The Delaware Equal Rights Amendment moved one step closer to becoming law last Thursday, when the state House of Representatives voted overwhelmingly to pass a constitutional amendment that would bar discrimination by the state “on account of the sex.”
The 35-6 vote sent the ERA on to the Senate, where lawmakers are also expected this week to approve the second leg of the amendment, completing a legislative process that started last year. However, observers on both sides of the issue are expecting the Delaware courts to have the final say on the scope and legality of the measure, which has been viewed as a landmark moment for civil rights in the first state.
Lawmakers who opposed the measure on the House floor Thursday voiced familiar objections to the ERA, saying that it could be misinterpreted or even be used to fund state-sponsored abortions. But supporters last week cited language included in the legislative record, which they said would give judges a clear understanding of lawmakers’ intent in passing the legislation.
In a press release from December, the ERA’s prime House sponsor, state Rep. Valerie Longhurst, D-Bear, called the legislation “straightforward and long overdue,” and said the ERA was needed to fight sexual harassment, pay inequity and gender-based violence by giving the courts the ability to “establish jurisprudence concerning equal rights violations under state law.”
Rodney Smolla, a constitutional scholar and dean of Widener University Delaware Law School, said the law would only apply to sex discrimination in the public sphere and that private entities would not be affected. The ERA, he said, would put sex discrimination on the “same legal plane” as racial discrimination, meaning that government actions would be reviewed under the strict scrutiny test, the highest standard courts will use to evaluate the constitutionality of discrimination by the state.
Likely, Smolla said last week, a plaintiff would claim discrimination and invoke the ERA, though it could be “somewhat random as to what the context will be.”
“Of course, at some point down the road, it will be challenged in court,” he said. “But I don’t see that happening next week.”
Lauren M. Russell, who counsels businesses on discrimination matters, however, said there was a “lack of clarity about how it interacts with constitutional law.” Russell said the state already protects against sex discrimination in employment and public accommodations, while the 14th Amendment incorporates the equal protection clause and Title IX of the federal Education Amendments Act prohibits sex discrimination in educational programs.
“We have every reason to think the Delaware ERA will impact Delaware employers,” said Russell, an associate with Young Conaway Stargatt & Taylor. “It’s going to either be an expensive case to litigate … or its going to be very heavy leverage for employees.”
Russell also pointed to bona fide occupational qualifications in employment law, or BFOQs, which public and private employers are allowed to consider when making decisions about hiring and retaining employees. Such attributes, for example, are routinely considered for jobs like firefighting, where certain physical demands must be met.
“We don’t know if BFOQs would apply under this amendment,” she said.
But Smolla said the state has decades of experience in litigating employment cases under Title VII of the Equal Rights Act and the Equal Pay Act. While Delaware precedent “stands strongly against sex discrimination,” Smolla said, the rule is not absolute, and “sex-based exceptions do make sense in some cases.
“I suspect a similar result would take place under this constitutional amendment,” he said.
Meanwhile, lawmakers opposed to the ERA have raised concerns that the amendment’s passage could lead to demands that the state provide funding for abortions or that it could endanger the status of same-sex charters and private schools.
In response, sponsors included prefatory language in the legislative record, which the courts can look to when interpreting the ERA in an eventual court challenge. The text aimed to clarify that the amendment applies to the State of Delaware and its political subdivisions, not private entities and imposed no funding requirements for the state.
The language also explains that there are limits to how far the courts can go in enforcing the ERA, in order to quell fears that it could be used to outlaw the use of separate schools bathrooms for the sexes, stating that “the equal rights amendment contained in this act recognizes that there are circumstances when other compelling interests, such as privacy, may inform the state’s decision to support permissible single sex services or programming.”
In those instances, Smolla said, the strict scrutiny standard would still apply, but unlike in the context of race discrimination, judges would recognize compelling reasons for single-sex programming and facilities to be permissible.
“Things like that are not being outlawed,” he said.
Delaware’s push to approve the ERA comes as states are making a renewed push to pass their own versions of the federal ERA, which cleared the U.S. Congress in 1972. Delaware was the third state to ratify the ERA in 1972; however, the amendment fell three states short of the three-quarters threshold required by the U.S. Constitution by the 1979 ratification deadline.
Delaware’s ERA passed easily for the first time last year, but state law requires constitutional amendments to pass two consecutive sessions of the General Assembly by a two-thirds majority. A Senate final vote is expected this week.