In the wake of this week's Wal-Mart ruling on the sex discrimination class action suit, Bryce Covert spoke to Roosevelt Institute Senior Fellow Ellen Chesler. Chesler calls for constitutional protection of women's rights, explains why women's success is linked to economic growth, and remembers Eleanor Roosevelt's tireless work to bring human rights to all.
Bryce Covert: Why is this ruling considered by many to be so dangerous?
Ellen Chesler: Women and minorities who think they are underpaid will now find it nearly impossible to band together to sue their employers and claim punitive monetary damages. Class actions have been a significant vehicle to establish discrimination in employment and seek redress during the half-century since the civil rights revolution of the 1960s. But with this ruling, the Supreme Court is now saying that employees can sue collectively only if there is proof of an explicit company policy to discriminate. It's no longer enough to demonstrate a clear statistical pattern of women earning less and winning fewer promotions. This is outrageous. What company announces up front that it discriminates?
The court, of course, did leave the door open to individuals who can still try and vindicate their rights one by one. But without the economies of class actions, protection against discrimination is beyond the reach of most workers, who don't have the resources to sue one person at a time. Management is effectively left with little liability. It can do whatever it wants.
Moreover, the same five justices who prevailed in this decision ruled against Lilly Ledbetter several years ago when she brought an individual action claiming she had been paid less than men doing her same job over many years. That decision rested on a technicality -- that Ledbetter had not taken action within the time limits required for lawsuits under Title VII of the 1964 Civil Rights Act. With Democrats controlling both houses of Congress in 2009, women's rights advocates then passed the Lilly Ledbetter Act, which simply extends the timeframe. President Obama signed the law as his first official act. But we don't have a comparable political situation now, which makes the Wal-Mart ruling even scarier.
Legislative remediation in this situation could be achieved through the Paycheck Fairness Act, which was passed by the House of Representatives in 2009 when Democrats were in control, but was then blocked by Republicans in the Senate. That measure puts more teeth into claims of pay discrimination from women by authorizing their right to demonstrate unfair practices through exactly the kinds of aggregate data that the majority has challenged in this ruling. But with Republicans now controlling the House there is no chance for this bill.
BC: What elements are missing in American law that would better ensure women's rights?
EC: The simple answer is an Equal Rights Amendment to our constitution. Ironically, we are the only major democratic country in the world that does not offer women a constitutional guarantee of equal protection under the law.
Let's remember that the rights of women in the United States have essentially been cobbled together case by case, with no more than the due process clause of the 14th Amendment as an underlying constitutional principle. Even with respect to employment discrimination, women were an afterthought -- actually a kind of joke. We were added into the 1964 Civil Rights Act by a racist Southern member of Congress who thought he could kill the whole thing by specifically including women as a minority class. Ingenious young women lawyers then seized on that provision, among others, and built a vibrant body of jurisprudence to establish equal protection as a foundation for women's rights.
But sadly enough, it's a whole lot easier to unravel a body of law, no matter how clever it may be, when there are no deep constitutional principles framing it beyond due process. And one of the great ironies of history is that Ruth Bader Ginsburg, who was foremost among the pioneers of the women's rights revolution of the 1970s, is now being made to witness the evisceration of her work by her own colleagues on the court.
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Justice Ginsburg, of course, wrote the minority opinion in the Wal-Mart case, citing evidence that gender bias suffuses the company's culture -- that women make up more than 70% of the wage earners but only 33% of the management who have a free hand to make decisions about pay and promotions. She was joined in that opinion by the two other women on the court, Justices Sotomayor and Kagan, and by Stephen Breyer.
I also want to remind readers that international human rights conventions growing out of the landmark work of Eleanor Roosevelt also provide a binding legal framework to prevent sex discrimination. The landmark Convention on the Elimination of All Forms of Discrimination Against Women, commonly known as CEDAW, is quite a visionary document in terms of the obligations it places on countries to protect the civil, political, social, and economic rights of women. But another great irony of history is that the United States is not a party to this treaty. We're one of only four countries in the world that has never ratified it, which places us in the unlikely company of Iran, Sudan, and Yemen. CEDAW was passed by the United Nations in 1979 and signed by Jimmy Carter before he left office. But for years its been held up in the Senate by conservatives opposed to human rights and multilateral engagement as a general matter and to women's rights agreements of just about any stripe. The US Constitution requires a super-majority of 67 Senators to ratify a treaty, and that's been hard to achieve on just about any matter in recent years.
This also reminds me that the Paycheck Fairness Act, which closes some of the loopholes in the Equal Pay Act of 1963, is also part of Eleanor's legacy. The Equal Pay Act was the central piece of legislation recommended by the Kennedy Commission on the Status of Women, which Eleanor chaired until her death in 1962. Eleanor had for many years supported protective labor legislation for women, which took into account their primary obligations as mothers. But through the Kennedy Commission, she came to understand that this approach had created silos for women and closed off opportunity. This change in her thinking was also influenced by her work on global women's rights. It's an important piece of Roosevelt history.
BC: Beyond the individual women who lost in this case, what's the fallout for our country?
EC: Hillary Clinton's iconic status notwithstanding, the historic leadership of the United States in the global women's rights revolution is steadily being eroded.
In comparative gender equality rankings by the World Economic Forum, the United States today stands only 19th among the 144 countries surveyed. We're outranked predictably by the Scandinavian countries, by the UK, France, and Germany, but also by Canada, Australia, and even some of the small democracies of Eastern Europe. Obviously, American women are not disadvantaged in these comparative rankings just by wages, which remain low here for so many women, especially at the bottom of our wage scale. Also considered are measurements of public policies that support women and families, such as subsidized childcare and health care, paid family and medical leave, and flexible work arrangements, where the United States too often falls short.
Conservatives so often claim that women are not victims of discrimination in the workplace -- that they chose easier assignments and less demanding work in order to balance work and family. But this seems to me a rather feeble argument because the absence of family-friendly work policies for both men and women is itself a disadvantage that governments in modern industrial societies ought to redress.
BC: Women's rights have clearly become a hotly partisan issue. Was it always this way?
EC: Quite to the contrary, the Republican Party was actually the party that first supported an equal rights amendment for women. There's been a substantial partisan realignment on these issues. Who today would believe that Richard Nixon was a strong enforcer of affirmative action for women and other minorities?
Everything changed when Ronald Reagan's political handlers recognized that they could finally unravel the New Deal coalition by appealing to social conservatives who had traditionally voted with Democrats on pocketbook issues. They could be lured away because of their growing discomfort on matters like affirmative action and reproductive rights. Conservative Republicans are shamefully guilty of spreading the spurious claim that gains for women always come at the expense of men, when the truth is that expanding opportunity has exactly the opposite effect.
We now have concrete metrics from more than 100 countries around the world to demonstrate the direct correlation between improvements in women's status and overall well-being.