Law and gendered labour market segmentation

Abstract

This article captures the shared understanding in the literature of labour law's interaction with gender, distinguishing between law's different functions – constituting labour market institutions, sustaining them, addressing unwarranted outcomes and transforming the institutions. Constituted, in part, by law, the standard employment relationship and the institutions of formal employment have segmenting gendered effects. While legal norms designed to correct these effects are important, they also sustain them. The authors argue for a transformative alternative that would follow two general principles in designing new labour standards, namely, universalization of scope and adaptive content in the interests of differently situated women and men.

Introduction: Worldwide patterns of legal segmentation in employment law

“…This partial convergence means that these re-regulation paths -despite their differences -have a number of important points in common. Beyond equalizing standards, employment law requires a radical transformation of employment standard-setting (Fudge and Mundlak 2021). Overcoming legal segmentation requires the extension of the universal coverage of standards and legal instruments to hitherto unprotected sectors (as in the case of the ILO Domestic Workers Convention (No.…”

Segmenting and equalizing narratives in the ILO's standard‐setting practice

“…In the global North, variations of the SER have created an "employee" or "worker" status that is associated with a male breadwinner family model and the idea of family wages. For about 40 years (see account by Deakin 2013), SERs have undergone a process of restructuring in the countries of the global North (Mückenberger and Deakin 1989;Stone and Arthurs 2013) that has increased flexible and precarious employment conditions (Veneziani 2014;Rittich and Mundlak 2015;Fudge and Mundlak 2021). Countries of the global South never had an economic and labour market structure capable of providing a "match" between existing work relations and SER-oriented labour law (Teklè 2010;Hayter 2018).…”

“…All authors studying the contest between a segmenting and an egalitarian narrative, particularly as regards the increasing quest for equity (Aloisi and De Stefano 2020;Bosch 2004;Vosko 2010, 208;Mückenberger and Deakin 1989;Matthies et al 2002;Fudge and Mundlak 2021;Supiot 1999), recommend that a new equilibrium between status-protection and equal (particularly gender) rights be provided by means of re-regulation. In such an exercise, lawyers and social scientists find common ground in what they see as the prerequisites for the advancement of equality (see Matthies et al 2002), namely that: (i) more rights for the protection of working people should be substantially de-coupled from the status of formal employment and, instead, connected with human needs; (ii) there should be a fairer distribution of the care activities of working people between men and women over their life course, drawing on better financial resources, time allowances and solidarity-based protection; (iii) rights should be transferable and accessible across firms, branches and borders; and (iv) all persons worldwide should be guaranteed basic income and protection against work-related risks.…”

“…In these circumstances, the worldwide spread of an SER narrative is counterfactual. It paves the way to unjust and ineffective legal instruments privileging selected working elites only (Fudge and Mundlak 2021).…”

Segmenter ou égaliser: le poids de deux modèles dans la pratique normative de l'OIT

“…Dans ces circonstances, la diffusion d'un système organisé autour de ce modèle à l'échelle internationale s'est faite au mépris de la réalité. Elle a favorisé l'adoption d'instruments juridiques injustes et inefficaces, qui introduisaient des privilèges, dont seule une élite au sein de la maind'oeuvre bénéficiait (Fudge et Mundlak, 2021).…”