Gender equality and employers’ obligations

The regulator’s regulatory incontinence is displayed in several passages. See, for example, article 9.4 of RD 901/20: the equality plan’s measures may be reviewed to add, redirect, improve, correct, intensify, soften or even stop applying a measure. Or article 7.1 of the same decree: the status diagnosis shall identify the inequalities, differences, disadvantages, difficulties and obstacles that exist or may exist. Besides exhaustivity being required in relation to the present, we also have to anticipate and see into the future (“that exist or may exist”).

This incontinence with words is moreover accompanied with detailed regulations on a range of matters and with both documentation and procedural requirements: besides containing detailed regulations on the contents of the equality plan and the status diagnosis along with their negotiation procedures, a set of regulations is also contemplated on the negotiating committee, another set for the plan’s monitoring committee, a pay register must be put in place, a pay audit must be performed, good practice guidelines and procedures, technical guidelines for collective bargaining along with technical guidelines for audits are specified, and a ministerial order is announced with the job valuation rules.

On top of all this there is increased government supervision, present in the preparation of those guidelines and directions, to the point of attempting to impose a classification model on employers, which brings back to life the “professional category” concept or job valuations, and present also in the specified actions of the labor inspectors. A review of the equality plan is imposed where evidence of its “insufficiency” is reported by the Social Security General Treasury (ITSS). Can the ITSS determine the insufficiency of an equality plan, including one that has been negotiated and agreed, and impose a review of it? What grounds can there be for determining its insufficiency or the principles for finding it to exist? It is more serious to entrust the inspectors with the power to find “failure to meet statutory and regulatory requirements” by the equality plan, which should fall within the jurisdiction of the courts, as acknowledged in the decree itself when the same article 9 later mentions a court judgment which “determines failure by the equality plan to meet the statutory or regulatory requirements” (subarticle 2.e). Moreover, the mandatory requirement to register equality plans (on the register for collective agreements; article 11 RD 901/20) throws up a doubt as to whether the authorities can carry out a verification of lawfulness of the plan before it is registered, and even request modifications to it before carrying out its registration.

This collection of employers’ obligations is brought to the point of paroxysm when private and family life matters are added to the mix. References to the distribution of roles, to family responsibilities, to personal data, to personal and family circumstances, reveal an inappropriate inclusion of personal privacy and private life issues in company matters. Take article 7, 1, f) of RD 901, which states that the status diagnosis must include “shared responsibility for exercising the right to reconcile work, private and family life”. Can the employer “collect data”, because that is what the diagnosis involves, on how workers exercise their rights to reconcile private and family life? Who can determine, and based on what principles, whether they are exercising their rights with “shared responsibility”? What measures can employers adopt to prevent private and family obligations not being performed with shared responsibility? Or to achieve shared responsibility for exercising rights? How can employers, without invading the sphere of private life, “promote shared responsibility for those rights”? (Annex, point 5.a). In addition to which, this, purely speaking, is not a matter of exercising rights, as article 7 says, but rather of performing the obligations that family life imposes. We see here how it has been enshrined for the government to enter every sphere of private and family life.

All this profuse legislation, this misplaced government interventionism, has or may have the perverse effect of encouraging the performance of obligations purely at a procedural or documentation level, without bringing about any real changes in the business and employment world. Concise and clear legislation containing reasonable and balanced duties and obligations is a much more effective way of achieving changes. And that trend of performing obligations at a documentation level will be more pronounced at smaller companies: employers with fewer than fifty workers (bearing in mind that every temporary and part-time worker has to be counted as one more employee, regardless of length of contract or working hours, as well as the workers supplied by a temporary employment agency) will find it very hard to meet the cost in procedural and financial terms that implementing the rules will involve. And aside from the temptation to perform the obligations only at a procedural level, employers will at times need an effort of the imagination (the regulatory regulator seems to have their suspicions, because with a dash of humor, they specify that employers must produce “data broken down by gender true to reality”, in other words making things up will not be tolerated: Annex to RD 901, point 3.b). Think about the companies that do not have a classification system based on professional categories (because, as allowed by article 22.1 of the Workers’ Statute, they have implemented a professional classification system that uses professional groups) or that do not apply the “valuation of jobs” technique, which the rule in the regulations appears to impose (where does that leave free enterprise yet again?), and it is even provided that a ministerial order will be approved in this respect (beyond the existing instructions). This is a technique belonging to human resources management, used for classification and pay purposes, which the more advanced companies dropped decades ago. Human resources consultants now talk about “roles” fulfilled by workers, rather than jobs. At many companies the concept of job does not even exist, and workers are assigned to projects.

Lastly, it remains to be seen how the parity and equality requirements that also apply, although timidly, to the workers’ representative bodies at companies are met. Will those requirements allow positive action measures to be put in place to encourage women to take on representative functions? Employers obviously do not appear to be able impose anything in this respect, although they are allowed to agree on specific measures in the equality plans.

There remains much to do in this terrain which is in need, among other things, of greater conceptual clarity. The constitutional and statutory mandate is basically to prevent discrimination. The fight for greater equality (which can never be complete because inequality is innate to the human condition, the reason for Alexis de Tocqueville predicting that the passion for equality would become a “delirium”) requires different tools to those able to be used to prevent discrimination. Not every inequality is discriminatory or able to classed as unlawful. It would be a great leap forward if we could achieve an employment and business world free from discrimination in which all inequalities with a discriminatory meaning are removed.