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The ERA: A Law You May Think Is Already in Place, But It’s Not!

The U.S. Constitution does not prohibit sex discrimination! That’s right. Men and women are not required to be treated equally. The Equal Rights Amendment was first passed by Congress in 1972 but only ever ratified by 37 states. How can that be? We are in 2020 – nearly 50 years later—and this hasn’t happened yet?

Some Background on the Amendment

The ERA is not very well known, and based on some data, a significant majority of Americans already believe there is a constitutional amendment guaranteeing equality between the sexes. But, while there are a variety of existing federal and state laws that offer protections for women, proponents argue only a federal constitutional amendment can provide the broadest possible guarantee of such rights.

The amendment itself is fairly short. In its entirety, it reads:

“1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

3. This amendment shall take effect two years after the date of ratification."

The first Section is the key piece of the amendment, while Sections 2 and 3 deal with requirements for passage. So, we are left with 24 words upon which to base innumerable rights, protections, obligations and other legal effects. But that could change, and many are looking to the state of Virginia as having the potential to make this happen.

Why Virginia? Because 38 states are required to ratify the ERA so that it can become national law. Currently 37 states have ratified it; one more is needed and recent shifts in Virginia’s political climate to Democratic party control suggest that it could become the 38th.

Poised to Tip the Scales to Equal Rights for Men and Women?

While this isn’t intended to be a political article, the vast majority of states that have passed the ERA are Democratic. Equal rights for women seems to be a platform for democratic lawmakers as noted by the states that have already passed it. Aside from Virginia, 12 other states have not ratified the amendment: Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina and Utah.

Needless to say, the potential impact of the ERA is a big unknown. It will likely take decades of Supreme Court and other judicial interpretation to flesh out its power and nuances.

What could the ERA mean for parental leave? For the military draft? For child custody laws? For affirmative action requirements? These are all issues that have ramifications in the workplace.

Take Time to Learn About Potential Impacts

As shocking as this may seem in the 21st century, even with the Virginia state government's transition to Democratic party control, there are many question marks and hurdles remaining before a new constitutional amendment guaranteeing equal protection for men and women is likely to become a reality.

Employers, equal rights advocates and constitutional law enthusiasts, among others, would do well to take the time to learn about the potential pros and cons, controversies and paths to enactment of such an amendment given its potentially profound impact on the laws of the United States.

It’s a mandate to be inclusive—and equal.

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