It’s ironic that however much national or international laws seek to achieve social engineering objectives, they are often frustrated by judicial or local legislative sabotage, apathy, or indifference amongst those they seek to empower or control.
One of the biggest universal trends in employment legislation is the extension of parental leave and the introduction of extended paid paternity leave. But wherever this takes place, the reaction of parents – and men in particular – is to largely ignore the new options, however attractive they are made to be. We can also see in this Newswire the example of a flexible working law in Jordan, designed to increase female employment participation which, in spite of additional Ministry of Labour instructions, is largely being ignored by employers.
Then there are the reforms that seek to increase the representation of women on company boards or to dismantle the last vestiges of job segregation. Although more women do get to the top, they do not seem to open up any new career paths, because the pathways appear to close behind them – and women at the top seldom see it as their role to fight for greater career opportunities for other women. There are also few challenges to the most blatant job segregations that exist in the professions. Psychiatrists (a largely male domain) undertake virtually the same work as clinical psychologists (a largely female domain, but all with doctoral degrees), yet their salaries differ very widely. In a similar way, the UK ‘Legal Executive’ enjoys a lower average salary and less status than the similarly qualified solicitor – and guess what the gender mix is in each group.
An emergent approach in the USA to prevent the perpetuation of unequal pay between men and women is to introduce laws which ban questions about pay history during job interviews. We report too in this issue the decision of the 9th U.S. Circuit Court of Appeals to stop employers justifying individual pay differences by reference to internal salary history. However, the State of Wisconsin has just acted to prevent municipalities introducing local measures to prohibit employers from asking prospective employees about their salary history.
Then there is the constant attempt of US Federal Laws and EU Directives to create a strong central framework for employment rights. Nevertheless, glaring gaps still remain in the framework. Although Title VII of the US Civil Rights Act gives protection from racial and gender-based discrimination, US legislators remain stalwartly backward in offering no protection for those with different sexual orientations. So, it is being left to the courts to be the battleground on this issue. In the European Union there are anti-trust rules to prevent business cartels, yet a determined reluctance to block labour cartels, such as the imposition of sectoral collective agreements on those not party to them in France.
Likewise, there is no EU Directive dealing with individual dismissal and seemingly an unspoken agreement between European Commission officials to steer around such a possibility.
Finally, in a kind of fairground way, the courts often frustrate the intentions of legislators, and, in turn, legislators seek to undermine the courts. Recently in Ireland, a court ruling allowed an employer to dismiss employees who became disabled and another ruling placed all responsibility on the transferee if there was a failure to consult during a TUPE transfer. The independence of courts in Poland continue to threaten the country’s EU membership, while in the USA – 50 years after the Selma marches – the Supreme Court has had to intervene in recent years over redistricting exercises that are aimed at restricting the impact of the black vote.
It remains ironic that because of accidents of geography, an individual can act in a particular way in one jurisdiction and walk away unchallenged, but in another jurisdiction be arrested and face incarceration. Add into this mix differing levels of law enforcement and judicial bias/corruption and the rule of law appears at best a sad, arbitrary and sometimes pathetic game. Laws either do not meet their objectives or are frustrated all the way to the point of implementation. Yet politicians and judges continue to demand our respect as they proliferate and endlessly reinterpret legislation. Perhaps it is far better for employers to follow the commonly adopted principle of the street: when seeing a policeman, walk to the other side.