Market Force Arguments as Grounds for Pay Differences – A Gender-theoretical Study
Abstract
The idea of the article is to study market forces as an acceptable reason for pay differences in the public sector. Statistics show that women still earn less than men and that women’s and men’s jobs are segmented. The majority of employees in the public sector are women whereas men form the majority in the private sector.
The focus is especially on studying pay discrimination cases where market forces have been used as a reason. The case law of Finnish, Swedish and English courts as well as the Court of Justice of the European Union will be examined in the article. Swedish case law is chosen because the legal culture and law is very similar to the Finnish one and there are hardly any suitable cases in Finland. English case law, on the other hand, is chosen because it has quite many examples of market force arguments in cases of pay discrimination. The European Union sets its own demands for equal pay and thus harmonizes the laws of these previously mentioned member countries. Therefore also the case law of the European Court of Justice must be examined. The main attention, though, will be given to two Swedish cases.
These cases will be studied from a gender theory viewpoint. Yvonne Hirdman’s genusteori will be used as a tool for interpreting case law in order to get new perspectives. Genusteori will be compared to the classical legal interpretation method according to which courts always have to follow the law which is set by the legislator. This method can be problematic because what the legislator decides is not necessarily morally just. These two angles have been chosen exactly because they bring out the interesting contradiction between what is morally just and legally right. The idea is to provoke conversation on whether our labour market system is just and equal when it comes to market forces as a reason for pay differences.
Thus the article analyzes when market forces are discriminating people due to their gender according to genusteori as well as law and the classical legal interpretation method. Would Hirdman have come to another solution than the Swedish court and why did the Swedish court decide the two cases like it did? To find out the reasons behind these cases they will be analyzed in detail.
The conclusion is that according to genusteori the labour market is structurally discriminating women. The Finnish legal system does not have the means to interfere with this kind of discrimination at the moment. Before the legislator sees how discriminating the labour market is and is willing to take action to fix it, the situation will not change. The change must come from the legislator.
