The Fight For Women’s Equality is Ongoing… Here’s How It Relates to Your Job
In 2022, the women of the United States CONTINUE to be denied the full rights and privileges which are available to male citizens of the United States.
In 2022, the women of the United States continue to unite to assure that these rights and privileges are available to all citizens equally, regardless of sex.
Granting women equal rights under the law is PIVOTAL in the fight for equality.
Passing the Equal Rights Amendment (ERA) would provide permanent protection against laws that discriminate on the basis of sex.
The Equal Protection Clause of the 14th Amendment is not enough. It has been interpreted to protect against laws that discriminate on the basis of sex, but that interpretation is not secure. It is not assured or guaranteed. It protects women only to an extent. This is because the Supreme Court has ruled that a law that treats men and women differently will not violate the equal protection clause if the law is substantially related to achieving an important governmental objective. A higher standard is used for reviewing laws that discriminate on the basis of race or national origin, which requires the law to be narrowly tailored to achieve a compelling government interest.
Additionally, laws like Title IX and the Equal Pay Act are not permanent protections for women and can be rescinded or replaced at any time. Laws can be repealed. The judiciary’s views can change. Justice Scalia’s view was that the 14th Amendment did not include sex because it did not reflect the original intent of the nation’s founders. As we’ve seen with Roe v. Wade, existing protections are vulnerable to being taken away by a more conservative judiciary.
With the passage of the Equal Rights Amendment, there is no room for doubt that discrimination on the basis of sex has no place in the United States.
Practical implications for working women:
Equal Pay
Although the federal Equal Pay Act (EPA) prohibits unequal pay between the sexes, it allows an employer to argue it paid a woman less based on a “factor other than sex.” This is the so-called catch-all provision. In many cases the judiciary has interpreted this factor extremely broadly, creating a loophole for employers to pay women less for the following factors: men had high prior salaries; rewarding prior experience that is not job-related; salary-matching without regard to whether his prior skills are superior or job-related. Multiple courts have found that the “factor other than sex” can be any factor even if it not related to a legitimate business purpose, or qualifications necessary for the job.
Pregnancy Discrimination
Although the federal Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy, narrow interpretations by the judiciary have permitted discriminatory practices to continue.
For example, because the PDA does not guarantee accommodations for pregnant workers, pregnant workers rely on the federal PDA for protections against bias (if their state does not provide broader protections).
The 2015 U.S. Supreme Court decision, Young v. United Parcel Service Inc., ruled that employers that accommodate nonpregnant workers who are similar to pregnant workers must also accommodate those pregnant workers.
Because these protections are not set up with strong footing, they are vulnerable.
The 7th Circuit recently held that Walmart could deny accommodation (light work duty) to pregnant workers even though it provided it to employees injured on the job. Instead of providing light duty, Walmart required pregnant workers with light duty restrictions to go on leave. The ERA could provide additional arguments for pregnant workers to use to challenge policies excluding females seeking pregnancy accommodations at work.
DISCLAIMER: this information is general in nature and does not constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed.