Gender Pay Gap: A Delicate Balance?

The gender pay gap is the average disparity between the compensation men and women get for their work. A meta-analysis carried out in 2005 by ILO indicated a decrease in the gap from the 1960s to the 1990s. This decrease could have been caused by improving the living conditions and their access to basic rights such as education and health care. Following continuous civil action seeking to assert gender equality and women’s rights, greater awareness on this issue has been created. The consequence has been several lawsuits and class actions against employers all over the world. Many of these employers have come up with explanations and justifications for the pay gap.

The question we explore in this article is whether the gender pay gap is an indication of widespread gender-based discrimination or there are justifications that are not related to gender-based discrimination.


Kenyan Law

The Constitution of Kenya 2010, Article 27 asserts the right of a person not to be discriminated against by the State or any person. It outlines the protected grounds to include race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Section 3(5) of the Employment Act prohibits employers from discriminating against employees on grounds of sex, race, colour, language, religion, political or another opinion, nationality, ethnic or social origin disability, pregnancy, marital status or HIV status in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of employment.

International Instruments

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

Article 1 of the convention defines the term “discrimination against women” to mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 11 imposes an obligation on member states to take measures to eliminate the discrimination of women in the field of employment. 11(d) specifically addresses the issue of equal remuneration and benefits regarding work of equal value and equal treatment in the evaluation of the quality of work.

ILO Equal Remunerations Convention, 1951(No.100)

Article 2 calls upon all member states to make efforts to ensure the application of the principle of equal remuneration for men and women workers for work of equal value.


Inadequate senior representation

The Chairman and Senior Partner at PWC raised this as the justification for their 43.8% gender pay gap in 2018. He explained further that although they met the legal requirement of equal pay for equal work, the challenge was that the genders were not equally represented across the job groups.

While this might be a logical explanation, it highlights the bigger issue of equal opportunities for career advancement for women at the workplace. CEDAW places an obligation on states to ensure equal treatment in the evaluation of work. This has however not been the case in many corporate setups. Jones Day, a leading law firm based in California was recently sued by six of its former employees who claimed that they were underpaid and their career advancement was thwarted on grounds of pregnancy and motherhood. The plaintiffs further complained that the work environment at Jones Day encouraged fraternization and brotherhood among the male employees, who often ‘ganged up’ to harass the female employees.

Where women have managed to rise to the senior ranks at the workplace, their success in these positions is often undermined by their male counterparts. In a recent suit filed by Ms Miriam Nzilani Mweu against Kiptiness & Odhiambo Associates, the plaintiff alleged constant bullying and harassment by one of the male partners at the firm, despite the fact that she was also a partner at the firm. She stated in an affidavit that the male colleague would constantly sabotage her relationship with clients and blame her for his professional mistakes.

It is therefore clear that in order to close the gap, there is a need for more women in senior positions. This will only be achieved where the appraisal methods used are applied equally among the male and female employees. It is also essential that the women in these senior positions are protected from undermining and sabotage by their male counterparts.

Pay equity vs equal pay for equal work

Pay equity refers to equal pay for work of equal value and while equal pay for equal work refers to the situations where the men and women do the same work. The value of the work is gauged using parameters such as the level of skill, effort, responsibility and working conditions under which such work is done. Both the CEDAW and the ILO Convention on Equal Remuneration recognize and require equal pay for work of equal value, which is basically pay equity.

This has been used by some firms to justify lower pay for pregnant women and mothers because they are not ‘as productive’ as their male counterparts who do not have such ‘ distractions’.

While this is in itself not a very convincing justification, there have been situations where women and men have done work of equal value but the gap has still remained. In some cases, like in the case of the US football teams, the Women’s team has been proven to be bringing in more income, although their male counterparts earn more than five times what they earn. The initial explanation by the US Soccer was that the men’s team brought in more money. However, research was carried out that showed that the women’s teams actually had higher ticket sales and they brought in more revenue. The Women’s team and their employer are currently going through mediation after all 28 players filed suit claiming gender-based discrimination.

In conclusion, it is clear that the law, both domestic and international, requires that employers do not discriminate against their employees on grounds of sex and other related grounds such as marital status and pregnancy. Some countries have passed legislation requiring reporting on gender pay gaps by corporates having more than 250 employees. This has led these corporates to identify the real causes of the gaps and have taken steps to eliminate it. They have also come up with justifications for the gaps, though this is not required by the regulation. From the above analysis, however, I suggest that these justifications only reveal deeper issues connected to gender-based discrimination at the workplace and they are not sufficient excuses for the wide gender pay gaps currently in existence.

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