August 2010

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By Emily J. Martin, Vice President and General Counsel, National Women's Law Center

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Much like the Nineteenth Amendment itself these days, Women's Equality Day-the anniversary of the amendment's ratification-keeps a fairly low profile, sneaking in at the end of August, when much of the country is enjoying the last few days of summer vacation. But this August 26, the ninetieth anniversary of the constitutional guarantee of women's right to vote, it is worth stopping to reflect on the many years of labor that culminated in ratification of the Nineteenth Amendment and that work's relevance to women's progress going forward. One important way of honoring that history and continuing that progress would be ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) , a landmark international agreement that affirms principles of fundamental equality for women and girls.

In one of the few law review articles addressing the Nineteenth Amendment, Yale Law professor Reva Siegel describes it as "a constitutional amendment so rarely cited that reference to it prompts many, if not most, constitutional law scholars to ask: ‘Which one is that?'" In retrospect, its passage seems inevitable and the ground it broke has been largely forgotten. But ratification came in 1920 only after fifty years of fierce campaigning for a constitutional guarantee of full citizenship for women.

As Siegel explains, opponents of women's right to vote saw suffragists' demands as deeply threatening. "The demand is for the abolition of all distinctions between men and women, proceeding upon the hypothesis that men and women are the same," one opponent asserted. "[This] attacks the integrity of the family; . . . it denies and repudiates the obligations of motherhood." Anti-suffragists asserted that a federal guarantee of women's right to vote represented a power grab for the federal government, which would "draw a line of political demarcation through a man's household, through his fireside, and to open to the intrusion of politics and politicians that sacred circle of the family." Given this history, it is ironic that last week a Washington Times op-ed invoked the anniversary of the Nineteenth Amendment to urge opposition to CEDAW, the women's rights treaty, in terms remarkably similar to those once used to oppose women's suffrage.

For the second time a federal appeals court panel rejected jury awards in favor of African-American plaintiffs who alleged discrimination against the poultry company Tyson. In a 2-1 decision, the U.S. Court of Appeals for the Eleventh Circuit found that a Tyson manager's use of the word "boy" to address a black man, John Hithon, did not amount to evidence of racial discrimination.

Hithon denied a promotion at the Gadsden, Ala., poultry plant, argued that manager Tom Hatley had discriminated against him, citing, among other things, Hatley's derogatory usage of "boy." In 2002, Hithon and other employees of the plant lodged a lawsuit alleging racial discrimination and a jury found in their favor awarding hundreds of thousands in compensatory damages and $1.5 million in punitive damages. A federal magistrate judge invalidated the jury's verdict maintaining that racial discrimination was not proved, and in 2005 a panel of the Eleventh Circuit upheld that ruling. But the U.S. Supreme Court heard an appeal of the case and found that the use of the word boy could prove racial bias. "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage," the high court ruled in remanding the case to the Eleventh Circuit. The remand also produced another jury trial, which again found in favor of Hithon and the other black employee, Anthony Ash.

But the Eleventh Circuit, in its recent ruling (pdf) in Ash v. Tyson Foods, Inc., refused to budge from its earlier decision, concluding that there was not new evidence to show the use of the word was discriminatory, Law.Com reported. But U.S. District Senior Judge David D. Dowd Jr., appointed to the bench by President Reagan, in a dissent said the jury verdicts should have been upheld.

In a column for Daily Report, Stephen B. Bright, president and senior counsel of the Southern Center for Human Rights, wrote that the latest decision is a troubling reminder of the need for diversity on the Eleventh Circuit.

Bright wrote:

These two white judges [referring to Eleventh Circuit Judges Edward E. Carnes and William H. Pryor, Jr., of the majority in Ash], residing in their judicial palaces as far away from the lives of ordinary people as one can get, purport to know more about what it means when a white overseer calls an African-American man ‘boy' than 24 Alabamians selected for two federal juries.

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This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit is made up of African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.