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Can Law “Fix” Gender Inequality at Work?

Here’s a nice topic to start off our employment law course.  A new study from the Conference Board of Canada found that “the proportion of women in senior management positions hasn’t budged in 22 years” even though women comprise a much larger proportion of the workforce.

Since 1987, men have consistently been two to three times more likely than women to hold senior management positions…  Between 1987 and 2009, the proportion of women in middle management rose by about 4 per cent. At that rate, it will take approximately 151 years before the proportion of men and women at the management level is equal

What explains the fact that women rarely make it into senior or even middle management positions?

What explains why a full-time women employee working similar hour earns 70% of a man?

This guy (and many neoliberal economists) argue that women earn less and are less likely to get promoted because they are worth less.

Women make life choices that influence their career paths:  they have babies and stay home to care for them, and therefore have fewer years of service;  they choose to work fewer hours than men and have less travel; and they choose careers that are less physical and less risky than men.  All of this leads them to earn less.  This explanation assumes that employers are rational and profit-seeking, and that markets are perfectly competitive:  that an employer would not pay a man more than a women unless the man was more productive, and that an employer who did so would be driven out of business, since paying a man more than a women is economically irrational unless then man is more productive.

How You Explain the Inequality Determines How You Perceive the Role of Law

The argument that women earn less and get promoted less because they are less productive than men supports the argument that the state should not attempt to “fix” the inequality by employment laws.  It is not improper discrimination causing these results, but the market properly rewarding women for their relatively lower productivity.

But if you believe that these results are caused by improper biases on the part of employers, that assume women are less productive or more willing to accept inferior positions, then you will likely support anti-discrimination laws.  People who support pay equity and gender discrimination laws argue that labour markets are far from rational and perfectly competitive.  The men who make decisions in organizations prefer to deal with men, and hold biases about the attributes of women that cause them to preference men.  The fact that women have not advanced in 30 years is just more evidence that the market does not correct gender discrimination.

In Canada, our governments long ago passed laws that prohibit discrimination in wages and advancement in employment on the basis of gender.  It is found in the Ontario Human Rights Code and the Employment Standards Act, for example.  Yet the gender wage and promotion gap seems  not to be  improving.

What does that say about our laws?  Can law “fix” the gender wage gap and remove the glass ceiling?  Should it try to do so?



2 Responses to Can Law “Fix” Gender Inequality at Work?

  1. Ryan Reply

    September 2, 2011 at 11:32 am

    I think law can certainly fix the problem, but it depends on what form of regulation is used.

    Prescriptive solutions are too resource intensive in terms of monitoring to be effective, and often place too heavy a burden on employers to meaningfully implement.

    Reflexive solutions, on the other hand, hold the key, in my opinion. Rather than repeat myself, I’ve written about the reflexive potential in canada’s public procurement laws to incentivize employers to shatter their own glass ceilings out of competitive self-interest.

    Interested? Read about it here:

  2. Christina Catenacci Reply

    September 7, 2011 at 12:25 pm


    I have had a chance to read your paper, and first off, congrats on such a well written article – I can see why it won Allen Ponak best student paper award.

    I especially liked your analysis of the reasons why the problem of gender discrimination in executive employment is persisting, under glass ceiling’s social consequences, referring to industrial psychologists’ views involving social constructs about leadership.

    Also, I liked your entire analysis in Part III of your paper. Given what we know about learning theories coming out of research in psychology, like shaping (positive reinforcement in particular), I agree with you that perhaps the most effective way to alter norms to value women in leadership is to create a regulatory system that puts reflexive pressure on companies to start thinking about things and operating differently. Obviously what we have right now is not quite working as is…

    Professor Doorey,

    Thanks for making us more aware about this issue.

    Christina Catenacci

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