“We would not give the woman the position of judge, and not because we did not expect much from her rectitude and who knows if from her firmness, but because we do not want to provoke a continuous struggle between her duty and her heart... God has not given her her soft voice so that she can formulate terrible rulings”
Concepción Arenal (1820-1893)
We often wonder how it is possible that women in the EU have an average salary 15% lower than their male colleagues, and that's not being managers, because in that case, the salary inequity shoots up to 23%.
Some think that these statistics are from other hemispheres of the world and do not correspond to the Spanish reality, where we presume a veteran and solid democracy and constitutional equality for more than four decades.
It is true that in Spain we have powerful legislative tools to face gender pay inequalities and, also, that little by little we repealed the numerous legal prohibitions that weighed down the labor possibilities of Spanish women, for being born women, limiting their legal capacities, under the illusion of "biological differences", in some cases, or under the historical patriarchal paternalism, in others.
The historical discriminations of female workers are still very present
Practical reality impacts us daily, reminding us that the historical discriminations of female workers are still very present, although disguised as democracy and transvestied as legal equality, which is nothing more than a formalistic fiction far removed from lived reality.
Formal equality has been surreptitiously used to justify a false full recognition of women's rights, guaranteeing them, only if they act as "men", a right designed on values associated with normative masculinity.
Next, I share a practical example of how this gender pay gap is sculpted, in a real, very real case, on jobs of equal value paid differently for reasons of sex, judged by the Superior Court of Justice of the Canary Islands in the judgment of July 27, 2021 (Rec. 867/2021).
It was a collective dispute claim filed by the social representation of a company that had contracted, with a City Council, the sweeping of public roads and collection of solid waste. The pay discrimination suffered by people assigned to the professional category of "laborer" (mostly women) compared to "multi-skilled laborers" (mostly men) was denounced, which, being similar jobs, had a different salary, according to the company agreement applicable. The annual pay difference between the two categories was 1,490'28 euros per year, being higher, obviously, that of the "multi-skilled laborer".
The social court dismissed the claim because:
"The staff of 'laborers' is not exclusively female, with men being the majority, and because the functions performed by the 'laborer' are different from those performed by the 'multi-skilled laborer'."
A remarkable curiosity of this ruling is that, once the almost non-existence of women in the superior professional category of "multi-skilled laborer" (20 men and 2 women, promoted after the filing of the claim) was verified, it is concluded that this has no gender impact because:
"discrimination based on sex, if it occurred, took place for access to employment, not once employed, given that men and women were not promoted to 'laborers', but were hired, yes, exclusively men, 'multi-skilled laborers' as external personnel".
Having filed an appeal against the aforementioned ruling, the Canary Islands Superior Court reaches a different conviction, based on the following reasons.
In the first place, the revision of proven facts is estimated, from which a breakdown by sex of the category of "laborer" very different from the one that was proven in the appealed ruling is deduced. The count made from the list provided by the company evidenced, without conjectures, the existence of a clear majority of women (28 women and 19 men-). In addition, of the 19 male laborers, 13 were replacing women, on medical leave. And it was also found that all the men had been hired after 2019 (except 6), while the women had been there forever. On the other hand, the superior professional category of "multi-skilled laborer" was composed of 20 men and 2 women.
Once the previous data that evidence the feminization of the lower category and the masculinization of the upper category have been established, the Chamber appreciates the existence of a discriminatory indication with a disproportionate adverse gender impact, which requires extreme caution in the administration of justice, integrating the gender perspective as a corrective analysis methodology of the concurrent gender asymmetries. The international, regional and internal regulations applicable to the case are systematized in the legal reasoning, highlighting the latest regulations on pay discrimination based on sex derived from jobs of equal value.
The literal definition contained in the company agreement establishes that: "multi-skilled laborer" is the one who is dedicated to the functions of collection or sweeping at the discretion of the manager, in night or day hours and for whose execution only the contribution of physical effort and attention is required"; and "laborer" is that "operator who is dedicated to specific and determined functions and for whose execution only the contribution of physical effort and attention is required, in daytime hours".
Finally, the differences and similarities between both categories are analyzed in order to determine if we are facing jobs of equal value paid differently and, in this case, discriminatory for the female laborers. On this point, the Chamber reaches the conviction that we are indeed facing substantially identical jobs paid inequitably for the following reasons:
The first rests on the incontrovertible fact that the training, experience and skills required for the performance of both categories is identical: "contribution of physical effort and attention".
The second, in that both categories perform sweeping functions, and although the "multi-skilled laborer" also performs the function of "collecting junk", such task was not specified qualitatively or quantitatively in the trial, by the company, which was responsible for the burden of proof in the face of the discriminatory indications detected.
The third reason, and no less important, was the proven fact that the temporary leaves of the "multi-skilled laborers" were usually covered by "laborers", which evidences the great similarity of the work to be performed by both categories.
Finally, and with regard to the night work, invoked as a justifying element of the higher salary, it was immediately discarded as the daytime multi-skilled laborer is paid the same as the nighttime one, which makes it clear that we are not facing a night work in which this element is consubstantial.
Based on this, the Court declares the nullity of the lower category of "laborer" and condemns them to be paid as "multi-skilled laborers".
There is a long way to go to achieve real pay equality between women and men
This is one of the many practical examples that show the long way we have to go to achieve real pay equality between women and men, but, above all, it is a very visual example of the difficult task of detecting pay gaps.
The stereotypical pillars that support discrimination are so rooted in our perceptual fabric that we are not aware of the continuous adjustments of our thinking and, even when we become aware, we justify them, because, on many occasions, we agree with what they establish.
The culture of violence and discrimination based on gender is structural and systemic, cohabits in a naturalized way and goes unnoticed. Therefore, from the judicial field we must permanently suspect the legal system, which has its own gender, and certainly not the feminine one.
