Positive Discrimination, A Path to Achieve Equal Gender Pay in Commemoration of the International Equal Pay Day

Introduction

Equality in wages has been a long-standing goal in accordance with the fulfilment of social and economic human rights enshrined under Article 7(a)(i) of the International Covenant on Economic Social and Cultural Rights (ICESCR). In achieving this goal and raising awareness of existing inequality in wages, the United Nations marked the 18th of September as the International Equal Pay Day. The day also stands as a symbol of commitment from the United Nations in upholding human rights and fighting against gender pay inequality and all forms of discrimination against women and children. Various strategies have been implemented by states in regulating the issue of ‘wage gap’, with one of the strategies constituting the enforcement of positive discrimination policies that treat a specific group favourably based on certain criteria. This article examines the practice of positive discrimination and highlights how its utilisation is beneficial in achieving universal gender pay equality.

What is the Gender Pay Gap?

The gender pay gap refers to a disparity between the earnings of men and women that is evidenced by their average total earnings. Essentially, a gap exists between the earnings received by women and by men, indicating an inequality in the amount of salary paid to each of these groups. This gap is commonly calculated using measurements that include average salary as well as external factors that cause this pay gap. 

Such external factors comprise of education, job segregation, discrimination and unfair labour policies. In many cases, maternity penalties are unfairly implemented, significantly resulting in lower wages for women. Furthermore, biological differences between women and men play a significant role in determining the work output. These factors must be addressed in order to achieve fair and equal pay by ensuring fair compensation for all workers, as well as to create gender equality in the workplace.

Addressing Gender Pay Inequality

The United Nations has affirmed the existence of a gender pay gap, with women earning approximately 20% less than men, and women with children earning even less. Specifically, women with children in Sub-Saharan Africa earn 31% less and those in South Asia 34% less, whereas women without children could earn up to 4% and 14% less in those respective areas. This means that for every dollar earned by a man, a woman only earns an estimate of 80 cents. Consequently, this gap affects women in various aspects of life; a gender pay gap causes lower earnings for women, subjecting them to unfair conditions, despite having performed the same work as their male counterparts. For women with children, this disparity can further intensify financial struggles, potentially impacting their ability to support and raise their families effectively. Therefore, this paints the consequences of the gender pay gap and how it presents itself as a crucial issue for women and their responsibility for children. 

According to UN Women, the persistent rate of pay gap is mostly caused by unfair labour policies applied by companies around the world. A study by the International Labour Organization (ILO) concluded that systemic biases which result in unfair penalties constitute the significant gender pay gap in the health sector. Another study conducted by the European Commission concludes that labour law induces such a gap. Companies widely use fixed-term contracts consisting of unfair clauses governing work hours and penalties that cause disadvantages to women’s wages. These practices undermine the provisions laid within  ICESCR, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), particularly those requiring fair practices in relation to wages. Ultimately, unfair labour policies and systemic biases contained within work contracts significantly contribute to the persistent gender pay gap worldwide. Thus, it is considered as a legal obligation under international law to address these practices, in the objective of advocating for women’s rights in workplaces.

International Law Does Advocate for Equal Pay

States are obliged to fulfil social and economic human rights in accordance with various international legal instruments. Specifically, Article 7(a)(i) of ICESCR obligates state parties to ensure that the work conditions experienced by women must not be inferior to those of men, which shall be realised through the provision of equal pay for equal work. Consequently, state parties must realise that such provision is a form of active participation and shall recognise it as a positive right. Therefore, the fulfilment of equal pay for equal work in the context of social and economic rights by states is an obligation under international law. Similarly, the CEDAW addresses the prevalent discrimination and inequality faced by women globally, particularly in the social and economic fields.

According to the preparatory works of CEDAW, women around the world were faced with discrimination and inequality, particularly in the social and economic fields. The international recognition of these issues led to the adoption of CEDAW in 1979, reflecting international efforts to eliminate gender discrimination and ensure equality between women and men including equal pay. Furthermore, the commemoration of International Equal Pay Day raises awareness of the persistent pay gap and reflects CEDAW’s commitment to gender equality. Thus, States allowing unfair and discriminatory wage practice are in violation of their obligations under international law.

Historical Context of Positive Discrimination

Historically, positive discrimination policies have been utilised in various states to create an equal environment in workplaces. The term positive discrimination – referred to as affirmative action – originated in the United States, through Executive Order 10925. The order mandates government contractors to undertake actions as a form of positive discrimination. The objective behind such a regulation is to ensure that employees are treated fairly regardless of their race, origin, or creed. Likewise, positive discrimination was implemented in the Netherlands through a policy which actively increases women’s representation in the police force. Both of these practices highlight the utilisation of positive discrimination as a means to promote and encourage equality across different sectors. Therefore, with the existence of gender pay gap, the use of positive discrimination has led to a reduction in gender pay disparity in certain countries, indicating significant improvement towards equality. 

Objective Use of Positive Discrimination

Positive discrimination is a policy strategy that treats a specific group favourably in certain fields. In the context of wage inequality, positive discrimination can be used as a strategy to provide favourable working conditions for women. In this vein, positive discrimination is administered through labour law policies. This practice has been widely conducted in numerous states, among which are Norway, Britain and New Zealand. For instance, in 2003, Norway reduced the occupational segregation for women in companies by passing a quota regulation that requires equal percentages of both genders on company boards. As it provides such an advantage, positive discrimination could be utilised to eliminate unfair practices and unequal wages, especially those experienced by women. 

However, the use of positive discrimination has also been criticised as being ineffective. It is argued that positive discrimination overlooks the best candidate as it disregards merit-based considerations. For instance, if a company prioritises hiring workers based solely on gender quotas without considering competence, the company would overlook highly qualified workers who do not meet such quotas. Therefore, an objective outset that accounts for a competency-based approach towards positive discrimination may enhance its effectiveness. Additionally, ensuring equal wages without further causing inequality in other aspects is crucial for fair implementation.

Justification of Positive Discrimination

Positive discrimination in relation to the gender pay gap is justified by recognising the biological differences between women and men – particularly, motherhood and menstrual needs. In addition, certain biological factors – such as menstruation and maternity – may create certain challenges for women in workplaces. On the other hand, their male counterparts do not have to undergo these situations. In this vein, supportive policies are required to ensure fair treatment and to provide equal opportunity. Various countries have included provisions of menstruation leave in their labour laws, in which Indonesia, Japan and South Korea have undertaken such implementation. Therefore, positive discrimination ensures that women’s distinct biological needs are recognised and accommodated, ultimately affirming equal pay for work.

Conclusion

In conclusion, the gender pay gap remains prevalent, in which states need to undertake certain obligations under international law to ensure equality between workers of both women and men. Consequently, positive discrimination must be used appropriately in order to constitute an effective strategy. The use of objective and merit-based positive discrimination that is implemented through law will balance out the factors that cause the gender pay gap rate without causing further inequality in other aspects. Therefore, the International Equal Pay Day serves as a reminder for the international community to implement fair policies in accordance with the promotion of equal pay for women and men.