Elizabeth Kilcoyne
Nov 7, 2019 · 5 min read

Thank you, Virginia!

Ever been to one of those never-ending baseball games? You get tired, your back aches, you think about leaving, but you need to stay and support your team. The Equal Rights Amendment (ERA) journey feels like a multi-generational, never-ending baseball game.

Alice Paul (1885–1977), a suffragist, filed the ERA in Congress in 1923. Both the Republicans and Democrats added the ERA to their party platforms in the 1940s. There were many scoreless innings after that, then Congress hit it out of the park in 1972 for ratification by the states. In the next 2 years, thirty states rushed to pass the amendment, beginning with Hawaii and New Hampshire. Five more by 1982. The ERA had 35 ratifications and needed three more to become a constitutional amendment. Then came a rain delay that lasted over three decades.

In 2017 Nevada ratified, and Illinois followed in 2018. One more state needed to ratify the amendment. Which one will it be? Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, Virginia?

Last night Virginia elected a democratic majority in their state legislature! Ratification could be as soon as January, 2020.

Discrimination against women on the basis of sex has been going on for a millennia. Some intentional, some systemic, and some unconscious.

Strides against gender discrimination have been made over the years with a conglomeration of laws concerning equal rights, voting rights, workplace improvements, equal pay, violence against women, protections for pregnant workers, and others. Over half the states have a version of equal rights in their constitutions, but the language is inconsistent, and states often fail the victims. American women have been negotiating the maze of equality laws for over 150 years.

When a varsity football player raped a college freshman at Virginia Polytechnic Institute in 1994, she filed suit under the newly passed Violence Against Women Act (VAWA). The purpose of the VAWA was to provide a federal law to protect the individual’s “right to be free from crimes of violence motivated by gender.” The district court of Virginia dismissed her case, deciding that Congress lacked the authority to pass the VAWA. Many other district courts upheld the constitutionality of the law. The issue was with the Fourteenth Amendment because it covers the action of states and not the action of individuals, like rapists.

Her case went all the way to the Supreme Court, which struck down the provision in the VAWA that allowed women to sue their attackers in federal court. Meanwhile, even though the football player admitted to nonconsensual sex, he returned to school, and the plaintiff dropped out.

Court decisions sometimes depend on which state, which federal court or which judge(s) is assigned to the case. In 1976, General Electric had a policy that allowed paid time off for employees during a period of disability but the policy excluded pregnant employees. The Supreme Court found it was legal. Congress passed the Pregnancy Discrimination Act (PDA) two years later, which provides workforce protection for pregnant employees.

For years, women who had been discriminated during their pregnancies filed suits under the Pregnancy Discrimination Act and received a variety of rulings, many of which denied a remedy due to the courts’ interpretations of the law. In 2015, the Supreme Court heard Young v. United Parcel Service, Inc. The plaintiff, Peggy Young, had documentation from her doctor that she could not lift packages over 20 pounds. UPS put her on unpaid leave and she lost her health insurance. The Supreme Court ruled that the employer must have a “sufficiently strong” reason for terminating a pregnant employee. This case is a victory for families and the Pregnancy Discrimination Act, even though it took 37 years after the passage of the Pregnancy Discrimination Act!

These examples have two commonalities. They are emotional and have economic ramifications. As journalist Molly Ivins said, “the real issues for women are poverty and violence.” Privately funded polls have shown that 70% of the poor people in the United States are women and children. This is a societal concern that affects the family, community, and economy.

In 1973 future Supreme Court Justice Ruth Bader Ginsburg said, “The equal rights amendment would dedicate the nation to a new view of the rights and responsibilities of men and women… it looks toward a legal system in which each person will be judged on the basis of individual merit and not on the basis of an unalterable trait of birth that bears no necessary resemblance to need or ability.”

The ERA could bring justice to the U.S. Women’s Soccer Team. It won the World Cup in 2019, it’s fourth World Cup win. The U.S. Men’s Soccer Team has never won the World Cup, but the men are paid more than the women players. The U.S. Soccer Federation (USSF) employs both teams. Athletes on the women’s team have been in a public fight over equal pay and working conditions for years with some success. Now these female athletes are leveraging their achievements to resolve the inequities.

Earlier this year, the women’s team filed suit against the USSF under the Equal Pay Act and Title VII of the Civil Rights Act. Using both acts provides more opportunities for the case to be successful. Under the Equal Pay Act, the employee is not required to prove that the employer acted intentionally when discriminating against them; proof of systemic pay discrimination could suffice. Title VII covers both pay and other discrimination, such as working conditions and benefits. Negotiating the maze continues.

According to the Wall Street Journal, the women’s team earned more revenue for their employer in the past three years than the men. During the final soccer games held in France this year, fans yelled, “Equal Pay!” instead of USA!

There have been 11,000 attempts to amend the U.S. Constitution, and 27 have succeeded. The shortest amendments seem to reduce opportunity for multiple interpretations, like the Nineteenth Amendment: “The rights of citizens of the United States to vote shall not be denied or abridged by the United States or any state on account of sex.”

The Equal Rights Amendment (ERA) is similarly brief and clear: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

There are two additional issues. The timeframe imposed by Congress for ratification of the amendment expired in 1982. Congress can extend this. The most recent bill to eliminate the timeframe was filed in January 2019. It’s in committee.

The second issue is five states have rescinded their ratification vote. Previously, states rescinded ratification of the Fourteenth Amendment, but Congress accepted all ratifications, and the Supreme Court upheld them. But one should not venture to predict what the current Supreme Court would do even with a compelling precedent.

Call to Action:

1) Contact your U.S. Senators and request them to sponsor Senate Joint Resolution 6 which removes the deadline for the ratification of the equal rights amendment.

2) If you live in Virginia, contact your state representative and state senator and demand they vote for the equal rights amendment!

Elizabeth Kilcoyne

Written by

Freelance Writer, Adjunct Faculty Suffolk University, Business Consultant

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