The day after the ratification of the ERA, Congress could repeal the Lily Ledbetter Act. ERA would not mandate any particular method of calculating the statute of limitations for EEO claims (the subject of the Ledbetter Act). In fact, Congress would still have the power to repeal the Equal Pay Act entirely, because the ERA would not establish a Constitutional prohibition against sex discrimination by private employers.
It follows, of course, that the insufficiency of the Fourteenth Amendment would not be cured by the ERA, which would be equally insufficient in reaching private action. Similarly, the provisions of the proposed Paycheck Fairness Act, which deals with adjudicating claims under the Equal Pay Act, would not be implemented by the ERA. Passing the Paycheck Fairness Act would make an actual difference in how EEO suits come out, but passing the ERA would not.
The case of Title IX is more complicated because it was enacted way back in 1972. The result is that the areas it covers haven't been addressed under the Equal Protection Clause, because whether the Constitution requires the same result has been completely moot. (A court generally won't decide a case on constitutional grounds if there's a statutory basis available.) In that intervening forty years, the scope of equal protection has been expanded. Sex-discriminatory practices that had been accepted for decades (such as the males-only admission policy at Virginia Military Institute) have been held unconstitutional.
To hold that ERA would mean that Title IX would not be needed, you would have to maintain two propositions:
1. The Equal Protection Clause, as currently interpreted, would allow federal financial assistance to private programs or activities that discriminate on the basis of sex; and
2. The ERA would prohibit such federal financial assistance.
Neither of those propositions is clearly correct. Their conjunction is especially problematic. Some judges would reject a constitutional challenge under either theory, holding that the federal government can provide financial assistance to some private programs or activities that do not conform to all the restrictions applicable to direct governmental actions. Other judges would overturn the financial assistance under either theory, holding that what the government may not do directly (discriminate on the basis of sex) it may not do indirectly (by providing funds that support such a program or activity). For ERA to make a difference, there would have to be judges who were outside both these camps. Specifically, there would have to be judges who would reject the challenge under the Equal Protection Clause but would accept the challenge under the ERA. That seems like a tough parlay, because it would require such a judge to take a different view of the central question, namely the extent to which public funding of discriminatory private action is subject to anti-discrimination analysis.
= new reply since forum marked as read
