While the U.S. Constitution was founded on the principle of equality for all, the right to be free of discrimination based on sex is not currently an explicit right provided to Americans in the Constitution. The Equal Rights Amendment (ERA) seeks to remedy that gap and explicitly guarantee equality on the basis of sex, making gender equality a basic constitutional right. Recently, VF joined a number of other companies as an amici curiae in support of ratifying the Equal Rights Amendment to the U.S. Constitution. Check out a Q&A on the subject with Laura Meagher, VF’s Executive Vice President, General Counsel & Secretary.

Q: We understand there is a movement under way to officially ratify the Equal Rights Amendment to the US Constitution which was approved by the US Congress in the early 1970s. Can you share a little background on what the ERA is?

Many people may be surprised to hear this, but as the U.S. Constitution stands, it guarantees women the right to vote under the 19^th Amendment, but it does not explicitly guarantee equality of men and women as a basic constitutional right.  The Equal Rights Amendment is the proposed 28^th Amendment to the Constitution and it is designed to guarantee equal legal rights for all regardless of sex. In March 1972, the ERA passed both chambers of Congress with bipartisan support exceeding the two-thirds majorities required by the Constitution for an amendment.  The text of the ERA is simple: Equality of rights under the law shall not be denied or abridged by the United States or by any State on the account of sex.

Q: Why has it taken so long to ratify this amendment given that it was approved by the US Congress 50 years ago?

The Constitution provides that ¾ or 38 states must ratify an amendment to the Constitution for it to take effect. At the time of its approval by Congress in 1972, the ERA was ratified by 35 states.  Due to opposition movements arguing that the ERA would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat, among other things, the ERA lost momentum.  More recently, public interest has revived and in 2017, Nevada ratified, followed by Illinois in 2018, and finally on January 15, 2020, Virginia became the 38th state to ratify the ERA, pushing the ERA across the necessary threshold.  However, the archivist of the National Archives and Records Administration has not yet certified the ERA’s adoption, which is necessary to conclude the ratification process, and has stated that the archivist will not certify Virginia’s ratification or add the ERA as an amendment to the Constitution until a federal court issues an order. Accordingly, Virginia, Illinois and Nevada filed a lawsuit to compel the archivist to certify the ERA.  Among the issues that will be raised in the lawsuit are whether the ERA has not been properly ratified because ratification deadlines that Congress set after it approved the amendment have lapsed and because five states rescinded their prior approval.    

Q: Over 90 companies are signing onto an amicus curiae brief that supports the ratification of the ERA. Can you help us understand what an amicus brief is and why VF decided to sign onto this effort?

An amicus curiae (Latin for friend of the court) brief is submitted to a court by someone who is not a party to a lawsuit but wants to provide insight, information, or expertise on the issue at hand, often because that party has interest in the outcome to the case. VF has joined with businesses spanning the country, who are deeply committed to principles of gender equality, diversity and inclusion and believe that the ERA is a means to advance the goal of gender equality, to submit an amicus curiae brief.

We, along with the other  amici which include Twitter, Microsoft, PepsiCo, Chobani, Mastercard, Morgan Stanley, Google, Workday, salesforce.com and many more, believe that ratification of the ERA would send a powerful message about the nation’s commitment to gender equality and be transformational for the American economy. The core point of the brief is that by eliminating systemic barriers that impede women’s economic and social advancement, the ERA would result in a more just, vibrant, and productive America.

To put it simply, we at VF are strong proponents of gender equality, and we have a steadfast commitment to ensuring that women are fully able to participate in the economy, both as employees and consumers. Moreover, in addition to being a moral imperative, gender equality is proven to be good for business.

Q: Is there any significance to the timing of this effort? Why do you think this issue has come up again now?

The resurgence of the ERA is likely due to revival of women’s rights movements in the last several years, placing the importance of gender issues back on the nation’s agenda.  This activism likely propelled Nevada to make a groundbreaking move to ratify the ERA approximately 40 years after the ratification process and for Illinois and Virginia to join shortly after.

In addition to the resurgence of women’s rights issues, the COVID-19 pandemic has exposed and exacerbated systemic gender inequities, largely demonstrated by the financial hardship falling disproportionately on women, particularly women of color. Now, more than ever, we need gender equality as a stimulator of the economy as we emerge from the COVID-19 crises. Women’s participation in the workforce contributes to a diversified workplace, which results in a maximization of productivity, talent, creativity, and innovation.

This also enhances the competitive edge of U.S. businesses globally. Canada, Mexico, and The European Union already all explicitly prohibit discrimination based on sex in their constitutions and Charter, respectively. In fact, 85% of countries explicitly guarantee equal rights or non-discrimination based on sex or gender. 

Q: What are the likely next steps in this process, and do you believe that the ERA will eventually be ratified as an amendment to the US Constitution? 

There is currently a motion to dismiss the lawsuit against the National Archives and Records Administration. Our amicus curiae brief opposes that motion to dismiss and expresses our steadfast commitment and support of the ERA and to gender equality.   

Whether through the ratification of the current draft of the ERA, or through proposing a new draft of an ERA to be reapproved by Congress and ratified by ¾ of states, I strongly believe that the United States has a compelling interest in ratifying an equal rights amendment to the Constitution.

Q: What would ratification of the ERA actually mean? What would change?

The ratification of the ERA would mean that gender equality would be a constitutional right. As you know, the Constitution is where our most fundamental rights and liberties are enshrined, such as voting and free speech, and reflects who we are as a nation and what we stand for.  This would enable us to have a consistent federal standard to address the gender and economic inequity that continues to pervade our system due to our patchwork of current laws.  A violation of this constitutionally protected right would face strict scrutiny (the most rigorous test under the Constitution) in the courts. Additionally, sex equality would be used as a guiding principle for our nation and ratification would provide an additional basis for Congress to pass new laws to protect against discrimination on account of sex.

Q: How can VF associates who support the ERA get involved?

Track what is happening with the ERA and support legislative efforts to support the ERA, including ones to eliminate ratification deadlines.  Also, keep up to date with important initiatives, including this one, that VF takes part in with respect to gender equality. We highly encourage VF associates to take advantage of our employee resource groups, such as the Women of VF Empowerment Network or “WOVEN.” We encourage all associates to think out the box on additional ways to make a meaningful impact to the cause.

Thank you for taking the time to speak with me. I would like to extend a special thanks to Jennifer Sim, Vice President & Deputy General Counsel, for taking the lead on this important initiative in partnership with Kellye Gordon, Rayan Naouchi, and the Inclusion and Diversity Team.