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Kelly Whited Jones: Nurses need the ERA to stand up to workplace discrimination

Even with all they have done during the pandemic, nurses still face unequal treatment.

(Rick Egan | The Salt Lake Tribune) Nurses test for Covid-19 at the Test Utah site in Herriman, on Friday, Feb. 5, 2021.

Right now, nurses are holding up the world. They offer dignity to those who survive COVID-19, and to those who do not. Often the last witnesses to the ravages of this pandemic, Utah nurses are worried about bringing illness to their families. They are dedicated to providing excellent care amid the stress. Nearly 90% of nurses in Utah are women. And despite a renewed sense of their essential value, nurses face sex discrimination in the workplace.

From a lack of representation in management, to grueling schedules, to lower wages, nurses describe making some tough decisions about staying in a profession with higher risks and staffing shortages. The Equal Rights Amendment (ERA) could be a lifeline. The Utah Nurses Association, a 105-year-old organization with nearly 40,000 registered nurses in Utah, signed a resolution to ratify the ERA in Utah, reaffirming support for Senate Joint Resolution 008, sponsored by Utah state Sens. Kathleen Riebe, D-Cottonwood Heights, and Kirk Cullimore, R-Sandy, and currently on hold in Senate Rules Committee.

Amy (not her real name) is a nurse in rural Utah who describes a workplace environment where “healthcare providers are compelled to watch their back, watch their words, and are scared to speak up.” Women who speak out about unequal treatment often find themselves under a microscope, their work called into question and, in some cases, may be relieved of patient care altogether.

In a decade, Amy has seen that women in a physician or nurse practitioner role are less likely to be selected as medical directors or for leadership – where their voices and experience is vital. Corporate practices can mean nurses don’t have adequate access or representation to advocate for themselves. Amy believes the ERA will better protect nurses, as they work to protect Utahns.

How will Utah law change with ratification of the ERA? The primary impact is it would shape federal policies that steer the courts and inform the laws in every state, including Utah. It would offer a consistent standard, so that, as women move state-to-state, they will enjoy the same legal protections. It will provide a solid legal foundation for women, finally codifying their basic rights in our founding document, the U.S. Constitution.

The ERA would ensure that the courts and federal government protect women’s hard won rights under a stricter standard, meaning that women who face sex discrimination would more readily find justice. It won’t happen overnight, but after certification, the ERA will have two years to integrate with current law, and work out particulars, before it goes into full effect.

Coming from out of state, Amy noticed a change in culture.

“The policies for fair treatment exist, but they’re just not being followed,” she said.

And because reviews are handled internally, there is little motivation to make adjustments to the system. For nurses, when a complaint is filed, it can live on their license indefinitely. They can be replaced for challenging an action, with a contingent workforce of less-experienced nurses eager for work. What impact are these unequal practices having on nurses lives? And by extension, what is the impact on the quality of patient care?

In 2018, Harvard Business Review described that “systematic discrimination against women in medicine constitutes a potential threat to patient safety and public health.”

A tendency to talk over, or talk for, women in this environment means that women’s insight and expertise is ignored at a time where it is critical for quality patient care. An unequal reliance on physicians (predominantly men in Utah), and nursing staff (predominantly women in Utah), means that important perspectives are not prioritized. Unequal distribution of disciplinary action, can reflect a clear bias and send the signal that critical feedback is not welcomed.

Though corporate bylaws meant to protect against sex discrimination exist, they may be ignored. When Amy refused to sign an inaccurate complaint, she was not allowed to attend the meeting where she was suspended. Instead, meetings were put off, she lost months of wages and could not seek work until the investigation concluded.

When a nurse takes the next step to protect her reputation by taking a dispute to court, they may face ostracization from the industry. In Utah, where there are only a few major health care employers, this is a legitimate threat.

This situation is why physician’s assistant, Debra (not her real name), decided not to fight it when her job share program was abruptly cancelled after she gave birth to her first child. It had taken months to hire childcare, arrange a schedule with her coworker and finalize details with her supervisor. When it came time to restart work, one text message changed everything. Her arrangement had been cancelled.

She was at the mercy of her male supervisor and the hospital system. If she stayed quiet, she could return in a few years, never mind the years of training, certification, lost wages and her desire to continue using her skills. Debra didn’t sue, because the employment attorney she consulted about her case told her it could end her career. The company was too prominent, and there was little guarantee that she could win going up against such a powerful foe.

The Equal Rights Amendment in Utah would add important support for women like Debra and Amy. Primarily useful as a guide for federal lawmaking and policy-making, this amendment would add critical foundation to anti-discrimination policies in place. It would help shape new laws by requiring an additional equality filter for these policies to pass through before they become law. The ERA would bolster employment rights that women have already won -- laws that have been watered down.

Holes in current employment laws favor corporations and increase court costs, forcing women to go it alone when seeking justice. Decisions, such as in Ledbetter v. Goodyear (2007) unfairly limit restitution amounts. When cases like these make their way into the legal system under the ERA, it will offer women a leg up in court. Constitutional protection is a mightier measuring stick. Women will feel more confident taking discrimination disputes to court, with increased faith that they can receive a meaningful judgement.

Rather than negotiate directly, or re-evaluate the complaint with new information, the male doctors involved in Amy’s case were dismayed that their judgment was questioned and reviewed by her supervisor – a woman doctor. Even stellar patient evaluations and performance reviews carried little weight as she worked for reinstatement. In her words, “The system will protect them, but it won’t protect me. It’s set up so they don’t need to listen.”

When you hear people ask, “What about the laws we already have?” in relation to the ERA. Consider the lived experience of Utah nurses, and what constitutional protection can do.

(Trent Nelson | The Salt Lake Tribune) Kelly Whited Jones speaks at a news conference held by the Utah ERA Coalition to talk about their plans to get Utah to ratify the ERA next year, in Salt Lake City on Thursday, March 5, 2020.

Kelly Whited Jones is an educator in North Salt Lake. She holds a master’s degree in environmental and health communication from the University of Utah, teaches at the U. and Salt Lake Community College and serves on the executive committee for the Utah ERA Coalition.

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