Equality and Family Responsibilities: A Critical Evaluation of New Zealand Law

Article excerpt

Abstract

The causes of women's persistent inequality in the workplace are complex but work-family conflict and gendered patterns of care-giving undoubtedly play a role. This paper describes existing New Zealand law designed to prevent discrimination against those with family responsibilities and utilises regulatory scholarship to critically evaluate it. It concludes that stronger enforcement mechanisms and positive duties to promote workplace cultures where those with family responsibilities are not disadvantaged would be helpful additions to the existing legal framework.

Introduction

New Zealand women earn less than New Zealand men. Statistics New Zealand recently reported that the median weekly wage of women in full-time employment equates to 86% of the median male wage.1 Measured by average hourly earnings, the gender pay gap has persisted at 12% for the last 10 years.2 There are a number of reasons for this pay gap which include systemic under compensation of female dominated occupations and overt sex discrimination. This paper concentrates on one aspect of the underlying causes of the pay gap, i.e. work- family conflict and gendered patterns of care giving, and it evaluates New Zealand's legal responses thereto.

The paper is structured as follows: In the first part, the relationship between women's disadvantage in the workplace and the ideal worker norm is discussed. In the second part, some concepts drawn from regulatory scholarship are summarised with a few examples providing criteria against which to evaluate New Zealand law. In the third part, New Zealand law is analysed and found wanting.

How do gendered care work norms contribute to women's disadvantage?

Williams argues that women will remain disadvantaged and marginalised in workplaces for as long as the norm of the ideal worker is someone unconstrained by care-work responsibilities, ie. somebody who is able to work 40 hours or more a week, all year round with no career breaks. 3 As long as this norm prevails, anyone who deviates from it will find themselves disadvantaged.

The ideal worker norm is problematic because it does not sufficiently take account of care-work. Historically, this work was largely carried out, unpaid, in the private sphere by women. However, as increasing numbers of women have moved into paid work, the need for care- work has not diminished. Care-work is intrinsic to the continuation and sustenance of human life. The labour intensive nurture of babies and children is the most obvious manifestation of this but it is not the only one. Childless, single people have care-giving calls on their time too, more particularly if they have elderly relatives for whom they are responsible. Moreover, the current understanding of work as work-for-pay or as employment rather than as the whole sum of the labour it takes to keep a household functioning is highly artificial. Paid work is, in fact, parasitic on care-work. Most obviously, if one is to be productive in the workforce, washing will have to be done, meals prepared and eaten, and health (both emotional and physical) maintained.

Mere formal equality for women to compete as an ideal worker can never promote substantive equality for women because care-work is simply not going to disappear. Somebody will have to do it and that person is most often a woman.4 The fact that women carry this burden is a major contributor to their disadvantaged and marginalised status in the workplace. While individual women's decisions to de-prioritise workplace participation in order to accommodate care-work are often framed as a consequence of individual choice, gender equality is not an individual issue. It is a social and structural issue linked to women's disproportionate responsibility for family care-work.

The current distribution of care-work and ideal worker norm also impacts on men. As noted by Williams:5

Hegemonic masculinity [has come to be] defined in terms of work roles. …