Women First, in the First State: But Is It Enough?

As we have been reporting for years, the Delaware General Assembly is highly active on employment issues. Some initiatives are successful, some are not, but the trend continues.  In recent years, however, the General Assembly has had a more targeted focus:  women’s issues.  Below, we outline the recent history of legislation on issues impacting women in the workplace, and whether they reflect the right focus.

What’s Happening?

Discussions of women’s equality in the workplace are nothing new. It’s long been acknowledged that women earn less than men in the workforce.  Recent data indicates that the pay gap hovers somewhere around 20%.  Gaps are significantly larger when data is parsed by race and ethnicity.  We have also begun recognizing—certainly not celebrating!—a national Equal Pay Day, symbolizing how far into the next calendar year women must work to earn the same wage that men earned during the previous calendar year.

While some of the gender pay gap may be explained by “choices”—for example women choosing to leave the work force, taking lower earning jobs that better accommodate child care responsibilities, or accepting reduced work schedules—after accounting for all of these factors, women still earn less than similarly situated men.

The Delaware General Assembly has been active on issues of women’s equality in the workplace, legislating on a host of issues that directly and indirectly impact the gender pay gap. Delaware law was amended in September 2014, to prohibit discrimination on the basis of pregnancy, and require reasonable accommodations of known limitations due to pregnancy, childbirth, and related conditions.  More recently, amendments to the Delaware Discrimination in Employment Act have made it unlawful to discriminate against employees on the basis of reproductive health decisions, family care responsibilities, or their status as a victim of domestic violence, stalking, or sexual offense:  all issues that disproportionately affect women in our society.  Delaware has also imposed limitations on when an employer may inquire about an employee’s rate of pay with his or her prior employer, in an effort to halt the carryover of inequitable pay rates from one employer to another.

And of course, Delaware law has long prohibited discrimination on the basis of marital status and sex. We also prohibit employers from limiting an employee’s right to inquire about, discuss, or disclose wages—a policy that is essential for employees to be able to learn about pay disparities.

What’s Coming?

Notwithstanding the State’s clear record on women’s issues, more legislation is coming. House Bill 360 provides a statutory definition for “sexual harassment,” expressly includes sexual harassment as an unlawful employment activity, and mandates that employers with 50 or more employees provide 2 hours of “classroom or other effective interactive training” regarding sexual harassment to all supervisory employees.  The training must be provided within 6 months of an employee being hired or promoted into a supervisory position, and every 2 years to all other employees.

A recent movement to pass an Equal Rights Amendment to the Delaware Constitution has also gained traction, although that legislation recently failed to pass in the Senate. It was previously passed by the House in March 2018.  The language of the proposed amendment was brief:  “Equality of rights under the law shall not be denied or abridged on account of the sex of the person.”  However, it is notable that the Delaware Constitution does not contain a general equal rights provision, similar to that set forth in the Fourteenth Amendment to the U.S. Constitution:  “. . . nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”  Consequently, passage of an Equal Rights Amendment would set women apart under Delaware law.

What’s Missing?

The goals of the General Assembly are laudable: no employee should be held back in their career or earning capacity on the basis of an immutable characteristic, whether it be race, sex, religion, or otherwise.  We should all be judged on skill, education, and the content of our characters, alone.  On that most Americans can agree.

The problem is that issues of gender equality cannot be remedied by legislative initiative alone. The gender pay gap reflects some level of intentional or implicit bias, certainly.  But the far greater proportion reflects the fact that women bear a disproportionate burden in carrying, bearing, and raising children, and caring for the sick and elderly.  Women are also, on the whole, much less likely to request pay raises or bargain for a higher salary at the time of hire.

Unless science makes great leaps in our lifetimes, women will continue to bear the sole responsibility for childbirth. However, there is no reason that men cannot take on a greater burden with regard to child rearing and care for sick and elderly family members.  We can also reward girls and women who advocate on their own behalf, including in the negotiation of wages.

These are societal practices and preferences, and changing them reflects a seismic shift in the way we view gender roles in our society. These changes cannot be accomplished through legislation alone:  they will require a change in the way we speak to our children about sex and gender, the way that employers discuss family leave and the value of paternal involvement, and a gradual shift in the way that family members divide their responsibilities.  That is a commitment that must be undertaken by employers, at the highest level of management, and cannot be imposed externally through legislation or otherwise.

Author’s Thoughts & Bottom Line

This commentary reflects my own thoughts and beliefs, as an employment litigator, a working woman, a wife, and a mother. Legislation has its place in gender equality, but it cannot solve the problem.  And, in legislating, we run the risk of feeling as though we’ve “solved” the problem, or “done all that we can do.”  We have not.  Moreover, when businesses are consumed with complying with regulatory requirements, they lose sight of the bigger picture.  Business leaders and decision makers bear the burden for making these changes.  And when we do, we may well see the end of these legislative initiatives, which rightly or wrongly, seek to impose from the outside what only individuals can accomplish.