Equality of rights under the law

SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

SECTION 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

SECTION 3. This amendment shall take effect two years after the date of ratification.

Short. Simple. Section 1 is what says it all: “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's not much to it, and it's hard to imagine why we should think to oppose it.

It hasn't gotten terribly much press this time, for reasons I'm not sure of, but the Equal Rights Amendment is back, 35 years later, introduced about a month and a half ago under the name Women's Equality Amendment (H. J. RES. 40). I prefer the old name, but I guess they thought that has too much baggage. No matter; it makes sense, whatever one calls it.

“They”, here, means Representative Carolyn Maloney of New York and Senator Edward Kennedy of Massachusetts, along with some 200 other co-sponsors of the bill. That's almost 40% of the combined House and Senate. Of course, that's mostly symbolic; it'll surely breeze through Congress, as the ERA did in 1972. The ERA's problem was that it didn't get 38 states to ratify it within ten years (congress extended the seven year deadline, but only 35 state legislatures ratified it), and it timed out in 1982.

The thing is, the objections are spurious, but they frighten many people into pushing back against it. The key here is the promise of “equality of rights under the law”. Some claim that this means that women will be drafted into the military and be sent to the front lines to die. Some claim that this means that, say, fire departments and police forces will be required to be half women. Some claim that it will mean the end of sports teams as we know them, that there will be no more “Boy Scouts” and “Girl Scouts”, and even, taken to its most ridiculous point, that men and women will have to share public toilets.

It means none of that. Rights are not the same as requirements. What it means is that the military may still have a policy that women should not be sent to the front lines of combat — but a woman who wants to participate in that way will have the right to an exception. What it means is that police and fire departments will not have to fill their ranks half with women — but they will have to consider qualified women who want the right to work in those jobs.

What it means is that women will have legal recourse when they're treated unfairly. That's already the case in many states and under some federal laws, and it's right and proper to put it into our country's constitution.

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On a related note, the Supreme Court handed down a 5-to-4 decision yesterday supporting the 180-day limitation on pay discrimination complaints:

From 2001 to 2006, workers brought nearly 40,000 pay discrimination cases. Many such cases are likely to be barred by the court’s interpretation of the requirement in Title VII of the Civil Rights Act of 1964 that employees make their charge within 180 days “after the alleged unlawful employment practice occurred.”

The plaintiff tried to claim that each paycheck that underpaid her was a new incidence of pay discrimination; the court decided that the discrimination occurred when her pay rate was set, and continuing to underpay her does not constitute continued incidents.

That decision is clearly wrong in this case, as Justices Ginsburg, Stevens, Souter, and Breyer say in their minority opinion:

In a vigorous dissenting opinion that she read from the bench, Justice Ruth Bader Ginsburg said the majority opinion “overlooks common characteristics of pay discrimination.” She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.

An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group “trying to succeed in a nontraditional environment” to avoid “making waves.” Justice Ginsburg noted that even a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”

And, indeed, that's where we are in this case:

Ms. Ledbetter’s salary was initially the same as that of her male colleagues. But over time, as she received smaller raises, a substantial disparity grew. By the time she brought suit in 1998, her salary fell short by as much as 40 percent.