Strategic litigation for women’s rights: a Law and Economics perspective

Joanna Hartmann (Università degli Studi di Milano)
Virginia Cecchini Manara (Università degli Studi di Milano )

Abstract

Preliminary Draft
The present work offers an assessment of Strategic Litigation as a tool for achieving institutional change in the domain of women’s rights in the realm of work, from the perspective of Law and Economics.
Strategic Litigation is about more than an individual’s right - it is about change, about solving a social problem, about human rights. Our paper is about the use of Strategic Litigation to enforce women’s rights to equal treatment in employment and to change institutions.
In Strategic Litigation, which has its origins in the struggle against slavery and the abolition of racial segregation, the litigants are strategically and financially supported by the so-called "parties behind the parties", the NGOs, organizations and associations. In such a process, the parties work towards a supreme court, European or international court decision and involve the public during the entire duration of the process in order to increase the pressure on the judicial bodies, legislators and politicians. The aim is to bring about a change in case law and legislation. In order for a case to be suitable for this type of litigation, it is necessary that the issue be one that affects the public. Due to the long duration of the process, the plaintiff also incurs enormous judicial and extrajudicial costs, which are usually paid by NGOs and organizations, insofar as legal aid is not an option.
The figures show that women today are still paid less and have fewer opportunities to enter and advance in the labour market: Women in the EU are less present in the labour market than men. The gender employment gap stood at 11.7% in 2019, with 67.3% of women across the EU being employed compared to 79% of men. The gender pay gap in the EU stands at 14.1% and has only changed minimally over the last decade. It means that women earn 14.1% on average less per hour than men. On the other hand, women's rights to equality at work are guaranteed internationally, at european level, at constitutional level and by national law. So why resort to a costly and time-consuming process when a strong legal framework already exists?
In our paper, we show that Strategic Litigation is the right type of litigation, both from a legal and from an institutional point of view, to work towards de facto equality for women in employment. On the one hand, an area that has a sound legal framework is better suited to achieving a supreme court decision than an area that has no legal backing. Moreover, it is the involvement of the public and the confrontation with ingrained social patterns that can lead to social change. We show that discrimination against women in employment is an institutional problem, since the long-established social institutions lead to the circumvention of existing rights, making de facto equal treatment impossible.

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