July 27, 2023. Today is Black Women’s Equal Pay Day. Marking the day the average Black woman working full-time must work until to earn the same amount that her white, non-Hispanic, male counterpart earned last year. 207 extra days! It is even longer for Black women who are mother and/or members of the LGBTQIA+ community.

Wait. Wasn’t Equal Pay Day in March? Yes, but that reflected the gender pay gap for all American women. On average, fulltime working women earned 84 cents in 2021 (the most recent data available) for every dollar earned by their white-male, non-Hispanic counterparts. Based on the median full-time salary, that amounts to approximately $400,000 less over a 40-year career or an additional eight years of work.

When we take into account biases attributable to race, age, motherhood, sexual orientation, gender identity and other factors, the gender pay gap increases significantly with each additional bias. Thus, Black women who are mothers and/or members of the LGBTQIA+ community are still working to earn what their white-male, non-Hispanic counterparts made last year.

On average, Black women working fulltime earned 67 cents in 2021 for every dollar earned by their white-male, non-Hispanic counterparts. Based on the median full-time salary, that amounts to approximately $907,680 less over a 40-year career. And if the Black woman is a mother working full-time, she earns even less – 52 cents for every dollar paid to white fathers. When seasonal and less than full-time workers are included, the average Black woman earns 64 cents per dollar, and even less for mothers.

These staggering amounts lost would be life-changing!

Unfortunately, the recent Supreme Court decisions are only going to make this worse. As discussed in greater detail in our recent blog, “Neutralizing SCOTUS,” overturning Roe v. Wade, ending affirmative action, and striking down the Biden Administration’s loan forgiveness program will have a disparate impact on women of color. And let’s not forget that, after the Dobbs decision, women, girls, and LGBTQIA+ people do not have equal protection under the Constitution, a tragedy that was reiterated by SCOTUS in the recent 303 Creative LLC decision.

Those fighting against equality are clearly wrong -- current protections are grossly inadequate. Women cannot wait any longer. Especially Black women and other women of color, including Latinas and Native Women.

If we want to eliminate the gender pay gap, we need the Equal Rights Amendment (“ERA”) enshrined in our Constitution. The ERA grants women, girls and LGBTQIA+ people equal protection and ensures that work-related unequal pay claims are subject to a strict scrutiny standard of review (with nearly a 30% greater likelihood of success). The ERA and the heightened scrutiny that comes with it will give the Equal Pay Act or the proposed Paycheck Fairness Act the teeth needed to put an end to the pay disparities and blatant gender discrimination.

We will need to take additional steps, such as requiring pay transparency, eliminating the use of mandatory arbitration and confidentiality/non-disclosure agreements, which enable discrimination against women to secretly flourish without risk of exposure, in connection with any work-related claims.

But the ERA is the critical first step. It is ratified and ready. All we need is for President Biden to publish it. For additional details, see our Written Testimony to the Senate Judiciary Committee for inclusion in the record of its hearing, “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.”

We cannot wait any longer, particularly our most marginalized communities.