I was a partner in a 100-lawyer law firm in Chicago which employed lots of women, as lawyers, secretaries, accountants, and paralegals. I was never aware of any discrimination in hiring, pay or promotions. If a woman lawyer did well, she became a partner. If as a partner she generated more income than male partners, she made more money than they did. It made no business sense not to promote or reward successful lawyers regardless of gender in this ultra-competitive legal market. We were all judged by our numbers. The more fees you generated, the more you earned.
The best secretaries and paralegals tended to be women, but that reflected the applicant pool. There was never a plot not to hire male secretaries. (I had one man work for me who had come from another large Chicago law firm, and his skills were stellar. He was rewarded with raises and stayed for years.) But it was virtually impossible to fire an incompetent female or minority secretary. The HR director of the firm told me that she would do anything, reassigning an under-performing woman to another area of the firm, even helping them find a better job elsewhere, rather than fire them.
Fired female and minority employees go directly to plaintiffs’ “employment discrimination” lawyers within days and then file Title VII discrimination complaints with the Equal Employment Opportunity Commission and the Illinois Human Rights Commission. It’s like filing for unemployment benefits. It’s par for the course. The vast majority of these “complaints” are not pursued by the agencies. But the plaintiffs’ lawyers then file federal lawsuits and drag the employer through months of expensive discovery, deposing executives looking for kernels to corroborate their warped theories of bigoted-induced termination. There are a few legitimate discrimination cases. But every sophisticated employer knows discriminating against a competent employee because of gender or race makes no economic sense. Who wouldn’t want a good woman or minority employee?
The unintended consequence of the discrimination industry is that employers must always tread carefully when hiring a woman or minority candidate- the reverse of what the laws were designed to accomplish. Will this person sue if it doesn’t work out? So the employer looks into federal litigation databases to see if the potential employee has ever sued a prior employer. And if she has, then the safe course is not to make her an offer.
Do we need an Equal Rights Amendment to the Constitution to say what everyone knows to be true, that women are “equal” to men before the law? To answer yes is to say we need more litigation, that Title VII of the Civil Rights Act and the Illinois Human Rights Commission aren’t enough. We need to open a new avenue of legal rights by adding a new, vaguely worded, sentence to the Constitution which will be enforced by judges at their whim. The “Equal Protection Clause” of the Fourteenth Amendment was enacted in 1868 and the Supreme Court continues to struggle with it. Nobody knows whether affirmative action at state universities is permissible or not.
If ERA ever became law, employers would rightly react by asking their lawyers how to protect themselves form a new wave of litigation. They would be told to be even more careful in hiring anyone who bears any indicia of being disgruntled. The unintended consequence would, of course, be a boon to plaintiff’s lawyers and actually make it harder for qualified women to get hired. If the present regime of anti-discrimination statutes is inadequate to protect women from employment discrimination, let the ERA proponents show us statistics.
Why do we need a new law? The real beneficiaries of ERA would be the discrimination industry which has grown fat and complacent for the last 40 years.
Howard Foster is a Chicago attorney specializing in immigration law.