Page 14 - Delaware Lawyer - Winter 2019

FEATURE
society, should be paid more than a wom- an.” 22 The EPA prohibits wage differen- tials based on sex. There has been prog- ress, but it has not solved the problem of unequal pay due to its narrow scope, the exclusion of certain categories of employ- ees, and because of the defenses provided in the statute.
After Kennedy’s assassination in 1963, President Lyndon B. Johnson continued Kennedy’s work and is credited with pass- ing the Civil Rights Act of 1964 (CRA). The CRA outlaws discrimination based on a number of factors, including sex. The defenses in the EPA were incorporated into the CRA.23
A modern employment case demon- strates the inadequacy of the CR A. Plain- tiff Lilly Ledbetter was paid less than the men doing the same job, but she did not know it for many years. In Ledbetter v. Goodyear,24 a 5-4 vote, the Supreme Court looked beyond the CRA’s intent and sole- ly at the statutory language of Title VII, which requires that a claim be filed within 180 days from when the alleged unlawful employment practice occurred. Imposing that limitations period eviscerated Led- better’s claim. The Lilly Ledbetter Fair Pay Act of 2009, the first bill signed into law by President Barack Obama, cured that injustice. It provides that a discrimi- natory compensation decision occurs each time compensation is paid.25
The gender gap persists. Data shows that the female-to-male earnings ratio was 80¢ to $1 in 2016.26
Reproductive Rights
In 1913, Margaret Sanger, a nurse, worked in the lower east side of New York City with poor women whose lives were destroyed by frequent pregnan- cies and self-induced abortions. Sanger became the face of the effort to legalize birth control in the United States. She suffered arrest, exile and imprisonment as she dedicated herself to the repeal of laws that prohibited the sharing of infor- mation about female anatomy and birth control. After battling years of ignorance and fear that pregnancy was the thing that kept women chaste, Sanger opened in New York City on January 2, 1923 the first legal birth-control clinic in the
United States — decades behind similar services in Europe.
Margaret Sanger, through Planned Parenthood and her wealthy, long-time friend Katherine Dexter McCormick, helped fund the research that led to the development of oral contraceptives. The pill was made available in 1961. Early feminists, especially Margaret Sanger, were the inspiration for the character of Wonder Woman, a fictional superhero appearing in American comic books pub- lished by DC Comics.27
An enormous step toward gender equality came with the Supreme Court decision of the ever-controversial Roe v. Wade,28 which legalized abortion until fetal viability. The Supreme Court rea- soned that the right to a legal abortion is predicated on the right to privacy un- der the Due Process Clause of the 14th Amendment.
As a result of access to education, ac- cess to birth control and access to abor- tion, there has been a dramatic change in the fertility rate of American women. The rate began to decline in the early 1970s, reaching an historic low in 2017 of 1.8 births per woman, down from 3.19 in 1964.29 In general, the birth rate has been below a viable replacement rate since 1971.30
Respect
The last “fact” of the Declaration of Sentiments may be the most difficult of
all. It says that man endeavors “in every way that he could to destroy her confi- dence in her own powers, to lessen her self-respect, and to make her lead a de- pendent and abject life.” 31 There are old, persistent cultural behaviors, habits and traditions that undermine women’s confidence and self-respect. Sexism in the practice of law has been examined in a recently published law review ar- ticle.32 And it is the basis for the new American Bar Association Model Rule 8.4(g) which says:
It is professional misconduct for a lawyer to:
(g) engage in conduct that the lawyer knows or reasonably should know is harass- ment or discrimination on the basis of race, sex, religion, national origin, ethnicity, dis-
ability, age, sexual orientation, gender iden- tity, marital status or socioeconomic status in conduct related to the practice of law.33
Model rules are offered to the states for adoption. Delaware has not added 8.4(g) to its rules of professional responsibility.
In a recent documentary on her life, Justice Ruth Bader Ginsburg recited a still-relevant quotation from a letter by Sarah Moore Grimké (July 17, 1837): “I ask no favors for my sex. I surrender not our claim to equality. All I ask of our brethren is, that they will take their feet from off our necks, and permit us to stand upright on that ground which God de- signed us to occupy.” 34
The battle-by-battle efforts of the last 170 years and before have gone a very long way toward quieting the sentiments, but the journey is not over.
NOTES
1. https://liberalarts.utexas.edu/coretexts/_ files/resources/texts/1848declarationof sentiments.pdf.
2. Id. 3. Id.
4. http://susanbanthonyhouse.org/her-story/ biography.php.
5 . h t t p s : // w w w . r e s e a r c h g a t e . n e t / publication/285055502.
6. Eric Foner, Reconstruction: America’s Unfinished Revolution 1863-1877, (2011).
7. Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874).
8. Id. at 173.
9. Wyoming (1869); Utah (1896); Colorado
(1893); Idaho (1896); Washington (1910);
12 DELAWARE LAWYER WINTER 2019
Justice Ruth Bader Ginsburg