Medarbejderbeskyttelse, familievenlige ordninger og diskrimination af kvinder på arbejdsmarkedet: Et speciale om hvorvidt regler, der er tiltænkt at fremme kvinders placering på det danske arbejdsmarked kan have modsatrettede effekter og i stedet fremme arbejdsgiveres diskriminerende adfærd

Louise Mathilde Sewilay Jensen & Sara Bacher Jakobsen

Student thesis: Master thesis

Abstract

This thesis is an investigation into whether the rules in the Equal Pay Act and the Equal Treatment Act as well as family friendly agreements can lead to employers discriminatory behaviour against women. The legislator has chosen to carry out the principles of the law, among other things by over implementing rules from the Remodelled Directive of Gender Equality in the Equal Treatment Act § 16, stk. 4 and the Equal Pay Act § 3, stk. 2. This means that the onus of proof rests solely on the employer and practice shows that it takes a lot before one could demonstrate thoroughly. We show in a case law analysis that within certain cases the courts of law seem to show a will towards extending the protection of the law in as wide a range as possible. Furthermore the analysis shows that the special protection in some cases can be extended to enjoin the employer with an objective responsibility. Law nr. 217 of 5.3.2013, which includes i.e. § 8a, stk. 2, gives cause for interpretative doubt. The provision is yet another example of a family friendly arrangement with the purpose of creating a better balance between working- and family life. We find that women primarily use these arrangements, which, other things being equal, gives significance to their position in the labour market. We also argue that rules such as the Equal Treatment Act § 9 and the Equal Pay Act § 3 as well as family friendly agreements may lead to an advance in the discriminative behaviour of some employer in the recruiting phase. If a bad match occurs, employers will abstain from dismissing an employee due to the financial risk. Instead the employer waits for the employee to find a new job. This can lead to a balance, where even nondiscriminative employers exhibit discriminatory behaviour, because of the superior profitability involved. Discrimination thereby becomes self-perpetuating, because the employees in the discriminated group already find it harder to get a job, and thus become less attractive to hire. Also we argue that family friendly agreements may lead to some employers’ exhibit statistical discrimination against women.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2013
Number of pages143