The dual role of Law in women’s employment opportunities.

Part I : Legal restrictions on women’s access to employment.

The legal standards restricting women’s access to employment can be categorized into several types : one imposing a near-total prohibition on women’s employment (A), those restricting or barring them from certain professions or working conditions (B), and discriminatory norms existing beyond labor law, which also have an impact on women’s right to work (C).

A. Near-total legal prohibition of women’s employment.

In 2023, in about 20 countries worldwide [3], women’s right to work depends on their male guardian’s consent. The states enforcing this prohibition are located in the Middle East and in Western and Central Africa. Such legal restriction can significantly limit women’s access to the labor market, as illustrated by the low female labor force participation rate in Iran of 14.4% [4]. An Iranian husband can prohibit his wife from working if he deems it contrary to the “interests of the family or the dignity of himself or his wife” [5], a justification found in several countries. Should she refuse to cease working, he may take legal action against her.

A relevant case in point is also the situation in Afghanistan. Since the Taliban’s return to power in August 2021, various increasingly severe restrictions [6] have been added to the prohibition on working without a male guardian’s consent, further limiting women’s right to work. Numerous bans have been imposed on sectors with high female representation in specific areas, such as bakeries in Kabul [7], carpet weaving factories in six districts of Nangarhar province [8], aid workers [9], and beauty salons nationwide [10]. These restrictions are compounded by severe limitations on women’s freedom of movement [11], speech [12], and access to education [13], making their access to the labor market almost impossible.

These cumulative prohibitions have created an exclusionary legal system for women, making Afghanistan the State with the lowest female labor force participation rate, which fell from 16.5% in 2020 to 4.8% in 2023 [14].

B. Partial legal prohibitions on women’s employment.

In 2023, at least 59 states imposed prohibitions on women holding certain positions [15]. This is particularly evident in sectors such as mining, as well as in manufacturing, agriculture, energy, construction, and transportation [16].

The grounds for this distinct legal framework for women are generally consistent across states and perceived as protective legislation grounded in a particular vision of women’s capacities and women’s social roles [17]. The primary justification for such prohibitions is the protection of women from physical harm as the aforementioned sectors are considered to be physically demanding. Women are not considered as individuals, but the assumption seems to be that all women possess identical physical capacities or the same desire to become pregnant, resulting in overinclusive law.

These sex-segregated labor markets are often a result of legacy legislation. For instance, the restrictions on women’s work in mining can be traced back to the United Kingdom’s Mines and Collieries Act of 1842. This prohibition was ostensibly aimed at protecting the health of women ; however, it was also rooted in the notion that women working in scant clothing alongside men in confined spaces was contrary to prevailing moral values. It also reflected the belief that women were more suited to domestic and reproductive roles rather than physically demanding tasks [18]. The reluctance to include women in these jobs also stems from the fact that lower pay for women for the same work was seen as competition by the male workforce, a position often supported by trade unions globally, which were also predominantly male [19]. The act served as the foundation for the International Labour Organization’s (hereinafter referred to as “ILO”) adoption of protective legislation regulating women’s labor in the mining industry [20], i.e. Underground Work (Women) Convention, 1935 (No. 45) [21] (hereinafter as “C045”). C045 was only repealed in 2024 by the ILO [22] but as of today, 49 states still adopt this Victorian-era legal standard and forbid women from working in mining [23] despite ILO’s requests [24].

The prohibition of women working in certain positions, justified by claims about their physical capabilities, can take several forms. Thus, around 20 countries globally enforce prohibitions on women working at night [25], influenced by the Night Work (Women) Convention of 1948 (No. 89) [26]. This restriction is observed in some Indian states for example [27]. Additionally, women are often prohibited from working in roles that require heavy lifting, as seen in Chile [28]. Another form of limitation is the prohibition of work in physically demanding professions during certain periods. In China, for instance, women are barred from certain positions when they menstruate every month, when they are "married but not yet pregnant" [29], during pregnancy, and nursing [30].

Furthermore, women are also banned from some professions based on ethical beliefs codified in legal standards. This type of restriction is present in several states in India, where laws prevent women from serving alcohol in public [31].

Lastly, religious justifications are likewise invoked to uphold prohibitions. In countries where Islam is the state religion, their legal systems either fully implement Sharia law, or apply these Islamic legal rules selectively to specific legal matters. Thus, in certain countries such as Mauritania and Iran, a woman may only work if her profession is in compliance with Sharia law. In Iran, women can’t be singers for example, as it is deemed contrary to Sharia [32]. Moreover, the Mahram system, derived from Sharia law, dictates that women cannot be alone with men who are not members of their family. This requirement is enforced in certain regions of Yemen, complicating women’s ability to commute to work and, in some cases, even to work itself [33].

C. Discriminatory legal standards impacting women’s employment.

Some legal standards do not explicitly bar women from specific professions but instead create obstacles that make it harder for them to access the labor market.

Globally, women possess approximately two-thirds of the legal rights of men [34]. These discriminatory rules span a wide range of legal domains that hinder women’s ability to access the labor market.
For instance, gendered laws in education may prevent women from accessing higher education, which limits their career opportunities. The issue is also apparent in the realm of mobility. If women are unable to choose their place of residence or travel abroad without the consent of their male guardian, as is the case in Iran [35], their professional mobility will be restricted. Similarly, finance laws can reflect gender biases, restricting women’s rights to open bank accounts, and creating another barrier to employment integration. Indirectly, this issue also extends to family law, where gendered inheritance laws may limit women’s ability to claim a patrimony, thus rendering them financially vulnerable and more likely to find themselves in the secondary or informal labor markets. Moreover, albeit less directly, discriminatory electoral law may hinder women’s ability to participate in voting on new anti-discrimination measures.

Thus, in many states, there exists a gendered legal framework, founded on the idea that a natural difference between genders should justify different legal treatment. However, what happens when law adopts an egalitarian perspective between the two genders ? Is formal equality sufficient to promote women’s access to employment ?

Part II : The role of law in advancing women’s access to employment.

Adopting a gender-neutral framework for equal rights in accessing the labor market must be accompanied by concrete measures to ensure both compliance with the legal standards (1) and true equity (2).

A. The challenges of effective enforcement of egalitarian legal standards.

During the 20th century, the overall economic development, shifts in social norms regarding gender roles, and the advocacy of feminist movements for equal rights contributed to the expansion of women’s rights [36]. This improvement is part of a broader trend towards increased rights, extending to the poor, minorities, animals, and even nature [37]. Since 1970, women’s legal rights have improved by an average of about two-thirds worldwide [38]. Currently, 49% of the world’s countries have aligned men’s and women’s rights to access the labor market. However, their egalitarian standards are not often effectively upheld within their jurisdictions, and adopting a gender-blind approach can fail to recognize the specific needs of women [39].

In the realm of international law, effective enforcement remains a significant global challenge. For instance, the International Covenant on Economic, Social and Cultural Rights [40] (hereinafter “ICESCR”), adopted in 1966, includes, among other things, the right to work for all individuals [41] and to equal remuneration for work of equal value [42]. However, many states that have ratified it have done so with reservations and a considerable number fail to implement its provisions, viewing them as non-binding aspirations. The issues also lie within the ICESCR itself which lacks an enforcement mechanism in place, meaning parties receive only observations in case of non-compliance, without penalties.

In domestic law, legal commitment to egalitarian principles is often not supported by effective enforcement mechanisms which undermines their potential impact. A lack of action will be reflected in ineffective complaint procedures, a lack of funding, a lack of skilled human resources, inappropriate structures, and so on [43]. For example, while 98 states have ruled for equal pay for equal work, less than one in five have implemented enforcement mechanisms to address the wage gap [44].

Enforcement can be challenging, particularly when the law diverges from prevailing social norms, which results in a manifestation of legal pluralism. The social norm of “gender prejudice” continues thereby to hinder women’s access to fields traditionally dominated by men, despite the existence of laws prohibiting gender-based discrimination. For instance, in Japan, women remain excluded from kabuki - a performing art combining dance and singing - due to an ancient prohibition rooted in fear that their participation could lead to prostitution [45]. Similarly, women remain largely barred from roles as sumo wrestlers [46] and sushi chefs [47], with their exclusion justified by taboos surrounding menstruation.

This discrimination extends beyond Japan ; the ’gender division’ places women at a significant disadvantage in the labor market. For instance, despite being prohibited by law, 61.2% of women in China are questioned about marriage and childbirth during job interviews, compared to 32.3% of men [48]. In France, 37% of female and 12% of male candidates report being asked about their plans for childbirth [49], highlighting the persistence of these discriminatory practices worldwide.

Discrimination is not the only significant challenge women face in accessing employment opportunities ; they also encounter more security threats and maternity-related obstacles than men do. For example, 42% of women in the United States in 2020 have reported having been victims of sexual harassment in their professional lives, compared to 15% of men [50]. Addressing these additional issues could pave the way to achieving equity, not merely equality, by considering the unique needs of women in the workforce. Regarding security for instance, gender-responsive law acknowledges that women’s safety is often compromised, limiting their access to the workforce. This includes implementing measures to fight sexual harassment, in the workplace and on commuter public transportation, as it often leads to job loss. Since legal standards are predominantly shaped by male perspectives, they often reflect an androcentric viewpoint, overlooking the structural inequalities women face [51]. Concerning public transportation for instance, 151 countries lack legal protections against sexual harassment [52]. In Egypt, 80% of women report experiencing harassment during their commute [53], prompting them to take precautionary measures that limit their work mobility, such as avoiding public transportation or using it during daylight hours.

Given the deeply entrenched social norms, to ensure that women can truly exercise their de jure rights, states must take concrete measures to achieve equity.

B. The adoption of specific legal standards to reach equity.

While states may adopt measures to address such gender issues, they should proceed with caution when enacting gendered protective legislation. Although such laws are intended to protect women in the labor market, they may inadvertently lead to discrimination. For instance, as discussed hereinbefore, C045 was enacted in response to the exposure of women to the harmful physical effects of industrialisation during the early nineteenth century. However, this gender-exclusive legislation invisibilized and erased the long history of productive labour by women within the mining industry. It pushed women into more insecure areas of work, exacerbated the hypermasculinity in the mining industry, and created obstacles for women to stand on equal footing with men to obtain gainful employment in not only mining but also other industries [54]. Another example is the special maternity provisions such as maternity leave. While these provisions aiming to “protect” women’s gender-based characters, they also make female employees more costly to hire [55] if the costs are borne by the employer rather than the state and may reinforce gender stereotypes that women are primarily responsible for children, less reliable, and less capable workers.

This long-standing debate about ensuring equal access to the workforce for women without discrimination, initially focused on night work and physically demanding labor in the 20th century, has evolved to address issues like gender quotas, menstrual leave, paid family leave, etc. How to address the issues that women are facing in the labor market, while safeguarding women’s equal rights to work, remains an ongoing challenge.

To ensure that protective legal standards do not inadvertently reinforce sexist stereotypes and thereby lead to further discrimination, they could, where possible, be framed based on individual needs rather than gender. For instance, instead of prohibiting certain jobs for women on the grounds of danger, universal safety measures could be implemented for all workers, irrespective of gender. Similarly, instead of offering maternity leave, a system of shared parental leave could be established, with an equal mandatory portion allocated to fathers. In 2024, while 108 countries provide paternity leave, around 40 of them offer less than four days for fathers [56], compared to 16 weeks in average for mothers [57].

Additionally, a comprehensive gender impact analysis could be conducted prior to the adoption of protective legal standards to assess how they affect women [58]. As women are not a homogeneous group, these studies should reflect diversity in terms of age, ethnicity, class, disability, and other factors. Once enacted, regular evaluation mechanisms should be implemented to assess whether the legal standards are effectively achieving their intended objectives without perpetuating harmful stereotypes [59].

When the law provides gender-specific provisions, such as gender quotas aimed at increasing the representation of women in leadership positions within companies, it should be accompanied by educational campaigns to clarify their purpose. These campaigns should emphasize that the goal is to address structural inequalities, rather than to grant privileges. While a State may adopt the most egalitarian legal standards, the true impact of law is inherently limited unless accompanied by a fundamental shift in prevailing social and cultural norms [60].

Résumé en français : La fonction duale du droit dans l’accès à l’emploi des femmes.

Le présent article a pour but de mettre en lumière le rôle du droit dans l’accès des femmes au marché du travail, à travers une perspective de droit comparé, tout en offrant des clés de réflexion préliminaires pour atteindre l’équité de genre dans l’accès à l’emploi.