By Cynthia Gentile
Faculty Member, School of Business
Note: This article is part 2 of a two-part series on the history of the Equal Rights Amendment and its future.
In Part I of this series, we explored the bumpy road to legal equality through the ratification of the Equal Rights Amendment (ERA). But the question remains: Is the ratification of the ERA just a symbolic victory for equality or a necessary legal protection for all?
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Why We Still Need the Equal Rights Amendment Today
Our democracy is founded on the premise that “All men are created equal.” This simple directive is hardly simple, and it is clearly written to exclude women.
Case in point: In 1776, John Adams left his wife and family to join the Constitutional Convention convening in Philadelphia. His wife, the indomitable Abigail Adams, wrote John a letter with the simple instruction: “Remember the Ladies.”
John Adams is said to have pondered this request, but he ultimately decided against advocating for the inclusion of any language protecting women. Today, the only Constitutional amendment to specifically protect women is the 19th Amendment, granting women the right to vote.
Of course, 2021 bears little resemblance to 1776, and it is reasonable to question whether we need a Constitutional amendment to “Remember the Ladies.” There are, however, at least three specific reasons why the ERA is still critical to ensuring women’s equality.
Reason #1: The Equal Rights Amendment Would Provide Constitutional Protections against Sex-Based Discrimination
If a woman experiences sex-based discrimination in the workplace or places of public accommodation, current legal protections are based on the 14th Amendment. But the 14th Amendment was not applied in a sex-based discrimination case until 1971, and the judicial interpretation of the 14th Amendment leaves many places where sex-based discrimination can exist untamed.
In fact, the late Supreme Court Justice Antonin Scalia unequivocally stated that in his view, it was never the intent of the 14th Amendment to protect against sex-based discrimination. If the Equal Rights Amendment is ratified, a tougher judicial standard for review would be codified.
Constitutional scrutiny is a complicated legal topic. In short, there are three recognized levels of scrutiny courts can apply to a case. The ratification of the ERA would require a court to apply the highest level of scrutiny – called “strict scrutiny” – in any case involving sex-based discrimination. This is the same level of scrutiny that is applied in race-based discrimination cases.
Under that test, any law must be “narrowly tailored” to achieve a “compelling government interest” and be the “least restrictive means” of doing so. When a law is viewed through this lens, unless there is a narrowly tailored compelling state interest and no possible way to accomplish that interest in a less discriminatory manner, a court must strike down that law. This outcome is a hard hill to climb.
Reason #2: The ERA Would Protect Women’s Rights from Political Whims
There are a few laws which are pointed to when the need for the ERA is questioned. These include the Equal Pay Act of 1963, Title VII and IX of the 1964 Civil Rights Act, and the 1978 Pregnancy Discrimination Act.
These laws provide significant legal protections for women, but since their passage, the legal applicability of each has been eroded. They create a complicated history of courts applying – or refusing to apply – these laws in a diverse set of circumstances.
When a litigant brings a case under one of these laws, it is often hard to forecast an outcome. These cases are costly and time-consuming; they impact judicial efficiency and needlessly complicate a citizen’s access to justice.
Furthermore, Congress can pass a law with a simple majority to overturn any of this legislation. But if the Equal Rights Amendment was codified in the Constitution, it would be much harder for Congress to affect laws against discrimination based on sex.
Reason #3: The Failure to Specifically Address Gender Equality Leaves US Workers Behind Other Countries
Of the 193 UN member-states, 85% explicitly protect against discrimination based on sex or gender in their constitutions. Because we don’t enjoy the same legal protections, many American women never achieve pay equity in the workplace.
According to the U.S. Census Bureau, white women earn just $.82 for every dollar earned by a man. Black women, indigenous women or other persons of color earn even less.
In addition, women are not equally represented on corporate boards or in C-suite offices. However, 2020 was a record year for female CEOs, with 37 of the Fortune 500 helmed by women.
Women Returning to the Workforce after the Pandemic Ends May Face a Pay Penalty
In our new pandemic reality, women are leaving the workforce in record numbers to provide childcare or elder care. When those women are able to return to the workforce, they are likely to face a pay penalty, earning about 7% less than a man returning to the same position.
The ramifications of this pay disparity will be felt for years to come, as even fewer women will be on the path to career advancement and financial parity with their male counterparts. A 2016 report by the UN Working Group of Discrimination against Women and Girls concluded that U.S. women are left behind in the international workforce because they lack legal protections against discrimination.
The ERA Is Still Vitally Important Today to Ensure US Women Are Protected from Discrimination
The Equal Rights Amendment is as vitally important to U.S. women today as it was to Alice Paul and her fellow advocates for equality in 1923. Women will be fully and clearly protected against discrimination when the simple words of the ERA — “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex” — are added to the Constitution.
As Alice Paul stated in 1972, “I never doubted that equal rights was the right direction. Most reforms, most problems are complicated. But to me there is nothing complicated about ordinary equality.” It’s really that simple.
About the Author
Cynthia Gentile is an Associate Professor of Management at American Public University. She holds a Juris Doctor from Rutgers University School of Law and is licensed to practice law in Pennsylvania and New Jersey. She teaches courses in human resources, management ethics, and employment law for American Public University and West Chester University of Pennsylvania.
When she is not teaching, Professor Gentile is a dedicated advocate for equality, and sits on the board of the Alice Paul Institute’s Equal Rights Amendment Advocacy Committee. She has also recently started a podcast series on the Leading Forward channel with a dual focus on women business leaders and legal rights and responsibilities related to diversity, equality, and inclusion in the workplace.
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