by Deane B. Brown, Partner, Hughes Socol Piers Resnick Dym, Ltd.
- The ERA provides that “equality of rights under the law shall not be denied or abridged by the U.S. or by any state on account of sex.” It is important that it is ratified by the states, including Illinois, as the U.S. Constitution does not currently include a specific provision to ensure sex equality. Constitutions provide fundamental principles that bind states and govern societies. An ERA to the U.S. Constitution would send a clear message that sex equality is a fundamental human right in the U.S., recognized and enforceable as such at the highest level of its law.
- It makes sense that Illinois would ratify the ERA as there is already an ERA in the Illinois Constitution (Section 18 of the IL Bill of Rights), stating: “The equal protection of the laws shall not be denied or abridged on account of sex by the state or its units of local government and school districts.”
- I focus on representing executives in employment disputes, including sexual harassment/gender discrimination in violation of Title VII and violation of the Pregnancy Discrimination Act. I file claims against employers based on violations of Title VII, the Pregnancy Discrimination Act which amended Title VII, and the Illinois Human Rights Act. But there aregaps in the current gender discrimination laws that the ERA might help to fill.For example, even though the Pregnancy Discrimination Act amended Title VII, it does not require employers to provide minor workplace accommodations needed by pregnant employees, such as being allowed to take more frequent bathroom breaks. When it is only women who are harmed by a policy, the fundamental principle of equal rights on the basis of sex is violated.
- The ERA may help in cases of systemic bias. The ERA could provide the possibility of recourse when women are clearly disadvantaged by unequal treatment, without having to prove intent to discriminate. Currently, the U.S. Supreme Court cases under the Equal Protection Clause of the 14thAmendment,which prohibits states from denying any person within its territory the equal protection of the law, require that unequal treatment be intentional to be illegal. Because the majority of sex discrimination is not intentional and for that reason can be even more persistent and damaging, the ERA could help in cases when a clear pattern of disadvantage to their sex exists, with or without demonstrable intent. If the ERA can eliminate the element of intent to prove systemic bias against women, that would be extremely beneficial to women.
- The ERA could set the norm for equal pay and provide a basis for litigation and legislation to extend the same pay entitlements to women and men. Women on the average still are paid only 78 cents on the dollar that men are paid – – even less for African American women and Latinas, despite laws guaranteeing equal pay for equal work. Women are being segregated into lower-paying job categories in which their contributions are undervalued compared to those of men. No mechanism exists for achieving pay equity under the current law. Neither Title VII nor the Equal Pay Act provides for fair pay for work of comparable worth, so there is currently no remedy for this type of institutionalized sex discrimination. The ERA would hold such decisions to a more rigorous sex equality standard, giving women a fighting chance to oppose basing present unequal decisions on past unequal decisions.
- Sexual orientation is not currently a protected class under Title VII, except in the Seventh Circuit’s recent decision in Hively v. Ivy Tech Comm. College, No. 15-1720, 2017 WL 1230393 (7th Cir. Apr. 4, 2017), which will likely be challenged in the U.S. Supreme Court. But since the ERA refers generally to “sex,” I believe that passage of the ERA could cover sexual orientation, including members of the LGBT community.
Deane Brown is a Past President of the WBAI and partner at Hughes Socol Piers Resnick Dym, Ltd., where she represents businesses and individuals in employment matters, including severance negotiations, employment discrimination issues, non-competition, non-solicitation and trade secret disputes, as well as contract and partnership disputes, business torts, and property and lease disputes. In November 2015, Ms. Brown was given the Top Women Lawyers In Leadership Award by the WBAI. This award is given to outstanding women lawyers serving in a leadership role, who have excelled within their chosen field and who have gone beyond traditional mentoring to create new pathways for other women. Her full biography available here.