Women's History Month

March is Women's History Month. In the course of scanning the news, an intriguing timeline was recently published by U.S. News. It was written by Susan Milligan, and contends that there have been "two waves of feminism in history," and neither has been very recent. There is no mention of geography in the introductory paragraph, but the title clarifies that the focus is on the United States. The two eras cited are interestingly about a century apart: "in the 19th century, growing out of the anti-slavery movement, and  . . . in the 1960s and 1970s." I struggle with how long ago the 1970s were. Will the next wave wait another 40 years, or is one dawning now? 

The timeline is intriguing, informative, and comprehensive. The exposition is well worth the read. I focus here (all bullet points are direct quotes from the article), a blog about workers' compensation, the workplace, and the law, to address some of the milestones noted in the chronology; those that are pertinent to the law in particular. I can hear my friend J. Horace Middlemier, III now ("what's this have to do with comp? Hey, you kids get off of my lawn! Did I turn off the stove?"). 

• 1777 – All states pass laws which (sic) take away women's right to vote.

There is a great deal taught in high school history about the suffrage movement. However, I was unaware that women in some jurisdictions enjoyed the right to vote long before that movement. New Jersey was an example located with a quick Internet search. 

• 1839 – The first state (Mississippi) grants women the right to hold property in their own names – with permission from their husbands.

There is a tendency to deride Mississippi; the state suffers a lot of abuse in the national media. I have had many a soul make a derogatory remark about this state and its people. Did you realize it was a pioneer in this regard? The Library of Congress says the majority of states followed in the 1850s. 

• 1866 – The 14th Amendment is passed by Congress, with "citizens" and "voters" defined as "male" in the Constitution.

The Fourteenth missed a great opportunity to put much to rest in terms of equal protection. Certainly, this amendment has done much in the realm of our national identity and function. But, as this illustrates, what if those broad references to "any person" in Section One had been used instead of "male" in Section Two? The comparison has to lead to the conclusion of intentional distinction.  

• 1869 – Arabella Mansfield is granted admission to practice law in Iowa, making her the first woman lawyer. Ada H. Kepley becomes the first woman in the United States to graduate from law school.

The first in Florida was Louise Rebecca Pinnel, and not until 1898 according to The Florida Bar Journal.  That is a long span behind the pioneering spirit of Iowa. Maybe the Supreme Court had something to do with it, see below.

• Susan B. Anthony casts her first vote to test whether the 14th Amendment would be interpreted broadly to guarantee women the right to vote. She is convicted of "unlawful voting."

In the 1970s and 1980s the U.S. minted a one-dollar coin that commemorated Ms. Anthony. It was not well-liked because we confused it with a quarter due to similarity in size. People also disliked the Eisenhower silver dollar as it was too big. You cannot please people sometimes. I became aware of Ms. Anthony then, so you cannot discount the power of recognition and publicity. But, I never knew she was a pioneer of civil disobedience. 

• 1873 – The Supreme Court rules that a state has the right to exclude a married woman from practicing law.

This was Bradwell v. Illinois, 83 U.S. 130 (1872). The actual holding was limited to whether the Fourteenth Amendment precluded states from excluding a married woman. It is intriguing that the distinction of marriage apparently bore such significance in the minds of people. 

• 1890 – The first state (Wyoming) grants women the right to vote in all elections.

Wyoming? Think about the expansion of Americans westward, the timing of the end of the Civil War, and where this country was in 1890. Coincidentally, Wyoming also became a state in 1890. 

• 1900 – By this year, every state had passed legislation granting married women the right to keep their own wages and to own property in their own name.

That is an intriguing date. The timing is so clearly late in our national history. But, again, the emphasis on "married" is difficult to comprehend in its own context. The point was subordination to a husband, a diminution of rights upon marriage. It is difficult in retrospect to grasp it. It harkens to the "obey" in traditional marriage vows perhaps. Read on. 

• 1920 – The Nineteenth Amendment to the Constitution is ratified, ensuring the right of women to vote.

It is hard to imagine what all has changed in the last 100 years of this republic. But, as we strive to comprehend the last century, a great deal is likely attributable to the contributions of the Nineteenth. 

• 1923 – The first version of an Equal Rights Amendment is introduced. It says, "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction."

The high school I attended taught about the ERA. Not this one though. The focus was all on the 1970s version. I will never forget Mrs. Stiffler and Mr. Kuhn who taught my Junior-year American History class (one each semester). They each were enthralled with the then-debated ERA. How did they miss telling us about the 1920s?

• 1933 – Frances Perkins becomes the first female cabinet member, appointed secretary of labor by President Franklin D. Roosevelt.

If you don't know of Ms. Perkins, you don't know workers' compensation. As to this socialistic experiment, she was a pioneer and champion. It is troubling to me that our little corner of the legal world, in which she is so intertwined, is not mentioned here. Before her history-making appointment, she was a champion for working people in New York, a lobbyist, and more.  Perhaps she should be on a coin?

• 1963 – The Equal Pay Act is passed by Congress, promising equitable wages for the same work, regardless of the race, color, religion, national origin or sex of the worker.

The 1963 Act was, without a doubt, a start. The timing is again notably late in our national history, and almost a century after the Civil War, the Fourteenth Amendment, and more. According to Pew Research "In 2021, full-time, year-round working women earned 84% of what their male counterparts earned, on average" in 2020. When, exactly, will the 1963 Act kick in with the "equal?"

• 1964 – Title VII of the Civil Rights Act passes, prohibiting sex discrimination in employment. The Equal Employment Opportunity Commission is created.
• 1972 – Title IX of the Education Amendments prohibits sex discrimination in all aspects of education programs that receive federal support.

You cannot overstate the effect of Title VII. It is, undoubtedly, one of the most empowering and influential laws of the twentieth century. Title IX is of narrower scope, education. Each has been important in its own way, but each is as clearly imperfect, as are all laws made by humans. But, despite the challenges, they have done much for sex equality. There are potential threats to such equality and these laws may struggle to encompass our modern dilemmas, confusion, and worse. 

• 1973 – Landmark Supreme Court ruling Roe v. Wade makes abortion legal. The Supreme Court in a separate ruling bans sex-segregated "help wanted" advertising.

The phraseology of this point is intriguing. The Supreme Court "makes" a legality. The author's election not to accuse the Court of creating a right is perhaps telling? The second ruling was intertwined with the National Organization of Women and the misogynists at the New York Times. 

• 1975 – The Supreme Court denies states the right to exclude women from juries.

In the hundred years following the adoption of the Fourteenth Amendment, a jury of your peers under the Sixth Amendment was a fiction? Undoubtedly so. Incredibly difficult to grasp the exclusion from jury service. 

• 1978 – The Pregnancy Discrimination Act bans employment discrimination against pregnant women.

This is nearing its 50th anniversary. There was a time, so recently, when those who are responsible for each of our presence in this world were discriminated against for that? Somewhere, there is a pregnant woman responsible for your existence. Ponder that. I am told by those in the employment law field that some of this discrimination remains today. More subtlety and with more secrecy, but present nonetheless. 

• 1981 - In a break with tradition, Lady Diana Spencer deletes the vow to "obey" her husband as she marries Prince Charles.

This one has nothing to do with the law, perhaps. But, it does have some rather important implications as regards the married women and property discussion above. That Ms. Spencer was a forward thinker and an inspiration to many. If she could have held on, she might perhaps have saved the British monarchy from itself.

• 1982 – The ERA falls short of ratification.

This is incredibly interesting. First, in that it was not ratified. Many do not know that the last amendment ratification, the Twenty-Seventh took a long while. Britannica illuminates that this proposal was the second of the first twelve amendments (ten were ratified and became known as the Bill of Rights). The Twenty-Seventh languished for 203 years from 1789 until 1992. It languished but persisted. The ERA, instead, was passed by Congress including a short deadline for ratification. Many ask, simply, can "Congress do that?" If enough states eventually ratify, that question of authority may well see the light of the U.S. Supreme Court's door. 

• 1984 - U.S. Supreme Court bans sex discrimination in membership for onetime all-male groups like the Jaycees, Kiwanis and Rotary clubs.

The author concedes in definition that the "second" of the feminist "waves" was in the 1960s and 1970s. That this occurred in the 1980s might suggest the wave was a bit longer. Or, in the admission of how long cases require to reach the Supreme Court, perhaps it is merely an after-effect of the 1970s? Regardless, this decision reverberated in the world of work. These organizations were bastions of networking and interaction. While there was camaraderie and social interaction, these groups were largely about doing business in a community and their insularity was a major detriment to outsiders that would compete for commerce. 

• 1986 – The U.S. Supreme Court held that a work environment can be declared hostile or abusive because of discrimination based on sex, an important tool in sexual harassment cases.

This 1986 decision perhaps did as much to address harassment as any of the more formal efforts in that regard. The hostile workplace became a legal buzzword. Thereafter, the concept was readily and repeatedly raised in a variety of employment settings. I defended a great many such complaints in my career, and the sheer volume was intriguing. The allegations of poor behavior, for whatever reason, seemed to be readily intertwined in the world of workers' compensation, particularly in the challenges of return to work, accommodation of restrictions, and the organized labor that was prevalent in various workplaces. 

• 2022 – The Supreme Court overturns Roe v. Wade, the landmark case that established a right to an abortion nearly 50 years earlier.

The author's list concludes in 2022. The language, again, is interesting. In this instance, the case is viewed as establishing a right, rather than the earlier reference to legality. Does the Supreme Court "establish" rights? Is it a super-legislature that is empowered in some manner to make law? Or, is it more accurate to cast it as an interpreter of law? There are various perspectives on the law and the impacts of both legislative and adjudicatory bodies. But, in the end, it is intriguing to consider the language engaged in describing and discussing. 

In all, an impressive list of achievements from the "waves" perceived by the U.S. News author. A bit troubling in the various descriptions of timing. Some will struggle to comprehend that the Fourteenth Amendment was ratified in 1868 (155 years), and yet the years since have been punctuated by many ongoing victories, great and small perhaps, but victories. In the eyes of young people today there is some view of normalcy. But, there has to be some appreciation for the Susan Anthonys and Francis Perkins. 

There have been efforts, anguish, and undoubtedly progress. That said, there is much left to do. Remember the focus here is on America, that there are a great many places on this planet in which discrimination and violence are far more prevalent, accepted, and sanctioned. We must lament our imperfections, but also be grateful for the progress and efforts of (and for) so many. Happy Women's History Month! Read the full article.