The ‘herding effect’
The ‘herding effect’
Abstract and Keywords
This chapter evaluates the current legal and policy approaches to sex inequality in Britain and provides a specific focus on the Equal Treatment Principle. It also addresses the legal and policy implications of the various causal theories under investigation throughout the book. The chapter then exemplifies how current equality principles, laws, and policies are largely tethered to anachronistic understandings of ‘gender roles’ and consequently lag woefully behind the wants and needs of a twenty-first-century workforce. The Kingsmill Review developed its recommendations for better human-resource management, claiming that this was the locus of the problem. The chapter also shows the ways in which the law and policy approaches rely on particular understandings of how men and women operate in and between home life and work. Finally, it reviews how the shortcomings of the various theoretical approaches continue to limit their efficacy as guides to policy.
At this point, then, we can identify the two ‘primary causal factors’ of VOSS in the BBC study. The first was demonstrated by revealing pervasive biases against women with children. There was evidence that these negative attitudes were rooted in beliefs that women's roles as child bearer and child rearer were unequivocally disruptive to the workplace – making an assumed correlation between mothers’ ‘domestic commitment’ and significantly lower levels of productivity. The second was the substantial practical setbacks that parents faced when trying to combine their domestic and employment responsibilities. This difficulty manifested itself in two notable ways: the problem of arranging affordable childcare for the duration of full working days, and the particular constraints male parents faced in contributing to the routine care of their children. Overall then, two causal interpretations of VOSS emerge from the qualitative data: (1) stereotypical assumptions both about mothers’ productive capacity in employment and men's routine parenting ability; (2) structural constraints, such as institutional policies and practices that inhibit the combination of employment and childcare.
At the end of this chapter we shall return briefly to the ‘would be’ policy implications of the causal theories we have examined throughout previous chapters. First, however, in a challenge to the claims of these theories, the major contention put forward here is that the relationship between stereotypical assumptions and structural constraints should be the focus of our attention if we are to address questions of sex inequality both comprehensively and effectively.
It is well documented that stereotypical assumptions about men and women inhibit sex equality in the workplace. One only needs to scan the feminist canon to find this claim permeating academic discussion1. However, this observation alone does not serve as a sufficient causal interpretation of the status quo. Over the following pages the aim is to develop a more subtle account of how such inhibiting stereotypical assumptions are intricately woven into the fabric of VOSS.
In contrast to the causal explanations explored previously – which assume that contemporary lifestyle choices (as indicated by employment trends and domestic arrangements) necessarily reflect ‘characteristics (p.114) of sex’ or the subjugation of one sex by the other, it will be argued that there is in fact a specific ‘systemic dissonance’ between the actual aspirations of individuals in terms of their lifestyles and the possible practical options from which they choose. In other words, that there is a considerable distortion of ‘preference’ (whether it be women's or men's) in its translation to ‘choice’ and consequent outcome. This perspective will be explained here, with particular reference to sex equality, using what will be called the ‘herding effect of policy’. This concept describes how people are herded into particular lifestyle choice-making by virtue of the nature and objectives of current equality laws and policies that directly frame the options from which they are permitted to choose. It is in this sense that much of existing legislation and policy acts, ironically, as a ‘structural constraint’ to sex equality. The objective over the course of this chapter is to exemplify how current equality principles, laws and policies are largely tethered to anachronistic understandings of ‘gender roles’ and consequently lag woefully behind the wants and needs of a 21st-century workforce. Central to this perspective is the idea that a circular relationship exists between stereotypes and structural constraints; each appears to justify and mutually perpetuate the other. Such a ‘circular perpetuation’ goes on to create and to maintain some colossal barriers to equality between men and women, and this is a condition that leaves little room for the future creation of non-discriminatory norms. On this view, it will be suggested that the legal endorsement and subsequent ‘exposure’ to new and particular egalitarian social arrangements is the fundamental precursor to a state of genuine equality between the sexes, one linked more closely to preferences than to outcomes, and that the promotion of this project therefore should be the normative and practical objective of law makers and policy devisers.
Common stereotypical assumptions, which permeate our everyday understandings of how women and men function (and should function) in society, are formidable obstacles to sex equality. As we saw in the context of the BBC, widespread discrimination against female employees by ‘managers’2 derived from the common view that women are more likely to be detrimental to overall workplace productivity, due to their childbearing and childrearing responsibilities. Consequently, many believed that women's lower aggregate position on the ‘vertical scale’ genuinely reflects lower human capital investment and depressed productivity levels, as argued by proponents of human (p.115) capital-based theories. This perspective not only offers itself as an explanation for pay and status inequity between the sexes, but more crucially, appears to represent a justification for that inequity.
However, the investigation of this causal interpretation revealed that the BBC respondents’ actual lifestyle choices clearly did not depend on any difference in the underlying preferences of men and women in the workplace. Rather, the respondents themselves directed attention to a series of structural factors – factors that shaped the particular work–life choices that they made. Most importantly, the respondents pointed to the overwhelmingly gendered nature of childcare opportunities, especially in the very early stages of childhood. It was not that women as a whole wanted to be provided with greater opportunities to opt out of the workforce than men; as was clear from the interviews, the various desires to spend time with children were spread heterogeneously across both sexes. Yet the structural opportunities were available only to women. There was, that is, a ‘systemic dissonance’ between the actual aspirations/preferences of female and male workers, and the structured environment in which their work–life balance choices had to be made. Next, we turn to Britain's equality legislation, with special reference to its function as a ‘herding agency’.
Equal Treatment Principle
Closely refereed by the EU, the evolution of sex equality legislation in Britain has long been a tumultuous process (see, for example, Meehan, 1985; Fredman, 1997; Deakin and Morris, 1998; and on development of European Law, Hepple, 1995 and 2002). Nevertheless, we have now enjoyed over 30 years of laws specifically designed to equalise the conditions and pay of men and women. As British law currently stands, the primary approach to combating inequality in employment is determined by the Equal Treatment Principle (ETP), as defined by the EU's Equal Treatment Directive (ETD) 2002/73/EC3.
The ETD's (Article 2) definition of the ETP is “that there shall be no discrimination whatsoever on the grounds of sex either directly or indirectly by reference in particular to marital or family status”. Thus, under the directive, discrimination is divided into two concepts: direct discrimination, “where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation”; and indirect discrimination, “where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate (p.116) aim, and the means of achieving that aim are appropriate and necessary”.
The original intent of this approach was to enforce ‘blindness’ to certain basic characteristics such as ‘race’ or sex, so that one could not be discriminated against merely on these grounds. For example, since the 1990 Dekker case (Elisabeth Johanna Pacifica Dekker v Stitchting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus) Case C-177/88), an employer is deemed to be in direct contravention of the ETP “if he refuses access to employment, vocational training, promotion, or working conditions [or] refuses to enter into a contract with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman”. The ETP, as defined by the ETD, underpins the two primary pieces of anti-sex discrimination law in Britain: the Equal Pay Act and the Sex Discrimination Act.
1970 Equal Pay Act4
To contextualise the function of this particular Act it is useful to note that the pay gap between men and women in Britain has stood at approximately 18% for full-time workers for over 20 years and a staggering 40% for part-time workers5 (EOC, 2005, p 1).
The Equal Pay Act (EqPA) was designed to eradicate unequal rates of pay and contractual conditions between individual men and women in comparable employment. Any person bringing forward a complaint (the complainant) of unequal pay under the Act is required to find an actual comparator of the opposite sex in the same employing institution. When the Act was introduced in 19706, it required “equal treatment” for men and women only in two distinct situations: either when employed in “like work”, which is defined as “the same” or “broadly similar”, or when employed in work that had been rated as equivalent by a job evaluation conducted by the employer (EqPA 1970, section 1(2)(a)). However, employers were not obligated to undertake such evaluations. With little incentive to monitor the inequities between men and women's pay, comparisons of individuals’ terms of employment were less than reliable (Hepple, 1984). In response to a ruling by the EU, the UK enacted the Equal Value Amendment (EVA) in 1983 so that, since then, the Act applies to a situation where there is work of ‘equal value’, thereby widening the interpretive scope of comparability.
However, despite the 1983 amendment, the problem of how to motivate less than willing employers to investigate pay differentials (p.117) remained unsolved. Indicative of this difficulty are the unsavoury results revealed by extensive research by the Equal Opportunities Commission (EOC), which investigated the usage of internal pay audits within British organisations (Neathey et al, 2003). While the majority of employers (54% of large and 67% of medium-sized employers) maintained they had comprehensive measures in place to ensure that women and men received equal pay, they had no plans to conduct pay audits (one can only wonder what were considered ‘comprehensive measures’). Only 18% of large employers and 10% of medium-sized employers have actually carried out any sort of pay review and, where pay gaps were found, they were often considerable, in some cases as much as 40%. Even armed with the relevant information, a complainant can only hope to establish ‘work rated equivalence’ under the EqPA if both her job and the job of her comparator were rated as equivalent under the same employer review (see IRS Employment Review, 2004a).
Perhaps the most objectionable finding, however, was that a fifth of all employers (22%) explicitly prohibited employees from sharing with each other any information relating to the details of their earnings. This means that not only is it extremely difficult to ascertain whether one is being paid a lower rate than the ‘going market rate’, but it also precludes the possibility of formally identifying a comparator, even if relevant information has been shared ‘illicitly’8. It seems a little ironic, then, that even Patricia Hewitt (Secretary of State for Trade and Industry and Minister for Women from 1999 to 2005) said of this particular EOC report, “this research reveals a depressing snapshot that shows too many workplaces are still stacked against women fulfilling their true earning potential” (EOC, 2003). It would seem, therefore, that the EqPA is far less effective than we first might hope. But the EqPA's limitations do not end with failing to secure that investigative internal pay audits are carried out. Further procedural shortcomings of the EqPA, which diminish its impact on inequality, include the following:
1. The Act only establishes the right to contractual and pay equality with a specific comparator. Each case brought forward to tribunal is treated individually, and, if successful, does not technically apply to colleagues in the same position as the complainant9. Trade unions and the EOC are not able to take group or representative action on behalf of similarly affected individuals. Therefore, it can take years to achieve equal pay, and the wider impact of ensuring sex equality in this way may be seriously limited.
2. In cases where the tribunal has commissioned an investigation into a complainant's claims10, the independent panel appointed by the (p.118) Advisory, Conciliation and Arbitration Service (ACAS) consists of only 12 part-time assessors. Thus it is not surprising that the assessment process is extremely lengthy and can take up to two years to complete despite the fact that the European Court of Human Rights has made it clear that undue delay is a contravention of the right to a fair hearing under Article 6 (Rubenstein, 2004, p 23). This onerous procedure undoubtedly represents a significant disincentive for many potential complainants, particularly for those who are in low-paid, low-status positions and who also may feel insecure in their jobs.
3. The EOC supports about 5% of sex discrimination cases each year and trades unions have supported some major, high-profile cases. But, there is no legal aid available to the majority of individual complainants who, even if successful in their claim, have to bear their own legal costs. Again, this will deter many individuals from bringing forward justified grievances, and this is an ironic characteristic of a justice system purportedly orientated toward those in lower paid jobs.
4. The notion of ‘proportional equality’ is not currently recognised under the EqPA. To illustrate, while a complainant might be able to show that they were paid only 60% of the comparator's wages, the tribunal could deem the complainant's job to be ‘worth’ 95% of the comparator's job. Under the EqPA there would no grounds for awarding proportional compensation or for setting future proportional remuneration levels. The definition of equality under the EqPA must be absolute, irrespective of the degree to which someone is justifiably aggrieved. This form of injustice is a substantial contributor to the pay gap (VOSS). Since the amendments to the ETD (2002/73), there has been some speculation as to whether the new wording might require that proportional equality be upheld in the future11. However, when translating the revised directive into UK law, the Department of Trade and Industry (DTI) has ignored this possibility.
5. A difference mechanism available to the employer is that of ‘material factors’. These factors may be legally accepted as ‘justifiable’, non-discriminatory causes of pay disparity between men and women. There are three types: ‘labour market factors’; ‘organisational factors’; and ‘personal factors’. ‘Labour market factors’ may be invoked in the case of labour shortages, where higher wages may be offered and paid to employees in ‘hard to fill’ posts. An ‘organisational factor’ is “a difference which is connected with economic factors affecting the efficient carrying on of the employer's business” (Judgment (p.119) held by the House of Lords in Rainey v Glasgow Health Board, 1987, cited in Deakin and Morris, 1998, p 645). For example, it may be within an employer's rights to restrict higher paid shift work to full-time employees (the majority of whom might be male) as opposed to (predominantly female) part-time employees. Finally, ‘personal factors’ can be used to justify differential pay between the complainant and the comparator, based on the comparator's seniority, superior qualifications, or greater productivity. In some cases, of course, these may well be useful ways of classifying acceptable exceptions to the rule. However, as several commentators have pointed out, ‘material factors’ (including ‘personal factors’) are open to wide and often dubious interpretations, which can become a fundamental stumbling block to many legitimate claims of injustice (see, for example, Hepple, 1984; Rubenstein, 1984; Fredman, 1997; Deakin and Morris, 1998). In a recent case12, the Employment Appeal Tribunal held that the employer was not required to produce specific justification for using ‘length of service’ as a criterion for paying a woman less than her longer-serving male comparators doing equivalent work. Jarman's (1992) research, echoed by the EOC (2005), suggests that female complainants who have taken maternity leave face being ascribed lower ‘merit of service’, a factor invoked by the employer as a reason to pay women less than men.
6. There are problems of intelligibility. As Lord Denning pointed out, “ordinary individuals who are affected by equal pay for work of equal value ought to be able to read and understand the Regulations. Not one of them would be able to do so. No ordinary lawyer would be able to understand them. The industrial tribunals would have the greatest difficulty and the Court of Appeal would probably be divided in opinion”13. Needless to say, it is inexcusable that an Act designed to protect the disadvantaged is unintelligible even to the advisors of those who need to rely on it. Almost 20 years later, the EOC is still campaigning for the government to implement changes to legislation making it more accessible.
7. The EqPA is retrospective rather than pre-emptive in its impact. Even where a complainant's case is successful, there is no legal mechanism in place to ensure that the employer ceases to engage in discriminatory practices. As we have seen, the motivation for employers to act pre-emptively is weak in the context of non-mandatory internal audits, and given the very small number of cases actually won by complainants and the low level of compensation that employers are forced to pay successful complainants. In 2003 the EqPA was amended, granting back pay (p.120) of up to six years and, in that year, the median award for sex discrimination was £5,677. While this is an improvement, it hardly serves as a stern warning to employers who contravene the law.
1975 Sex Discrimination Act14
Unlike the remit of the EqPA (which only allows for claims of unequal pay and contractual terms), the Sex Discrimination Act (SDA) provides for a much more extensive assortment of claims against discrimination, including, for example, the areas of labour market recruitment, promotion and training and termination of employment. Broadly speaking, the purpose of the SDA is to prohibit discrimination on the grounds of sex in employment as well as in areas of education and the provisions of goods (facilities, services and premises to members of the public, and so forth). The Act is not all-embracing; for example, it does not cover those situations where it is considered essential that an employee should be of a particular sex in order to conserve decency or privacy in the workplace, or where one sex is eligible for a specific employment protective right, such as the right for female employees to claim maternity leave when pregnant.
Another problem is that of the burden of proof. Despite the EC Burden of Proof Directive (97/80), which shifts the burden of proof from the complainant to the employer when the complainant has, prima facie, a legitimate claim of unlawful discrimination, there is little evidence that it has become easier for complainants to win their cases of direct discrimination. In cases of direct discrimination, unreasonable behaviour by the employer (related to sex difference) should lead to a straightforward reversal of the burden of proof to the (p.121) employer. However, proving indirect discrimination can still be very difficult, particularly since workplace statistics are held by the employer15.
In the end, therefore, the SDA contains many similar practical drawbacks to the EqPA, such as the lengthy assessment procedures and the lack of legal aid for complainants (see for example, EOC Annual Report, 2003). Additionally, it is worth considering one further criticism of the SDA. Although complainants under the SDA, unlike the EqPA, are only required to provide a hypothetical comparator(s), the focus remains on individual disadvantage rather than group disadvantage. It does not automatically follow that a successful case secures the equal treatment of peers under the SDA.
It is evident, overall, that the effectiveness of the EqPA and the SDA as a means with which to combat inequality is highly questionable. Furthermore, the sceptic might argue that their inept design appears to serve an altogether different purpose. It is plausible to claim that legislation equipped with more intrusive and coercive powers would prove intolerable to employers, who insist that such intervention unduly stifles the creative dynamics of the free market, which in turn is claimed to depress the national economy. Accordingly, the very best that can be expected from current arrangements is that the employer is called to award recompense, for it is rare that further punishment will be administered irrespective of the fact that such activities are unlawful. Accordingly there is little (if any) incentive to sustain ‘good behaviour’. For example, the EOC's research on employer flexibility for parents indicated that over half the requests for changes to working arrangements were rejected and that around 30,000 working women who were refused alternative working arrangements were either dismissed, made redundant, or forced to resign (EOC, 2005). (It is reported that only 2% of employees who turned to their company's grievance procedures succeeded in getting their proposed working arrangements accepted.) In 2003, the government introduced the right to request flexible working arrangements for parents of children under the age of six (or 18 if the child had a disability). There is no automatic right to flexible working arrangements under the new provision, however, but it does serve as a reference point for those seeking to facilitate a work–life balance by changing their working arrangements. Whether or not this initiative provides sufficient incentive for employers to overcome their resistance to granting requests remains to be seen.
Moving beyond the two primary British anti-sex discrimination Acts, we find more problems embedded within the interpretation of the ETP in relation to specific employment protection rights for parents (‘specific rights’). Unlike either of the anti-sex discrimination Acts, specific rights differ depending on the sex of the employee. Predominantly based on assumptions relating to ‘gender roles’, it is considered reasonable by the relevant adjudicating bodies to distinguish between men and women in terms of their apparent differing economic needs, as will be illustrated later. This logic, it is argued here, is obstructive, rather than a facilitation of relevant and justified sex equality.
The current array of ‘specific rights’ available in Britain relate to antenatal care16and to maternity leave, paternity leave and parental leave, accompanied with the right to return to one's original place of employment under protection against discrimination.
• Maternity leave: since 2003, state-provided standard (or ‘ordinary’) maternity leave in Britain stands at 26 weeks (including two weeks compulsory protective leave)17. This provision stipulates that mothers are entitled to 90% of their usual employment earnings for the first six weeks, followed by 20 weeks at £106 (set in 2005), and a further 26 weeks of unpaid leave, eligibility pending18.
• Paternity leave: finally introduced in Britain in 2003 under EU pressure, this benefit provides two consecutive weeks of paid leave within 56 days of the birth of the child. The rate of statutory pay is akin to maternity leave after the first six weeks, £106 per week19.
• Parental leave: in 1999, the EU Parental Leave Directive was implemented in Britain20. It offers parents of either sex 13 weeks’ leave for each child born after 15 December 1999, available until the child reaches the age of five21. As with maternity and paternity leave, the right to return to work after parental leave is guaranteed by law. However, Britain's adoption and interpretation of this directive excluded the statutory provision of paid leave and bestowed employers with the power to decide exactly when leave should be taken.
The undoubted improvements introduced by the Labour government notwithstanding, Britain still offers some of the lowest specific parenting benefits in Europe. In terms of maternity leave, for example, pregnant women in Luxembourg are entitled to 16 weeks maternity leave at full pay; in Denmark, 28 weeks at 90% of pay; in Italy 28 weeks at (p.123) 80% of pay with an optional six months during the child's first year at 30% of pay; in Germany, 15 weeks at full pay; in France, 16 weeks at 84% of earnings; in Belgium, 30 days at 82% and then 75% for a further 15 weeks. The assumption underlying the meagre British provision of six weeks at 90% of average earnings is that women are able to depend on a second wage during the remaining 20 weeks leave (paid at only £106)22. It is worth mentioning here the European Court of Justice (ECJ) ruling in the 1996 Gillespie case, which stipulated that maternity pay must not be “set so low as to jeopardize the purpose of maternity leave” (Joan Gillespie and others v Northern Health and Social Services Boards, Department of Health and Social Services Board,  ECR, p I-00475, para 25). The ruling in this case did make it clear that women on maternity leave were not entitled to full pay, but after the first six weeks of leave each mother is granted only £160 per week in Britain, which if we calculate according to the average full-time worker's 35-hour week, amounts to just £3.03 per hour, thus falling far short of the national minimum wage set at £5.05 per hour, as of October 2005. This means that the average worker, earning £430.93 per week, would lose a hefty £270 of their weekly earnings while on maternity leave. The problem also occurs with paternity leave, which is paid at the same rate but for only two weeks, amounting to a mere 25% of the average paid holiday leave.
These provisions, therefore, are not satisfactory, catering neither for low-income families in particular nor for the demands of modern family life in general. Now that dual-earner and single-parent-headed families are more prevalent than the traditional ‘male-breadwinner’ model23, many contemporary families are simply unable to subsist on the meagre benefits available in Britain. Moreover, these inadequate provisions serve to lessen the impact of attitudinal shifts towards more routine fathering (whether economically or psycho-socially motivated). As the qualitative research of BBC workers shows in the previous chapter, the entitlement to unpaid parental leave is no more than a dead letter and, as it currently stands, statutorily provided paid leave relating to childbirth and subsequent care is primarily linked to an employee's physical and social function as ‘mother’.
Under the particular interpretation of the ETP as depicted by the ETD, special treatment in favour of pregnant workers is permitted on the view that such special treatment serves to protect them during a vulnerable time. This special treatment clause within the ETP is based on the idea that individuals should only be treated equally in terms of specified relevant respects. The question is, of course, which respects are relevant? Bearing this question in mind, the ETP is particularly (p.124) awkward in the context of pregnancy where there is no male comparator, and in the context of primary childcare activities where it is assumed that there is no male comparator, that is, primary childcare is not considered to be a relevant respect in which men and women should be treated equally in terms of financial provision. The 1984 landmark EJC ruling in the case of Ulrich Hofmann v Barmer Ersatzkasse, yet to be superseded, embodies this dilemma. Herr Hofmann (residing in Hamburg, Germany), the father of a newly born baby, claimed that he was being discriminated against on the grounds of sex, because he was denied access to paid benefits, only available to the mother, despite being his child's primary carer. Hofmann's circumstances were such that he had been granted unpaid leave by his employer after the compulsory maternity leave period of eight weeks ended, until the child reached six months of age. During this period, Herr Hofmann was the primary carer of his child as the mother had returned to work. Had the mother availed herself of further statutory maternity leave until the child was six months, she would have been able to claim state-paid benefits of up to DM25 per day. As this was available only to mothers, Hofmann was unable to claim such benefits (Hofmann case 184/83  ECR 3047). He argued, therefore, that the German maternity leave provision (Mutterschutzgesetz) was in breach of the ETP as defined by the ETD (26/207) and thus also of European Community Law as regards access to employment, vocation training and promotion and working conditions.
In response, however, the EJC ruled that the “Directive 26/207 is not designed to settle questions concerning the organization of the family, or to alter the division of responsibility between parents” (Hofmann case 184/83  ECR 3047, summary para 1). This is a stunning statement, since it clearly relies on an a priori notion of what the division of responsibility between parents should be, that is, that only mothers should be primary carers.
Moreover, the ECJ reserved the right of member states to design their own provisions, which are:
Although the physical trauma of giving birth calls for a compulsory protective period of recovery and recuperation for the mother, it is important to draw attention to the ECJ's comments regarding the return to normal of the mother's “mental functions”, and the “special relationship between a women and her child” – these are points to which we shall return in a moment.
…intended to protect women in connection with ‘pregnancy and maternity’…. Directive 76/207 recognizes the legitimacy, in terms of the principle of equal treatment, of protecting a woman's need in two respects. First, it is legitimate to ensure the protection of a woman's biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth…. Secondly, it is legitimate to (p.125) protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.
(Hofmann case 184/83  ECR 3047, summary para 2)
The ECJ went on to justify its decision in the following terms;
…such leave may legitimately be reserved to the mother to the exclusion of any other person, in view of the fact that it is only the mother who may find herself subject to undesirable pressures to return to work prematurely.
(Hofmann case 184/83  ECR 3047, summary para 3)
As spelled out here, the ECJ considers that only mothers are “subject to undesirable pressures to return to work” soon after the arrival of a new child. It is then at the discretion of the member states to decide the degree and the nature of protection to be offered to pregnant women or new mothers in order “to offset the disadvantages which women, by comparison with men, suffer with regard to the retention of employment” (Hofmann case 184/83  ECR 3047, summary para 4). The fact that fathers may experience the same difficulty in retaining a close bond with the child due to financial and employment obligations during the first few months is simply not considered. Rather, it is stated that “the Directive does not impose on member states a requirement that they shall, as an alternative, allow such leave to be granted to fathers, even where the parents so decide” (Hofmann case 184/83  ECR 3047, summary para 5).
The details of Hofmann's complaint are pertinent. He argued, against the interpretation of the ECJ, that the main objective of the leave available to mothers after the compulsory maternity leave of eight weeks (two weeks in Britain) until the baby is six months old must be to secure the best interests of the child rather than the mother. If indeed this is the case, then there should be grounds on which (p.126) well as the mother) may access paid leave provisions, in accordance with the ETP. His claim is based on the following three observations:
• “…the fact that the leave is withdrawn in the event of the child's death…demonstrates that the leave was created in the interests of the child and not of the mother” (Hofmann case 184/83  ECR 3047, objection para 10). This is a particularly relevant point in the context of the ECJ's invocation of “the protection of a woman's biological condition…until such time as her physiological and mental functions have returned to normal after childbirth”. This rationale is used directly as a justification for excluding fathers from access to paid ‘maternity’ leave beyond the mother's compulsory period of eight weeks in Germany.
• “…the optional nature of the leave [after the compulsory eight weeks]…means that it cannot be said to have been introduced to meet imperative biological or medical needs” (Hofmann case 184/83  ECR 3047, objection para 10). Again, this emphasises the problems of invoking women's physiological and mental condition as a rationale for denying paid leave to fathers post the compulsory period for mothers. Also we might add a criticism here of the ECJ's notion of the “special relationship between a woman and her child”. If such a special relationship with the child is only possible with the mother and unquestionably vital to the child's wellbeing, then it does not make sense to make it optional to the mother. Moreover, in the event of the mother opting not to take advantage of this leave, as in the Hoffman case, the ETP would seem to promote the view that no parental care is better than paternal care!
• “Lastly, the requirement that the woman should have been employed for a minimum period prior to childbirth; this indicates that it was not considered necessary to grant the leave in the interests of the mother, otherwise it ought to have been extended to all women in employment irrespective of the date on which their employment commenced” (Hofmann case 184/83  ECR 3047, objection para 10). Even if, therefore, it cannot be shown that the policy was designed in the best interests of the child, Hofmann's contention is that the policy certainly was not intended to be in the best interests of the mother and again if this is the case the rationale for excluding fathers from paid provision collapses.
Hofmann did not win his case in 1984. Yet the logic of his claim still stands up today and it is imperative, I argue here, that we reconsider the dubious reasons for resisting Hofmann's compelling reinterpretation of the ETP. Judging by the comments contained within the European Court reports on Hofmann's case, it seems that the final ruling was an uncomfortable one:
Certainly, one could argue that political considerations were decisive in this case, for to have fulfilled Hofmann's request would have been tantamount to forcing a member state to radically reconfigure its domestic policy (and if it had, in this case in Germany, it would not have been long before all member states would have had to do the same). This aside, the only other justification for not considering ‘paid leave for the purposes of primary childcare’ as a relevant respect in which men and women should be treated equally, is one based on stereotypical assumptions about what role men and women should respectively play in the lives of their children. Neither motivation nor justification is warranted. Also, here my previous comments on ‘gender’ in the Introduction of the book are relevant. In the case of Hofmann, we are concerned with the fact that he should not be discriminated (p.128) against purely because he is a man; we are not concerned with whether or not he has particular gender characteristics.
The Commission draws attention to the fact that, in a number of member states, social legislation is moving towards the grant of ‘parental leave’ or ‘child-care leave’ which is to be preferred to leave which is available to the mother alone. It is stated that it was considering whether to bring actions for failure to fulfil a treaty obligation against a number of member states which, in various forms, retained measures which were comparable to the maternity leave provided for by the German legislation.
(Hofmann case 184/ 83  ECR 3047, grounds para 13)
Clearly, gestation, parturition and breast-feeding are unique to women (and therefore rightfully protected by compulsory maternity leave) but the exclusive nature of these functions does not extend to ‘parenting’, which might more usefully be recognised as a shared responsibility of mothers and fathers. This view is echoed in a vast number of case studies. For instance, Burgess (Burgess and Ruxton, 1996; Burgess, 1997), drawing on extensive empirical research in conjunction with a wide-ranging review of numerous similar studies (such as those of Bell, 1983; Colman and Colman, 1988; and Pittmann, 1993), asserts that “what has been shown – and shown over and over again with almost painful ease – is how sex role conditioning drives a wedge between men and their parenting instincts” (Burgess, 1997, p 98; emphasis in the original. See also Gregg and Washbrook, 2003)25.
The biological function to procreate and breast-feed does not secure innately superior parenting skills. Parenting demands a whole of range of abilities (such as the ability to construct imaginative ways of playing, to communicate, to teach, to tend to sickness, to supervise, to dress, to bathe, to put to bed and simply to spend creative time with children), characteristics that, by any account, are not the sole preserve of one particular sex. This point is stressed by Burgess, who contends that parenting styles are determined by situation and not by sex. According to her, when fathers are exposed to the experience of being routine carer, their capacity for tending to children in different contexts is as varied as that of women, ranging from the model parent at one end of the spectrum to the hopelessly inept at the other. Moreover, there is mounting evidence that, given the opportunity, many fathers are in fact demanding to spend more time than ever with their children. This is undoubtedly the result of huge shifts in social attitudes of the new parenting generation and associated changing social norms (see Hatter et al, 2002; O’Brien and Shemilt, 2003; Gregg and Washbrook, 2003).
The likelihood of creating an environment in which parents are able to enact their duties or their express wishes, irrespective of their sex, is largely dependent on the dictates of societal ideals, organisation and legal underpinnings. Unfortunately then, contemporary interpretations of the principle of equal treatment (particularly the way in which the ETD has prescribed the ETP) has shown itself to be limited in this respect by permitting the neglect of the ‘male as parent’ and in so doing directly perpetuating the stereotypes of ‘gender’ – a (p.129) condition Fredman refers to as “rigid role demarcation” (Fredman, 1997, p 206).
There has of course been a recent revolutionary moment in British social policy first referred to in the 2005 Labour Party Manifesto (LPM), where Blair's government set forth proposals (which one would have to consider radical in the British context) to alter maternity leave provisions in order “to give fathers more opportunities to spend time with their children … including the option of sharing paid leave” (Labour Party, 2005, ch 6). New policy proposals include the extension of statutory maternity pay to nine months26 and the right for women to transfer up to six months of their paid maternity leave to fathers during the first year of the child's life from April 2007. These are extremely welcome developments in social policy terms, but once again they contain some serious limitations with unfortunate ramifications and are not in conformity with the principle of equal treatment argued for by Hofmann and advocated here.
Firstly, even with the extension of leave for women, the low statutory pay is a deterrent to most dual-income families. While all the details of this scheme are yet to be fleshed out it looks likely that the new transferable leave will be available to the father only after three months of the mother's maternity leave. One feature that is certain, however, is that fathers will only be entitled to the statutory flat rate maternity pay (currently set at £106 per week), on which it is extremely difficult for families to rely for any sustained period even as an income secondary to the average wage.
Secondly, the parents of a child are not allowed to take their leave simultaneously. The idea is that only when the mother returns to work will the father be able to begin his period of transferred leave (having exhausted his statutory paternity leave of two weeks), so that the total period of leave taken is continuous. For many parents, alternative arrangements might better suit their needs; for example, both might wish to take part-time leave simultaneously. This might be a much more reasonable financial arrangement for many families, where a pro-rata part-time wage in addition to half the statutory maternity pay would enable (and encourage) families to take the leave available to them without seriously jeopardising their economic stability27. Furthermore, this arrangement would be more in line with an interpretation of the Equal Treatment Principle that would not be based on gender role stereotypes.
In addition, demographic changes and the ever-growing concern that the next generation will not be financially self-sufficient in old age, should be an economic motivator for politicians to promote the (p.130) extension of paid parental/maternity leave to both parents (excluding the compulsory period only). Such provisions would invariably enable more women to remain in the labour market full time and vitally, to prepare for their old age with occupational pensions. This is a long-term and very important concern for both individuals and the state when we consider that people aged 85 and over are the fastest growing age group in the British population. There are now 18 times as many ‘over-85s’ – referred to by the Office for National Statistics (ONS) as the ‘oldest old’ – as there were in 1901 (1,104,000 compared with 61,000), and this figure is expected to more than double to 2,479,000 by 2031. What is more, for every man there are currently 257 women in this age group (ONS, 2005a). In terms of the wider group of 11 million pensioners (those aged over 65), 63% (6.93 million) are women. The average income of women in retirement is just 57% that of retired men. Only 13% (1.43 million) of women pensioners receive a full basic state pension based on their own national insurance contribution28.
Only 56% of working women are employed full time, earning, as mentioned earlier, an average of 18% less than men (and 40% less for the 43% who work part time). Of these, only 38% of working women are members of an occupational pension scheme. Consequently, according to the National Pensioners’ Convention, one in four older women live below the poverty line and two out of every three of the pensioners who claim means-tested support are women. These alarming trends coincide with the fact that the first few years of the 21st century saw the lowest ever birth rate in the history of Britain (ONS, 2005b). Currently, the average income for a pension household is £12,400, which is less than half the national average wage, with 2.2 million pensioners living below the official poverty line (Brewer et al, 2005).
Indicative of the growing concern among European governments regarding top heavy demographic trends, the French Prime Minister (2005-), Dominique de Villepin, has recently vouched to pay mothers £507 per month, for up to a year, for every third child born in order to provide an incentive for French parents to have more children – despite France already having the second highest birth rate in Europe. Similarly, demographic concerns provided the rationale behind Sweden's policy to encourage higher birth rates. Generally regarded as one of the most advanced, family-friendly schemes in the world, Sweden pioneered paid maternity leave in 1955, which it later converted into paid parental leave in 1974. Given the extensions to the paid parental scheme over the past two decades (currently paid at a high rate of income replacement by the state of 80% of earnings and (p.131) accompanied by the right to return to employment with protection against discrimination)29, it is no surprise that Sweden has the highest female economic activity rates (82.6%), the third highest fertility rate in Europe after Ireland30 and France, and enjoys the highest male take-up rates (77%) for parental leave in Europe (see O’Brien and Shemilt, 2003; Haas and Hwang, 2005).
The gender stereotypes on which British policy provision judgements are currently made not only deny men the plausible opportunity of becoming active routine parents (with regard to the issue of pay) but also consequently designate the role of primary carer to women, regardless of the psycho-social preferences or economic needs of the individuals in question. Such judgements and the resulting character of state provision have had enormous impact on the general structure of society and the interrelated lifestyle choices that people have no option but to make vis-a-vis their employment trajectories and domestic arrangements. The particular interpretation of the principle of equal treatment discussed in this chapter has instigated misshapen policies that act to ‘herd’ individuals into self-fulfilling and self-perpetuating stereotypical roles. Although of course some people's choices may indeed coincide with expressed preferences that pertain to ‘gender’, the ‘herding effect’ nevertheless sustains the robust nature of the status quo in contemporary society, replete with unnecessary demarcations along the lines of sex.
Many have illustrated that although the law as it stands has improved women's involvement in the labour market, it has done so “without significantly altering the domestic division of labour” (Charles, 1993, p 250; see also Crompton, forthcoming: 2007). Granting the majority of (limited) rights to mothers, rather than to both mothers and fathers, only serves to perpetuate stereotypical gender dynamics. And, as the interviews with BBC staff clearly revealed, it is these kinds of assumptions that sustain negative and biased attitudes towards women in the workplace, while also hindering men's attempts to become more active in the routine parenting of their children.
“The strength of one's rights should not be over-estimated…. They rely almost entirely on the individual's enforcement in a judicial system which is ridden with deterrents.”
(Fredman, 1997, p 415)
The BBC staff interviews further illustrated not only that the provisions under specific rights are limited in their scope, but also that the serious lack of affordable childcare facilities represents yet another obstacle to combining work with parenting. In Britain, only 5% of employers provide any sort of childcare services or contributions to childcare costs outside of the workplace (Daycare Trust, 2001). Moreover, although the BBC is certainly more generous than most employers with respect to its childcare provisions, its staff suggested that employers are not the best providers of such services, as they are unable to cater to more than a fraction of those who are really in need of it.
As British law currently stands, there is no provision of comprehensive state childcare. The National Childcare Strategy was introduced by New Labour in 1998, with the intention of encouraging the growth of local, affordable childcare provision for children up to the age of 14 within every community, focusing in particular on the 250 most deprived areas in the UK. Under the auspices of this policy programme, the ‘Sure Start for Every Child’ campaign was introduced to encourage the growth of childminding businesses and crèches across Britain (particularly in the most deprived areas). This campaign, with an initial budget of £450 million per annum, offers the chance for individuals, community collectives, social entrepreneurs and so forth to bid for start-up grants and, if successful, they are granted registered professional status. While this does constitute an important improvement, with 524 Sure Start Local Programmes resulting in an increase of 525,000 childcare places since 1998 (DTI, 2005), there is still only one childcare place for every four children under the age of eight in the UK as a whole according to the Daycare Trust (2005b). Furthermore, despite Sure Start initiatives, such as some free part-time childcare for children between the ages of three and five31, British parents still face the highest childcare costs in Europe. For example, the average cost of such services is £141 a week in England, amounting to £7,300 a year. Due to the severe shortage of places, the price of provision is continuing to rise sharply; since 2003, the average cost has increased by 5.2%, which is three-and-a-quarter times the rate of inflation32. In some places, most notably London, the costs are considerably higher and typically range from between £197 to £350 per week, amounting to a staggering £10,000 to £18,000 a year33.
The high cost of childcare in Britain might explain why only 13% of parents with dependent children use formal childcare services all the time. The lack of high quality, easily accessible childcare is obviously (p.133) a major obstacle to those who attempt to combine having children with jobs and is likely to be the main reason why Britain has one of the lowest economic activity rates for mothers of young children in Europe, particularly for single mothers (Daycare Trust, 2005c).
Under the ‘welfare policy approach’ (a motif of the Blair administration), there have been some attempts to counteract the problem of expensive childcare for low-income parents in the form of tax credit systems. This type of indirect benefit, favoured over the direct provision of financial aid and state-provided services, is generally aimed at encouraging people into paid employment. In 2003, the old Working Family Tax Credit was substituted with two new systems, the Child Tax Credit and the Working Tax Credit34.
Child Tax Credit: this is designed for couples whose combined income is less than £58,000 per annum, irrespective of employment status35 and it is paid directly to the primary carer. A ‘family element’ of £545 is paid per annum and is doubled to £1,090 in the financial year of a child's birth for one year. All families with incomes of less than £50,000 are guaranteed at least £545 from this element. Should the couple's combined income be less than £13,320 per annum then they will receive an additional ‘child element’ of £1,625 per annum for each child (and this benefit is offered at different rates according to level of income).
Working Tax Credit: this is not aimed only at parents, but it does include a ‘childcare element’ for those families in which a lone parent or both partners work a minimum of 16 hours per week. Up to 70% of childcare costs36 to a maximum of £200 a week can be obtained by parents of two children, and a maximum £135 is available for parents of one child.
Again, there is little doubt that these tax credit systems do represent an improvement on previous provisions. Nonetheless, they do not go far enough to tackle the problems of working parents. Indeed, many commentators have expressed disappointment at the Blair administration's approach to these issues. Among others, the EOC, the Daycare Trust, the National Council for One Parent Families, and the Chartered Institute of Personnel and Development (CIPD) have pointed to the extremely low take-up rates of the childcare element (p.134) of the Working Tax Credit system (only around 2.3% of parents with dependent children). Moreover, despite the plan to encourage people into paid work by integrating benefits into the tax system instead of providing direct ‘hand-outs’, 22% of parents with an annual income below £20,000 have given up paid employment due to the difficulties of paying for childcare. Indeed, despite New Labour's claims to have created a ‘New Deal for Lone Parents’37, 44% of lone-parent families are currently out of work (ONS, 2005b).
Given that a maximum of 70% of childcare costs are available to claimants, it is arguably unreasonable to expect all lone parents to fund 30% of their childcare costs, given that the majority are among the lowest national earners. Another more general problem is that the childcare element can only be claimed for the use of registered childcare. Many single-parent families make use of informal, unregistered care and are therefore not entitled to receive the tax credit. All in all, the current average award through the childcare element of the Working Tax Credit is £49.83 per week. Those with more than two children are still only entitled to a maximum of £200 per week (and only if the combined salary is under £13,910 per annum). These are low figures, considering the average costs of childcare. Even the average worker, earning £430.93 per week (£22,411 per annum) would struggle to pay for standard childcare, which certainly does not bode well for low-income families.
Soft law: an emerging approach
Over the past decade there has been a proliferation of best practice codes and expanded models of corporate governance. Labelled ‘soft law’, these guides for voluntary action are increasingly offered as substitutes for conventional, state-centred, ‘hard’ social policy, with the intention of remedying such social ills as the pay gap between men and women (see Bartlett et al, 1998; White, 2001; Hepple, 2002; Jenkins et al, 2002). A recent example is the Kingsmill Review (2001), the latest Cabinet Office review on women's employment and pay, widely regarded as marking a significant moment in the development of New Labour's approach to ‘gender inequality’.
The Kingsmill Review was modelled on a series of high-profile corporate governance reports, such as the Cadbury Report (1992)38, the Turnbull Report (1999)39, and the Company Law Review (2001)40, all of which were designed to promote a distinctive agenda of ‘corporate social responsibility’ by means of various internal accountability and disclosure mechanisms (Browne et al, 2005, see also Browne, 2004).
(p.135) But Kingsmill differed from these previous models in one fundamental respect. For, while these earlier reviews had been designed neither to tackle, nor even to focus on, specific socioeconomic problems, the Kingsmill Review attempted to combine the primary corporate objectives of ‘minimising risk’ and ‘enhancing returns’, with an inquiry into a specific problem in social policy, that of VOSS. The Cabinet Office specifically requested that the Review team identify “non-legislative and cost-effective” solutions to the pay gap between men and women (Kingsmill, 2001, p 149). As such, the Review explicitly sought, as the Minister for Women, Barbara Roche, put it, to connect a specific “social injustice with an economic rationale to eradicate it” (Treanor, Guardian, 2001).
Thus, instead of calling for any additional state-centred programmes of regulation or provision, the Review recommended that employing corporations should be asked to conduct internal pay reviews, with a particular focus on ‘gendered employment patterns’. The purpose of these pay reviews was to ensure the emergence of a much needed comparable dataset across employing organisations in the British labour market. This, in turn, was designed to facilitate a clearer indication of how corporations were addressing issues of VOSS and whether they were guilty of mismanagement and under-utilisation of female human capital. It was argued that with such information disclosed, corporations would become aware of their failings and consequently address them (or be pressurised to do so), thereby reducing the pay gap without the need for interventionist legislation or regulation.
In order to investigate the causes of the pay gap (VOSS), the Kingsmill Review interviewed representatives of 50 of the largest corporations based in Britain. Reflecting on the findings of those who had done some investigative work into the sex distribution across occupations, the Review concluded that VOSS was not primarily a result of unlawful wage inequality, but rather – akin to the BBC study – it was a product of “the clustering of women in lower paid and lower status roles within firms” (Kingsmill, 2001, p 53).
Using one particular organisation as an indicator of general trends, it was shown that:
Based on such evidence, the Kingsmill Review developed its recommendations for better human resource management, claiming that this was the locus of the problem. The call for greater transparency and disclosure in terms of gendered pay differences within organisations was considered the most important single recommendation, simultaneously being of the greatest value to the business case, and offering the most likely apparent solution to the persistence of VOSS:
…a high proportion of women were remaining static within the organization while the men moved through to higher grades. This presented a business problem both because it was felt that many of the women were operating below their potential and thus depriving the company of valuable skills and expertise and that such stasis…impeded (p.136) the promotion opportunities for those below them in the organization.
(Kingsmill, 2001, p 52)
The generation of such information would take the form of internal pay reviews with a particular focus on gender differences in employment. The Review's recommendation for internal audits was pitched in terms of the human capital management practices necessary to aid the efficient and well-considered allocation of resources by investors and shareholders. This, in turn, would reduce three major types of risk and costs to organisations: first, ‘reputational damage’ (including loss of investor confidence, loss of shareholder confidence and loss of consumer base); second, the potential litigation brought forward by those claiming unequal pay with the opposite sex; and third, the risk and cost of the inability to recruit and maintain high calibre employees on the basis of being an unsavoury working environment. This is an ideology of optimal market competition. While the motivation is still focused on maximising efficiency and profit, Kingsmill argued that there is a need to broaden our understanding of the means necessary for the effective pursuit of those goals. The gathering of better information should enable effective human capital management to ‘drive out’ sex discrimination in the interests of corporate self-interest (for further discussion, see Sunstein, 1997).
The driver of the virtuous circle in which business incentives prompt a strategy to promote diversity, which in turn deliver greater profits, is information. This means information and quantitative data available at the firm level to generate both an understanding of where best practice lies, and a situation in which those firms which are getting their human capital management right are rewarded through higher levels of investor confidence and ultimately high shareholder value.
(Kingsmill, 2001, p 51)
The Review assumed that the government could put pressure on the public sector to conform to its recommendations, and, that there (p.137) would be a general campaign to encourage private sector firms to conduct similar reviews, in the hope that being publicly ‘named and shamed’ for failing to do so would act as a sufficient incentive.
As the current situation stands, although ‘gender’ is technically present in many business annual reports or voluntary reviews, the analysis is invariably of a very poor quality and content is far from consistent across organisations. There is no doubt that the ‘Kingsmill audits’, if well administered, would provide invaluable information about occupational sex segregation and the impact of equality policy. However, it is unlikely that this approach is actually sufficient to tackle the problems of the pay gap between men and women, given the legal and policy shortcomings so far discussed.
Like the empirical study central to this book, the Review identified the BBC as a model employer and one that had already done much to achieve the goals recommended by the Review. In implementing progressive equality policies and human resource management, the BBC was seen to demonstrate an extremely high level of competency. Yet, as illustrated in the previous chapters, although some very encouraging results are apparent in the higher paying occupations (and the business case for reducing VOSS is widely accepted as motivating the corporation's positive attitude to women's employment), there were also some troubling results related to the lower grade female-dominated jobs, and it was clear from the qualitative data that these problems were generated by more substantial issues than a mere lack of reporting. Employers and managers still face the reality of short-term budgetary concerns while operating within a national employment framework that is both ill-conceived and constraining. Moreover, while organisations may well be persuaded to introduce women into the higher levels of employment hierarchies (as in the case of the BBC), the greatest problem lies with the women concentrated in the lower paid jobs, where ‘the business case’ for developing human capital is likely to be less compelling. Therefore, such a disparity between women's and men's employment prospects (and the consequent trend of VOSS) seems likely to persist unless the factors impeding women's promotion from the lower end of the employment structure are also adequately addressed.
Hence, the soft law option is a welcome addition to the field, but it is no substitute for progressive policy. Despite governmental enthusiasm for this sort of approach, not least marked by a £1.5 million Work– Life Balance Challenge Fund introduced in 2000 to help employers develop work–life balance practices (Millar and Ridge, 2002), the authors of corporate governance are subject only to persuasion and (p.138) not to enforcement, and neither the state nor the individual has recourse to binding measures (see Hepple, 2002). These limitations notwithstanding, the recommendations of the Kingsmill Review are clearly important. Social policy strategists and academics are in dire need of the invaluable informational base that would be generated by the proposed pay audits from all sectors of the labour force. It is disappointing, therefore, as the EOC has pointed out, that over two thirds of UK organisations (68%) had not conducted any sort of equal pay review and did not intend to do so41. Indeed, the highly publicised Kingsmill Review itself focused on 50 organisations, only nine of which agreed to undertake the specific internal reviews recommended, despite being under the media spotlight. Ironically, this example of intransigence casts serious doubt on the viability of the so-called ‘name and shame’ approach, on which the Review's recommendations largely depend. The mere threat of reputational cost, therefore, seems unlikely to secure the intended changes in the immediate future.
Of course Britain is not the only country to face this problem and it is possible to find alternative approaches in other countries. Under the 1991 Equal Opportunities Act (EOA) in Sweden, for example, employers with 10 or more employees must produce an annual strategy report for ensuring sex equality at work. One compulsory feature of the report is a detailed plan of how best to facilitate the combination of employment and parenthood for female and male employees. It must also include an assessment of the current state of affairs and the results of the previous year's plan, as well as specific prescriptions for the following year, which must be focused on quantifiable goals. Moreover, the Swedish equal opportunities ombudsman monitors these strategies and has the authority to introduce investigations into employers’ procedures, to establish the degree of non-compliance with the EOA. Clearly, by putting the onus on the employer to comply with such an annual obligation, the capacity to monitor and assess the achievement of policy goals indisputably is improved.
Direction of policy
As Lewis (2002) shows, pre-New Labour policy focused solely on fathers’ financial responsibilities to children and consequently effected the reinforcement of traditional gender roles rather than enabling fathers to develop a caring role. Motivated by the highest divorce rate in Europe and one of the fastest growth rates in unmarried motherhood, British policy makers had previously sought to ensure fathers’ financial commitment to their families by means of punitive forms of legislation (p.139) (as aided by the investigative powers of the National Childcare Agency). However, as noted in this chapter, the Labour government has substantially revised social policy regarding parents of both sexes. It is certainly fair to say that this government is uniquely progressive in its attempts to tighten the relationship between the realm of the family and the state, claiming that previous administrations did not tackle these problems for “fear of seeming to ‘nanny’” the British population (Labour Party, 2005, ch 6). Now that the Labour Party has secured a third term in office, it is apparent from the 2005 Manifesto that schemes such as tax credits and the National Childcare Strategy remain at the core of government ‘family policy’ objectives. The current administration is keen to reconfigure its policies as positively ‘family-friendly’, with a constant focus on enabling parents to seek and remain in employment while juggling childcare responsibilities. The new proposals to transfer some maternity leave to fathers, despite substantial shortcomings, does mark a monumental shift in the institutional perspective on sex equality but still, and in fact vitally, the particular interpretation of what should be the ‘relevant respects’ in which men and women are to be treated equally, if they so wish, remains far wide of the mark and will invariably scupper the opportunity to further genuine and justified equality. Policies based on an inadequate interpretation of what the sexes are capable of (and consequently of what they are entitled to be treated equally in) only serve to create a cul-de-sac of social norms with little potential for progressive change. We have seen here how various policies herd individuals into stereotypical roles. Until this changes, ‘the stereotype’ will robustly legitimise inequality.
Policy implications of causal theories of VOSS
In this chapter thus far, we have seen the ways in which the law and policy approaches rely on particular understandings of how men and women operate in and between home life and work. Now we shall return briefly to the claims made by the three explanatory theories of VOSS and survey how various scholars have attempted to explore the legal, policy and institutional ramifications of these theories. The purpose of this exercise is to outline how the shortcomings of these various theoretical approaches set out in Chapter One continue to limit their efficacy as guides to policy.
Bartlett (1990), Cahn (1991) and Menkel-Meadow (1987) use Gilligan's (1982/93) ideas that men and women operate according to different moral codes to analyse the mechanisms of law and connected political institutions. They argue that such mechanisms are biased against women in that they are constructed according to the male morality of autonomy, individualism and abstract rights and duties. Consequently, the female morality of caring, intimacy, connection and a focus on relationships is not similarly represented and that this is to the extensive detriment of women. These theorists’ views on legal and political reform are that ‘female values’ should be influential throughout institutional systems. Rather than focusing on the remits and provisions of specific laws and policies, these theorists’ main argument is that the ‘female voice’ should be strengthened in the legal system, thereby increasing the recognition of specific female experiences. For example, Menkel-Meadow (1987) suggests that rather than using the notion of adversarial court procedures and litigation, legal practice should incorporate a notion of mediation – which she sees as a particular female skill. She states:
It is not clear from this account, however, whether the use of ‘female approaches’ to law is deemed suitable only for female disputants. To follow the logic of Menkel-Meadow's argument, ‘female values’ would be forced on men who are seen to hold distinct ‘male values’. This imposition would presumably be unsuitable for cases centred on the objective of sex equality itself.
The growing strength of women's voice in the legal profession may change the adversarial system into a more co-operative, less war-like system of communication between disputants in which solutions are mutually agreed rather than dictated by an outsider, won by the victor and imposed upon the loser.
(Menkel-Meadow, 1987, pp 54–5)
Psycho-physiological accounts of sex difference do not offer us any constructive way forward in terms of rectifying injustices through law, policy or politics. As was explored in Chapter One, Goldberg's Male Dominance Theory asserts that social inequality between men and women is a reflection of innate differences. Baron-Cohen, meanwhile, very rarely makes any comments on how we should address the social consequences of his findings. It is interesting to note, however, when (p.141) asked to explore the ramifications of his work by an influential scientific website-based discussion forum, the speculations he offered might well stand as a commentary on the work of Gilligan.
Baron-Cohen's playful tone only serves to underline the remoteness of this approach to political representation as a plausible prospect.
What would it be like if our political chambers were based on the principles of empathizing?…. Gone would be politicians who are skilled orators but who simply deliver monologues, standing on a platform, pointing forcefully into the air to underline their insistence – even the body language containing an implied threat of poking their listener in the chest or the face – to win over an audience. Gone too would be politicians who are so principled that they are rigid and uncompromising. Instead, we would elect politicians based on different qualities: politicians who are good listeners, who ask questions of others instead of assuming they know the right course of action. We would instead have politicians who respond sensitively to one another…who can be flexible over where the dialogue might lead. Instead of seeking to control and dominate, our politicians would be seeking to support, enable, and care.
Theories of patriarchy
In conjunction with theories of patriarchy, many legal theorists identify the law as: “maintaining male domination” (Polan, 1982, p 294); “a paradigm of maleness” (Rifkin, 1980, p 84); and “a powerful conduit for the reproduction and transmission of the dominant ideology” (Thornton, 1986, p 5). These writers reject perspectives based on Gilligan's dichotomy of gendered morality. They argue that attempts to insert ‘different female values’ into the law will only serve to reinforce gender binaries that fortify the subordinating powers of patriarchy. As MacKinnon famously argued in a dialogue with Gilligan, a woman cannot speak for herself as man's “foot is on her throat” (see Benhabib, 1994). As with the binary-based theorists, specific laws and policies concerned with sex equality are not the primary focus of the patriarchy theorists. Their central argument is that to accept ‘the male’ as the invariable benchmark by which equality between the sexes is measured counteracts the very notion of equality. Accordingly, the use of the (p.142) law as a tool for emancipation only serves to solidify the subjugating social norms (MacKinnon, 1983) and merely reproduces, rather than diminishes, patriarchal power relations (Thornton, 1986).
Certainly, it is reasonable to argue that the constructed ‘male norm’ is disadvantageous to women. However, as we saw in previous chapters, the patriarchal theorists themselves construct a stereotype of ‘the male norm’ that is disadvantageous to both women and men. Ultimately, they do not differ from the binary-based approaches. While it is the case that such stereotypes are prevalent in legal practice, the patriarchy theorists are ironically themselves guilty of sustaining them. And in assessing these perspectives, it is not clear what a plausible ‘way forward’ would be in terms of combating sex inequality.
Bryson (forthcoming: 2007) worries that the equal rights discourse, with its focus on the individual, obscures the disadvantage of women as a group. She insists that we must view society as patriarchal in order to see how best to bring about sex equality. However, if we are to move beyond institutional biases we first have to concede our own. The theory of patriarchy is too blunt an instrument with which to address the questions raised by, for example, the Hofmann case elaborated earlier. Indeed the stereotypes of both men and society at the root of Patriarchy Theory risk impeding rather than promoting sex equality.
Human capital-based theories
Human capital-based accounts of sex inequality account for some of the most influential approaches in legal theory and demand a little more attention than the previous two theoretical approaches. Similar to Becker's Rational Choice Theory, Posner's (1992) theory of household production asserts that women and men yield ‘gains from specialisation’ in that the man maximises the family's income by specialising in the labour market while the woman “maximises the value of her time as an input into the production of the household's output” (Posner, 1992, p 142).
However (like Hakim), he then goes on to concede that such a rigid dichotomy between male and female specialisations is an ‘exaggeration’ in the contemporary context in which women's share in the labour market has vastly increased over the past three decades. Posner argues, however, that the reason for identifying the traditional nuclear model of the family as a useful starting point is that people continue, by and large, to adhere to sex-role specialisations and expectations within households and the workplace. This, Posner argues, (p.143) (like Becker) is primarily because of women's unique altruistic relationship to childcare and as a consequence, their lower acquisition of human capital.
Posner claims not to deny the existence of sex discrimination but then goes on to assert that legislating structural measures to aid women's activity in the labour market, is inefficient and a waste of public revenue:
Posner also condemns the principle of paying men and women for work of ‘comparable worth’ (the US equivalent of ‘work of equal value’ in the 1970 EqPA). He argues that the implementation of the principle of ‘comparable worth’ is in fact to artificially inflate the wages of women, which can only result in economic inefficiency and moreover provides no incentive for women to make concerted efforts to increase their human capital levels. Most radically perhaps, Posner argues that legal intervention into ‘the market’ is detrimental to all concerned:
…not all discrimination is inefficient…therefore efforts to prevent it impose a social cost over and above the cost of the efforts themselves. An example of efficient discrimination in the area of sex is the refusal (which is now unlawful) of employers to pay pregnancy disability benefits. From the employer's standpoint, and also from the standpoint of the efficient pricing of labor, to pay a worker who is absent on account of pregnancy makes no more sense than to pay a worker who is absent because he is nursing a hangover.
(Posner, 1992, p 337)
Posner's work provides a clear example of how human capital-based theories support neoliberal approaches to the role of state provision. Although not opposed to anti-sex discrimination legislation, Hakim (1996, 1999, forthcoming: 2007) similarly argues that legislation since the 1970s has been effective in addressing discrimination and that the residual levels of VOSS are set to persist:
…the added costs, both direct and indirect, that anti-discrimination laws impose on employers will be passed on in part to consumers, in the form of higher prices – and female consumers will be hurt along with male. The heterogeneity of women's interests, combined with the financial and altruistic interdependence between men and women, makes it still more uncertain that women will be net beneficiaries of anti-discrimination laws. Take pregnancy disability benefits again. If employers are forced to provide these benefits, their labor costs will be higher, and this will lead them to employ fewer workers, pay lower wages, and charge higher prices. These costs will fall on both men and women…all consumers will have to pay higher prices if (p.144) labor inputs are used less efficiently as a result of the outlawing of efficient discrimination.
(Posner, 1992, p 338)
Hakim further criticises the ‘comparable worth’ principle adopted by US anti-sex discrimination legislation. In assessing the usefulness of ‘comparable worth’, Hakim (1996, p 196) claims that such policies “were introduced in the USA as a result of faulty social science evidence”. She recounts how in the late 1970s, the Equal Employment Opportunity Commission (EEOC) sought to decrease the stark pay disparity between men and women in the US's labour market and consequently requested an official report on the pay gap between men and women (see Treiman and Hartmann, 1981). The report concluded that discriminatory procedures were to blame, and that to pay men and women equally for doing jobs of ‘comparable worth’ was the solution, a conclusion that resulted in the general adoption of pay systems based on the ‘comparable worth’ principle (much like the 1982 amendment to the 1970 EqPA, which encompassed the ‘equal value’ principle). Hakim (1996, p 197) maintains, however, that while women's jobs may have been undervalued, that it was “wrong to conclude that discrimination was a more important explanatory factor than human capital variables”. In this account such legislation interference merely distorts the ‘real’ effects of human capital differences between men and women:
Preference theory predicts men will retain their dominance in the labour market, politics and other competitive activities, because only a minority of women are prepared to prioritise their jobs (or other activities in the public sphere) in the same way as men.
(Hakim, forthcoming: 2007)
Nevertheless, the case of the BBC demonstrates that extended provision enabling both women and men to combine parenthood and employment is highly likely to be a sine qua non for the reduction in the pay gap between the sexes. Moreover, the provision of a wider set of practical options should not be understood merely as meddling with the natural outcomes of predictable preferences (as Hakim and Posner both seem to suggest) but rather, as the Hofmann case exemplifies, the facilitation of genuine lifestyle choices currently restricted by outdated readings of the capabilities and preferences of each sex.
Female heterogeneity can no longer be ignored as it is the source of increasing polarisation within the female workforce, and has social and economic consequences that (p.145) are not affected by sex discrimination legislation.
(Hakim, 1996, p 207)
Hakim, adamant that sex differences in work orientations and personal preferences are at the root of current levels of VOSS, argues that
Later, however, Hakim does seem to suggest that there is a causal link between “economic and social development and occupational segregation” but that it is an inversion of what we might expect: “even more disconcerting is the evidence that family-friendly policies generally reduce gender equality in the workforce, rather than raising it, as everyone has assumed until now” (Hakim, forthcoming: 2007).
…there is no direct causal link between economic and social development and occupational segregation, or the pay gap; modern and egalitarian societies do not necessarily have lower scores on these two indicators of gender equality in the workforce. The country with the lowest level of occupational segregation in the world is China, not Sweden, as so many believe. Many countries in the Far East have lower levels of occupational segregation than in western Europe. The lowest pay gap in the world is not found in Sweden, as so many claim, but in Swaziland where women earn more than men, on average, followed closely by Sri Lanka….
(Hakim, forthcoming: 2007)
Hakim's contradictory statements on this issue provides further evidence of confusion over the concept of occupational sex segregation. Reference to occupational segregation and the pay gap as two distinct entities leaves unclear what type of segregation, on Hakim's view, is most prevalent in either China or Sweden. Certainly, Sweden does have relatively high levels of segregation but predominantly horizontal (p.146) segregation (see Blackburn et al, 1999b). Therefore the pay gap is small, in comparison to other European countries, despite substantial levels of overall occupational sex segregation. Hakim's arguments regarding the cross-national comparisons of pay gaps are valid in one sense; a measurement of VOSS (the comparisons of the disproportionate distribution of men and women across occupations according to a vertical ordinal scale of pay) could provide quantitative results showing lower levels of VOSS in Swaziland than in Sweden. However, even if we assume that the data were weighted correctly to allow for direct comparison, we cannot conclude that these results obtain because Sweden has more family-friendly policies than Swaziland. The comparison is misleading as the two economies are not comparable in terms of labour market mechanisms, standards of living, cultural codifications and domestic policies.
In situations where data are comparable, we can in fact detect correlations between levels of VOSS and particular domestic policies. As discussed earlier, paid parental leave in Sweden is proving an increasingly attractive policy to men in a setting in which female activity rates are high and levels of VOSS low. Thus, it may be suggested that in addition to a strong correlation between the rates of paid leave and male take-up rates, there is also a relationship between women's higher earning power and male take-up rates of paid parental leave (Blackburn et al, 1999b). Finally, Hakim seems to overlook how women's choices and preferences may well increase in the presence of increased policy provisions. We should not assume, in the absence of those further options, that all reasonable preferences are already fulfilled.
In arguments that resemble Hakim's, Dermott (2000) has somewhat unpersuasively maintained that the impact of paid parental leave in Sweden is yet to deliver substantial social change. However, even if Dermott were correct, it must be remembered that paid parental leave was only introduced in Sweden in 1974. It has therefore only been available to two generations of fathers. Considering the radical cultural implications of such a scheme in which men's active parenting role is actively recognised and encouraged, two generations is too brief a period on the basis of which to judge its impact on society. One only has to look at the legal reforms to women's rights over the past few decades (examples of which are set out in Appendix 1) to see how ludicrous many of the past limitations on women appear to us today.7
(1) However, it might be of interest to the reader to mention the resurgence of literature over the course of the mid- to late 1990s that argues that in fact stereotypes should be considered as indicators of social reality. See, for example, Judd and Park (1993); Lee et al (1995); Valian (1998); Beyer (1999).
(2) Assumptions about men and women appear throughout society, but I have used the term ‘managers’ to highlight that, in this context, the views are held by those with decision-making power in the labour market. The same argument might be directed at ‘employers’,to further illustrate the point.
(3) All EU member states are bound by Article 141 (formerly 119) of the European Community, which stipulates that “each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”. This directly applicable provision has been supplemented by directives on pay, employment and vocational training, and statutory social security, self-employment and the burden of proof. UK law frequently has had to be amended so as to comply with EU law and with ECJ interpretations of EU law. Thus the previous ETD (76/207/EEC) was amended in 2002 and is relabelled as 2002/73/EC, and now also covers pay discrimination in addition to selection criteria, recruitment, promotion and training, working conditions and dismissals and brings sex discrimination law in line with that relating to ‘race’, religion or belief, sexual orientation and disability. See Equal Opportunities Review (2002) for detailed discussion of the implications relating to the amended directive.
(4) As amended 2005.
(7) The term ‘same employer review’ stretches to ‘single source’, that is, the same employer irrespective of out-sourcing, etc. See AG Lawrence and Others v Regent Office Care Ltd, Commercial Catering Group and Mitie Secure Services Ltd (Case C-320/00).
(p.148) (8) Since 6 April 2003 individuals who believe that they may not have received equal pay are allowed to request information from their employers (see Equal Opportunities Review 117, May 2003, pp13, 22). Previously one had to initiate tribunal proceedings to get the employer to disclose pay data by way of discovery. However, under the new procedure the employer is allowed to rely on confidentiality as a ground for refusing to disclose. The new procedure is mainly intended to avoid unnecessary proceedings by allowing women to see whether there is a likely comparator. However, it does not avoid the need for mandatory pay audits that would compel the employer to initiate change. What remains to be seen is whether applicants will be able to use the new ETD wording (2002/73/EC) to tackle pay discrimination that falls outside the scope of Article 141. That is, it is not yet clear whether it will allow claims using a hypothetical comparator rather than, as required by Article 141, an actual comparator. This is a problem exacerbated by high levels of horizontal segregation, whereby the majority of women tend to work in female-dominated occupations. Indeed, according to Grimshaw and Rubery (2001), more than 60% of women's employment is concentrated into 10 occupations.
(9) See note 8.
(10) Claims can be brought at any time during employment and within six months of leaving employment. As a result of the ECJ ruling on the Preston v Wolverhampton Healthcare NHS Trust litigation (Case C-78/98), the 1970 EqPA (Amendment) 2003 Regulations make it clear that, where there was a ‘stable’ employment relationship between the woman and her employer, the relevant limitation date for bringing an equal pay claim is six months after the end of the stable relationship. There are exceptions, such as when the woman “is under a disability” or where the employer has deliberately concealed a relevant fact, in which case the six-month period will run from the date she discovered or could reasonably have discovered the fact. Also note that the 2003 Regulations limit the back pay that can be claimed, to six years in England and Wales and five years in Scotland (corresponding to the limits in each country for bringing contractual claims).
(11) Article 3(1) of the amended Directive applies to “employment and working conditions, including dismissals, as well as pay, as provided for in the Directive 75/117/EEC”, which is the EPD. The EPD requires “the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration” for the same work or for the work of equal value.
(13) Lord Denning, House of Lords Debate (HL Deb), vol 445, cols 901- 902, 5 December 1983.
(14) As amended 2005.
(15) Note that under Section 7B of the 1970 EqPA the complainant has the right to ask his or her employer for information that would help to establish whether or not he or she had received equal pay for equal work in comparison to a worker of the opposite sex, and if not what the reasons are for this. See Employment Relations, Employment Act (2002), ‘Equal Pay Questionnaire’ (www.dti.gov.uk, as of 21 November 2005). In equal pay cases, once a difference in pay is shown between women and men doing work of equal value, the employer has to prove that the difference is genuinely due to ‘material factors’. However, just how obligatory these questionnaires actually are and how effectively they are employed is debatable. See, for example, the case of Sinclair Roche and Temperley and Ors v Heard and anor (2004) IRLR 76, EAT.
(16) Mothers have the right not to be refused paid leave on the grounds of keeping an appointment for antenatal care according to the 1996 Employment Rights Act, section 99. This specific right is not further considered here.
(18) Those eligible for additional leave paid at £100 (or 90% of earnings for the full 26 weeks if this is less than £106 a week) must have completed 26 weeks continuous service with their employer by the beginning of the 14th week before the expected week of childbirth. Additional maternity leave starts immediately after ordinary maternity leave and continues for a further 26 weeks (unpaid).
(19) Or 90% of earnings if less than £106. Fathers are entitled to paternity leave so long as they have been continuously employed with their employer for 26 weeks (ending the 15th week before the baby is due).
(p.150) (20) Following Britain's eventual acceptance of the EU Social Chapter in 1999, after having rejected the directive in 1994. The right to parental leave has been implemented in Britain under the 1999 Employment Rights Act.
(21) The directive advises that parents should be offered leave up to their child's eighth birthday, but included a clause allowing member states to adjust the length of provision.
(22) Note that in the 1980s Britain became the only member state in Europe to have decreased maternity rights.
(24) As Ewing argues: “If the law is to contribute to a genuine improvement of the position of women with children, it is crucial to ensure that parenting rights are extended to both parents” (Ewing, 1996, p 154).
(25) In addition to incorporating contemporary sociological and psychological research in her work, Burgess draws from a large array of anthropological research stretching over many decades, ranging from classic studies, such as Malinowski (1927) and Mead (1935), through to more contemporary works such as Hewlett (1991).
(27) If the father, who has taken transferred leave, subsequently decides to return to work earlier than planned, the untaken leave is automatically lost to the family as a whole.
(29) Current Swedish legislation provides the right to seven weeks paid maternity leave prior to the birth and seven weeks after the birth for all women regardless of employment history. Both sexes are entitled to 480 days (approximately 13 months) leave up until the child's eighth birthday, if they have six months employment history or 12 months over the previous two years. This is shared between the mother and the father, who can choose who will take the leave and when it will be taken. There (p.151) are, however, 60 days that are tied specifically to each parent, that is, 30 days each known as ‘mamma month’ and ‘pappa month’. These distinct periods of leave are provided to encourage fathers to take leave. In a similar vein, in Norway every set of parents are entitled to 52 weeks of parental leave at 80% of their earnings or 42 weeks of leave at 100% of their earnings. Up to 39 weeks of leave (at 80% of earnings) or 29 weeks leave (at 100% of earnings) can be taken flexibly as reduced working hours. Where parental leave is taken in the form of reduced hours, the length of leave is extended correspondingly. Four weeks of the parental leave must be taken by the father, otherwise it will be lost.
(30) The high fertility rates in Ireland are likely to be related to lower usage of contraception rather than generous state benefits.
(31) This government scheme offers five lots of 2.5 hours of free childcare per week for 33 weeks a year by registered childcare providers (see ‘About us, ten-year strategy, SureStart’ at www.surestart.gov.uk/,21 November 2005).
(33) In addition to the crèche facilities, other forms of childcare are similarly expensive. For example, the average cost of placing a child (under the age of two) with a full-time childminder is £127 a week, which amounts to over £6,600 a year. Nannies can cost anything from £150 to £400 a week plus tax and national insurance (Daycare Trust, 2005a).
(34) Neither of these tax credit systems affect the universal child benefit, currently paid at £16.50 a week for the eldest child and £11.05 each week for subsequent children. These are benefits for children up to the age of 16 (or up to 18 if in full-time education). Neither do the tax credit systems affect the new government initiative, the Child Trust Fund, introduced in April 2005. This is a universal and progressive savings fund introduced for all children born after 1 September 2002, which includes an initial payment of £250 (up to £500 for low-income families with household income at or below the full Child Tax Credit income threshold). See HM Treasury (2005).
(35) Although the higher the income, the lower the level of benefit.
(p.152) (37) The 1997 Labour Party Manifesto emphasised that helping lone parents into paid employment was the best way of reducing the poverty prevalent among them. This campaign offered a range of services and advised lone parents on such matters as how to claim the various relevant tax credit systems. These were linked to the National Child Care Strategy, particularly the Sure Start programmes. In 2000, the Treasury declared that its target was to have 70% of lone parents into paid employment by 2010. For a full discussion of these developments, see Millar and Ridge (2002).
(38) The Cadbury Report is officially named ‘The Financial Aspects of Corporate Governance’ published in 1992 by The Committee on the Financial Aspects of Corporate Governance and Gee and Co. Ltd.
(39) The Turnbull Report is formally entitled ‘Internal Control: Guidance for Directors on the Combined Code’ published in 1999 by the Institute of Chartered Accountants in England and Wales.
(40) The Company Law Review (2001) London: Department of Transport and Industry.