The Season Of Equality

Equality seems to be bustin’ out all over. In addition to the “Super Tuesday Of Equality,” where five or more states may be voting on whether or not to eliminate race, ethnic, and gender preferences, there is an attempt to revive the Equal Rights Amendment (now dubbed the Women’s Equity Amendment, discussed here) and the Employment Non-Discrimination Act to protect the civil rights of gays and the transgendered has just been introduced.

ENDA is a federal bill that would address discrimination in the workplace by making it illegal to fire, refuse to hire or refuse to promote employees simply based on a person’s sexual orientation or gender identity. It would reinforce the principle that employment decisions should be based upon a person’s qualifications and job performance.

The Human Rights Campaign justifies the ENDA by noting that

[q]ualified, hardworking Americans are denied job opportunities, fired or otherwise discriminated against for reasons that have nothing to do with their performance and abilities. Employment discrimination … effectively denies qualified individuals equality and opportunity in the workplace.

HRC is opposed to such discrimination, if the victims are discriminated against because they are gay, lesbian, bi-sexual, or transgendered. So far as I know, it has not opposed employment discrimination against individuals because they were not members of preferred races or ethnicities even though such discrimination, often described as “affirmative action,” also violates “the principle that employment decisions should be based upon a person’s qualifications and job performance.”

I have argued too many times to cite that, as I put it here, “many people oppose gay demands for ‘equal rights’ because they saw similar demands from blacks and women, which they supported, morph into demands for preferential treatment, which they oppose.” (A few, but by no means all, other examples of my argument in this regard can be found here, here, here, here, here, here, and here.) Perhaps the gay rights movement has wised up on that score. According to an article today in the New York Blade, ENDA “prohibits hiring quotas or affirmative action requirements on the basis of sexual orientation or gender identity.” [Emphasis added.] When hearings are held on this legislation, however, it is very important for someone to ask its sponsors whether in their view ENDA would allow preferential treatment based on sexual identity or preference.

In my earlier post on the Women’s Equity Amendment I quoted the operative words, carried over from the ERA —

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

— and asked what supporters thought those words mean, since all prominent feminists oppose measures such as the one that recently passed in Michigan, and will presumably be on the ballots of a number of other states on Nov. 4, 2008, that provide that the state shall not “discriminate against or grant preferential treatment to” any individual based on race, ethnicity, or gender. They thus presumably believe that prohibiting the denial of equal rights on account of sex does not preclude the state from extending preferential treatment to women.

I also noted there that WEA supporters have had trouble explaining exactly what impact a new constitutional amendment would have and why it is needed. Now come Eleanor Smeal and Martha Burk in an attempt to remedy that situation. They fail.

Here’s how they begin:

Why is the amendment needed? Twenty-three countries — including Sri Lanka and Moldova — have smaller gender gaps in education, politics and health than the United States, according to the World Economic Forum. We are 68th in the world in women’s participation in national legislatures. On average, a woman working full time and year-round still makes only 77 cents to a man’s dollar. Women hold 98 percent of the low-paying “women’s” jobs and fewer than 15 percent of the board seats at major corporations. Because their private pensions — if they have them at all — are lower and because Social Security puts working women at a disadvantage and grants no credit for years spent at home caring for children or aging parents, three-quarters of the elderly in poverty are women. And in every state except Montana, women still pay higher rates than similarly situated men for almost all kinds of insurance. All that could change if we put equal rights for women in our Constitution.

Leave aside the sterling sex-gap performance of such places as Sri Lanka and Moldova; I suspect most Americans don’t care any more than I do about whether we’re losing the pay-gap race to Moldova. Also ignore, for now, the fact that the “77 cents to a man’s dollar” itself reflects the fact that, for whatever reason (maybe “choice” explains part of the reason), women work in lower-paying fields. A woman truck-driver with the same experience as a man and who works the same hours as a man definitely does not earn 77 cents to the man’s dollar, though a secretary might. But, as I said, ignore that for now. What Smeal and Burk don’t even begin to explain is how amending the U.S. Constitution to prohibit the United States or any state from denying the “equality of rights under law” on account of sex would have any effect whatsoever on the list of horribles they provide.

Would it require “comparable worth” legislation under which bureaucrats would determine that a librarian should be paid the same as a coal miner? Would it bar women from working in low-paying jobs? Make low-paying jobs illegal? Require equal participation in all legislatures and on corporate boards?

Who knows? The judges who will be called upon to “construe” WEA’s meaning?

Let’s not go there.

Say What? (4)

  1. Alex Bensky April 27, 2007 at 8:01 pm | | Reply

    What’s the point in asking supporters of the WEA or whatever they call it what they think it would permit or prohibit? The legislative history of the 1964 Civil Rights acts contains a number of statements by its sponsors that preferential treatment is not contemplated by the bill, most famously by Hubert Humphrey’s claim that he would eat his hat if anyone could find quotas in the bill.

    That didn’t stop the courts from ignoring the plain meaning of the act and given the “living constitution” philosophy, I’d be wary of giving judges any more power to enact de facto social legislation.

  2. John Rosenberg April 28, 2007 at 12:14 am | | Reply

    Alex – Good question, but most of the Congressional debate, and Humphrey’s hat quote, dealt with the charge by Southerners that the CRA would require racially proportional hiring, etc. In the Weber case (1979) and elsewhere, defenders of race-based hiring agreed that the CRA did not require race-based affirmative action but argued that it allowed it. I think they were wrong, but the Supremes didn’t.

  3. staghounds May 2, 2007 at 7:31 pm | | Reply

    WHY are homosexuality and transsexuals the only sexual isentities to be protected? Why shouldn’t it be just as illegal to discriminate against D&S folks or redhead fanciers? Who will speak for the furries?

  4. staghounds May 2, 2007 at 7:33 pm | | Reply

    ALSO, you might like this article about basketball referree discrimination.

    We’re going to find racism even if the racists don’t know they are doing it!

Say What?