From Women and Labour Law to Putting Gender and Law to Work

Abstract

This chapter argues that it is possible to discern a threefold conceptual shift in the feminist legal literature on employment and labour law over the past thirty years. The first shift is away from focusing on women as a unified category of analysis and object of study to exploring gender as a constructed, contested, and differentiated social relationship. The second shift broadens the scope of inquiry beyond formal employment contracts to the labour market in general and the relationship between unpaid and paid work in particular. The third shift is from an instrumental conception of law in which law is seen as a tool for remedying sex discrimination to a more complex and multi-dimensional understanding of the relationship between law and society. These shifts in feminist legal writing about employment and work both reflect and are informed by changes in feminist and legal theory. They also track profound changes in the structure and operation of labour markets, the organization of production, and the politics and power of the nation state.

The chapter begins by showing how the literature in the 1970s and the 1980s concentrated on identifying and remedying women’s employment inequality. This work tended to focus on specific dimensions of, or topics relating to, women’s inequality, such as unequal pay, occupational segregation, sexual harassment and discrimination on the basis of pregnancy. In the 1990s, feminist concerns about addressing various axes of subordination that influenced a women’s social location combined with the erosion of the standard employment relationship to reveal differences between women and the profoundly gendered nature of employment norms. The third section discusses how feminist legal researchers attempted to develop both a transformative conception of equality and a postmodern understanding of law that appreciated its discursive and ideological effects. Following this discussion, the chapter focuses on some key themes - the relationship between gender and intersectionality, the conflict between employment and unpaid, but socially necessary, work and the shift from instrumental to discursive conceptions of law - that have shaped contemporary feminist labour law literature. The chapter concludes by summarizing some of the major achievements in feminist theorizing about labour law and identifying some of the key issues with which feminists who study labour law continue to grapple.

Keywords: gender, labour law, discrimination, equality, employment

JEL Classification: K31