disciplinary protocol for that, wherein if I wanted to leave my cubicle seat to go to the bathroom or stop huddling, furiously processing, over the computer for a second, I would have to sign on and off the computer which had been set up to monitor me. …It was impossible, affording the consequent emergency room visits on my $20K salary; but under such working conditions, it turns out that even a 22- year-old back seizes up in a viciously painful, relentless way. (As reflective commentary on these everyday work conditions, I posted in 900-pt font the “ARBEIT MACHT FREI” slogan atop the corporate manager-employee communication board (Forgive me. I was a kid). For some reason, the AE brass didn’t take that slogan down for a year. Did they not know German, or history…or did they think it was appropriate? I cannot say.)

    Present company excepted, I do not think that academics, especially not the very best academics, have any idea of what work feels like for most people. None at all. Nor have they ever thought to inquire.

  2. Jessica Flanigan March 8, 2012 at 2:37 pm #

    Thanks for sharing this piece Corey. It’s true that I’ve never been a full time worker in the service industry, but i did work part-time in food service for four years, as a waitress, caterer, and sandwich-maker, and I was raised by an awesome single mom who worked in retail or at Starbucks for almost my whole life, so I think I do have at least some “concrete sense of what it’s like to work in an actual workplace in America.”

    This experience ::affirms:: my opposition to egalitarian policy proposals like unions, workplace democracy, state-mandated interventions in the workplace. I totally get that it is really soul-crushing when you have an oppressive micromanaging corporate manager who creates an oppressive workplace environment (what up Jimmy Johns! I’m looking at you!) That is why I support a basic income, in part. But my experience has also taught me that oppressive micromanaging unions can be just as bad, that ‘time theft’ hurts fellow workers who are then asked to pick up the slack, that workplace regulations are sometimes maddeningly inefficient and cumbersome, and I cannot overemphasize how much I would have hated going to organizational meetings off the clock.

    I realize I’m lucky to have my current job and that most jobs are way worse. But that doesn’t mean that state-mandated solutions are needed to improve the conditions of workers, they might make things worse. More importantly, workplace regulations violate important economic liberties, which both workers and employers have reason to value.

    • Todd March 9, 2012 at 6:36 am #

      Jessica wrote:

      “But my experience has also taught me that oppressive micromanaging unions can be just as bad,”

      What do you mean by this? I’ve yet to see a union, for example, dictate how fast you have to type or when you have to pee (unless it was in response to a boss’ demands for something worse).

      “that ‘time theft’ hurts fellow workers who are then asked to pick up the slack”

      Depending on how employers define “time theft” (and leaving aside the fact that it’s them demanding other workers “pick up the slack” as an excuse for more unpaid labour), you might have a point. However, there’s nothing wrong with getting the slacker to make up for actual wasted time instead of “wasted time”. (But a fairness beyond a bourgeois sense of fairness isn’t what a business is about, is it?)

      “that workplace regulations are sometimes maddeningly inefficient and cumbersome”

      What, you mean ones like employees having proper safety equipment or being allowed to go to the can at regular intervals rather than not on “company time”? And there is that tiny fact that unions are usually democratic: if there’s a problem, you have the possibility of correcting it; whereas in the despotic or oligarchic business, you have to depend on the whim of one or more overlords.

      “and I cannot overemphasize how much I would have hated going to organizational meetings off the clock.”

      I’ve been close to being in a union, and I’ve known union members, and I can’t recall anyone anywhere being forced to go to organizational meetings.

      • Joe V. October 10, 2013 at 6:06 pm #

        Yeah, I’m echoing the same thoughts. The post is so bizarre to me, I can only conclude that she’s a Milton Friedman booster.

    • g March 10, 2012 at 5:50 pm #

      I would have hated going to organizational meetings off the clock.

      Ever wonder what union members do at those organizational meetings?

      They vote on the contract. They offer to serve on negotiation committees. They advise those committees on what terms to include in a contract offer, and they let those committees know which issues are imporatnt to them. Being able to have a say in these things is a privilege that seems to be lost on you.

    • Tyro March 10, 2012 at 7:02 pm #

      workplace regulations are sometimes maddeningly inefficient and cumbersome

      Well, management is just going to have to suck it up. If they’re such amazing captains of industry, I think they’ll be able to hack it.

      That you’re going to bat for these incompetent losers who are too stupid to do their jobs while allowing their employees bathroom breaks indicates to me that you’re just covering up for America’s sociopathic losers. If they consider it too cumbersome to treat their employees like human beings, then they need to be sent down to the company floor and get the hell out of management.

      EVERY employer whose instincts are too abusive and whose mental capacity is too small to figure out how to conform with regulations that will allow employees bathroom breaks needs to learn to become more competent or be driven out of business in favor of those capable of operating within the norms of civilized society, not the barbaric dregs of society within he operates. Our society exists to raise ourselves up to the norms of modern civilization, not to coddle lunatics, abusers, and managerial incompetents.

    • chris murphy May 29, 2012 at 7:50 pm #

      “my experience has also taught me that oppressive micromanaging unions can be just as bad, ”

      I very much doubt you can name any examples of this assertion from anyone’s experience, let alone from your your own vast experience of four years of part time service industry experience.

  3. Connie Keyes March 8, 2012 at 4:00 pm #

    This article needs to be compulsory reading for anyone who thinks we don’t need unions. It is amazing to me how incredibly naive people are to believe that employers will continue to provide humane and common sense workplaces if the unions were disbanded. It is pretty clear from the rhetoric of the current political class that they think we all have a key to an executive bathroom and lunchroom. It might amaze them to know that many many workers only have 30″ for lunch, don’t go out of the building to eat and have to compete with upwards of 10-20 people just for refrigerator space.

  4. Lavandula March 8, 2012 at 5:33 pm #

    I was reminded of this from Wall Street responds to Occupy Wall Street: (http://thejobmouse.com/2011/10/28/we-are-wall-street-wall-street-strikes-back/).

    The manifesto mostly consists of boasting about how hard the unnamed Wall Street author and his/her colleagues work and how they would be much better at performing the 99%’s jobs than the 99% were. One of the boasts: “We’re used to not getting up to pee when we have a position.”

    Because I’m familiar with workplace bathroom break policies such as the ones described above, I just laughed and laughed.

  5. Foppe March 9, 2012 at 3:12 am #

    Apropos of this post, have you read Mark Ames’s Going Postal? Let’s just say that controlling bathroom break-time isn’t the only way in which the American worker is tyrannized and systematically humiliated by being denied autonomy.

  6. Paul March 9, 2012 at 9:12 pm #

    Marc Linder wrote an excellent book about this. I highly recommend it. “Void Where Prohibited”. Actually , I recommend everything by Linder, including his incredible translations of Hans Kirk.

  7. David Kaib March 9, 2012 at 9:21 pm #

    The idea that only a goverrment can violate your freedom is nonsense. No one should gave this sort of power over anyone else.

  8. Alexa O March 10, 2012 at 7:00 am #

    Fascinating read. I thought we were done with this kind of thinking after the Lowell Shirtwaist Factory fire. Silly me. :/

  9. doloyeung March 10, 2012 at 2:50 pm #

    Given what youve previously said about the nature of freedom it isn’t clear to me that what Ford did represents an encroachment upon freedom even by your own standards. Presumably youve got to somehow quantify the aggregate increase in freedom offered by placing the car within reach of the common man, something owing to the practices decried in your piece, and then set that against the aggregate loss of freedom in having workers only be allowed things like 10 minute lunch breaks (what is the allowance for lunch breaks that would exist in a truly free society I wonder. 3 hours? 12 hours?).

    Of course I could be entirely wrong. You treat your concept of freedom a bit like a shiv. One sees a flash of the blade every once in a while, usually near the end of an article or posting when it makes a brief appearance in a rhetorical flourish to be contrasted favourably with other conceptions of freedom, but it’s stuffed down the back of your pants 95% of the time. An antagonist is always left to guess just exactly what he’s dealing with.

    • BrinyDawg March 10, 2012 at 7:25 pm #

      Most Americans would accept 45-60 min. as an acceptable lunch break, doloyeung.

      Maybe a stint in an Apple sweatshop in China would improve your appreciation of human dignity in the workplace.

  10. swallerstein March 11, 2012 at 8:35 pm #

    http://www.reuters.com/article/2007/05/03/us-chile-retail-diapers-idUSN0237031620070503

    Here’s an article about how cashiers in Santa Isabel supermarkets here in Chile have to use diapers, because they are not allowed to go to bathroom while they work.

    Santa Isabel is a huge chain of supermarkets, one of the two biggest in this country.

  11. Kit Hill, Ed.D. LMFT March 14, 2012 at 12:56 am #

    So my question is this: Why would you treat a worker like a galley slave and then complain because your product or service is substandard? So many of these companies and organizations reap what they sew in the long run and then cry like school girls when they file for insolvency. Getting out of this one-up-one-down linear thinking could do the whole nation, private and public, a whole world of good.

  12. Eli Rabett May 29, 2012 at 1:41 pm #

    What if the employee responds, I have a gun, if you fire me I will use it.

    • Slocum May 29, 2012 at 6:04 pm #

      Promote her. She can plan ahead well and leverage her core ballistic capacities to reconceptualize important features of corporate culture.

  13. david tarbuck October 28, 2012 at 2:51 am #

    Are there any employers that actually THINK that productivity would be maintained while a worker sits or stands in a bag of shit/piss? Or when it comes to subordinates do they lose ALL ABILITY to think rationally? Such was the case with Henry Ford and his main Confident Harry Bennett; perhaps it is endemic?

  14. anne October 11, 2013 at 5:58 pm #

    In what universe is grey-on-white text not horrible for humans to read? I really wanted to read this, but it’s too difficult. To hell with it, to hell with whoever thought this wasn’t terrible.

  15. Justin Miner November 14, 2014 at 4:38 pm #

    I had an issue with my ex-employer because they did not provide me with a bathroom to use. Back in 2012, I was a security officer who was assigned to guard a car dealership. When the dealership closed for business, I had no access to any restroom on the site, or anywhere nearby, and neither did the other officers who guarded the site on my days off. I requested for access to a restroom for months, and nobody did anything. In the meantime, I was pissing and crapping on the client’s property like an animal. My spot was behind the warehouse on the dirt. I guarded their property like a dog, and I pissed and took a shit outside like a dog; I was their bitch. I was hurt and angry by what they did to me, but I did get some pleasure out of it because crapping on their property was my vengeance:-D

    During that time, I was desperate for money because I had serious credit card debt to pay off; that’s why I was so passive and didn’t quit my job. But eventually, I got so fed up; I didn’t care if I fought my employer and I lost my job, and wouldn’t be able to pay off my credit cards. I decided to contact my attorney. An acquaintance of mine hooked me up with a legal insurance company called Legal Shield. I didn’t have to pay 500 -$1,000 for an attorney, all I had was a small monthly payment, and the law firm would took care of everything. That’s how I was able to afford an attorney;-)

    The funny thing about bringing in your attorney is this: you can’t get company CEO’s and COO’s to do anything by asking; but once you bring your attorney into it, they will part the sea for you:-D Both my security company and the auto dealership received letters from my attorney, and they got moving fast! Haha! I was put at the top of the stack of priorities, and my employer relocated me to a job site where I had access to the restroom all shift long:-D On top of that, the auto dealership fashioned a restroom key for the guards so that they would have access to the bathroom after hours.

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    […] pain of being fired, workers in most parts of the United States can be commanded to pee or forbidden to pee. They can be watched on camera by their boss while they pee. They can be forbidden to wear […]

  30. On the job | theespnwatch - December 8, 2014

    […] But there is also something larger – a widespread and frankly baffling notion common among Americans that the workplace is something like a rights-free zone – indeed, dare I say, an America-free zone. It’s as if the bill of rights and all of the constitutional protections most Americans believe themselves to be entitled to, somehow when we’re on the job, those protections no longer obtain, trumped by the right of the “boss,” the owner, to do as he or she sees fit, except in the most egregious cases. The general hostility that labor unions face in America reflects, in part, this strikingly dichotomized thinking about rights in the workplace versus those we expect to have outside of it. On this score, the political theorist Corey Robin has written about the “secret history of the bathroom break.” […]

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