The Equal Rights Amendment (E.R.A.) was first passed by Congress in 1972 but, because it was ratified by only 35 states, failed to gain the states necessary for ratification by three.

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Almost 40 years later, Nevada, Illinois and Virginia finally rounded out the 38 states needed for ratification.  However, it will still take an act of Congress to decide if the legislation is enforceable since legislators missed the original 1979 deadline, then the extended 1982 deadline.  Another wrinkle is that, throughout the years, five states voted to rescind their original ratifications.

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The central focus of the E.R.A. is to ensure that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

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I agree with that statement 1000%, but I’m unsure of why we need a constitutional amendment to make this point because it’s already addressed in the United States Constitution.  The Fourteenth Amendment is very clear: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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The United States Supreme Court has already litigated the point.  In the case of Reed v. Reed — a case challenging an Idaho Probate Code that said “males must be preferred to females” in appointing administrators of estates — the U.S. Supreme Court ruled in an unanimous decision that “to give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment…the choice in this context may not lawfully be mandated solely on the basis of sex.”

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This was followed by other cases such as Frontiero v. Richardson, a case argued by the late Supreme Court Justice Ruth Bader Ginsburg.  In this case, the Supreme Court ruled that “dissimilar treatment for men and women who are similarly situated” is unconstitutional.

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But beyond all of that, there are already targeted protections in place to protect women, including the Violence Against Women Act, Title IX of the Education Amendments of 1972, and the Pregnancy Discrimination Act.  In my mind, it would be far more effective to strengthen these issue-specific laws instead of trying to pass something that crams every issue that remotely pertains to women into one amendment.

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A final word about the pay disparity between men and women.  The gender wage gap is something we must watch very carefully, but this too has already been addressed in the Equal Pay Act of 1963.

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The good news is that the huge gender wage gap that has existed for decades is finally closing!  According to the Pew Research Center, “In 1980, the average hourly wage of women was 67 percent of the average hourly wage of men, $15 vs. $23.  By 2018, women earned 85 percent as much as men, $22 vs. $26, on average.  Put another way, the gender wage gap narrowed from 33 cents to the dollar in 1980 to 15 cents to the dollar in 2018.”

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Evolving job skills and higher levels of education are two factors that helped close the wage gap between men and women, and women are only going to continue to slay in both.

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Moving forward, my recommendation is that we continue to focus our energy on factors like these instead of trying to get a new toothless constitutional amendment.  For one, history tells us that a fight over the E.R.A. (ironically) pits women against women —professional women who place a high value on their professional status and career trajectory, against working class women who embrace traditional gender roles within the nuclear family over practically everything else.  The last thing this country needs right now is more division.

 

A final word to companies: As you already know, women are integral to your success on every level.  It would strengthen your organization tremendously if you would implement a salary policy that is transparent and regularly conduct pay equity evaluations.

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Evidence:

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1. United States.  Supreme Court.  “Reed v. Reed.”  404 US 71 (1971).  22 Nov 1971

2. United States.  Supreme Court.  “Frontiero v. Richardson.”  411 US 677 (1973).  14 May 1973

3. Rakesh Kochhar.  “Women’s Lead In Skills And Education Is Helping Narrow The Gender Wage Gap.”  Pew Research Center.  20 Jan 2020