8 Shameful Things Our Founders Believed–III

Picking up from Monday:  Shameful Thing Five.


  1. Neither were women equal to men.

Other than not being shot at or flogged on an organized and purposeful basis, women as a class weren’t any better off than Native Americans or slaves when the gavel fell in the City of Brotherly Love.  And they still aren’t full constitutional partners.


The women’s suffrage movement began in earnest in 1848, when 68 women and 32 men –many sharing the cause of abolition of slavery—met in Seneca Falls, New York and signed the “declaration of sentiment” which defined the women’s rights’ movement for the next 72 years.  After the war, Susan B. Anthony and Elizabeth Cady Stanton formed the National Women Suffrage Association, for the expressed purpose of winning voting rights.  At about the same time Lucy Stone and Henry Blackwell formed the American Women Suffrage Association.  The former opposed passage of the 15th Amendment unless women were included; the latter was more moderate.  After 30 years of parallel operations marked by conflict, the two organizations merged to form the National American Women Suffrage Association and launched a state-by-state campaign to obtain voting rights for women.

As a native Northwesterner myself, I’ve always found it fascinating that prairie and Western states sought the franchise for women long before Congress acted after World War I.  Kansas tried to pass suffrage for both Blacks and women in 1865 but failed. The Wyoming and Utah Territories gave female citizens the vote in 1869 and 1870; the former’s endured into statehood, but the latter’s was repealed in 1887 by legislation targeting the Mormon faith and polygamy.  Other states followed suit over the next 40 years:

    • Colorado (1893)
    • Idaho (my home state—1896)
    • Washington (1910—a bill proposed in 1854 failed by one vote, and the pro-temperance women’s movement and liquor interests battled to draws for the next 50 years)
    • California (1911)
    • Arizona, Kansas & Oregon (1912)
    • Alaska (1913)
    • Montana & Nevada (1914)
    • New York (1917—after Stanton’s daughter organized working-class women and beat back Tammany Hall)
    • Michigan, Oklahoma & South Dakota (1918)
    • Georgia (1919)

A half-century of effort paid off when Alice Paul and Lucy Burns took to Washington’s streets for a year to publicly encourage President Wilson to change his position on the issue.  He did, in 1918 declaring women’s suffrage a wartime cause and objective.  The Congress enacted the 19th Amendment in 1919, which was ratified in time for women to participate in the 1920 presidential election.  The amendment effectively overturned a unanimous 1875 Supreme Court decision holding that the Constitution did not confer the right to vote on women.

 Equal Work, Equal Pay

In her remarks as she introduced the Equal Rights Amendment in Seneca Falls in 1923, Alice Paul sounded a call that has great poignancy and significance over 80 years later:

If we keep on this way they will be celebrating the 150th anniversary of the 1848 Convention without being much further advanced in equal rights than we are…If we had not concentrated on the Federal Amendment we should be working today for suffrage…We shall not be safe until the principle of equal rights is written into the framework of our government.

Some progress was recorded in 1963, when President Johnson proposed the Equal Pay Act of 1963, which became the signal piece of landmark legislation that was followed by passage of federal laws seeking to guarantee both civil and voting rights in 1964 and 1965.  (See Shameful Things Four and Eight).  (The last time comparable legislation had been proposed was by President Truman in 1945, to address gender pay discrimination in workplaces that prevailed throughout World War II.  It failed.)

Under the Act, employers are prohibited from discriminating against women on the basis of sex when women perform jobs requiring “equal skill, effort, and responsibility, and which are performed under similar working conditions” as jobs performed by men. In order to recover under the act, a woman must prove that:

    • An employer paid higher wages to men than to women;
    • Male and female employees conduct an equal amount of work that requires substantially equal skill, effort, and responsibility; and
    • Men and women performed the work under similar working conditions.

Employers may assert one or more of the following defenses to alleged unequal pay complaints.  An employer may pay a male employee more than a female employee if the employer can establish that payment is based upon:

    • A seniority system;
    • A merit system;
    • A system whereby earnings are based upon the quantity and quality of production by the employees; or
    • A differential based upon any other factor other than the sex of the employees.

The fourth exception has become the most prominent defense asserted by employers.  Lower federal courts have struggled with it, and the Supreme Court has decided only a few determinative cases, the last in 1987.  As a result, tests used to determine whether a supposed gender-neutral employment policy actually discriminates against female employees vary by federal circuit.  Several courts have narrowly construed the Act by noting that the it does not establish a system of “comparable worth,” because the act specifically applies to “equal work.”


U.S. Constitution, Page Three

EEOC to Ms. Ledbetter

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, national origin, disability, or age, in all terms and conditions of employment.  It also created the Equal Employment Opportunity Commission (EEOC) to enforce Title VII, and responsibility for enforcement of the Equal Pay Act and the Age Discrimination in Employment Act of 1967 was transferred from the federal Department of Labor to EEOC in 1979.  The independent agency’s areas of jurisdiction were expanded by adoption of the Pregnancy Discrimination Act of 1978, the Civil Rights Act of 1991, and Title I of the Americans with Disabilities Act of 1990 in July 1992.  In almost all cases alleging employer-based discrimination, a complaint must first be filed with the EEOC before litigation may ensue.  The time within which the complaint must be made varies, depending on whether the employer is public or private.  In 2007, the Supreme Court interpreted Title VII’s deadline narrowly in denying an older Alabama woman’s wage discrimination complaint against her tire plant employer.  In 2009, the Congress passed and President Obama signed the Lilly Ledbetter Fair Pay Act, which overruled the Court’s decision by redefining when discrimination could be found to occur for complaint-filing purposes.

 Title IX

 No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.”

–Title IX, Education Amendments of 1972

In this year of its 40th anniversary, much attention has been given to the degree to which the enactment and enforcement of Title IX by the Office of Civil Rights in the U.S. Department of Education has increased opportunities for women in secondary and collegiate education and related activities.  Indeed, it has.  Females playing high school sports jumped from 294,015 in 1971-72 to 3,172,637 in 2009-10, an increase of 1,079 percent.  By comparison, the number of male high school athletes grew from 3,666,917 to 4,455,740 during that period, an increase of 22 percent.  Women playing varsity sports in college rose from 29,972 in 1971-72 to 186,460 in 2009-10, a 622 percent increase—still far below the number of participating NCAA male athletes, whose population grew from 170,384 to 249,307 (46 percent) during the same period.

The most recent and memorable talisman of women’s athletic success were the London Summer Games just concluded.  As I noted at the time, there were more females than males on the team (269 to 261), a first, and they won more medals–56 percent of the total and 29 Golds to the men’s 17, mostly on the track and in the pool.  Fun Fact: Only two countries won as many gold medals as were earned by the U.S. women—and they tied the entire host team with that number.  Only China did better.  (You’d never know it from relative publicity, but the U.S. women’s basketball team has won six straight Gold medals (including) and 18 overall, compiling a 66-3 record in 37 years. The 227-member team U.S. Paralympics Team, which included six guides for visually impaired athletes, consisted of 133 men and 94 women.  Those numbers were up slightly from Beijing, where 120 U.S. men and 89 women competed.  Their combined medals totaled 98 in London—31 Gold, 29 Silver, and 38 bronze.

 Less publicized but far more important is the progress recorded by women in earning degrees.  From 1999–2000 to 2009–10, the percentage of degrees earned by females remained between approximately 60 and 62 percent for associate’s degrees and between 57 and 58 percent for bachelor’s degrees.  In contrast, the percentages of both master’s and doctor’s degrees earned by females increased from 1999–2000 to 2009–10 (from 58 to 60 percent and from 45 to 52 percent, respectively).  Within each racial/ethnic group, women earned the majority of degrees at all levels in 2009–10.  For example, among U.S. residents, Black females earned 68 percent of associate’s degrees, 66 percent of bachelor’s degrees, 71 percent of master’s degrees, and 65 percent of all doctor’s degrees awarded to Black students. .Latinas earned 62 percent of associate’s degrees, 61 percent of bachelor’s degrees, 64 percent of master’s degrees, and 55 percent of all doctor’s degrees awarded to Latino and Latina students.

 Where Are We?

So–two dozen years after Alice Paul’s prophetic anniversary warning—progress has been substantial but the struggle continues.  The momentum generated by the civil rights struggles and victories in the 1950s and ‘60s was enough to sustain an effort to push the Congress to propose in 1972 the Equal Rights Amendment, prohibiting any denial of rights guaranteed by the Constitution based on sex.  As it had for every amendment but the 20th—“Prohibition”—the proposing clause included a seven-year deadline on ratification.  Twenty-two of the necessary 38 state ratifications occurred in the first year, but slowed in the face of building opposition.  The number grew to 35 as the deadline neared.  In 1978, the Congress extended the deadline an additional three years.  (I worked that bill—only time I was ever named on the floor by a Member, in my six-year career.)  The ERA has been introduced every year since.  An argument, based on ratification of the 27th Amendment 203 years after submission to the states, has been advanced that based on Article V the Congress, if it chooses, could declare the ERA ratified if and when three more states approve it, in spite of the deadline clause.

 On September 22, 2005, Garry Wills—one of my favorite historians and authors—appeared here in town at the Crest Theater as part of the California Lecture Series.  He was six months away from releasing “What Jesus Meant.”  A questioner—from Davis, in Birkenstocks (that’s for you, Matt Rexroad)—wondered aloud if America in general, and women specifically, had ever faced darker times, given the rise of religious fundamentalism.  I located a better, more recent sourcethan my own memory.  [NOTE: This excerpt was posted to the Carnegie Council’s page for Garry Wills and has since been removed–so you’ll have to trust me on this one.EGF)  This was his response:

The rate of change, both technological and social, has rarely ever reached the acceleration point that ours has.

 Let me take one concrete example of how things have changed over the last 30 years, in our lifetime.  I went to an American Bar Association meeting in the early 1990s, and to the Women’s Caucus lunch.  Ten years or so before, there was no such thing as a women’s caucus in the Bar Association.  Before the formal talks, the woman at the dais said, ‘Before we begin, I’d like to ask all of you here who were the first women editors of your law school journals to stand—the first to be made senior partners in your firms, the first to set up your own firm in your own little town, the first to be district attorney, the first to be a local judge, the first to be a federal judge, the first to be dean of a law school.’  There were hundreds of firsts standing up there.  It had all happened in their lifetimes.

 The same thing is happening in the military, in the religious ministry, in the press.  We were the first society to take seriously the idea that women are equal to men.  That is very disorienting to a lot of people.  If you change the relationship of man and woman, you are going to the very nexus, the inmost ties of society.  You are changing the relationship of husband to wife, of mother to children, of daughter to parents, of woman to siblings. All of that has changed, and changed extremely rapidly.

Almost half a century after the Congress first acted to guarantee equal pay for all Americans—short of a constitutional amendment—women’s education and employment opportunities have expanded dramatically, but they still earn 77 cents for every $1 men are paid for comparable work.  Where the ERA is concerned, we’re apparently still “disoriented.”

Men: Talk amongst yourselves.

Women (especially you Millenials):  Here are the states that have failed to ratify the ERA:  Alabama; Arizona; Arkansas; Florida; Georgia; Illinois; Louisiana; Mississippi; Missouri; Nevada; North Carolina; Oklahoma; South Carolina; Utah; and Virginia.


 Next Monday:  Shameful Things Six and Seven.

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