Photo Credit: National Museum of American History, Smithsonian Institution: Alice Paul, Suffrage Banner, 1920
March 23, 2020 – Throughout American history women have been subservient to men. In fact, it wasn’t until around 1839, that the Married Women’s Property Acts began to expand the rights of married women–giving them some “limited” rights to act independent of their husbands–as historically women could not own property, and had been seen as mere extensions of their husbands.
And just one hundred years ago this year, women finally won the right to vote. Alice Paul, an American suffragist and women’s rights activist, was instrumental in making it happen. As one of the primary advocates for a Constitutional Amendment–she campaigned long and hard with other suffragists. Their tireless efforts led to the ratification of the Nineteenth Amendment on August 18, 1920–giving women the right to vote. That Amendment states there can be no sex discrimination with regard to citizens qualified to vote. Even more confounding than the original ban on women voting, was that it took an “additional” fifty years more, that is, after black men gained the right to vote in 1870, with the ratification of the Fifteenth Amendment. It was the Fifteenth Amendment that mandated voting rights for all male citizens, providing that voting: cannot be “denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” But following in tradition of the times, nothing was mentioned of women–any women–of any color, race or condition of servitude. This battle continues today, as women are still fighting for equal rights, equal pay, and equal opportunity in and outside the workplace, and in courtrooms around America. Whether it be for pay equality, right to reproductive freedom, rights to inheritance, rights in divorce, and right to be free of domestic battery. Yet, recognition and equality for women has been evolving ever so slowly.
It wasn’t until WWII in the 1940’s that the focus on women as autonomous of men became most apparent. As women began to enter the workforce as men went off to war–the household structure began to shift to women as heads of households as men deployed to the battlefields. Never in American history had so many women taken up employment that was predominantly held by men. Yet, despite women picking up the slack to aid in the war effort, many women were not paid the same as their male counterparts, for the very same jobs they were fulfilling.
Despite the obvious disparity in wages, it took two decades for Congress to pass the Equal Pay Act of 1963–and Act that was supposed to level the playing field for women to receive the same wages as men for the same work. This apparent transition to provide comparative wages took place during President John F. Kennedy’s administration. Yet, many prominent business groups and organizations fought long and hard to prevent women from obtaining equal pay for equal work, including: the Chamber of Commerce and the Retail Merchants Association. Fortunately, even though these organizations worked hard to prevent the passage of the Equal Pay Act, Congress did in fact pass an amendment to the Fair Labor Standards Act of 1938. But, once again–there were many instances in which women were still not paid fairly.
What the Equal Pay Act did, was mandate that employers could not award unequal wages or benefits to men and women working jobs that require “equal skill, effort, and responsibility, and which are performed under similar working conditions.” But that law also included “guidelines” for when unequal pay was to permitted, in such instances that were specifically based on merit, seniority, work quality or quantity of production–including “other” factors not determined by gender. But these “loopholes” were enough for the exceptions to swallow the rule.
But, it wasn’t until 1964, when Congress passed the Civil Rights Act that discrimination on the basis of race, color, religion, sex or national origin was prohibited. Provisions of the Civil Rights Act forbade discrimination on the basis of sex, as well as, race in hiring, promoting, and firing. Yet, there was no provisions for equal pay.
Additionally, it wasn’t until the “Educational Amendment of 1972” expanded the breadth of the Equal Pay Act to include: white-collar executives, and professional and administrative jobs–categories that were exempt, that is, not covered under the original Equal Pay Act.
Other important gender equity employment laws include the Pregnancy Discrimination Act of 1978, which strengthened protections for pregnant workers; and 2009’s Lilly Ledbetter Fair Pay Act, which reduced time restrictions on wage discrimination complaints.
The Lilly Ledbetter Fair Pay Act exposed the outer limits of unequal pay and bringing a complaint against those who violated the law. It took the courage and fortitude of a woman named Lilly Ledbetter who worked since 1979 for Goodyear Tire and Rubber Company in Gadsen, Alabama. Through her hard work and exemplary service, she worked through the ranks to become a night supervisor. Unfortunately for Lilly, she was paid substantially less than the men doing similar work. After several decades into her employment, she discovered that she had been paid substantially less than her male counterparts doing the same job at the company. She learned of the grave disparity through an anonymous note left to her in her mailbox listing salaries of male employees. Learning this, she took her complaint to the Equal Employment Opportunity Commission (EEOC), and later filed a lawsuit in federal court alleging wage discrimination. Although the lower courts awarded her damages for the egregious wage disparity over the years, her employer, Goodyear Tire and Rubber, appealed the ruling to the US Supreme Court.
Yet, even though the jury hearing her claim awarded her compensation for the monetary discrimination, the US Supreme Court in 2007 reversed. In a 5-4 decision, the panel of conservative justices–all of whom were appointed by Republican presidents–the entire panel voted to DENY Ms. Ledbetter compensation for her disparate treatment and lost wages. Those “Justices” voting to deny her were: C.J. Roberts, J. Scalia, J. Thomas, J. Alito, & J. Kennedy. In doing so, the Court ruled that employers cannot be sued under Title VII of the Civil Rights Act if the claims are based on decisions made by the employer 180 days ago or more. In effect, the Court required Ms. Ledbetter to have filed her claim within 180 days of receiving her “first” unequal paycheck–even though she had no reason to know until decades later that, she received disparate pay, and was in fact paid unfairly. It is no secret that this arbitrary timeline and the nonsensical ruling perpetuated the harm caused by the employer and foisted additional harms upon Lilly Ledbetter–harms beyond the initial wilful and intentional discriminatory conduct. The ruling itself was outrageous in light of the circumstances, as Lilly Ledbetter had no reason to know or means to discover that she was paid unfairly, as all employees–male and female would not be privy to confidential wage information.
Nevertheless, the Supreme Court’s arbitrary and capricious ruling, overturned the lower jury verdict that had been in her favor–to further deprive Ms. Ledbetter of what would have been just compensation for her employer’s wilful, knowing and discriminatory misconduct. In effect, the Supreme Court’s ruling not only rewarded her employer for their misdeeds, it further punished Ms. Ledbetter and women like her, for being the “unknowing” victims of their employers’ unlawful and discriminatory conduct. In effect the US Supreme Court, by their ruling, further victimized and exploited Ms. Ledbetter, signaling a green light to employers to continue victimization of women employees for monetary advantage. Yet, despite this outrageous ruling and the unlawful treatment Ms. Ledbetter received from both her employer and the highest court in the land–she made a difference. It was her perseverance that was the catalyst for change, for all women who had been the subject of wage discrimination. As a result of her lawsuit and the spotlight by women’s groups around the nation, Congress took up the issue. With new Congressional legislation, President Obama signed into law the Lilly Ledbetter Fair Pay Act, on January 29, 2009. An Act to benefit ALL women, Republican, Democrat and Independent alike. This Act removed the arbitrary and capricious 180 day requirement that prevented Ms. Ledbetter from receiving the monies due and owing her as a result of disparate treatment–of gender-based wage discrimination by employers, such as Ms. Ledbetter’s former employer and others like them.
Yet, despite all the Acts and Laws that have been passed throughout the years, current day statistics indicate that women are still paid far less than men for the same work. These statistics clearly show that the Gender Pay Gap is still very real, and in households where women are the head of household–the only provider for their children, the situation is even more dire. According to the Institute for Women’s Policy Research (IWPR), men out earn women in nearly every occupation and sector, making gender pay gap nearly impossible to close. That IWPR report indicates that the top 20 most common occupations for women–women earn 14 percent less than their male counterparts doing the same jobs.
Despite all the above instances where women are exploited by their employers and by a society of men making the rules, just this year, in January, Virginia became the 38th state need to ratify the Equal Rights Amendment (ERA). The ratification had been making its way through the states since 1972. Such an Amendment, if ratified by 38 states, would level the playing-field for women once and for all. But of course as with any rule to protect women, there is always a problem–always those wishing to deprive women of long awaited justice. Back in 1972, Congress originally set a ratification deadline of 1979, but because of a slow, but steady ratification process, Congress extended ratification to 1982–at time when only 3 more states were needed to bridge the gap between the 35 states that already ratified, and the 38 states needed for a Constitutional Amendment. Now, as of January, 2020, the full 38 states have now ratified the long awaited ERA. But alas, some now argue that the time has expired–some states even wish to rescind their ratification all together. Unbeknown to many women–many on the “Right”– including in the Trump Administration are arguing it’s just too late!
However this all turns out–one thing is inextricably true. Women have been fighting for Equal Rights and Equal Pay since the 1800’s. Isn’t it more than time for society and legislators to take it seriously? But many men, and ironically some women are fighting against their own interests. Although legal experts argue that the amendment could protect women economically, helping to prove equal pay, as well as preventing gender-based discrimination in the workforce–it is still an uphill battle. Whether it’s in the courtroom, the boardroom or in the court of public opinion–women have received unfair treatment throughout the ages. It is most certain to continue until there is enough women elected to Congress to stand up to the old boy network, and for their own interests as women, and those of their daughters and mothers. Whether it’s pay equality, or reproductive freedom–its up to women, just like Alice Paul and Lilly Ledbetter–and American Voters to make it happen.
Copyright 2020, Mary Kay Elloian, MBA, JD, Esq. The Legal Edition. All Rights Reserved.