Laws to prevent sex discrimination are simply not enough. The bleak reality is that because hard-won laws against sex discrimination do not rest on a strong constitutional foundation, they are essentially ephemeral. These federal laws and regulations contain many loopholes; are inconsistently interpreted, or worse -- ignored; and may be weakened by amendment or repealed outright.
Also, women seeking enforcement of these laws must not only convince the courts that discrimination has occurred, but that it matters. A constitutional guarantee of equality would absolutely shift the burden away from those fighting discrimination and place it where it belongs, on those who would discriminate. They would have to justify why discrimination should be allowed rather than women having to explain why we deserve equality.
Employment. Women are underpaid and undervalued in the workforce. In 1994, women still were paid only 74¢ for every dollar paid to men (1). Jobs traditionally held by women remain clustered at the lower end of the pay scale, while traditional men's jobs, even those having similar education requirements and time and effort on the job, are paid more. Thus, secretaries are routinely paid less than truck drivers even if both jobs are of equal importance to a company.
More startling is that even for traditional women's work, women are discriminated against -- in 1995 the median income for registered nurses for women was $35,360 and for men $ 36,868 (2). A 1994-95 survey found that male elementary school teachers had a mean base salary of $33,800 as compared to $32,292 for women (3) and women computer operators made almost $7000 less annually than their male counterparts (4). There is even a large salary differential (20%) for retail store cashiers of which more than 85% are women (see fig. 1) (5).
Issues of pay equity for comparable worth are not addressed by any federal laws. A CEA could remedy these and many other concerns of women in the workforce, including the "glass ceiling" and sexual harassment.
Figure 1. Median Annual Salaries
|Elementary School Teacher||-Men-||$33,800|
Reproductive Rights. Stereotyping of pregnant women and mothers, interference with a woman's right to control her own body and other forms of discrimination intrude on women's reproductive freedom.
Court cases like California Savings and Loan v. Guerra (6) have led to a debate as to whether pregnancy should be accorded special treatment under law since equal treatment has been insufficient protection for pregnant workers' rights. By including a specific statement (Section 3) in the proposed CEA, we make clear that women do not seek preferential, special or protected treatment because of pregnancy. What women do want is recognition that pregnancy is part of the natural human experience and should not be used to put women at a disadvantage.
Despite the provision of Title VII, the Pregnancy Discrimination Act and the Family and Medical Leave Act, pregnant women still face discrimination in the work place. Women on maternity leave, like employees who take sick leave, are not necessarily guarantee job protection and reinstatement when they return to work. Their jobs can be eliminated and the burden of proof requires evidence that the employer intended to discriminate (7).
Since 1973, when the Supreme Court handed down the historic Roe v. Wade decision which legalized abortion, a woman's right to terminate a pregnancy has been under continuous attack. These attacks come in the state legislatures, the U.S. Congress, the courts and at women's health clinics. The latest assault by the Congress has been on the late term abortion technique known as dilatation and extraction (D&X). This rarely utilized procedure is employed only when the life or health of the mother is at risk or the fetus is severely deformed. This bill, passed by both houses of Congress, would have outlawed the abortion method, with inadequate protection for life and health of the woman (8). The bill was stalled by a presidential veto.
Mandatory pregnancy has become the reality for many young and poor women and, as of 1995, for federal workers and women in the military serving abroad where safe, private facilities are not available (9). The real issue for women is the right to bodily integrity, and without this basic right women can have no true freedom.
Insurance, Pensions, and Social Security. Sex discrimination contributes significantly to the economic plight of older women. Nearly 75% of the nation's 4 million elderly poor are women (10). Older women have just over half the income of older men, and women of color have significantly less income than older white women (see table below) (11). The disproportionate poverty of older women is created by a lifetime of low wages intensified by sex discrimination in pensions, retirement insurance, and social security.
Table: 1992 Median Income for Those 65 and Older
Insurance. State insurance regulators routinely approve the use of selective classifications by sex for premiums and payouts in five types of insurance: automobile, disability income, medical expense, life and retirement income insurance (pensions and annuities) (see bulleted list below).
Women are frequently required to pay higher insurance premiums than men for the same benefits, or to pay the same as men for less protection or benefits, thereby reducing their take home pay (12). The excuse for this discrimination is that insurance company tables show that more women than men live longer than average or have higher health costs. The Supreme Court found in City of Los Angeles Department of Water and Power v. Manhart (13) that the use of sex divided tables violated Title VII's prohibition against sex discrimination in employment. But this ruling applied only to employer-paid insurance policies and not to those purchased by individuals with private insurance companies. In addition, the ruling was weakened by the decision of a New York federal court which exempted certain employer plans from Title VII coverage (14).
If we won equality in insurance prices, coverages, and benefits women would gain over $2.5 billion annually (12) (see the following bulleted list).
Social Security discriminates against women. The policies on which the system was founded in 1940 are reflective of the stereotypical role that women played during those years. Only 14% of women were in the workforce and most women spent their lives as married homemakers. Today, 58.9% of women are in the workforce and the divorce rate has risen. Despite these radical societal changes, the Social Security system holds to the same sex-biased assumptions. Married men receive 100% of their benefits for a lifetime, and since homemakers' contributions to marriage partnerships are not valued fully, wives are considered dependents and as such, receive lower payments. Widows receive only 72% of their deceased husband's benefits, and divorced women receive only half (16).
Since Social Security is the sole income source for many older women, the retrogressive policies are often devastating to women. As of 1990, 33% of unmarried women 65 and older depended on Social Security for at least 90 percent of their income; more than one-sixth had no other income (17). Women of color in this group were at least twice as likely as white women to rely on social security for 100% of their incomes.
Lesbian and Gay Rights. Currently lesbians and gay men are discriminated against in areas as basic as employment, parenting, marriage and housing rights. Numerous court decisions demonstrate the need to establish a constitutional guarantee of rights regardless of sexual orientation.
Many cases illustrate the pervasive discrimination against lesbians and gay men. One of the most plainly egregious and unfair is the case of a lesbian mother in Pensacola, Florida.
Mary Ward lost custody of her daughter to John Ward, her ex-husband and a convicted murderer. In awarding custody to John Ward, Judge Joseph Tarbuck said, "This child should be given the opportunity and the option to live in a non-lesbian world." The judge made the custody award to John Ward despite his conviction in a brutal murder.
In 1974, John Ward shot and killed his first wife in the parking lot of a Pensacola restaurant. Witnesses said he had been talking with his wife when he shot her six times. He then reloaded the gun and shot the woman six more times. John Ward pleaded guilty to second-degree murder and served his sentence in a Florida prison.
Fully aware of the father's past, the judge said John Ward would provide "decent living accommodations" for his daughter. The judge also stated that the child needed a "stricter environment, more discipline." Currently, there is no federal protection against discrimination based on sexual orientation. Clearly, passage of the CEA would give lesbians and gay men the constitutional standing necessary to challenge unjust laws.
Education. While Title IX has been effectively used to reduce discrimination based on sex in educational programs and activities receiving financial assistance, women and girls are still daily disadvantaged in educational programs. These disadvantages run a wide spectrum from a girls' high school track team (Gulliver Academy, Miami, Florida) being disqualified because of the shorts they wore, to the state supported Virgina Military Institute (VMI) and South Carolina's Citadel refusing to admit women.
The shorts the high school students wore were the same type used by Olympic runners and not against the state athletic rules. Nevertheless the men of the Florida High School Athletic Association found them too revealing. This decision is blatant sex discrimination -- not one male team in history, beginning with the ancient Greeks who ran naked to modern day boys' competetive swimwear, has been similarly disqualified.
VMI has as its stated purpose to develop "citizen soldiers" who would serve the state. VMI graduates are not required to enter the military and only 18 percent choose it as a career (18). Instead the majority of graduates of VMI, and those at the Citadel, fill the halls of power in government and industry of their respective states. The very real harm to women denied access to these prestigious instititutions is the deprivation of a life-long influential network. Or as Liza Mundy put it, "Affection, connection, humor, sexism: That to me, is VMI. And when you get down to it, what women are being denied is membership in a powerful, publicly funded men's club. Virginia Women's Institute for Leadership may be a terrific program, but it isn't the club. It is, with all due respect to the women who go there, a ladies' auxillary, camouflaged in faddish clothing." (18).
1. The U.S. Bureau of Labor Statistics (BLS), 1994.
2. Hospital and Healthcare Compensation Service, BLS, 1994.
3. Educational Research Services, BLS, 1994-95.
4. Working Women Magazine's Salary Survey, February 1996.
5. Roth Young Personnel Services, Minneapolis, BLS.
6. California Federal Savings and Loan Association v. Guerra, 479 U.S. 272 (1987).
7. Williams, "Equality's Riddle: Pregnancy and the Equal Treatment / Special Treatment Debate", N.Y.U. Review Of Law and Social Change, Vol. XIII, No, 2, 325 (1084-85).
8. Reproductive Freedom News, Vol.V, No. 7, April 1996.
9. United States Congress, FY 1996 Defense Authorization Bill and FY 1996 Treasury and Postal Appropriations Bill.
10. U.S. Bureau of the Census, Current Population Reports, Poverty in the United States, 1992, Table 5, p. 10, September 1993.
11. U.S. Bureau of the Census, Current Population Reports, Series P-60-184, Money, Income of Households, Families and Persons in the United States: 1992, Table 26, p. 101, September 1993.
12. Butler, Patrick. Insurance Sex Discrimination in the United States , Fact Sheet National Organization for Women, updated 1993.
13. City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 710-711(1978).
14. Spirt v. Teachers Insurance and Annuity Association, 475 F. Supp. 1298 (S.D.N.Y. 1980).
15. American Association of Retired Persons, Women's Initiative Fact Sheet, 1994.
16. Social Security Administration, U.S. Department of Health and Human Services, Social Security Bulletin Annual Statistical Supplement, 1993. Table 5.A14, p.199 (August 1993).
17. Grad, Susan. Social Security Administration, Office of Research and Statistics, SSA Publication No. 13 -11871, Income of the Population 55 or Older, 1990. Table VI.B2, p.87, (April 1992).
18. Mundy, Liza. Separate but Unequal? Women and Men and VMI. Washington Post Magazine. March 10, 1996.
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