In 15 decisions published last month, the European Committee of Social Rights (ECSR) determined that 14 European States are in violation of their obligations to ensure women’s rights to equal pay and equal opportunities in the workplace. [ECSR] In August 2016, University Women of Europe (UWE), an international nongovernmental organization, submitted the separate complaints against each of the 15 States that have accepted the ECSR’s complaints procedure: Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia, and Sweden. See ECSR, UWE Decisions: Factsheet (2020). The ECSR found that each of the States – except Sweden – had violated one or more of its obligations under the European Social Charter with regard to guaranteeing and promoting the right to equal pay for equal work regardless of gender. The ECSR noted that the pay gap persists largely because of imbalances between men and women in the kinds of jobs and positions they hold. The Committee identified steps for States to take, including ensuring pay transparency, providing effective remedies for pay disparities, and ending retaliatory dismissals.
The decisions mark the first time the ECSR has decided complaints concerning the same human rights issue in all 15 States simultaneously. The Committee noted that the decisions should guide the actions of all States parties to the European Social Charter or Revised European Social Charter, including the 28 States that have not accepted the ECSR complaint procedure.
Application of the Social Charter
The European Social Charter expressly protects a right to equal opportunities and treatment in employment, without discrimination on the basis of gender. The Committee emphasized in that this right must be “practical and effective, and not merely theoretical or illusory.” See e.g., ECSR, University Women of Europe (UEW) v. Bulgaria, Complaint No. 125/2016, Merits, 6 December 2019, para. 97. Specifically, Article 4 protects the right to “fair remuneration” for work and, in its Section 3, requires States to “recognise the right of men and women workers to equal pay for work of equal value.” Article 20 of the Charter protects “the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex” and requires States to “take appropriate measures to ensure or promote” realization of that right, including with regard to the terms and conditions of employment. Before beginning its discussion, the ECSR emphasized that it views the Charter as a “living instrument” to be interpreted dynamically and in the modern context. See id. at para. 103.
Drawing on European and United Nations standards with regard to labor rights and human rights, the Committee focused on six possible violations of the Charter raised by the complaints:
- Failure to recognize the right to equal pay for equal work in domestic legislation;
- Failure to provide access to effective remedies for pay discrimination;
- Failure to ensure pay transparency and enable job comparisons;
- Failure to establish appropriate equality bodies (agencies to promote and protect equality);
- Failure to promote equal opportunities between men and women with regard to equal pay, including by collecting data and pursuing gender mainstreaming; and,
- Failure to take measures to ensure a balanced representation of women in decision-making positions in private companies.
The ECSR determined that all 15 States had expressly recognized the right to equal pay under national law. See, e.g., id. at para. 128.
With respect to the availability of effective remedies, the Committee found violations by Bulgaria, Croatia, Finland, Greece, and Slovenia. See, e.g., ECSR, University Women of Europe (UEW) v. Bulgaria, Complaint No. 125/2016, Merits, 6 December 2019. Under the Social Charter, States must provide for remedies in domestic law, and those remedies must be effective, affordable, timely, and provide for adequate compensation. See id. at paras. 135-36. In Bulgaria, for example the country’s equality body (Commission for Protection against Discrimination) handles complaints concerning pay discrimination, but its decisions are not always followed by the courts, which are the only bodies that can grant compensation. See id. at para. 139. Bulgarian legislation also caps compensation for employment discrimination, which can mean they do not cover the actual losses. See id. at para. 141. Therefore, the Committee found Bulgaria not to have satisfied its obligation to ensure access to effective remedies. See id. at para. 142.
Pay Transparency & Job Comparisons
Regarding pay transparency or the ability to compare jobs, the ECSR found violations by 11 States: Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Greece, Ireland, Italy, the Netherlands, Norway, and Slovenia. The Committee noted that States could comply with the Charter by taking measures such as requiring “employers to regularly report on wages and produce disaggregated data by gender” and by allowing workers “to request and receive information on pay levels broken down by gender” in comparing jobs, including across companies. See, e.g., ECSR, University Women of Europe (UEW) v. Belgium, Complaint No. 125/2016, Merits, 6 December 2019, paras. 154-58. In Belgium, for example, it found that domestic law did not require pay transparency and the State had not established a clear system for comparing jobs for that purpose, and therefore found a violation. See id. at paras. 160-66.
With regard to the establishment of equality bodies, the Committee found only Bulgaria to be in violation of its obligations. It noted that such bodies should be authorized to monitor, promote, and make decisions concerning gender discrimination, and provide assistance to victims. See ECSR, University Women of Europe (UEW) v. Bulgaria, 6 December 2019, para. 155. Because the work of Bulgaria’s Commission for Protection against Discrimination is limited by “a context of political hostility” and lacks adequate funding, the ECSR found Bulgaria had not satisfied its obligation to maintain an effective equality body. See id. at para. 162.
Promotion of Equal Opportunities
Concerning the promotion of equal opportunities, the ECSR found violations by 13 States: Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, and Slovenia. In Portugal, for example, the Committee noted that the pay gap had actually increased between 2010 and 2017, before falling slightly. See ECSR, University Women of Europe (UEW) v. Portugal, Complaint No. 125/2016, Merits, 6 December 2019, para. 187. In Portugal, the ECSR observed:
management and supervisory positions are overwhelmingly held by men; men are more often promoted than women, and paid better as a consequence; this trend culminates at the very top, where, among CEOs, less than 4% are women; women take charge of important unpaid tasks, such as household work and caring for children or relatives on a far larger scale than men do; women tend to spend periods off the labour market more often than men. These career interruptions not only influence hourly pay, but also impact future earnings and pensions; segregation in education and in the labour market. Ultimately, pay discrimination, while unlawful, continues to contribute to the gender pay gap.
See id. at para. 194. “Occupational gender segregation,” meaning gender imbalance in the kinds of jobs and positions held by men and women, contributes to the persistent pay gap in Portugal. See id. at para. 196, 201. Therefore, the ECSR found a violation of Portugal’s obligation to promote equal opportunities for women and men with regard to pay. See id. at para. 202.
Gender Balance in Management
With regard to women’s representation in decision-making positions in companies, the Committee found Bulgaria, Croatia, Cyprus, Czech Republic, Greece, and Ireland in violation. In Ireland, for example, domestic law did not require companies to have gender balance in their management, or impose quotas. See ECSR, University Women of Europe (UEW) v. Ireland, Complaint No. 125/2016, Merits, 6 December 2019, para. 206. As a result, women made up 18.1% of board members among large companies in 2018. See id. at para. 207. Accordingly, the ECSR found a violation of the obligation to “tackle vertical segregation in the labour market.”
The ECSR described the decisions overall as “put[ting] the spotlight on the historic inequalities affecting women in the labour market and [sending] a clear message that they are not compatible with our quest for safeguarding human rights,” as well as identifying clear obligations for States. See ECSR, UWE Decisions: Factsheet (2020).
See the IJRC Online Resource Hub for additional information on the ECSR, country factsheets on its Member States’ human rights obligations, and an overview of the human rights of women. To stay up-to-date on international human rights news, visit IJRC’s News Room or subscribe to the IJRC Daily.