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Examples of Cases Involving Women’s Rights Statutes that were Not Upheld 

Examples of Cases Involving Women’s Rights Statutes that were Not Upheld            

Preface:  Because there has not been effective constitutional protection by the 14th Amendment for many forms of sex discrimination and because there is no Equal Rights Amendment, there have been many efforts to target federal legislation to try to close the gaps, generally relying on the Commerce Clause of the Constitution. The Equal Pay Act of 1963; Title VII of the Civil Rights Act of 1964, Title IX of the Education Act of 1972, the Pregnancy Discrimination Act of 1978, and the Violence Against Women Act of 1994 are just a few of these laws.  While they have significantly helped women, these federal laws are not comprehensive, many are not fully inclusive, and one has been partially struck down by the Supreme Court for lack of a constitutional foundation. Most critically, none of these laws has the force of a constitutional amendment.  That means they do not cover everyone and they can be rolled back at any time by a simple congressional vote. *

*Excerpts from Equal Means Equal by Jessica Neuwirth, 2015

The Law: The 14th Amendment of 1868 addresses citizenship rights and equal protection of the laws and was proposed in response to issues related to former slaves following the American Civil War. It includes a Due Process Clause and an Equal Protection Clause which have been frequently relied upon in sex discrimination cases.

The Problems:

  • It has been determined by the Supreme Court to only apply to employment discrimination in public employment. So, Congress has relied on its power to regulate interstate commerce as a constitutional foundation for discrimination in the private sector.
  • The Equal Protection Clause has been interpreted by the Supreme Court to require proof that the employer INTENDED to discriminate.
  • The concept of a level playing field as interpreted by the Supreme Court means many women are kept at the same lower level of pay because it is considered equal treatment, not necessarily
  • It wasn’t until 1976 that the Supreme Court increased the level of review on sex discrimination up to intermediate scrutiny, which is still not on par with race and religion cases which get strict scrutiny. This results in a 50/50 chance for findings of sex discrimination versus an 80/20 favorable ruling on the other classes.

The Law:  The Civil Rights Act of 1964 outlaws discrimination based on race, color, religion, sex, or national origin. It prohibits unequal application of voter registration requirements, racial segregation in schools, employment and public accommodations. Title VII is specific to employers with 15 or more employees and covers terms, conditions or privileges of employment as well as compensation. The Pregnancy Discrimination Act of 1978 amends Title VII to include prohibition of discrimination on the basis of pregnancy.

The Problems:

  • Betty Duke vs Walmart: Won in lower courts, but Walmart kept appealing and Supreme Court overturned lower courts’ rulings saying it did not meet the criteria for a class action suit because there was no single identified practice that produced the disparate employment outcome for women. (There were multiple practices…)
  • Peggy Young vs UPS, and Geduldig vs Aiello: Unlike the Americans with Disabilities Act, employers are not required to accommodate needs of employees. While Congress affirmed that pregnancy discrimination IS sex discrimination under Title VII, the Supreme Court, under the 14th Amendment, does not recognize it as such because men cannot get pregnant. The Supreme Court also states there is no discrimination in excluding pregnancy altogether from disability coverage.

The Law: Fair Labor Standards Act of 1938, later amended by the Equal Pay Act of 1963 which requires equal pay for equal work.

The Problems:

  • Lola Kouba vs Allstate: The Act covers compensation only and Supreme Court has stated that it is acceptable to pay women less for the same job if one of the criteria is the salary earned in a previous job. (And women’s pay in previous jobs is often lower than men’s.)
  • Lily Ledbetter vs Goodyear: Supreme Court tossed out her claim of years of discriminatory pay because it took her so long to find out she was paid less and to bring charges. It was followed by the Fair Pay Act of 2009 which extended the statute of limitations for charging an employer with unequal pay.

The Law:  The Violent Crime Control and Law Enforcement Act of 1994, which includes Title IV, Violence Against Women Act

The Problems:

  • Christy Brzonkala vs Virginia Tech (Morrison Case): Supreme Court struck down the provision allowing women to sue their attackers in federal court. It claimed that by way of the 14th Amendment, the courts cannot address private conduct (i.e. the actions of individual rapists) under the Commerce Clause.
  • Gonzales vs City of Castle Rock: Supreme Court states there is no constitutional right to police protection or enforcement of restraining order. Police can use their own judgement because there is a tradition of police discretion. (Interpretation of the Due Process Clause.)
  • By 2005 all states and the military had eliminated exemptions for penalty for rape in marriage. However, 26 states have lesser penalties and shorter report time requirements.

 The Law: The Education Amendments Act of 1972: Modified government programs providing financial aid to students.  Most well-known aspect is Title IX which prohibits discrimination on the basis of sex in education institutions receiving federal aid.  Opened up females’ access to medical schools and other post-graduate studies as well as access to sports scholarships.

The Problem:

  • Grove City vs Bell: The Supreme Court affirmed that a private, co-educational school was only under Title IX rules for its financial aid program, rather than all the programs and activities of the school. Congress overturned that with passage of the Civil Rights Restoration Act of 1987.     (Click here for the NC General Assembly Phone and Email list)

Compiled March, 2018 for ERA-NC Alliance. Primary sources: Equal Means Equal by Jessica Neuwirth, 2015 and Wikipedia

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