| by Dr. Ruwantissa Abeyratne
( March 09, 2012, Montreal, Sri Lanka Guardian) Yesterday 8 December was International Women’s Day. In my workplace (and I am sure in many other places too), on this day we reflect the importance of gender equality and gender equity. For both men and women.
“Gender equality” and “gender equity”, (along with “sexual equality”, and “gender egalitarianism” ) are considered by some as synonymous terms and therefore might cause confusion. Gender equality is a human right and one of the Millennium Development Goals of the United Nations and a key to achieving the other seven goals. This initiative underscores the fact that division of labour by gender, based on the assumption that women and men do different work at the workplace, is a wide spread social construct in the world today. The term “ equity” (in the context of gender equity), although used appropriately in the context, is a word identifying the set of legal principles in countries following the English common law tradition, which supplements strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as “natural justice”. This is not what gender equity means. Gender equity is a measure that is employed to correct unequal conditions and to compensate for disadvantages that preclude women from working under equal conditions with men. Equity would equalize results in the workplace and eventually lead to equality.
The United Nations has endorsed the development of a system-wide policy on “gender equality (note, the words “gender equity” are missing) and the empowerment of women and strategy on gender mainstreaming”. Gender mainstreaming is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in any area and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of the policies and programmes in all political, economic and societal spheres so that women and men benefit equally, and inequality is not perpetuated.
The ultimate goal is to achieve gender equality. The United Nations encourages every employer to offer equal treatment, opportunities and privileges for women as well as for men and remain gender sensitive. Article 7 of the United Nations Charter states that all are equal before the law and are entitled without any discrimination, to equal protection of the law. Article 23 (2) of the Charter provides that everyone has a right, without discrimination, to equal pay for equal work. Based on this reasoning, gender discrimination is any action that grants or denies opportunities, privileges, or rewards to a person just on the basis of their sex.
Discrimination based on gender is often based on the gender stereotypes promoted by a particular society. For instance, it is reported that in the United States media, men are often depicted as physically stronger than women, while women are depicted as being physically weaker, more emotional and more sensitive than men. Conclusions reached by the United Nations on women’s’ studies reveal that women often experience a “glass ceiling” and that there are very few, if any, societies in which women enjoy the same opportunities as men. The term ‘glass ceiling’ describes the process by which women are barred from promotion by means of an invisible barrier. In the United States, the Glass Ceiling Commission has stated that between 95 and 97 per cent of senior managers in the country’s biggest corporations are men.
In its Global Employment Report of 2009 the International Labour Organization said: “In 2008, an estimated 6.3 per cent of the world’s female labour force was not working but looking for work, up from 6.0 per cent in 2007, while the corresponding rate for males was 5.9 per cent in 2008, up from 5.5 per cent in 2007. Women also face constraints in terms of sectors of economic activity in which they would like to work and working conditions to which they aspire. Women are overrepresented in the agricultural sector, and if the more industrialized regions are excluded, almost half of female employment can be found in this sector alone. Women are also often in a disadvantaged position in terms of the share of vulnerable employment (i.e. unpaid family workers and own-account workers) in total employment. These workers are most likely to be characterized by insecure employment, low earnings and low productivity. Those women who are able to secure the relative comfort of wage and salaried employment are often not receiving the same remuneration as their male counterparts.”
Gender discrimination is not only in the employment field. The United Nations records that in all societies, in varying degrees, women and girls are subjected to physical, sexual and psychological abuse that cuts across income, class and culture, creating serious obstacles to their right to participate fully in society. The UN report of the Fourth World Conference in Beijing, September 1995 concluded that violence against women is a serious factor which forces women to a position of subjugation and subordination compared with men. In the 1993 Declaration on the Elimination of Violence Against Women, adopted by the United Nations “violence” is defined as “any act of gender-based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. One of the Millennium Goals of the United Nations is to eliminate gender disparity in primary and secondary education preferably by 2005, and at all levels by 2015.
There is an extended dimension to gender discrimination where women are discriminated upon both on a gender and a racial basis. Called intersectional discrimination, it represents a far more insidious dimension than plain gender discrimination across the globe. Pragna Patel, in an au fait presentation to the Beijing Conference observed, “intersectional discrimination has only recently been recognised, at least in international forums as a serious obstacle to the achievement of equality for many marginalised women. Historically, at the international and national levels, racism or racial discrimination on the one hand and gender discrimination on the other, have always proceeded in official thinking and policy along mutually exclusive lines. However, the notion of intersectional discrimination has now been acknowledged in a series of UN conferences on women” Ms. Patel recommended, inter alia that at national levels, governments carry out an urgent review of all governmental policies and laws, including those on violence against women, citizenship, nationality, immigration and asylum, concerning the discriminatory impact on marginalised women affecting their enjoyment of gender and racial equality.
Ms. Patel’s recommendations for the United Nations are that there is an urgent need to mainstream an intersectional analysis into the investigation of all forms of discrimination, by all the various UN constituent bodies. This includes mainstreaming an intersectional analysis of gender and race discrimination into the work of all mechanisms of the human rights system, including treaty bodies, commissions and the activities of the thematic and country specific rapporteurs and working groups Also recommended is a careful audit of governmental policies on the elimination of racial discrimination, including multicultural and other so called progressive ‘anti racist’ policies, for their impact on gender equality with reference to minority women.
Perhaps the inequity can be traced to history. Simply put, gender discrimination is discrimination based on gender. This is considered a form of prejudice and is now illegal in most countries. There are cultural and historical overtones of gender discrimination against women which could be attributable to the entrenched culture of differentiation, spanning several centuries. For example, Professor Alan Dershowitz, in his book “Rights from Wrongs” cites the instance of the United States Supreme Court in 1873 denying a woman the right to be admitted to the bar. The Supreme Court relied on the divine concept of natural law and stated : “God designed the sexes to occupy defined spheres of action and it belonged to men to define and apply the law”. The Court went on to say that a woman’s divine and assigned role was in the domestic sphere.
Socially, sexual differences have been used to justify societies in which one sex or the other has been restricted to significantly inferior and secondary roles. While there are non-physical differences between men and women, there is little agreement as to what those differences are. The closest to understanding gender differences has been feminist theory which aims to understand the nature of inequality and focuses on gender politics, power relations and sexuality. While generally providing a critique of social relations, much of feminist theory also focuses on analyzing gender inequality and the promotion of women’s rights, interests, and issues. Themes explored in feminism include discrimination.
So what is the remedy? It is one thing celebrating a day dedicated to women and quite another doing something about gender discrimination and harassment. In an earlier article I mentioned the possible invocation of the law of outrage. Gender harassment in the office environment is not an uncommon global phenomenon, and has pervaded through various jurisdictions around the world. In the American case of Coniglio v. City of Berwyn, heard in June 2000, a female city employee filed a hostile workplace claim as well as an action for the intentional infliction of mental distress arising out of her supervisor’s habit of viewing pornography on the internet in full view of her at work. The Court recognized the tort of outrage in this case, but was unable to award compensation to the plaintiff as her action was based on a statute which pre-empted the tort. However, the tort of outrage could certainly prevail in adjudication where the action questioned is based on an independent tort.