Ratifying Equal Rights Amendment Could Speed Equal Pay, Corporate Board Diversity Laws

​It's been nearly a hundred years in the making, but the Equal Rights Amendment (ERA) soon may be ratified, bolstering calls for equal pay and greater gender diversity in the workplace.

Now that Virginia has a Democrat-controlled legislature and governor, it is poised to become the 38th state to ratify the amendment. Two legal hurdles—a deadline for the amendment's ratification that has long since passed and five states' rescinding ratification—remain. But if Virginia ratifies the amendment, employment law experts say that courts may let it stand.

Long Road Toward Ratification

Alice Paul, a suffragist, wrote the ERA in 1921 after women got the right to vote. She thought the 19th Amendment, which mandates equal voting rights regardless of sex, wasn't enough and that the U.S. Constitution needed to guarantee that there would be no gender discrimination by the federal or state governments, said Belinda Martinez Vega, an attorney at Venable in Los Angeles.

The ERA states that "equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." It also provides that Congress will have the power to enforce the provisions of the ERA through legislation and that the amendment will take effect two years after the date of ratification.

The ERA was introduced into every session of Congress between 1923 and 1972, when it passed and was sent to the states for ratification. The Constitution requires that three-fourths of the states ratify an amendment proposed by Congress. The preamble of the act itself imposed a seven-year deadline for ratification. But by 1979, only 35 states—three states short of the 38 needed—had ratified it.

The deadline was extended until 1982, but no other states had ratified the ERA by then, and five states—Idaho, Kentucky, Nebraska, South Dakota and Tennessee—voted to rescind their ratification. However, in the past, courts have not recognized attempts to rescind ratification of other amendments, including the 9th, 14th and 15th Amendments, Vega said.

The five states' rescissions of the ERA likely will be challenged, predicted Kathryn Lundy, an attorney with Freeborn & Peters in New York City. "Article V of the Constitution provides that the states maintain the power to ratify an amendment," she said. "It does not, however, expressly permit rescission. Based on the foregoing and all prior precedent, it is anticipated that the rescission of ratification in these five states will be held invalid."

In addition, Congress could reopen the window of time for ratifying the ERA. The House Judiciary Committee has passed a resolution to remove the deadline for ratification from the ERA's preamble. Even if the resolution doesn't pass Congress, there is precedent for constitutional amendments not having any deadline, Vega said. The 19th Amendment did not include a deadline, and the 27th Amendment passed Congress in 1789 but was not ratified until 1992, she noted.

Nevada ratified the ERA in 2017, and Illinois ratified it in 2018. If Virginia ratifies the ERA and court challenges to ratification are defeated, the amendment eventually will take effect.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

ERA's Impact in the Workplace

"In many ways employers already are bound not to discriminate based on sex," said Emily Martin, vice president for education and workplace justice with the National Women's Law Center in Washington, D.C. Title VII of the Civil Rights Act of 1964 prohibits gender discrimination in employment, and the Equal Pay Act prohibits employers from discriminating between men and women by paying one gender more  "for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions."

Nonetheless, the ERA is still needed, according to Vega. She said the ERA would help advance laws on equal pay and diversifying the genders represented on corporate boards, which California requires. "It's an exciting time given the number of states that have ratified the ERA," she said.

Lundy said the ERA would be significant for employers because it would serve as a vehicle to help move new legislation concerning equal pay through Congress, and it would act as an additional mechanism for employees to address sex-based discrimination in the workplace.

"Adding the ERA to the Constitution would give equality between sexes the highest legal protection, thereby filling any gaps left open" by individual laws or nonbinding legal precedent, she said.

Lundy added that the ERA "could negate existing laws that have been passed restricting access to contraceptive care, and enable employers in the health care industry to provide appropriate medical care without restriction on the basis of sex. A law or health insurance coverage that denies appropriate medical care to women because of sex would likely be held unconstitutional if the ERA is ratified."

Supreme Court Justice Ruth Bader Ginsburg wrote in 1978 in the Harvard Women's Law Journal, now the Harvard Journal of Law & Gender, "With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And, in the event of legislative default, the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal."