Reintroducing Women’s Equality

What Impact Will an ERA Have on the Workplace Today?

Members of Congress introduced two bills in March to pass the Equal Rights Amendment (ERA), and workplace experts, employment attorneys, and women's organization leaders have taken notice. Some observers claim that a Constitutional amendment would hold sex discrimination lawsuits to the same high standard as racial discrimination suits, and also may help women sue for higher pay and other benefits. But with many federal laws on the books—such as the Family and Medical Leave Act and Title VII of the Civil Rights Act—some experts agree passing the ERA today is more emblematic than necessary.

"Symbolically, the ERA may be one of the most important documents in the U.S.—a part of our culture, our morals, our rights—explicitly saying we [women] are equal, which the Constitution has never done," says Cathy Bissoon, a director at Cohen & Grigsby in Pittsburgh and former partner and director of diversity at Reed Smith. Passing the Women's Equality Amendment, she says, "I view to be more symbolic than really having an impact on a day-to-day level—we have protections under federal and state statutes under which it's obviously unlawful to treat women differently on the basis of their gender. I don't think this will impact that in any way."

In a time where a leading presidential candidate and the Speaker of the House of Representatives are women, however, the symbol is powerful, Bissoon adds. "We're at a point in history where there are women in very important positions of leadership in government—you can't tell me they aren't equal. They just are," she says. "If nothing else, passing a Constitutional amendment that states that women are equal is symbolic of that fact."

Phyllis Kupferstein, who leads McDermott Will & Emery's West Coast labor and employment law practice, agrees. "While an affirmative statement of women's equality will affect women's confidence and morale, I don't see it having much of a practical effect on the private workplace. Many protections in the law already exist," she says, adding that an amendment would, though, "guard against women losing the statutory rights they have fought so hard to attain."

Women's Protection

So what are some of the current federal laws that protect women in the workplace?

The broadest and most protecting is Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin.;¹ Within Title VII is the Pregnancy Discrimination Act, which states that women who are pregnant must be treated the same as any other job candidates or employees—an employer cannot refuse to hire a pregnant woman and must give her the same amount of time off as any employee on sick or disability leave.

The Family and Medical Leave Act, ² passed in 1993, allows an eligible employee up to 12 weeks of leave—paid or unpaid—for a year to deal with:

1. • The birth or the adoption of a child,
   • An ill spouse, child or parent, or
   • The illness of the employee.

These federal laws typically do not apply to smaller employers, along with other restrictions, explains Kupferstein. Applying these measures to small companies could be a benefit of passing the ERA, she adds. "If we had a Women's Equality Amendment," she says, "all employers would be legally obligated to treat women equally."

Idella Moore, founder and executive officer of the single-issue, nonpartisan 4ERA.org, says the current laws are not enough. "They are piecemeal laws," she explains. "Why should women have this battle of piecemeal legislation that is ultimately about gender equality? We need to stop the piecemeal efforts and take care of the issue overall."

And the overall issue is that women should be fully recognized as equal under the U.S. Constitution, Moore says. "The leading nation of the world should be leading on all fronts, and we aren't in terms of gender equality," she says. "As long as there is a fight against it, there's a reason to keep fighting for it."

Sex Discrimination

The biggest impact of the ERA would be subjecting gender discrimination and harassment claims to the same scrutiny—strict scrutiny—as race, experts say. "All people are protected by the Equal Protection Clause of the Constitution—how such claims are analyzed, however, depends on the protected class at issue," Bissoon says. "An ERA could mean that distinctions made on the basis of gender that are subject to constitutional analysis may have to undergo a stricter level of scrutiny than is the case currently."

But even with an ERA that puts gender on the same level as race, it would still be up to the courts to decide how such cases are scrutinized, Bissoon says. "How the court would analyze that from a Constitutional standpoint remains to be seen. It is possible that despite the passage of an ERA, claims of government-sponsored gender inequity may still be analyzed under a rubric that requires a showing of something less than a compelling state interest."

Moore says this strict scrutiny also would increase women's chances of winning sex discrimination cases, which in turn would act as a deterrent because companies would take claims more seriously. "Getting the ERA in the Constitution would give us the legal muscle we need to start eliminating sex discrimination," Moore says, adding that she has heard of cases in which minority women who were suing for discrimination were advised by their attorneys to sue on racial rather than gender grounds since their chances of winning race discrimination cases were greater and held the potential for larger punitive damage awards.

Pay Equity

More money is a crucial issue to women in the workplace. According to a recent study by the American Association of University Women Educational Foundation, women one year out of college earn 80 percent of what men do; 10 years out of college, women earn 69 percent of what men do. The organization's press release states that "[t]he research indicates that one-quarter of the pay gap remains unexplained and is likely due to sex discrimination." ³

The ERA would basically make pay inequality unconstitutional, says women-in-the-workplace expert Carly Drum of New York City. "I hope companies will take that pretty seriously," she says. "To pay women equal salaries is a lot less expensive than any sort of lawsuit, so companies may think twice."

The Equal Pay Act of 1963 prohibits wage discrimination between men and women in the same company who perform substantially equal work. However, says Kupferstein, “there has been a lot of criticism of that law because it doesn’t have broad enough definitions of what is substantially equal.” For example, she explains, “within the health care industry, should nursing, which is female-dominated, be considered substantially equal to the comparable job of an emergency medical technician, which is male-dominated? An amendment might encourage Congress to pass more laws with regard to [equal] pay,” Kupferstein says.

The Equal Pay Act also has been criticized for not providing remedies such as emotional distress and punitive damages, she adds.

Practicing, Not Preaching

Regardless of what Congress or the courts do, it is up to businesses to take action to support business women, says Drum. The ERA "is something to put forth, but what most companies are doing to attract women is [offering] the benefits they offer. That's more relevant than some amendment being passed."

Not that an ERA is frivolous, she adds. "I do think [gender equality] needs to be continuously spoken about. Whether the problems will be solved from an amendment, I'd say no. The problems will be solved within each individual corporation, with larger corporations taking the lead."

Solving women's issues in the workplace—pay inequality, time off, hiring discrepancies, authority, and the like—is about the mentality of the companies rather than something on paper, Drum adds. "It comes down more to execution than an actual amendment. A company can preach it but they have to practice it."

Without explicitly stating in the Constitution that women are equal to men, it is too easy not to "practice," says Bissoon of Cohen & Grigsby. "It's interesting philosophically that somehow women can't get this sort of protection under the law from a constitutional standpoint," she adds.

So whatever federal and state laws sit on the books, the ERA would finally elevate women to the high level they deserve, Bissoon says. "This country was born out of a culture of slavery, and we've seen fit to make men who were slaves equal to men who are white. But we have not seen fit to do the same for women," she says. "That speaks to our place in society." DB

1. Title VII, Civil Rights Act of 1964; available online at http://www.eeoc.gov/policy/vii.html.
2. Family and Medical Leave Act of 1993, available online at http://www.dol.gov/esa/regs/statutes/whd/fmla.htm.
3. AAUW Educational Foundation, Pay Gap Exists as Early as One Year Out of College, Says New Research Report (April 23, 2007), available online at http://www.pay-equity.org/docs/AAUW-Apr2007.doc.

From the July/August 2007 issue of  Diversity & The Bar^®