Gesine Fuchs

Pay Equity by Law?

Pay Equity by Law? Legal Mobilization by Social Movements in Europe, 1996-2006.
This comparative project investigated judicial and discursive mobilization of the law by social movements in Europe. Under which conditions do social movements and trade unions support pay equity processes (judicial mobilization), when do they refer to the law in order to legitimize the goals of pay equity? How does the law fit into the strategic repertoire of the organisations? The stronger and the more conducive legal and discursive opportunity structures, the more likely is legal mobilization. The projects compares Germany, Switzerland, France and Poland where weak and strong opportunity structures exist in different combinations. The Swiss National Science Foundation (SNF) has supported the project.

The project in detail
The idea of equality is a core value of modernity and democracy. But norm and reality often diverge. Equality as a principle is an ongoing pursuit needing constant practical and discursive re-affirmation. In this process social movements are crucial. Recently, they have increasingly framed their demands for social justice in terms of rights and the law. They have also intensified approaches to the courts with their causes. But can this advance social change, or is reliance on the law a „hollow hope“?
This study analyzes and assess social movement’s legal mobilization – including litigation and discursive mobilization, e.g. claims made with reference to the law and equal rights – for gender pay equity.
While research for the United States has shown that litigation had strong mobilizing effects for social movements, we lack knowledge on the role of litigation for social movements in European countries with a civil law tradition. The issue of pay equity serves as litmus test in this, because the gender pay gap in Europe is high (up to a quarter) and pay equity is a redistributive issue that demands more than rhetorical concessions.
A central hypothesis is that legal opportunity structures (law, jurisdiction, legal procedures) and discursive opportunity structures (institutional and cultural factors shaping public discourse in a given society, e.g. values, norms, political organization) shape the probability and extent of legal mobilization for pay equity. The more favourable these structures, the more likely is legal mobilization. The project hence examines four European countries with legal and discursive opportunity structures in different combinations: Switzerland, Germany, France and Poland. While Switzerland constitutes a case outside direct European Union influence, relevant variations exist within the EU.
First, the opportunity structures in these countries have been examined in detail. Second, selected pay equity trials were analyzed, using media analysis, expert interviews and the actual ruligns. Finally the discursive mobilization in media and movements has been analyzed.
The comparative account and analysis of how social movement organisations argue for pay equity shows that legal opportunities are a necessary, yet not sufficient conditions for judicial mobilizations. Discourses, cultural traditions and political opportunities, also in movement organizations and trade unions, shape strategies and probabilites of judicial mobilization. Going to court in general did not demobilize movements for pay equity. The more unions and organizations engaged in the struggle for pay equity on different levels and with different instruments, the more likely was judicial mobilization. A more detailed account on how discursive mobilization shapes strategies and actions is necessary.

Project publications in English

2013 Recht als feministische Strategie? Überlegungen anhand von Lohngleichheitskämpfen in der Schweiz, in STREIT - Feministische Rechtszeitschrift 31(1), 3-13.

2013 Strategic Litigation for Gender Equality in the Workplace and Legal Opportunity Structures in four European Countries. – In: Canadian Journal of Law and Society / Re­vue Canadienne Droit et Societé 28 (2), 189 – 208.

2013 Using Strategic Litigation for Women’s Rights: Political Restrictions in Poland and Achievements of the Women’s Movement. – In: European Journal of Women’s Studies 20 (1), 21 – 43.

2011 Discursive Opportunity Structures

2010 Strategic litigation, collective agreements and anti-discrimination authorities: Promising paths to pay equity?

Summary of results at FORS.