Biden Administration Encourages Congress to Act on Equal Rights Amendment

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The U.S. Department of Justice (DOJ) recently showed its support for Congress to remove a legal barrier preventing enactment of the Equal Rights Amendment (ERA) to the U.S. Constitution—a century-old proposal that advocates say would help curb sex discrimination and promote gender-based pay equity.

Under the prior presidential administration, the DOJ’s Office of Legal Counsel issued a memo stating that a 1979 deadline to ratify the amendment is valid. Some states ratified the amendment after that date, but according to the DOJ at the time, they had missed the deadline.

On Jan. 26, however, the current administration issued a new memo stating that the prior opinion “is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of questions regarding the constitutional status of the ERA.”

A resolution from the U.S. House of Representatives would remove the deadline for ratification, but the proposal hasn’t garnered the support needed to pass in the Senate, according to Bloomberg Law.

President Joe Biden urged Congress to take “immediate” action and pass the resolution. “We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution,” he said in a Jan. 27 statement.

We’ve gathered articles on the news from SHRM Online and other media outlets.

The Amendment

“The ERA is straightforward, even simple, in its language,” according to the Columbia Law School ERA Project. The potential 28th amendment states, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

(Columbia Law School)

Long History

The ERA was initially introduced almost 100 years ago in 1923. Congress approved the amendment in 1972, but only 35 states—of the 38 needed—had ratified the ERA by the 1979 deadline that was established in the act’s preamble. Although no new states ratified the ERA by an extended 1982 deadline, several states committed to the amendment in later years. Nevada was the 36th state to ratify the ERA in 2017. Illinois adopted the amendment in 2018, and Virginia was the 38th state to ratify the ERA on Jan. 27, 2020.

Lawmakers who support the amendment argue that the ERA took effect on Jan. 27, 2022—two years after Virginia’s vote. Advocates say the amendment to the Constitution would help achieve gender equity and eliminate pay discrimination. Opponents argue that the deadline has passed, and the amendment is no longer needed because the 14th Amendment—as well as federal, state and local civil rights laws—already protect people based on sex and gender. Opponents also say the amendment may lead to laxed abortion laws.

(Yahoo! News) and (The Hill)

Bipartisan Support

Lawmakers who support the ERA called the ratification deadline “arbitrary.” Sen. Jacky Rosen, D-Nev., said, “The Equal Rights Amendment would be the strongest and most durable protection against gender discrimination the United States has ever enacted, and an arbitrary deadline from Congress should not prevent us from fully securing women’s equality.”

Rep. Tom Reed, R-N.Y., added, “This isn’t an issue of politics—it’s an issue of fairness for all Americans. Congress must press forward and end any unnecessary barriers to the ratification of the Equal Rights Amendment.”  

(Congressional Digest)

Legal Battles

Both supporters and opponents of ratifying the ERA are likely to file complaints in court over whether the amendment should apply in sex-discrimination cases arising after the amendment’s disputed Jan. 27 effective date.  

Some legal battles have already occurred. The U.S. archivist declined to recognize the amendment based on the prior administration’s memo deeming the ERA invalid, and a court declined to compel the archivist to acknowledge it. Additionally, five states—Idaho, Kentucky, Nebraska, South Dakota and Tennessee—voted to rescind their ratification. The respective state attorneys general still oppose ratification. Notably, courts have not recognized attempts to rescind ratification of other amendments, including the 9th, 14th and 15th Amendments.

(Bloomberg Law)

ERA’s Impact in the Workplace

How would the ERA affect 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 said Belinda Martinez Vega, an attorney at Venable in Los Angeles. She said the ERA would help advance laws on equal pay and diversifying the genders represented on corporate boards, which California requires.     

(SHRM Online)

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