Despite progress toward greater equality under the law, these laws remain vulnerable to being changed and diluted to the point that they no longer serve the brave women who come forward.  Companies can claim that things like no access to birth control, no lower lifting standards for pregnant women, and no breastfeeding breaks at work, apply to all of their employees, both male and female, and they can legally get away with it.  Even though it only harms women and is a perfect example of sex discrimination.  And they will win with that strategy.  They have won in Walmart. v. Dukes, Ledbetter v. Goodyear, CastleRock v. Gonzales, Young v. UPS, U.S. v. Morrison, and Burwell v. Hobby Lobby.

Here are two examples of sex discrimination codified in law:

• Wal-Mart v. Dukes, 564 U.S. 338 (2011) Betty Dukes and 1.5 million employees of Wal-Mart sued the company for discrimination on the basis of gender, alleging managers routinely passed women over for promotions and pay increases. They lost, but not because there wasn’t a pattern of sex discrimination, but because the judge required each woman involved to sue each store individually, although there was a strong pattern of sex discrimination in over 250 stores.  They lost because the judge required that they be able to prove a company-wide “intent to discriminate,” and intent is a high legal standard to prove. If there were an Equal Rights Amendment in the Constitution, women would be considered a “protected class.”  In a case like this one, they would not have to prove “intent to discriminate,” but only prove that the sex discrimination occurred. This case limited the size of a class action suit, and forced women to go it alone in discrimination cases.
• Ledbetter v. Goodyear.  Lilly Ledbetter sued Goodyear for wage discrimination. She worked for the company for 23 years. Due to discriminatory evaluation processes she received $15,000 less over several years than her male counterparts. The courts denied her past compensation and set a new precedent whereby employees are only entitled to be reimbursed for wage discrimination if they find the discrepency and report it within 180 days of the employer’s pay decision. Though there was a clear pattern of discrimination, the court found that she had to report every pay period that reflected discrimination as a separate EEOC violation. She lost this case in the Supreme Court with a 5-4 vote, though a jury had previously awarded her $360,000 in back pay. The Equal Rights Amendment would add teeth to equal pay laws and require courts to consider sex discrimination with more seriousness. Under the ERA, these cases would be held to a higher level of legal scrutiny, called strict scrutiny.