By Christine Facciolo
Special to Delaware Business Times
In May, the General Assembly failed to pass an Equal Rights bill for the fourth time in three decades.
The move to amend the Delaware Constitution to ensure equal rights on the basis of sex passed the House in March but was dealt an 11-9 defeat in the Senate. All constitutional amendments require a two-thirds majority.
The bill sought to add a single sentence to the state’s highest law: “Equality of rights under the law shall not be denied or abridged on account of the sex of the person.”
“It seems hard to believe that in 2018 I had just witnessed an Equal Rights Amendment get voted down in the Senate,” said Sen. Stephanie Hansen, D-Middletown, a sponsor. “It seems very clear to me what this constitutional amendment says: Men and women will have equal rights under the law.”
Rep. Valerie Longhurst, D-Bear, primary sponsor of House Bill 399, agreed. “I’m frustrated that what should be a simple issue to address in 2018 has become complex,” she said. “I’m hopeful this isn’t the final result because it’s too important of an issue for Delaware.”
Senate Republicans did not find the bill so straightforward. They raised concerns about possible unintended consequences, ranging from coed prisons and unisex bathrooms to mandatory state funding for abortions.
Sen. Anthony Delcollo, R-Elsmere, said that while he has “no taste for discriminatory behavior,” he could not support the current bill. He then proposed a trio of amendments he argued would help the courts understand the legislative intent of the ERA. Those amendments would ensure that the mere separation of the sexes would not be considered discrimination, that it does not allow the state to fund abortion and that the ERA only applies to the state and its political subdivisions.
“I think it’s important to think through these issues, but it reaches a point where do the questions really make sense,” said Sen. Bryan Townsend, D-Newark. “I don’t think the proposed amendments were necessary.”
The bill’s defeat marked the latest hiccup in a nearly 100-year struggle for stronger equality laws at both the federal and state levels. First introduced in Congress in 1921, the ERA took 50 years to win passage.
Delaware became one of the first states to ratify the proposed amendment to the U.S. Constitution, which ultimately came up three states short of the 38 required to become law.
Since then, 24 states have passed equal rights amendments to their own constitutions, including Pennsylvania, Maryland and New Jersey. But similar attempts have failed to gain traction in Delaware.
The current effort was noteworthy in that the bill managed to clear the Delaware House for the first time. An ERA bill did pass the Senate in 1984 but was defeated in the House.
While legislators continue to debate the finer points of the ERA, Delaware has passed a series of piecemeal legislation designed to fight gender inequality in the workplace. Recent bills have taken on the wage gap, sexual harassment and employee rights, but do they add up to basic equality for Delaware’s female employees?
Closing the wage gap
On the final day of the 2016 session, the General Assembly passed a package of bills that: barred employers from taking action against employees for discussing their pay; prevented employers from taking action against workers for reproductive decisions and made it illegal for employers to take action against employees because of family obligations.
Last year, the General Assembly passed a law barring employers from asking applicants about their salary history. The law seeks to address the wage gap between men and women in Delaware. Nationally, women earn 79 cents for every dollar that men earn, according to the United States Census Bureau. The gap is slightly less in Delaware, where women earn 89 cents for every dollar earned by men.
“We met with a little bit of controversy,” said Longhurst, who sponsored the legislation. “We did a little bit of compromising and we got it through. That was a proud moment for me.”
Human Resources Consultant Warren S. Cook, president and CEO of Symbiance HR in New Castle, said that companies shouldn’t be concerned with what another company was paying a job candidate but about what they are going to pay the person.
“I know the legislation is really about gender equality, but any company that’s basing current pay on past pay practices of another company is discriminating regardless because they’re not basing the pay on what the role should pay,” he said. “They’re letting past companies determine that.”
Cook maintained that the wage gap between male and female employees is not the result of intentional discrimination, but rather the result of past practices that led to discrimination and how companies. perceive the value of a given employee.
And it’s not just about wages. Companies must find ways to make incentives like bonuses and opportunities for professional development more equitable as well, Cook said.
“If I pay all my female employees more than I pay my males, but I don’t let you work on special projects or speak up at meetings, what’s the difference?” said Cook. “It’s just as bad.”
The wage history bill is the result of a compromise between legislators and the business community, particularly the State Chamber of Commerce, which worked with Longhurst to amend the bill. Other issues, such as measures to prevent sexual harassment, remain a sticking point. But with the #MeToo movement pressing the issue, legislators are negotiating how to move forward while keeping business interests in mind.
‘Unwanted and inappropriate’
A recent ABC News-Washington Post poll found that more than half of all American women — 54 percent — have experienced “unwanted and inappropriate advances” at some point during their lives. Thirty percent of women have endured such behavior from male colleagues and 25 percent identified men with power over their careers as the perpetrators.
That’s enough to keep lawyers like Michelle Allen busy. The Hockessin-based attorney said the number of women calling her office with sexual harassment complaints has jumped about 80 percent in the last month.
“We find a lot of the women are prior victims,” she said “The last five or six clients have been physically assaulted in the workplace. We vet each case carefully and we’ve had to turn some women away due to lack of resources. On the one hand, it’s good to see the women coming forward but it’s very disturbing. A lot of the women don’t have high educations or high-paying jobs.”
Delaware lawmakers have responded to the problem by introducing legislation that would require employers with more than 50 workers to provide two hours of sexual harassment training every two years. HB 360 would also make sexual harassment an unlawful business practice and make employers — even those with as few as four workers — responsible for taking corrective action when incidents occur, even if they involve independent contractors or unpaid interns.
“This is something I’ve been looking into for quite some time before it actually came out,” said Rep. Helene Keeley, D-Wilmington, the bill’s primary sponsor. “Our staff had talked about doing something about [harassment] but we weren’t sure how it would go over and then suddenly everything happened on a national level. That’s when I decided to go forward with the bill I had drafted two years ago.”
The Delaware State Chamber of Commerce is working with Rep. Keeley to determine the ramifications for business. “We want to make sure that businesses are given credit for any policies they currently have on the books,” said James DeChene, the chamber’s senior vice president for government affairs. “We want to make sure that the new law doesn’t go too far above and beyond what seems reasonable.”
Still, #MeToo has been a game-changer. “I think what #MeToo is showing us that employers are inadequate to address the problem,” said Lauren Moak Russell, an employment lawyer with Young, Conaway, Stargatt & Taylor, LLC in Wilmington, who conducts sexual harassment training sessions for companies. “Now we’re looking at things like implicit bias or what social scientists call ‘microaggression.’”
Until this year, Delaware had been one of only two states in the nation with no written sexual harassment policy governing either chamber of its legislature. The Delaware General Assembly previously followed a general set of misconduct rules, but only recently established a formal process for handling complaints and required elected lawmakers to undergo regular sexual harassment training.
The backlash against sexual harassment, often referred to as the #MeToo and #TimesUp movements, has helped to solidify support for an equal rights amendment to the Delaware Constitution.
Most Americans — 80 percent according to a 2016 poll commissioned on behalf of the ERA Coalition/Fund for Women’s Equality — believe men and women are already guaranteed equal rights under the federal Constitution.
Certainly legislation has improved some situations for women since the 1970s. But an equal rights amendment would make equal rights indelible. Laws can be revoked by legislative whim or nullified by the court. An equal rights amendment would also offer the “strict scrutiny” already given to cases involving racial discrimination.
“This is the third time for this particular group,” said Betty Sweeny, who sits on the steering committee of Delaware ERA Now, an advocacy group pushing for the amendment. “The first two times it was too broad, too many minefields, so I said just make it that men and women are equal. Period. So how it didn’t pass I just don’t understand.”