A Modern-day Case For The Equal Rights Amendment

Welcome to my weekly Q&A feature. (Scroll down to find the Q&A.)

If this is your first time here, welcome. I spend a fair amount of time speaking at events and conferences. At the end of my presentations, I leave space for audience members to ask questions—tough questions, brave questions, you name it. The level of candor and curiosity always inspires me, and I want to share that sentiment with you. Each week I pick one question that I believe others would find most instructive and publish my response to it here.

The purpose of this weekly tradition is transparency and inclusion.

Transparency: a behind-the-scenes look at my day-to-day.
Inclusion: bringing others along on the journey.

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Is The Equal Rights Amendment Still Relevant Today?

Question:

How would the Equal Rights Amendment improve the equal pay laws that are already present?

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Answer:

The US ranks in 30th place out of 156 countries for gender equity. We have a 17-point gender pay gap and are among the 24% of countries worldwide without a constitutional provision for gender equity.

We need to amend the Equal Rights Amendment (ERA) to the US Constitution to safeguard the full and equitable participation of all people in our country. The ERA would throw the full weight of the Constitution at the barriers that hold people, especially women, back. It would federally protect Americans from all forms of sex discrimination.

The ERA applies first principles thinking to gender equity.

Critics claim the ERA promotes spurious and superfluous guarantees of equity. That we shouldn’t waste precious political capital on amending the ERA. That the laws we already have on the books suffice.

However, we need the ERA because it creates the requisite legal framework to achieve gender pay equity (among other things).

Current Pay Equity Laws Don’t Go Far Enough

We could knit a king-size quilt with all the patchwork pay equity laws at the state and local level. In the past two years:

2 more states have mandated pay reporting
3 more states have passed salary history bans for hiring
4 more states have required transparency around salary ranges
3 more states have protected the rights of employees who discuss their salaries

We should applaud these recent efforts to improve pay equity. We should also recognize that these laws apply only to specific jurisdictions around the country. And they are just that: laws. Laws that lawmakers can rescind or replace with a vote.

Now at the federal level, we have the Equal Pay Act and The Civil Rights Act of 1964—both providing a legal avenue for employees to fight back against gender discrimination.

Here too we see some issues prop up.

Federal pay equity laws are reactive. They respond to inequity rather than prevent it from occurring in the first place. Reactive laws are inequitable by default.
Federal pay equity laws put the burden of proof on employees (i.e. those experiencing inequity). An employee must use their time, their resources, and their energy to prove inequity—a tall ask considering the amount of information asymmetry in the modern workplace.
Federal pay equity laws put employees at risk of retaliation. In many cases, those claiming pay inequity can’t remain anonymous.

The ERA’s Impact On Pay Equity

The ERA applies first principles thinking to gender equity. Instead of retrofitting pay equity legislation into an inequitable system, instead of piecemealing together laws that combat discrimination—the ERA would enshrine gender equity into the system. It takes us back to the original design and addresses inequity at the core.

That last part matters: the ERA takes us back to the original design and addresses inequity at the core.

If we want to close the gender pay gap, we need to treat the disease, not the symptom. We need to create a system that is equitable by default. Because we can’t close the pay gap by starting with pay.

Pay is the quantitative value companies place on their talent. How we evaluate an employee’s performance and potential represents their actual value to the organization. We need a political operating system strong enough to address equity gaps across all stages of the employee lifecycle, across all occupational categories, and across all jurisdictions.

Curious about something? Ask your question here for a chance to have it answered in an upcoming edition of this newsletter.