Equal pay principle still to be achieved

Despite the prominence given to equal pay in community law and in the legal systems of most Member States, there are still difficulties in implementing the principle of equal pay between men and women in the European Union. A study recently published in Portugal shows the need for an integrated legislative and regulatory framework in promoting the effectiveness of the equal pay principle.

A recently published study focused on identifying the main difficulties in the effective implementation of the principle of equal pay between men and women, and the extent to which it is implemented. It also proposes suggestions for good practice.

This European Commission supported study was promoted by CITE - Comissão para a Igualdade no Trabalho e no Emprego (Commission for Equality in Labour and Employment), a Portuguese tripartite body set up to fight discrimination and promote equal opportunities and equal treatment for women and men in employment and in vocational training. It was developed in partnership with various public and private institutions in Portugal, Ireland, Italy, Luxembourg and Norway.

In a questionnaire addressed to the national and international project partners, the study identified the following problem areas concerning implementation of the equal pay principle:

• visibility of the principle;

• clarifying operational concepts;

• procedural problems, particularly in providing evidence of discrimination;

• sociological/cultural problems regarding the traditional division of social roles between men and women.

The results drawn from the study highlight specific features in the case of Portugal regarding each problem area identified above. Some relevant examples may be given:

• On the visibility of the principle: in spite of its affirmation both in the Portuguese Constitution (art. 13 and art. 59, no. 1, paragraph a) and in legislation (Equality Act, art. 9, no. 1), discriminatory clauses can still be found at the collective bargaining level in areas such as defining categories, protecting maternity and paternity, or defining criteria for pay increases, promotions, etc.

• On the operational concepts: problems persist in the Portuguese legal system regarding equal work and work of equal value. These concepts are generally underpinned by elements that are vague and difficult to integrate. For example, regarding the concept of work of equal value, the Portuguese system resorts to the idea of ‘tasks that are of a different nature … but are equivalent if one applies objective criteria to the evaluation of the jobs concerned’. However, it does not define those criteria.

• On the procedural level: as a possible solution for extending operationalisation of the equality rules, the Portuguese system provides for the sharing of the burden of proof in pay-related matters between female workers and employers. The female worker must provide proof for her allegation of discrimination by referring to the male worker or workers in comparison with whom she feels discriminated against. The employer must prove that the differences in remuneration are based strictly on factors that do not involve gender (no. 4 of art. 9 of the Equality Act).

• On the gender division of social roles: a path towards a positive change in traditional gender roles can be found in the Portuguese ‘Law governing the protection of maternity and paternity’. It adopts a perspective which incorporates the protection of maternity within the broader idea of reconciling work and family life, and promotes a balance between men and women, as a requirement for the effectiveness of the principle of gender equality.

The main conclusion of the study is that promoting the equal pay protection system by legislative and regulatory means, involving multi-partner participation, is not only possible but desirable.

Using the outcomes of the legal systems’ comparative study and the suggestions made by the project partners, the study proposes legislative and regulatory measures as well as best practices that can promote the effectiveness of the principle of equal pay between men and women.

Reference

Ramalho, M.R.P., Garantir a igualdade remuneratória entre mulheres e homens na União Europeia (Guaranteeing equal pay between women and men in the European Union), DEPP/CIDES, Lisbon, 2003 (English and French editions in 2004).