Court: Employers can pay women less based on past salaries

[Jim Lane]

8. The ERA, if ratified, would not have changed this result.

The Civil War Amendments, enacted to protect newly freed blacks from governmental discrimination, did not prohibit private acts of discrimination, in such areas as pay, service at restaurants, housing, etc. Those rights are statutory, based on laws enacted after World War II through the work of the civil rights movement. (As a side note, the Civil War Amendments were for decades largely unenforced even as to racial discrimination by government, but at least the framework was there. Brown v. Board of Education (1954) addressed discrimination by government but discrimination by private employers was legal in many states until the passage of the Civil Rights Act in 1964.)

The interpretation of the Civil War Amendments has now gone beyond racial discrimination and can in some circumstances be applied to other factors, including gender. The ERA, however, tracks the Civil War Amendments in applying to government action.