The Mechanisms Used by the ILO and the EU in Combating Employment Discrimination in Pay: Converging Divergence?

Abstract

The purpose of this paper is to offer a descriptive account of the enforcement mechanisms used by the International Labour Organisation (ILO) and the European Union (EU) in combating discrimination in pay. The current consensus seems to imply that the EU’s enforcement mechanisms and the active work by the European Court of Justice (ECJ) create a protective system that cannot be compared to the ILO’s approach that is oriented towards the creation of a practical compliance through the use of incentives and support structures. The argument of this paper states that the comparison needs to be repositioned by reference to an alternative theoretical understanding of enforcement and compliance that sees those two concepts as a spectrum that extends beyond enforcement proper (enforcement through sanctions) to cover support structures and enforcement through management and facilitation. From that perspective, the comparison of the ILO and the EU takes a different form that is reflective of the strengths of the ILO, without underestimating the work of the ECJ at the EU level. It is, therefore, submitted that it is an oversimplification to either emphasise the enforcement divergence between the ILO and the EU in the field of equal pay or to regard it as non-existent. Rather, an intermediate state exists that takes the form of interpenetration of standards and degrees of enforcement.