The Necessity of an Equal Rights Amendment
Historical Use of the 14th Amendment against Women
The Courts historically interpreted the equal protection clause in the 14th Amendment to the Constitution to discriminate against women based upon assumptions of the framers intent. The framers did address the issue of gender rights in a number of places however explicitly left sexual discrimination out of the realm of constitutional provisions. The framers of the Constitution were primarily concerned with the right of men, and anti discrimination provisions were framed with the racial and labor issues of the day in mind. Furthermore the framers as well as the drafters of the 14th Amendment had traditional views on gender relations and actively sought to confine women to their traditional domestic role. The 14th Amendment was initially used to deny women suffrage during the 1870s, denying them the privileges and immunities due to citizens in Section One of the 14th Amendment.
The denial of the right to jury service and the 14th Amendment
The use of the equal protection clause in the 14th Amendment of the Constitution against women can be demonstrated by the historical exclusion of women from jury service in the first half of the 20th century. Women were completely excluded from jury service in the United States until 1870 when the first women jury members were allowed in the state of Wyoming. Women were perceived to be weak and fickle and not fit for the rigours of jury service. However the admission of women into juries in Wyoming was short lived, by the end of the 19th century the situation had reverted to exclusion. In Massachusetts v Welosky 1931 the Court denied due process of law under the 14th Amendment to a woman by the exclusion from the jury of all women (Moncure, 1958, p. 15). In Muller v Oregan 1908 and Riley v Massachusetts 1908 it was held that women were not persons and as such could not avail of equal protection of the law in employment and labor relations.
The Modern Feminist Movement and the Equal Protection Clause
In the 1960s legal feminists engaged in debate over whether the aim of equal justice would be better served by an Equal Rights Amendment or through judicial reinterpretation of the equal protection clause of 14th Amendment to the United States Constitution. From the early 1920s the Feminist movement in the United States was divided between Alice Pauls National Womens Party (NWP) which focussed upon an ERA which would wipe out all legal distinctions between the sexes and a movement led by Elanor Roosevelt and others more focused on labour rights legislation (Mayeri, 2004, p.762). Activists of the NWP campaigned nationwide and lobbied Congress on the issue of an ERA however even after more than 30 years of consistent political effort they had achieved little success.
During the 1960s Pauli Murray an eminent legal scholar and civil rights activist sought to litigate through 14th Amendment in order to improve womens rights. Murray attempted to draw upon the experiences and strategies of the African American civil rights movement to re interpret the 14th Amendment in favour of womens rights. She sought to achieve the spirit and aims of the ERA without the political divisions which it created through the reinterpretation of the 14th Amendment. The activist nature of the Supreme Court bench during the 1960s held out hope of an equitable reinterpretation of the 14th Amendment. Naturally the advocates of an ERA saw the 14th Amendment litigation strategy as hostile and mutually exclusive to their agenda. Advocates of ERA were also associated with segregationists during the 1960s.
Title VII of the Civil Rights Act which was passed in 1964 prohibited sexual discrimination in employment relations (Mayeri, 2004, p. 769). The amendment was introduced by a segregationist, and was strangely opposed by advocates of racial civil rights. This was due to the view that the Civil Rights Act 1964 without a suitable amendment to cover women would empower black workers whilst excluding white women from civil rights protection leaving them out of the labor market. Pauli Murray argued that both white women and black women would be disadvantaged equally in the absence of an amendment prohibiting discrimination on the basis of sex. The passing of Title VII also brought the NWP into the civil rights movement and away from their roots in the segregationist politics of the South. The initial years after the passage of the Civil Rights Act 1964 however saw uneven enforcement of the provisions of Title VII.
Developing the 14th Amendment Jurisprudence
In 1965 in White v Crook civil rights activists challenged the exclusion of black women from a jury in Alabama aiming to get a favourable judicial interpretation of the 14th Amendment to the United States Constitution from the Supreme Court. A three judge panel in Alabama in 1966 decided that original intent was not an obstacle to an interpretation of the 14th Amendment to the US Constitution which included principles of sexual equality. This form of litigation was essentially a back door entry for the principle of an ERA to be written into the United States Constitution without requiring the political consensus needed for an ERA to be implemented. However none of the jury exclusion cases of that era reached the Supreme Court which kept the perceived need for an ERA alive.
The National Organization of Women endorsed the cause of an ERA in 1967, bringing a new generation of more diverse and radical feminists into a movement started in the 1920s. However some new generation feminists were alienated from the movement due to the lack of abortion rights being included in the ERA. The late 1960s saw the emergence of a dual strategy to pursue both judicial interpretation of the 14th Amendment and an ERA. However there were certain inherent contradictions in a dual approach. As both an ERA and a favourable interpretation of the 14th Amendment were aiming at the same goal, the pursuit of one would eliminate the imperative for the other creating a catch 22 situation. Courts would be less favourable to a liberal interpretation of the 14th Amendment if an ERA seemed imminent, whilst a suitable interpretation of the 14th Amendment would decrease the necessity for an ERA. The ERA stalled in the United States Senate in 1970. Fears were prevalent that absolute equality between the sexes as mandated in the ERA would lead to disorder including the legalization of same sex unions, women in the armed forces, changes to family law such as abolition of alimony payments, and even uni sex bathrooms. Leading jurists of the time saw the ERA as a threat to the family units and largely unnecessary.
In Reed v Reed 1971 the Supreme Court invoked the 14th Amendments equal protection guarantee to revoke a law discriminating against women, in this case an Idaho legislation which discriminated in favour of male state administrators and against females. Reed was an obscure case from Idaho which legal feminists used to test the Supreme Courts application of the 14th Amendment. The Supreme Court declared the State of Idahos preference for male administrators to be arbitrary but did not revoke the standard of reasonableness for forming sex based classification under the equal protection clause of the 14th Amendment. Feminist groups whilst expecting a favourable decision in the case were disappointed at the narrowness of the grounds of the decision.
In 1996 the Supreme Court in United States v Virginia struck down the Virginia Military Institutes policy of excluding female students. Justice Ginsberg expressed the majority view that sex classifications were allowed only to rectify historical discrimination against women rather than to perpetuate such discrimination. In a 6 justice majority the decision represented a victory for the feminist movement against a classic exposition of a situation which they had been fighting against from the start of the movement. The Virginia Military Institutes policy excluded females on the basis of out dated generalizations which have no basis modern reality, it was both arbitrary and unreasonable.
In Nguyen v INS the Supreme Court in 2001 upheld immigration law which allowed the automatic naturalization of offspring of unmarried citizen mothers and non citizen fathers, whereas in the case of non citizen mothers and citizen fathers the child would have to prove paternity. A majority held that the law did not violate the 14th Amendment to the United States Constitution in that it related to two important government functions of proving paternity and allowing family relationships to develop and that differential treatment was based upon the difference inherent in the parent child relationship between children and mothers and fathers. Such distinctions were not based on prejudice but on biology and nature. The standard of intermediate scrutiny applied in Virginia was found to be pliable in the case of Nguyen. The Court in Nguyen interpreted the 14th Amendment to apply only to people who are similarly situated, deciding that mothers and fathers are not sufficiently similarly situated to invoke its protection. However this decision did enforce stereotypes based both upon race and gender placing the burden of child bearing upon foreign women rather than American men, a situation which has been commonplace during war time when American service personnel father children to local women in combat zones. Such children then have the burden to prove their paternity which the children of American mothers and non American fathers do not.
The evolving jurisprudence related to the 14th Amendment and sex discrimination has provided a great deal of protection to women whilst falling short of complete legal equality between the sexes. In the Nevada Department of Human Resources v Hibbs the Supreme Court granted the Congress wide power to legislate against sex discrimination. The 14th Amendment has been interpreted within the framework of reversing historic discrimination against women however has not reached into areas such as reproductive rights, or government autonomy in administrative decision making. This still leaves room for improvement which can only come from the political consensus which would be required for the passing of an ERA, which would provide for more comprehensive and universal equality for women.
Title VII and sexual discrimination in the workplace
The difficulty for women in gaining justice in sexual harassment cases is not so much due to a deficiency in the Title VII provision in the Civil Rights Act of 1964, or Supreme Court interpretation of the legislation, but in the inability of lower courts to adequately implement Supreme Court jurisprudence. In Meritor Savings Bank v Vinson 1986 the Supreme Court held that Title VII of the Civil Rights Act 1964 which prohibits sex discrimination gives cause for action in the case of sexual harassment which creates a hostile or abusive work environment. The Court quoted from the guidelines issued by the Equal Employment Opportunity Commission in 1980 which explicitly mentioned sexual harassment as a form of sexual discrimination in Title VII. The Court stated that lower court jurisprudence had already established sexual harassment as an offence at par with racial discrimination. The Court created a standard of severe or pervasive behaviour to establish sexual discrimination. Further guidance was given in determining severe or pervasive behaviour. The Court instructed that the situation should be judged in totality, in context and keeping in mind any history of sexual harassment in a workplace. The Court further developed the standard seven years later in Harris v Forklift Systems Inc 1993 in which it stated that discriminatory intimidation, ridicule and insult would provide for a violation of Title VII. The Court further refined the standard introducing both subjective and objective abusive behaviour to measure the change in the work environment (Keller and Tracy, 2008, p252). In Oncale v Sundowner Offshore Services Inc 1998 the Supreme Court extended Title VII to harassment in the workplace between members of the same sex. This case saw a further exposition of the severe and pervasive standard seeking to exclude mere sexual flirtation or innuendo in order avoid creating judicial workplace code of civility.
The lack of appropriate implementation of Supreme Court guidance on the application of Title VII stems from a number of factors. There has generally been a narrow application of Supreme Court precedent, combined with confusion over the subjective and objective tests. Often the two are combined rather than separately assessed. There is also error in applying the totality test from Harris. In Harris Justice OConner listed factors which help to establish totality of a hostile working environment such as the frequency of particular discriminatory conduct, the presence of any physically threatening conduct and whether a workers performance is interfered with (Keller and Tracy, 2008, p. 255). However lower courts have often used this as check list rather than guide in establishing totality.
Cases highlighting the inadequacy of Title VII
In Mitchell v Pope 11th Circuit 2006 Donya Mitchell alleged that she was sexually harassed in the County Sheriffs Department by a fellow officer Michael Overby. The 11th Circuit Court ruled in favour of the defendant that the behaviour of Overby did not meet the test for severe or pervasive conduct constituting sexual harassment. Donya Mitchell described 16 occasions in which she felt sexually harassed ranging from verbal abuse, to physical approaches, and vulgar and obscene behaviour. Mitchell alleged harassment both within and outside the workplace, at hotels on work trips and stalking at her family home. The 11th Circuit Court misapplied the Harris test finding that the totality of Overbys behaviour did not reach the threshold of sexual harassment. Furthermore the Court described Overbys behaviour as horseplay drawing on the Supreme Court judgement in Oncale, however misapplying it in this case to a male-female relationship rather than a male-male relationship which it was originally applied to. Sixteen separate incidents were not taken in totality but measured against a checklist individually and found deficient, leading to a lack of justice for Donya Mitchell.
In Duncan v General Motors Corp 8th Circuit Court 2002 Diana Duncan faced a similar miscarriage of justice. Diana Duncan was an employee of General Motors Corporation between 1994 and 1997. She was forced to resign from her position due to the sexual harassment of a co worker. The harassment included unwelcome propositions, exposure to pornography on office computers, differential adverse treatment compared to other workers and retaliatory behaviour and accusations. When the defendants sexual advances were rejected she was accused of being a man-hater and ostracised in the workplace. The defendant had even planned to have Duncan arrested at a charity function at the office. Despite Duncan winning the case initially, the Eight Circuit Court overturned the judgement of the lower court claiming that Title VII was not aimed at purging a workplace of vulgarity in its entirety (Keller and Tracy, 2008, p. 258). The Court cited other cases of more egregious levels of sexual harassment which did not meet the standard for sexual discrimination. However the Court misapplied the tests for subjective and objective harassment finding that Duncan met the subjective test but that the action of the defendant did not meet the objective test.
The test of severe and pervasive behaviour to constitute sexual harassment is sufficiently vague to allow for misapplication by lower courts which often leads to absurd results in favour of the defendant despite ample evidence of a wide range, scope and intensity of sexually harassing behaviour. This only further highlights the inadequacy of Title VII of the Civil Rights Act 1964. Only an ERA which addresses the issue of sexual harassment of women in more explicit terms can aim to reduce ambiguity and ensure punishment of transgressors.
Delay in Supreme Court interpretation of Title VII
The delay in the Supreme Court interpretation of Title VII of the Civil Rights Act 1964 may have occurred for a number of reasons. The major focus of the Civil Rights Act 1964 and its associated political movement was based around race rather than gender. Whilst the womens rights movement from the 1960s onwards was less concerned about Title VII as a means to achieving their goals of gender equality before the law and more intent on using the 14th Amendment to the United States Constitution to broaden and deepen gender rights whilst much political organizing revolved around the adoption of an ERA to the United States Constitution. Title VII was largely ignored in favour of the other two paths. Furthermore the Supreme Court in its judgement in Meritor Savings Bank in 1986 followed the cue of the Equal Employment Opportunity Commission which had published guidelines in 1980 which had included sexual discrimination under the ambit of Title VII. The Supreme Court needed to be nudged in the direction of developing Title VII for sexual discrimination cases from the administrative branch as well the evolving jurisprudence of lower courts. This meant a 20 year delay in the evolution of sexual harassment jurisprudence at the Supreme Court level.
As has been demonstrated, Title VII and its interpretation by the Supreme Court whilst having the potential and scope to provide protection for women in the workplace have not achieved the desired results at the grassroots level. A further example of how far lower courts can move away from clear Supreme Court directions on Title VII can be seen in the Seventh Circuit case of Baskerville v Culligan International Co 1995 in which Judge Posner set his own standard for applying Title VII in sexual harassment cases as requiring hellish conduct in the workplace. Nowhere had either Title VII or the Supreme Courts interpretation mentioned the term hellish in measuring discrimination or establishing a legal standard.
An Equal Rights Amendment to the United States Constitution would help clarify the current ambiguity surrounding standards of sexual discrimination which are apparent in the jurisprudence of both Title VII of the Civil Rights Act 1964 and the 14th Amendment to the Constitution. An ERA would favour the victims of sexual harassment enforcing clearer principles upon lower courts rather than the vague and pliable interpretations and formulations which are currently prevalent.
Ninety years after the movement advocating an Equal Rights Amendment to the United States Constitution was started it has still not been achieved. It is debatable whether the current political climate would be conducive to a revival of the movement, however its desirability is clear given the increasing role of women in spheres of activity from which they were previously excluded. The Supreme Court has interpreted the 14th Amendment to the Constitution in a way which seeks to remedy historical discrimination whilst stopping short of a principle of universal equality which allows for some elements of differentiation between the sexes at an administrative level. The Supreme Court was slow to interpret Title VII of the Civil Rights Act 1964 in the context of sexual harassment of women in the workplace and its interpretations have not been well applied at the level of lower courts. Hence both Title VII and the 14th Amendment both suffer from levels of ambiguity which can only be resolved by the revival of the movement for an Equal Rights Amendment to the Constitution which would necessarily have the legitimacy of political will behind it. An ERA would result in better legal outcomes for women facing harassment in workplaces around the United States and Courts would be forced to apply a higher legal standard in such cases than the standards currently devised by the Supreme Court (Baldez, Epstein and Martin, 2006, 282). This would avoid the strange outcomes and miscarriages of justice witnessed in Duncan and Mitchell. Furthermore companies would be encouraged to better manage office environments and not tolerate sexual harassment which drives women out of the workplace. An ERA is required for deterrence amongst perpetrators of sexual harassment and the protection of women in the workplace.
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