The Equal Rights Amendment expired before a single player on the US women’s soccer team was born. But the World Cup winners, who are suing their employer for paying them less than their unsuccessful male counterparts, may have just given the ERA its biggest chance for revival in decades.
A leading argument against the ERA, which would prohibit gender discrimination, has always been that women are already guaranteed equal treatment. But the World Cup highlighted the present-tense realities for women competing in real time, losing even when they win. Adoring crowds rewarded the US women with chants of “Equal Pay!” rather than “USA!”
“It’s so dramatic. It has such high visibility,” said Jessica Neuwirth, co-president of the ERA Coalition and Fund for Women’s Equality, which works to raise awareness on the limits of existing law. “At the end of the day, under the law, they’re still second-class citizens. They don’t have equal rights under the Constitution.”
The push to add an equal rights amendment to the Constitution, a cultural touchstone of a past generation, had already been resuscitated for the Trump era, amid the accumulating accounts of sexual misconduct and workplace harassment.
After four decades of dormancy, two states have ratified the ERA since 2017 — Nevada and Illinois. In April, Congress held its first hearing on the ERA in three decades. And earlier in July, Mayor Martin J. Walsh of Boston led the US Conference of Mayors in passing a resolution calling for elected officials nationwide to support the ERA.
Advocates keep returning to the idea of a constitutional amendment, saying it would give them a firmer footing from which to argue the legal cases that they often lose.
“The law is just not working for women,” Neuwirth said. “It’s working against women.”
Opponents of the Equal Rights Amendment call it unnecessary, arguing that discrimination is prohibited by existing laws and constitutional protections, including the Equal Pay Act of 1963 and the 14th Amendment, which includes the equal protection clause.
“The ERA will not give any woman a pay raise,” said Anne Cori, chair of the Eagle Forum and daughter of Phyllis Schlafly, who led the opposition to the ERA in the 1970s. Her group maintains the ERA would ultimately harm women, by trying to erase all differences between them and men.
“If you remove all discrimination on the basis of sex, how do you even have a women’s soccer team and a men’s soccer team?” Cori asked. “You have one soccer team. And women lose when that happens.”
In their suit, the women soccer players argue they are making less than the male players for the same job even when they play more games, generate more revenue, garner higher TV audiences, and win more championships.
The United States Soccer Federation argues the teams’ contracts are not so easily comparable. The women’s lawsuit quotes a representative of the federation in 2016 saying, “Market realities are such that the women do not deserve to be paid equally to the men.”
Employment attorneys and specialists in wage equity say existing laws leave plenty of leeway for employers to prevail on such arguments.
Though the Equal Pay Act says an employer cannot discriminate by paying employees of different genders differently for equal work on equal jobs of equal skill, it allows for differences based on seniority, merit, productivity, and — most sweepingly — “based on any other factor other than sex.”
“Right now, the federal law has a huge gap in it where it says women need to be paid the same as men,” said wage equity expert Katie Donovan. “Any good lawyer can come up with any good reason” to justify a pay differential based on something other than gender. “And they have.”
Lindsey Wagner, a Florida attorney representing Walmart employees in a gender discrimination lawsuit, said the Equal Pay Act makes it “very difficult for females to prevail.”
“We rarely bring those claims because they’re very difficult to prove as a female and the employer is going to have an edge,” she said.
Wagner represents some of the Walmart employees who had previously pursued the largest gender discrimination case ever brought against an employer, with more than 1.5 million potential class members. But it was never heard on its merits. The Supreme Court found in 2011 that the plaintiffs did not meet the requirements for a class action, and the women had to pursue individual discrimination claims.
The first of those cases is scheduled to come to trial in September in Florida, challenging Walmart under Title VII of the Civil Rights Act of 1964, the second law the women’s soccer suit challenges.
The team’s case seems to offer a vivid example of equal work for unequal pay in 2019. The 2019 World Cup payout to the winning women’s team was $4 million, compared to $38 million for the winning men’s team in 2018. In 2014, the US men’s team received $5.4 million for appearing in the World Cup, though it was eliminated early in the knockout round, the women’s lawsuit states. One year later in the Women’s World Cup, the US women claimed just $1.7 million even though they won the entire tournament, the suit states.
The teams’ disparate fortunes have also put their compensation in stark contrast. On the same day the women won a record fourth World Cup championship in France, the men’s team lost a regional championship in Chicago.
The men’s team earns $3,000 more for a loss in a World Cup qualifying match than the women earn for a win, The Washington Post reported. “If their performance in this World Cup doesn’t convince you that the system is inadequate and that we need to make change, I don’t know what will,” US Representative Carolyn B. Maloney, a New York Democrat who has championed the comeback of the ERA, said last week.
But Cori asserts gender bias is not holding back the soccer stars’ earning potential. “It’s the economics of what kind of revenue you as an athlete or an entertainer can produce,” she said, giving an example of a Hollywood actor paid more for a movie than an actress. “I think Hollywood would say that revenues produced by the movies were different,” she said.
The 14th Amendment ostensibly guarantees equal protection under the law. But sex discrimination cases are not given the same level of legal scrutiny as others, said Nina Kimball, an employment attorney who chairs the Massachusetts Commission on the Status of Women.
“That’s one of the reasons you still need to amend the Constitution,” said Kimball. “Sex discrimination under the Constitution is not treated as important or as much of a harm as race discrimination.”
Individual laws have tried to correct inequities in the system — to limited effect.
“What I think of as our legal system is a patchwork, a quilt full of holes and loopholes that really don’t allow women to get justice,” Neuwirth said. “If we fix it at the highest level where the biggest loophole is that women were left out of the Constitution, we’ll have made a massive step forward.”
The ERA, passed by Congress in 1972, says that equality of rights shall not be denied or abridged on account of sex. It was passed by Congress in 1972 and ratified by 35 states, including Massachusetts, but fell three states short of the three-quarter majority needed to amend the Constitution. And it failed to meet the original 1979 deadline for ratification and the extension to 1982 that was granted by Congress.
Proponents think they are close to securing the support of a 38th state — though it’s still unclear what that might mean legally. The deadline passed 37 years ago, and five states have since rescinded their ratification votes. Congressional efforts are aimed at both restarting the process and retroactively lifting the deadline, in the hopes of reviving the ERA — though a legal battle would likely ensue.
Massachusetts has both its own Equal Rights Amendment and an Equal Pay Act that took effect last year. The state’s Equal Pay Act bars employees from being asked about their salary history upon hiring. That’s meant to ensure that women aren’t continually held back by their last job — where they were probably making less than a man.
“Mathematically, as long as that was being used, we were never going to close the gap,” said Donovan.
After years of studying and negotiating equal pay, Donovan was surprised to hear crowds chanting for it as they cheered the women’s soccer team World Cup win last week.
“It is a bit overwhelming, a bit comforting, and a bit frustrating all wrapped up together,” said Donovan. On a federal level, she noted, the Equal Pay Act has been in place since 1963.
“I was born in 1963,” she said. “And nothing has changed enough that we don’t need to keep getting a bigger, bolder platform to make progress.”