Inequality between men and women

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By MARIA APARECIDA AZEVEDO ABREU*

The involvement of trade unions in the process of monitoring compliance with the gender pay equality rule is essential so that the institutional, collective and structural dimension of such inequality is taken into account

Another International Women's Day, March 8th – established by the United Nations (UN) in 1975 – is approaching, and the recurring theme is inequality between men and women. Published since 2006, the Global Gender Gap Report [Global Gender Inequality Report], released by World Economic Forum [World Economic Forum], points out that no society, among the 146 countries that send information to compose the Report, has achieved parity between men and women.

The report is made based on an indicator – the Global Gender Gap Index [Global Gender Inequality Indicator], which is composed of the following dimensions, or sub-indicators: (i) political empowerment; (ii) economic participation and opportunities; (iii) educational level and (iv) health and life expectancy.

According to the Report, if the rates of progress seen in the period 2006 – 2023 are maintained, based on the sample of 102 countries, it is possible to estimate the time it will take to fill the gaps produced by such inequality. In relation to political empowerment, it will be 162 years; regarding economic participation and opportunities, it will be 169 years; 16 years will be necessary for equality in educational level; and, for the achievement of equality with regard to health and life expectancy, the time remains indefinite.[I]

Based on these dimensions, the indicator varies between 0 and 1, where 1 would be full equality between men and women. For example, we have Iceland, with an index of 0,912, occupying the first position in the ranking, and Afghanistan, with an index of 0,405, occupying the 146th position. Brazil occupies the 57th position, with an index of 0,726.[ii]

According to the Report, in the dimension “Economic participation and opportunities”, Liberia is the country that occupies the first position, with an index of 0,895; and Brazil occupies 86th position, with an index of 0,670.[iii] In relation to this dimension, based on studies on gender equality produced in different areas of knowledge, notably those by Helena Hirata[iv] and Flavia Biroli,[v] For the Brazilian context, it is possible to state that such inequality is one of the reflections of the sexual division of labor, which structures, firstly, the division of activities in the world between men and women and, after this division, establishes a hierarchy between them, with the activities attributed to men are more valued than those attributed to women.

Added to the sexual division of labor, we have the overload of women with the work of caring mainly for children, the result of a double delegation of responsibility: firstly, the delegation made by the State in relation to families; secondly, of families in relation to women.[vi]

The Brazilian State adopted an important measure in search of accelerating the process of achieving inequality in economic participation and opportunities between men and women: Law no. 14.611, of July 3, 2023, which “provides for equal pay and remuneration criteria between women and men; and amends the Consolidation of Labor Laws, approved by Decree-Law No. 5.452, of May 1, 1943”.[vii] Known as the “equal pay law”, its approval may, to a hasty analyst, have seemed redundant or innocuous, since equality between men and women is explicitly established in article 5, item I of the Constitution of the Brazilian Republic. In addition to being a legal device, the constitutional provision is a foundational element of Brazilian society's expectations of achievement, established in 1988.

Leaving aside the rush, reading the text of Law No. 14.611/23, it appears that measures are determined to assess compliance with the founding republican rule that establishes equality between men and women in Brazilian territory. Such criteria will be defined through the actions provided for in article 4 of the Law: (i) Establishment of salary transparency mechanisms and remuneration criteria; (ii) increased supervision against salary discrimination and remuneration criteria between women and men; (iii) provision of specific channels for reporting salary discrimination; (iv) promotion and implementation of diversity and inclusion programs in the workplace that cover the training of managers, leaders and employees regarding the issue of equality between men and women in the job market, with measurement of results; and (v) promoting the training and training of women to enter, remain and rise in the job market on equal terms with men.

In such a Law, point (v) could be considered inadequate, which is based on the assumption that women would need to be trained for the job market, when it is known that, in the Brazilian context, greater training of women does not necessarily reduce gender inequalities in remuneration for work,[viii] and there are no studies that demonstrate women's lower aptitude for the job market in each specific position. What exists, as previously pointed out in this text, is a division of labor, which results in an ontological division of human activities between men and women and, after such division, a hierarchy between these activities. Glass ceiling, crystal labyrinth, precariousness of women's work, underpaid professions such as domestic work, among others, are extreme aspects of the unequal structure that organizes the world of work between men and women.

Furthermore, Law No. 14.611 uses the terms criteria and measures, but does not mention how equality will be measured. What the Law does is determine measures and duties to be adopted and fulfilled by companies and monitored by the Ministry of Labor and Employment (MTE) and, based on monitoring the data produced by such measures, it will be possible to define measures to be adopted to establish equitable remuneration criteria.

Despite these criticisms, the regulation of Law No. 14.611 of 2013 presented several advances that are now highlighted.

Firstly, this Law established the mandatory publication of salary transparency reports and remuneration criteria every six months, which will initially be instruments for verifying compliance with the general republican rule of equality between men and women.

Secondly, the Law provides for sanctions for legal entities that present data that reveal inequality in remuneration between men and women: in addition to a fine, the employing legal entity must present an action plan to mitigate inequality, with goals and deadlines, and drawn up at from a process involving trade unions. The involvement of trade unions in the process of monitoring compliance with the rule of gender pay equality is fundamental so that the institutional, collective and structural dimension of such inequality is taken into account, in addition to the demand for individual rights. The purpose of Law No. 14.611 of 2023 not only concerns the right of every worker not to be discriminated against, but also charts a route towards building more equitable work environments.

Thirdly, the Law provides for the creation of a unified digital platform on the labor market and income with data disaggregated by sex, including indicators of violence against women, daycare vacancies and access to healthcare, in addition to other data that may impact access to employment. At this point, in article 5, § 1, there is an indication that data on race, ethnicity and nationality, nationality and age must also be collected.

Decree No. 11.795, of November 23, 2023,[ix] regulated the Law to provide for the Salary Transparency and Remuneration Criteria Report, to be required by the MTE, and the Action Plan for Mitigating Salary Inequality and Remuneration Criteria between Women and Men, to be drawn up by legal entities that do not observe equality between men and women, in accordance with MTE guidance. As a result of this regulation, the Decree provides that the Ministry of Women and the Ministry of Labor and Employment are responsible for monitoring data and the impact of public policy and evaluating its results. In this Decree, then, there is a commitment to interministerial monitoring for the success of the public policy designed to achieve equality between men and women from a salary point of view.

In fulfillment of the attribution designated in Decree No. 11.795 of 2023, MTE Ordinance No. 3.714, of November 24, 2023, was published, in which it is determined that the data to be provided by employers will be obtained from two platforms, eSocial and the Emprega Brasil Portal. In addition to establishing the obligations of employers before the MTE, the ordinance establishes, in its article 4, the obligation that the Salary Transparency Report must be published by companies in order to provide public access to each company's remuneration policies.

e-Social is a computerized Public Administration system available to domestic employers, special insured individuals and Individual Microentrepreneurs (MEI), through the gov.br platform.[X] The Emprega Brasil Portal provides workers with employment policies and actions, with a view to decent work, and, for companies, applications that enable “faster finding of the desired worker”, in addition to assistance in “compliance with labor provisions”.[xi]

In accordance with article 6 of MTE Ordinance No. 3.714 of 2023, such a report will be mandatory after the Salary Equality and Remuneration Criteria tab is made available, in the employer area of ​​the Emprega Brasil Portal.

In the Ordinance, there is also a section dedicated to the Action Plan for Mitigating Inequality in salaries and Remuneration Criteria between women and men. At this point, the ordinance provides that such Plan must contain: (a) measures to be adopted with a priority scale; (b) goals, deadlines and mechanisms for measuring results; (c) annual planning with execution schedule; and (d) evaluation of measures at least every six months.

With this legal and administrative framework, in the implementation of this public policy, important measures have already been taken. On the Emprega Brasil Portal, the tab for filling out the Salary Transparency and Remuneration Criteria Report is now available for companies with more than 100 employees.[xii] This first phase of implementation, prior to the coverage of all legal entities under private law employers, will provide information not only for monitoring discriminatory practices, but also for the creation of a data system from which knowledge can be produced and strategies constructed to mitigating inequality between men and women.

Seeking to illustrate the current stage of public policy on equal pay between women and men, we can present the following flow:

The flow described above explains the meaning and direction of the public policy formulated to achieve equality between women and men from a remuneration point of view in the world of work. There are other points that permeate the success of the policy that deserve to be noted: (1) the public policy to mitigate wage inequality already has a success in its name. By choosing the term mitigation, rather than promotion, the implication is that not only is pay equity desirable, but also inequality between women and men, performing and carrying out the same functions, is a public problem to be resolved.

(2) Such a policy takes the constitutional rule seriously without, however, assuming that its existence is sufficient to resolve a social problem. Public policy starts from an accurate question for reality: since we have already directed our republican life towards observing the rule of equality between women and men, why is it not being achieved?

(3) The question above can be inferred from the following contextual description in the Explanatory Memorandum of Bill No. 1085/2023, which gave rise to the approved Law: “the proposal in question continues the process of reconstruction and transformation of the Brazil. The proposal aims to achieve equal rights in the world of work, preparing the country to assume increasingly clear commitments to social development and economic growth, to expanding equality between women and men and to combating poverty, racism, oppression of women, as well as all forms of social discrimination that are reflected in historical inequalities”.[xiii]

(4) Based on the existing observation of the Bill's Explanation of Motives, described in the previous item, it can be stated that, in the elaboration of the policy, the complexity of the public problem to be resolved was recognized, evidenced in international, national and in specialized studies. From this, public policy opens up the possibility of monitoring with a view to obtaining inputs for better specification of conduct guidance.

(5) Public policy has as one of its results the production of data that enable more specific and precise public policies, to solve even more complex public problems.

Given the explicit and implicit successes of the public policy to mitigate inequality between women and men, it remains to point out possible paths to be taken from its implementation.

The first is the formation of a data system that allows consolidating not only quantitative information about salaries, but also allows identifying institutional practices that have an impact beyond individuals. It will be interesting if the policy reinforces something suggested by the Law: the collective construction of an environment conducive to mitigating gender and racial inequality and the construction of an equitable environment.

Secondly, it is necessary to point out that, in the legal design of the policy, the role that companies – legal entities governed by private law – whose share control is state-owned – can play as pioneers in equitable practices was not indicated. It would be beneficial for companies with state control not only to advance in complying with the Law, but also to indicate which practices can be adopted by other companies. Such practices can reinforce the role of the State as a monitoring agent, not just an inspection agent.

Thirdly, it is highlighted that, in addition to the obvious role of the State as a supervisor and promoter of equity, it is important that trade unions assume the role of contributing to the construction of more equitable work environments, in addition to individual anti-discrimination rights. Other social actors are responsible for exercising the role of constant observation and criticism of the changes that may occur, following the publication of the first Equal Pay and Remuneration Criteria Reports, on March 8th.[xiv]

From this initially experimental process, criteria for the fair attribution of remuneration for work can emerge, as well as the realization that such justice is not possible and that we therefore need another system of social values, which even results in a another notion of justice. To reach any of these steps, we need to solve the previous public problem, which is the unfair inequality in pay between men and women. Solving public problems not only leads to the improvement of public policies, but also to the refinement of socially accepted and agreed conceptions of justice.

Finally, it is necessary to be aware of what is insufficient in the Law, as briefly pointed out in the initial criticisms presented in this text, and recognize that the task of qualifying complex activities performed by responsible workers as equivalent and deserving of the same remuneration is difficult.

Knowledge about the practices and attributions of remuneration value to different tasks could be of great value not only in the search for gender equity, but also in the knowledge of the system of values ​​and rewards in force repeatedly in the world of work in Brazilian territory. From such knowledge, we can refine the conception of justice we want to achieve.

*Maria Aparecida Azevedo Abreu is a professor at the Institute of Urban and Regional Research and Planning at the Federal University of Rio de Janeiro (UFRJ).

Notes


[I] To access the full report, see https://www3.weforum.org/docs/WEF_GGGR_2023.pdf. To check the estimate of the reach of equity, in years, see page 6 of the Report.

[ii] See page 11 of the Report.

[iii] See page 17 of the Report.

[iv] Helena Hirata's article, published in 2007, is still a reference for the treatment of the structure of the sexual division of labor. To access the article, follow the link: https://www.scielo.br/j/cp/a/cCztcWVvvtWGDvFqRmdsBWQ/?format=pdf&lang=pt

[v] For a framework of the sexual division of labor, from a theoretical point of view, in a democracy, see the article by Flavia Biroli, from 2016: https://www.scielo.br/j/dados/a/kw4kSNvYvMYL6fGJ8KkLcQs/?lang=pt

[vi] Regarding the care economy, last year this Bulletin published a brief article by me, in which I indicate some consequences of this double delegation: https://ippur.ufrj.br/cuidado-planejamento-e-cotidiano/

[vii] In accordance with the syllabus of Law No. 14.611/23. For access to the full Law, see: https://www.planalto.gov.br/ccivil_03/_ato2023-2026/2023/lei/L14611.htm

[viii] To exemplify this argument, see article by Moema Guedes, from 2010, available at the link https://www.scielo.br/j/tes/a/hhJg8kZspmjmcYhCJCF6CXc/?lang=pt and the article by Eugênia T. Leone and Luciana Portilho, from 2018: https://econtents.bc.unicamp.br/inpec/index.php/tematicas/article/view/11709 . In a less in-depth, but also illustrative way, see my article from 2013: https://inteligencia.insightnet.com.br/igualdade-de-genero-e-direito-das-mulheres-no-brasil

[ix] To access the official text of the Decree, access the link: https://www.planalto.gov.br/ccivil_03/_ato2023-2026/2023/decreto/d11795.htm

[X] According to official information available at the link: https://login.esocial.gov.br/login.aspx

[xi] Official information available at the link: https://empregabrasil.mte.gov.br/sobre-emprega-brasil/

nOfficial information available at the link: https://agenciagov.ebc.com.br/noticias/202401/igualdade-salarial-governo-federal-recebe-relatorios-de-remuneracao-a-partir-de-segunda-feira-22. In this link, it is suggested that Law No. 14.611 of 2023 provides for compensation for moral damages in the event of non-compliance with its determinations, however, what the law provides is that the sanctions determined therein do not exclude other compensation determined as a result of civil and labor legislation .

[xiii] To access the Explanatory Memorandum of the Bill, see the link: https://www.camara.leg.br/proposicoesWeb/prop_mostrarintegra?codteor=2242565&filename=PL%201085/2023

[xiv] The initial deadline was February 29th, postponed to March 8th, according to the official news available at the link: https://www.gov.br/mulheres/pt-br/central-de-conteudos/noticias/2024/fevereiro/prorrogado-para-8-de-marco-o-prazo-para-que-empresas-com-100-ou-mais-funcionarios-realizem-o-preenchimento-do-relatorio-salarial


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