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Labour Law and Feminist Method
Abstract
This article explores the application of feminist method in the context of contemporary scholarly efforts to reclaim and/or refashion labour law as a discipline and field of study. The central methodological importance of gender as a category of analysis is highlighted and common critical techniques deployed by feminists to advance gender-inflected analysis identified and illustrated. A core insight the article seeks to advance is that because mainstream labour law scholars tend to approach feminism as animated solely by gender equality concerns, they overlook the broader analytical and conceptual contribution that feminist scholars can and do make to tackling and resolving key challenges and concerns arising from the social organization of work and its regulation.
... 43 The concept of 'social reproduction' is illuminating here. It can denote a range of activities including 'the care of children and their birth, day-to-day recreation of conditions needed to support life, and looking after older and disabled people.' 44 Socially reproductive work has a wider role in the regeneration of communities and social bonds, 45 but it is also necessary to 'produce and reproduce labour-power'-i.e. the ability to work. 46 Without reproductive Exemption from Minimum Wage and Gendered Devaluation labour in the private sphere, other work would not be possible. ...
... 96 The finding strongly reflects a view of this labour as less than work: regardless of the number of hours completed under the worker's contract, if certain household tasks are found to be shared with the employing family, this allows the worker to be considered as a family member. [44]. 96 ibid [45]. ...
... 139 Puthenveettil v Alexander & George-Case Number 2361118/2013-judgment of 3 February 2017 (Employment Tribunal) [1-Findings of Fact].140 ibid[37][38][39][40][41][42][43][44][45][46][47][48][49]. ...
Domestic workers, who work in private households carrying out tasks such as cooking, cleaning, and care for children and the elderly, are overwhelmingly women and often from migrant and/ or ethnic minority backgrounds. This article examines a stark example of domestic workers’ exclusion from labour law protection, regulation 57(3) of the National Minimum Wage Regulations, which exempts employers from paying the minimum wage where a worker lives in their employer’s family home and is treated ‘as a member of the family’ in relation to accommodation, meals, tasks and leisure activities. Drawing on feminist theory on the divisions between ‘productive’ work outside the home versus ‘reproductive’ work within it, it argues that the exemption’s application has reflected gendered devaluation of domestic labour, stemming from its conflation with work normally performed for free by women in the ‘private sphere’ of the home. Focusing on the December 2020 Employment Tribunal (ET) judgment in Puthenveettil v Alexander & ors, which held that the exemption was unlawful and indirectly discriminatory on the grounds of sex, the article provides timely and in-depth analysis of the prospects for challenging the devaluation of domestic work in light of the limitations of legal protections for domestic workers in the UK.
... Primera restricción. La comprensión restrictiva del sujeto del derecho del trabajo bajo los supuestos normativos del homo -hombre varón blancoeconomicus y propietario (o con ánimo de serlo), esto es, del individuo posesivo (Macpherson, 1962) dentro de la división y organización [hetero] sexual del trabajo que prefigura al DT (Conaghan, 2017). Una tarea sustancial para la erradicación de esta restricción es la disputa por un nuevo sujeto del derecho del trabajo cuyo hecho epistémico resida en una nueva teoría del sujeto del derecho que se defina a partir de un sujeto interdependiente, incluso organizado colectivamente, e interseccionado (Crenshaw, 1989) en términos de razas, clases, sexos -géneros, entre otras marcas de identificación humana. ...
En el presente texto y en continuidad con reflexiones previas, ensayo las que entiendo como restricciones epistémicas en el derecho del trabajo (DT) en tanto que encuadres de conocimiento que producen desigualdad desde su prefiguración. En primer lugar, repongo un marco conceptual general situado en la clave de los feminismos disidentes destacando los aportes epistémicos medulares a la crítica jurídica. Luego, retomo estos asuntos para pensar el derecho del trabajo a partir del problema de las comprensiones restrictivas que organizo en cuatro encuadres. Uno de ellos conforma el apartado dedicado al trabajo que ensucia frente a la pregunta por cómo queremos trabajar, esto es, vivir también epistémicamente el trabajo.
... What we see in the expansion of feminist legal engagement to encompass the rights of lesbian, bisexual gay, transgender, and intersex people is the deployment of 'gender' not simply as a signifier of identity but more importantly as an analytical tool with which to interrogate law and legal outcomes. This foregrounding of gender constitutes the methodological core of feminist legal scholarship (Conaghan 2017). It is a conscious reversal of what is often assumed to be a standard operating presumption in legal scholarship, namely that gender is not analytically relevant, except in so far as it revealed to be so contingently by the application of conventional legal analytical techniques. ...
This is the text of the keynote lecture delivered at the launch of Black, Lynsey and Dunne, Peter (eds). Law and Gender in Modern Ireland. Oxford: Hart, delivered 13th September 2019, Department of Law, Maynooth University, Ireland. The lecture locates the book within the context of rapid, radical transformation in gender law and politics in Ireland, highlighting some of the issues which have been the focus of activism and/or reform. The lecture goes on to outline some of the challenges which arise in the legislative pursuit of gender equality including the tension between respecting agency and choice and curbing exploitative and/or gender disadvantaging practices. Comparisons are also made with legislative initiatives in neighbouring Britain. The lecture concludes with some reflections on the interplay of sex and gender in law and public debate and their embedding in the constitutional creation of the modern Irish State.
The classical labour legislation sought to protect the role of women in society with its norms, primarily by limiting their working hours and night work, and by protecting maternity. Although there were legal reasons for restrictive employment policies for women (prohibition of employment of married women) in certain legal systems, special labour protection of women was based primarily on biological and social reasons, and legislators favoured the view that taking care of children and doing household chores was more important for personal development of women than working in factories. Thus, labour law is traditionally conceived according to the model of male worker engaged on the basis of open-ended full time employment contract. That resulted in regulating only a few marginalized “women’s” labour law issues and in failure to provide sufficient consideration of the specific needs that women have as participants in the labour market, while some of protective measures eventually blocked women’s opportunities to work under the same conditions as men. Use of feminist method opened up a new set of labour law issues, with the progress in building a legal and institutional framework for protection against gender-based discrimination in the exercise of labour rights. However, when it comes to practice, women often have difficulty finding and retaining employment. On the other hand, contemporary legislation is aimed primarily at women’s empowerment in the world of work, which can lead to oversimplification and ignorance of the importance of men’s role for implementation of the principle of gender equality. The authoress will put the issue of gender equality into the context of historical and conceptual framework genesis of regulating employment relationship in order to give an overview of main tendencies in this field.
The chapter presents an overview of key labour law institutions, aiming at discussing the importance of the gender perspective in labour law. Therefore, the introductory section of the chapter will put this issue into the context of historical and conceptual framework genesis of regulating employment relationships. These issues are connected with the legal subordination and economic dependence of employees, which produce the need to create and implement norms that protect employees, as a weaker party to the employment relationship. This includes the limitation of employers’ (managerial, normative and disciplinary) prerogatives, in order to create the conditions for effective enjoyment of the right of jobseekers and employees for protection against gender-based discrimination. The labour law is, in this regard, traditionally conceived according to the model of a male worker, who is employed on the basis of a standard employment contract (open-ended full time employment contract). This then results in a failure to recognise or provide sufficient consideration of the specific needs that women have as participants in the labour market. The use of the feminist method, which included the understanding of gender as an analytical category in the field of labour law, opened up a new set of labour law issues. For example, in easing the ban on women working in physically demanding jobs, and the conceptualisation of the need to reconcile the professional and family duties of employees.. On the other hand, contemporary labour law, when creating conditions for achieving gender equality, is aimed primarily at women’s empowerment in the world of work. Persisting with this approach can lead to an oversimplified understanding of the principle of gender equality, ignoring the special needs of men in the world of work, as well as ignoring the importance of their role for consistent implementation of the principle of gender equality and women’s empowerment. The second section of the chapter will provide analysis of gender-based discrimination during the hiring process. Other sections will cover the risk of gender-based discrimination regarding rights, obligations and duties deriving from employment relationship, labour law measures to encourage improvements in the occupational safety and health, work-life balance for parents and caregivers, sexual harassment at work and promotion of gender equality in collective labour law.
The Court of Justice of the European Union (CJEU) has had the opportunity to address the sensitive matter of the wearing of the Islamic headscarf in the workplace in two preliminary rulings. The result of these decisions implies that the wearing of this veil at work is, in general, neither proscribed nor always justified as a legitimate expression of religious beliefs. However, the law studied and applied deals exclusively with discrimination in the workplace on religious grounds. Nonetheless, the Islamic headscarf is only worn by (some) Muslim women (never by men). This article reviews the EU legislation and policy on equality, intersectionality and multiple discrimination to verify that gender mainstreaming does not reach the work of the Court. Only the inclusion of a feminist perspective to the application of justice, with a clear methodology, can guarantee that gender does not disappear in cases of complex discrimination.
Elder law is often approached in terms of a ‘body’ of law. In this article, I argue for a contextualised and externalised perspective on the ageing individual as the subject of elder law. Elder law relates to the implications of law as an institutionalisation of society seen through the lens of older persons. The aged subject is a contested and differentiated social construct to be studied in relation to an externalised social ‘problem’ and properly contextualised. Whereas the ageing individual in the context of labour law and anti-discrimination regulation turns out to be remarkably young, the specific history of LGBT persons in society comes to the fore in cases where age intersects with a ground such as sexual orientation. The ‘ageing’ worker must thus be understood in relation to work as the dominant distributive order in society, and in relation to institutions and developments associated with work. Due to the role of age as a traditional social stratifier, the prohibition against age discrimination has been given a weaker format than have prohibitions against other kinds of discrimination, and the ban on ageism has failed to achieve a clear legal status. Deficiencies in the measures taken against age discrimination are also evident in their incapacity to address situations where age intersects with other grounds, resulting in a compartmentalised application and interpretation of discrimination bans, leaving vulnerable sub-groups without protection. In sum, elder law is very much a field in process and – although arguing for the added value of a contextualised perspective – it may for the time being suffice to say that ‘elder law is what elder law researchers do’.
This article examines the problem of ‘legislative precariousness’ of workers, and its compatibility with human rights. Legislative precariousness is defined as the special vulnerability created by the explicit exclusion or lower degree of protection of certain categories of workers from protective laws. A group that is frequently made precarious by law in many jurisdictions are domestic workers, the situation of whom the second part of the article explores. The intersection of numerous expressions of legislative precariousness of this category of workers disadvantages them in comparison to other workers, and also makes enforcement difficult. The legislative precariousness of domestic workers, therefore, places them in a uniquely vulnerable position. Looking at the European human rights system, which is an influential and effective mechanism of protection, the third part of the article examines the legal protection of the rights of domestic workers. It emerges that human rights law has potential to assist this group, but what also becomes evident is that aspects of the law on social rights create further precariousness. The exclusion of undocumented migrants is very troubling, but may be corrected to a degree, as the European example shows.The fourth part of the paper considers how human rights practice in Europe sheds light on the interplay between human rights and labour rights in the context of migrant domestic work. It emerges that human rights law challenges the traditional public/private divide, and plays an important role in addressing the legislative precariousness of domestic workers. It is, therefore, valuable to them. In addition, importantly, some further conclusions can be drawn as to the normative foundation of the two bodies of rules (human rights and labour rights). These involve their shared theoretical justification: dignity as non-commodification, liberty and distributive justice. At a normative level, the final part of the article finds that the human rights and labour rights of precarious workers have much in common, and have potential to address the legislative precariousness of domestic workers, and of other groups of workers found in a precarious position.
This article considers the viability of intersectionality as an analytical and strategic tool within the context of recent UK equality initiatives, in particular the expansion of-rounds upon which a discrimination claim can be based, the establishment of a new single equality body, the Commission of Equality and Human Rights (CEHR), and the anticipated streamlining of equality legislation. The article contends that while intersectionality has played an important role in widening the terms of the debate around equality law and discourse, it has limited long-term purchase in the battle to combat inequality. The article considers the ways in which the concept of intersectionality has been deployed and explores current UK equality developments with an intersectional dimension. The article concludes with an analysis of the limits of intersectionality as a path to equality through law.
Since its timid introduction onto the EC agenda in 1974, reconciliation of work and family life has developed into a fully-articulated principle. This book explores this journey and its implications for the EC legal order and society. It argues that as reconciliation issues continue to evolve they require constant reassessment. © Eugenia Caracciolo di Torella and Annick Masselot 2010. All rights reserved.
Considers the issue of whether the existing discrimination model, in which special "grounds" are utilised to regulate forms of differential treatment, should be continued. Examines the grounds-based approaches to discrimination, noting the complex nature of social identity. Assesses US problems in this area and highlights difficulties categorising discrimination claimants. Discusses, with reference to case law, the Canadian treatment of discrimination claims.
Despite 33 years of equal pay legislation, the gender pay gap remains stubbornly high. Multiple equal pay claims in the public
sector have forcefully exposed the weaknesses, both of the Equal Pay Act and of the complaints-led model of enforcement on
which it is based. This article argues that the equal pay apparatus is in need of radical reform. Single Equality legislation,
due to be introduced in the autumn, is the ideal forum to do so. Substantively, it is essential to move beyond the current
narrow range of comparison, the limited definition of equality and the lack of a collective dimension. So far as enforcement
is concerned, the way forward lies in a positive duty to eliminate pay discrimination, which builds on and strengthens the
current gender duty. Women's right to equal pay for equal work is often represented as an unreasonable demand on resources,
carrying with it an unsustainable cost. In fact, it is a fundamental right recognised by major human rights instruments and
the International Labour Organization (ILO). It is to be hoped that the Single Equality Bill will give equal pay reform the
serious attention so urgently needed.
Collective bargaining and the elimination of discrimination in employment are egalitarian, democratic and mutually reinforcing goals. But how far do they meet expectations? Being limited largely to formal-sector workers, the right to collective bargaining eludes most workers, notably those in the informal sector in developing countries; among those excluded are a disproportionate number of workers traditionally discriminated against. With the gap between collective bargaining and equality growing, the authors explore how unequal access to collective representation can result in one principle effectively preventing recognition of the other, before examining state labour regulatory initiatives and equality promotion through collective bargaining.
Why is the law failing to protect pregnant workers and parents from detrimental treatment in the workplace? This theoretically informed book, which draws on the findings of a large scale, Nuffield Foundation funded, study of pregnancy-related workplace disputes, explores the legal regulation of pregnancy and parenting in the labour market. Using an epistemology that draws primarily on critical feminist debates, theories and critiques, the book adopts a necessarily female standpoint and seeks to answer why, despite positive policy ambitions and ample legislation, law is failing to protect pregnant workers and parents. Whilst sensitive to the limits of law's ability to bring about social change, the book asks whether it is the direction of current policies that need attention, or the substance of the legislation that is flawed. Is it the application of the law in courts and tribunals that fails working families or the mechanics of the employment dispute resolution and tribunal system that needs adjusting? This book will interest academics, students and practitioners of law and social policy interested in employment law and discrimination.
Reinventing Labour Law for the Global Economy 22
- Id
see also id, Reinventing Labour Law for the Global Economy 22 Berkeley J. Employment & Labour law 271
(2001).
The Gender of Judgments: Some Reflections on 'Bias' (1998) 32 U. of British Columbia L. Rev. 1. 44 For a detailed exploration of such conventions and practices, see Conaghan
- Graycar
Graycar, The Gender of Judgments: Some Reflections on 'Bias' (1998) 32 U. of British Columbia L. Rev. 1.
44 For a detailed exploration of such conventions and practices, see Conaghan, n 40 above.
Horizons of Transformative Labour Law in Conaghan, Fischl & Klare, n 10 above
- Klare
Klare, Horizons of Transformative Labour Law in Conaghan, Fischl & Klare, n 10 above, 7, drawing on O.
Domestic Servant' to 'Domestic Worker' in Challenging the Legal Boundaries of Work Regulation
- E Albin
E. Albin, From 'Domestic Servant' to 'Domestic Worker' in Challenging the Legal Boundaries of Work
Regulation, J. Fudge, S. McCrystal & K. Sankaran eds (Hart 2012) 231;
Just Wages for Women (Oxford U. Press 1997); S. Fredman, Reforming Equal Pay Laws 37 Industrial L
- A See
- Mccolgan
See eg A. McColgan, Just Wages for Women (Oxford U. Press 1997); S. Fredman, Reforming Equal Pay Laws
37 Industrial L. J 193 (2008).
10 above, 13. 17 Disenchantment with the contract of employment as the primary mechanism for delivering employment protection has been around for some time; see eg B. Hepple Restructuring Employment Rights 15 Industrial L Recent years however have seen more active efforts to theorise alternatives
Arthurs, Labour Law after Labour in Davidov & Langille 2011, n 10 above, 13.
17 Disenchantment with the contract of employment as the primary mechanism for delivering employment
protection has been around for some time; see eg B. Hepple Restructuring Employment Rights 15 Industrial L. J
(1986). Recent years however have seen more active efforts to theorise alternatives: See in particular M.
18 Presaged in Harry Arthurs' classic work, Labour Law without the State, 46 University of Toronto L
18 Presaged in Harry Arthurs' classic work, Labour Law without the State, 46 University of Toronto L. J 1 (1996);
Workers First, Women Second? Trade Unions and the Equality Agenda' in Morris & O'Donnell, n 5 above 183; G. Lester, Towards the Feminization of Collective Bargaining Law 36 McGill L
60 Conaghan, n 2 above; A. Morris, 'Workers First, Women Second? Trade Unions and the Equality Agenda' in
Morris & O'Donnell, n 5 above 183; G. Lester, Towards the Feminization of Collective Bargaining Law 36 McGill
L. J. 1181 (1991);
81 See generally W. Twining, Law in Context: Enlarging a Discipline The theoretical roots of law in context lie in American legal realism, see R. Pound, Law in Books and Law in Action 44 American L
- Feminist Fudge
- Reflections
Fudge, Feminist Reflections, n 11 above, 4.
80 Ibid, 11.
81 See generally W. Twining, Law in Context: Enlarging a Discipline (Oxford U. Press 1987). The theoretical roots
of law in context lie in American legal realism, see R. Pound, Law in Books and Law in Action 44 American L.
Rev. 12 (1910).
From Women and Labour Law n 5 above
- Fudge
Fudge, From Women and Labour Law n 5 above.
Mossman, above n. 9 above; R. Graycar and J. Morgan, Legal Categories, Women's Lives and the Law Curriculum or: Making Gender Examinable
- Notre Dame
- L Rev
Notre Dame L. Rev. 886 (1989); Mossman, above n. 9 above; R. Graycar and J. Morgan, Legal Categories,
Women's Lives and the Law Curriculum or: Making Gender Examinable. 18 Sydney L. Rev. 431 (1996);
domestic work has attracted significant feminist and labour law attention. Among the many excellent analyses, see B. Anderson, Doing the Dirty Work: The Global Politics of Domestic Labour
- Unsurprisingly
Unsurprisingly, domestic work has attracted significant feminist and labour law attention. Among the many
excellent analyses, see B. Anderson, Doing the Dirty Work: The Global Politics of Domestic Labour (Zed Books
2000);
Intersectional in EU Gender Equality and Non-Discrimination Law (European Network of Legal Experts in Gender Equality and Non-Discrimination, European Commission
- S Fredman
S. Fredman, Intersectional in EU
Gender Equality and Non-Discrimination Law (European Network of Legal Experts in Gender Equality and Non-Discrimination, European Commission, May 2016 accessed at http://ohrh.law.ox.ac.uk/new-reportintersectional-discrimination-in-eu-gender-equality-and-non-discrimination-by-professor-fredman/).
The main object of labour law has always been, and I venture to say will always be
- Kahn-Freund
Kahn-Freund, Labour and the Law 2 nd ed (Stevens & Sons 1977) 6: 'The main object of labour law has always
been, and I venture to say will always be, to be a countervailing force to counteract the inequality of
bargaining power which is inherent, and must be inherent in the employment relationship'.
Workers First, Women Second? Trade Unions and the Equality Agenda
- A Morris
A. Morris, 'Workers First, Women Second? Trade Unions and the Equality Agenda' in
- L Michigan
Michigan L. Rev. 1155 (1991);
Marginal Notes? Gender and the Contract of Employment in Morris & O'Donnell
- J Ross
J. Ross, Marginal Notes? Gender and the Contract of Employment in Morris & O'Donnell, n 5 above, 89; S.
The Impossibility of Work Law in Davidov & Langille (2011) n 10 above, 234; G. Davidov, Setting Labour Law's Coverage: Between Universalism and Selectivity 34
- N See
- Zatz
See eg N. Zatz, The Impossibility of Work Law in Davidov & Langille (2011) n 10 above, 234; G. Davidov,
Setting Labour Law's Coverage: Between Universalism and Selectivity 34 Oxford J. Legal Studies 543 (2014).
For the same reason, labour law struggles even to recognize paid labour carried out in a home or family context; see further G. Mundlak, Bringing Together or Drifting Apart: Targeting Care Work as 'Work Like No Other' 23
For the same reason, labour law struggles even to recognize paid labour carried out in a home or family
context; see further G. Mundlak, Bringing Together or Drifting Apart: Targeting Care Work as 'Work Like No
Other' 23 Canadian J. Women & Law 289 (2011);
On the one hand, the production of the means of subsistence, of food, clothing and shelter …on the other, the production of human beings themselves, the propagation of the species. The social institutions under which men of a definite historical epoch and of a definite country live are
- F Engels
F. Engels, Origin of the Family, Private Property and the State (Penguin Classics 2010, originally published
1884):
'The production and reproduction of immediate life…is… of a twofold character. On the one hand, the
production of the means of subsistence, of food, clothing and shelter …on the other, the production
of human beings themselves, the propagation of the species. The social institutions under which men
of a definite historical epoch and of a definite country live are conditioned by both kinds of
production' (35).
The theoretical roots of law in context lie in American legal realism, see R. Pound, Law in Books and Law in Action 44 American
- W See
- Twining
See generally W. Twining, Law in Context: Enlarging a Discipline (Oxford U. Press 1987). The theoretical roots
of law in context lie in American legal realism, see R. Pound, Law in Books and Law in Action 44 American L.
Rev. 12 (1910).