Promising Paths to Pay Equity: A Comparison of the Potentials of Strategic Litigation, Collective Bargaining and Anti-Discrimination Authorities in Switzerland, Germany and France

Abstract

The gender pay gap in Europe is between 15% and 25%, and is narrowing only slowly. This poses a considerable challenge for gender equality – a core value of modernity and democracy. Three routes to reducing this gap are discussed: strategic litigation, collective bargaining and anti-discrimination authorities. EU law has been crucial for comprehensive national pay equality legislation. Recent directives have led to new anti-discrimination authorities that can investigate claims, support victims and make policy recommendations. Yet the implementation ranges from very weak to quite strong, according to different ‘worlds of compliance’ (Falkner/Treib). What have these institutions achieve to date? And how do they interact with the agenda setting and the actual pay equity policies of women’s organizations and trade unions? Like social movements in general, who have recently been framing their demands for social justice in terms of rights and the law, some women’s organizations and trade unions have also been using strategic litigation before national and European courts to further their aims. Yet many have remained sceptical about the transformative potential of jurisdiction (jurisprudence) for structural problems. Gender Mainstreaming of collective agreements has emerged as a new policy strategy of women’s trade union departments, but met with resistance from both employers and vested male union interests. Which policy is most promising in bringing about pay equity? National institutional settings, traditions and welfare regimes substantially influence actors’ strategic choices. Although every approach has certain pitfalls and some potential, the mobilization of discourses of law and rights seems crucial for any progress towards pay equity. The paper is based on comparative research in three countries – Switzerland, Germany, and France . Data includes media analysis, interviews and court decisions.