Women and social justice: EU choices with respect to social protection

The relationship between ‘women’ and ‘social security’ has always been complex. This complexity has to do with the fact that the concept of social security was defined and elaborated at a time when men were the main breadwinners and women their dependent spouses, and that since that time the world has changed radically. In this chapter I will be exploring the lack of social protection that has resulted from this approach, the relationship of this lack to the original prescriptive values and goals of labour law and the attempts that have been made to resolve this. My particular focus will be on the law relating to social security or, in a broader sense, social risk protection. The focus on social protection rather than labour law is worth exploring for a number of reasons. In the first place, the relationship of social security law and labour law does not speak for itself. Even though labour law is a major spearhead of EU social policy, social security tends to be seen as an area in which the member states can draw up their own policy (principle of subsidiarity). This separation is reflected in the acquis communautaire in the area of Equal Treatment Law, an area of law that has held great significance for the theme of ‘women and social security’. While most directives on equal treatment in 2006 were incorporated in the Recast Directive in 2006, the Social Security Directive (SSD) of 1979 kept its isolated position. In addition, the consequences of equal treatment - for instance of the topic of indirect discrimination - are more far-reaching in social security than in employment contract law. In social security equal treatment brings about a balancing of interests which is delicate and often highly sensitive politically.Or, to put it in laymen’s terms: it costs a lot of money. Finally, the topic is complex in the light of social risks, which are sometimes labelled as ‘post-industrial’. Traditionally labour law has taken as its starting point the Fordist employee with no domestic responsibilities. Nowadays, the issue of reconciling work and care responsibilities has become more topical than ever, especially in the light of the Lisbon target of full employment. It is not possible to direct the issue of women and social security for each and every member state. Instead, I will be examining the input of other researchers regarding choices made in one or more member states, and connecting this to Esping-Andersen’s welfare state typology. This approach is not without its risks, however, as Esping-Andersen’s typology has met with strong criticism, especially from a gender perspective. On the other hand, this typology method is useful, because of the impetus it gave to conceiving models that do take gender into consideration and in which unpaid labour does have a legitimate place. The chapter is structured in the following way: I will start by defining my use of two key terms, ‘social security’ and ‘gender’. The first needs rethinking because of its gendered roots, while the term 'gender' requires an introduction because of the frequency with which it is used - on its own or combined with other words - to discuss issues relating to women and the law. Subsequently I will introduce the theme of welfare state typology. I will discuss the classic typology proposed by Esping-Andersen and the criticism it received from a feminist perspective. I will then move onto the discussions - predominantly among feminist scholars - about the meaning of ETL and its interpretation by the European institutions. I will close this section with a brief description of the contents of the SSD and its significance for the social security schemes in the 1980s. The next part examines the EU’s interference in matters relating to social security in the post equal treatment era. Interpreting the concept of social security in a wide sense - wider than in the SSD, for example - makes it possible to include topics such as gender mainstreaming, work/life balance policies and paid and unpaid leave facilities. At the same time, the focus on social security serves to delimit the theme and make it manageable. Subjects such as preferential treatment, pay discrimination and sexual harassment will not be included. I will end the paper with an analysis of the meaning and possible contents of a modernized concept of social security. In doing so, I will also address one of the central questions of this conference, on the necessity to reformulate the prescriptive values and goals of labour law.