‘The Impetus for Change’: Legislating for Equal Pay and Employment Equality in the Republic of Ireland in the 1970s 1

Introduction

On International Women's Day 2022 the Irish Government announced the introduction of the Gender Pay Gap Information Act 2021, requiring gender pay gap reporting for businesses employing more than 250 people. ² This new act provides a reminder of the continuing reality of gender pay inequality. The announcement was accompanied by reasons for such pay disparities which included ‘gender stereotypes’, ‘the glass ceiling’ and ‘family caring responsibilities’—familiar, generalised explanations revealing little in-depth government thought on the subject. ³ While it is important not to conflate the gender pay gap with equal pay, overall, working women still earn less than men. The question as to why the considerable legislative efforts addressing employment equality and equal pay made over the last five decades have been insufficient to fully address this gap clearly requires scrutiny. How effective was the formative equal pay and anti-discrimination legislation introduced in the 1970s and what was its overall impact? Did these new laws merely constitute government lip-service to employment equality and are there lessons to be learned from their implementation?

The gender pay gap steadfastly evades simplistic explanations. In the mid-1980s, Evelyn Mahon contended that the Catholic Church's influence should be ‘the starting point for any analysis’ of Irish women's position. ⁴ However, the nature of that influence is mutable and subject to debate. Lindsey Earner-Byrne contested simple narratives depicting Ireland ‘as an intrinsically backward, overwhelmingly Roman Catholic…society’ where women ‘disappeared’ post-independence in favour of a more complex reality, where women often entered public life ‘to protect family life’. ⁵ Since independence, other factors, notably economic challenges, have intertwined with religion to influence women's status. One area where religious and economic factors united was in public support for the male breadwinner role. Deirdre Foley explained that while this concept was not uniquely Irish, it was warmly embraced during the economically-challenged early years of the Irish Free State, when employment was at a premium and was further ‘reaffirmed by the growth of Catholic social values’. State commitment to the concept manifested in laws such as the Conditions of Employment Act 1936 controlling women's industrial employment and also notably in the formal codification of marriage bars in teaching and the civil service, officially excluding married women from employment. ⁶

Eoin O’Leary argued that the weakness of the INTO’s (Irish National Teachers’ Organisation) opposition to introduction of a formal marriage bar by the Department of Education in 1930s Ireland revealed ‘deep and widespread acceptance of patriarchal values’. Like Foley, he viewed economic factors as being particularly instrumental. The ‘economic depression’ of the time weakened ‘public sympathy for working married women’. ⁷ The Irish government's policies and legislation in the decades following independence had a lasting impact on women workers. Judith Harford and Jennifer Redmond maintained that married women's minimal presence in the 1970s workplace represented ‘the legacy of the legislation adopted in the earlier period of independence’ coupled with the economic policies of governments up to that point. Policies that ‘privileged’ men earning ‘a family wage’ became ‘endemic in Irish society’ and spread to the private sector ‘through custom or normative practices rather than legislation’. These processes continued ‘until the inequalities in the Irish labour market were dismantled after entry into the European Union in 1973’. ⁸

This article focuses on two laws that initiated this dismantling of workplace inequality—the Anti-Discrimination (Pay) Act 1974 and the Employment Equality Act 1977 (alongside a brief discussion of maternity legislation). The provisions of these laws will be examined while government attitudes towards employment equality will receive particular attention due to their subsequent impact on the legislation's implementation and effectiveness. The 1970s saw long-standing prejudices against working women challenged­­—a challenge originating in part from the influence of an increasingly vocal women's movement. The influence exerted by female activism on progress towards employment equality legislation will be discussed. Foley has highlighted the ‘blurred lines between legislation and societal norms’ and in light of her observation, this article will conclude by considering two equal pay cases illustrating the complex dynamic between national legislation and workplace norms. ⁹

Rosemary Cullen Owens considered the decade following the Second World War to be ‘a particularly low point in the status of Irish women’, but suggested that the mid-decade years of the 1950s represented ‘a crossroads’ in this narrative. ¹⁰ This decade saw many positive developments in legislation affecting women's lives. The Married Women's Status Act 1957 granted women rights concerning property ownership and accruing debt, whilst the 1932 marriage bar for primary teachers was lifted in 1958. ¹¹ During this decade Ireland was welcomed by the United Nations (UN) and the World Bank. Alongside these new international relationships, the government was increasingly confronted with the need to address gender equality. The Irish government was contacted by the UN, initially in 1964 and again in 1966 and asked to provide regular information on Ireland's implementation of the principles contained in the UN Convention on the Political Rights of Women, 1952. ¹² References to equal pay rights in international documents and treaties such as Article 23 of the 1948 UN Universal Declaration of Human Rights and Article 119 of the 1957 Treaty of Rome also demonstrated that ignoring equal pay was no longer possible. ¹³

While women comprised half the population in 1966 they represented just 25 per cent of the workforce—a situation almost unchanged since 1946. Female representation in the Irish workforce was low by any standards—the National Industrial Economic Council noted that in 1961 Irish women's participation in the workplace ‘was lower than in any developed OECD country with the exception of Canada’ and ‘by 1966 it was lower even than that of Canada’. ¹⁴ Alongside low workplace representation, sex- and marriage-differentiated pay scales in the public service and the civil service marriage bar exemplified institutionalised discrimination towards working women. ¹⁵ The civil service marriage bar was enforced by section 16 of the Civil Service Commissioners Act 1956 and section 10 of the Civil Service Regulation Act 1956. ¹⁶ Married women's presence in the workforce was notably low, with married women comprising less than 20 per cent of working women in 1966. Data for 1972 showed women's hourly rates as ‘approximately 57 per cent of men’. Pay rates in collective agreements in private sector manufacturing industry revealed women's rates ranging from 60 to 70 per cent of men's, and from 75 to 85 per cent of the ‘basic male rate’ in the distributive trades. In the public sector, sex- and marriage-differentiated scales permitted women to earn 80 per cent of the maximum male rate. ¹⁷

Ireland was not unique, however. Marriage bars were utilised at certain points in other countries such as the United Kingdom, Netherlands and United States. In the late 1960s, full employment equality was not the norm in other European countries. ¹⁸ French legislation introduced in the 1940s and 1950s upheld employment equality, however, the European Commission observed in 1964 that certain worker categories lacked legal protections since they were not covered by existing collective agreements. Trade unions maintained that ‘a certain amount of discrimination still existed’. In 1966 French women's average hourly earnings in manufacturing were 72.5 per cent of men's. In Germany, constitutional equal pay rights existed whilst the Federal Labour Court ruled that collective agreements not providing ‘equality of treatment in respect of pay’ were ‘null and void’. However, despite these legal rights, many German women were employed ‘on light work’ and were congregated in ‘lower wage groups’ covered by collective wage agreements. Despite containing skill classifications that were independent of sex, the provisions of these wage agreements promoted indirect discrimination that resulted in ‘a downgrading of women workers’. In 1966 German women's average hourly earnings in manufacturing stood at just 69.7 per cent of men's. In the UK, a Royal Commission was established to consider equal pay in the 1940s. Equal pay was introduced for the non-industrial civil service between 1955 and 1961, followed by ‘non-manual workers in Local Government, the nationalised industries, the health services and the teaching profession’. Whilst professional women in the private sector typically received equal pay, manual workers did not. ¹⁹

Path to Equal Pay Legislation

Considering second-wave feminism in 1970s Ireland, Linda Connolly described how feminist activists voiced ‘grievances’ that were ‘of long-standing concern’. ²⁰ Connolly identified two distinct types of feminist activist in existence at the time—the first ‘took to the streets’, whilst the second ‘utilised conventional channels of influence’, working ‘through the “system”’ ²¹ . The former group was represented by the Irish Women's Liberation Movement (IWLM), a group without direct links to ‘the historical women's movement in Ireland’ incorporating women from diverse backgrounds such as ‘political women’ and ‘women in the media’. Members included Máirín de Burca, Nell McCafferty and Mary Kenny. This movement had a ‘dramatic impact…on the Irish public’ and their actions, such as their 1971 Late Late Show appearance were ‘considered extremely radical’. ²²

While the actions of the second group of activists were arguably less dramatic than that of the IWLM, their work would prove to have a long-lasting legacy for Irish women. In January 1968, the Irish Housewives Association (IHA) presided over a meeting chaired by women's rights activist Maude Rooney and attended by founding member Hilda Tweedy alongside representatives of a diverse selection of women's organisations such as the Irish Countrywomen's Association (ICA), the Widow's Association and the Business and Professional Women's Club. Inspired by requests from international women's groups with whom both the IHA and Business and Professional Women's Club were affiliated, the meeting resulted in an agreement to establish an ad hoc committee to consider the establishment of a National Commission on the Status of Women. ²³

In November 1969, Fianna Fáil Taoiseach Jack Lynch announced the establishment of such a body—the Commission on the Status of Women (hereafter referred to as ‘the CSW’). Connolly described the ‘intense campaigning and political lobbying’ carried out by the ad hoc committee preceding Lynch's announcement. ²⁴ The CSW was tasked with investigating and reporting on the status of women in Irish society, a remit that included consideration of issues surrounding women's employment and equal pay. It would make recommendations ‘on the steps necessary’ to allow women to participate ‘on equal terms’ with men in Irish life, but crucially would also detail the implications and costs of its recommendations. ²⁵ In addition to the voice of the ad hoc committee, other groups such as the opposition and ICTU (Irish Congress of Trade Unions) had also advocated for equal pay. ²⁶ Pressure to implement equal pay also came from within the ranks of government employees. A civil service equal pay claim in April 1969 requested the abolition of its sex- and marriage-differentiated pay scales. ²⁷

Alongside these calls for change, the government's EEC membership aspirations were likely to have been particularly instrumental in the establishing of the CSW. Ireland applied unsuccessfully for EEC membership alongside the UK in 1961 and 1967. ²⁸ However, negotiations for membership finally began in 1969 with Ireland becoming a full EEC member in 1973. ²⁹ Implicit in membership was the obligation to implement equal pay—an EEC membership requirement enshrined in Article 119 of the Treaty of Rome. During Ireland's accession negotiations, Dr. Patrick Hillery, Minister for External Affairs was obliged to bring the issue before the cabinet for approval. Pragmatically, they accepted the principle of equal pay in September 1970. ³⁰

Irish society's conflicting attitudes to employment inequality in the 1970s were ably described by the Irish Times women's editor, Maeve Binchy. While it was seen as ‘monstrous to have women architects…offered hundreds of pounds less a year than their male equivalents’ or ‘female cleaners scrubbing offices for less than male cleaners’, she emphasised that the underlying systemic reasons behind such inequities were ignored with such cases dismissed as ‘individual cases of hardship…not…to be attacked on the basis of sex’. ³¹ Binchy's observation of widespread ambiguity relating to the subject was subsequently justified by the longevity of the gender pay gap. Equal pay rights encroached upon deeply-held beliefs challenging society's foundations and long-standing gender roles within the family and in wider society. The power of the male breadwinner concept, discussed earlier in this article, was still evident in 1970s Ireland. Derry McDermott, a union official highlighted this fact, arguing in 1978 that ‘the tradition of a married man as head of the family’ was ‘very strong in Ireland’. ³²

The CSW commenced its work, chaired by Thekla Beere—the first Irish woman to lead a government department. Its composition was noteworthy, with a majority of seven women to just six men. ³³ Women members included prominent ICA member Kathleen Delap and notable trade unionist Sheila Conroy. The CSW's Interim Report was published in 1971 recommending equal pay for ‘men and women for the same work or work of equal value’, findings which prompted the government to review the public service marriage bar. ³⁴ When the full report was published in May 1973, Richie Ryan, Minister for Finance in the newly-elected Fine Gael/Labour National Coalition government, confirmed his intention to implement some of its proposals in the forthcoming budget. ³⁵ Janet Martin, a journalist and member of the IWLM welcomed the report's recommendations, describing how on receiving it she ‘hugged it…kissed it and finally – ..went to bed with it’. ³⁶ However, other coverage was less enthusiastic. The Irish Independent's extensive coverage included the provocative headline ‘Law would sink pledge to OBEY’—illustrating that the CSW's report uncovered deep fears that granting women full human rights threatened the foundations of Irish society. ³⁷

One of the government's first priorities following publication of the CSW's report was abolition of the civil service marriage bar. The Civil Service (Employment of Married Women) Act 1973 removed restrictions on married women's employment in the civil service, amending the relevant sections of the Civil Service Commissioners Act 1956 and the Civil Service Regulation Act 1956. During the bill's final stage debate in the Dáil, Fine Gael TD Richie Ryan (Minister for Finance) announced that it was ‘a further indication of the government's commitment to end all forms of discrimination against women’. ³⁸ The growing necessity for practical steps towards equal pay implementation had become apparent in April 1973 when the government learned of the European Commission's intentions to introduce a directive establishing rights to equal pay and allowing women to seek redress where necessary. The Attorney General advised that, even in the absence of legislation, an individual could successfully claim equal pay rights by making a case for an order requiring implementation of Article 119 of the Treaty of Rome from either the Irish domestic or European courts. Consequently, he recommended that the government ‘get in train some system of giving effect to Article 119’ as soon as possible to prevent such an eventuality. Equal pay legislation was now ‘a matter of urgency’ for the Minister for Labour. ³⁹

While no party openly opposed equal pay, agreeing a suitable implementation timetable saw deep divisions arise between employer and union representatives. Whilst equal pay introduction by the end of 1975 had ICTU support, the FUE (Federated Union of Employers) favoured 1977, which protected employers’ financial interests and was in line with the CSW's recommendations. The press speculated that whilst the government might not support 31 December 1975, waiting until 1977 would leave the country ‘two years behind both Northern Ireland and Britain’, bringing Ireland into conflict with European Commission proposals to enforce equal pay by the end of 1975. ⁴⁰ The following November the Minister for Labour indicated his support for 31 December 1975, a date heavily influenced by the recommendations of the draft EEC Equal Pay Directive. ⁴¹

The draft Anti-Discrimination (Pay) Bill was introduced by the government on 26 February 1974, passed by the Seanad in June, and subsequently passed in the Dáil with two amendments the same month. ⁴² However, the year closed with no agreement on an equal pay implementation date. Journalist John Devine suggested that the government was in ‘a Catch 22 situation’, likely ‘privately’ in agreement with employers, however unable to ‘publicly’ support them. ⁴³ In March 1975 John Bruton, Parliamentary Secretary to the Minister for Education countered growing rumours of possible postponement of equal pay legislation, providing assurances that the bill would come into operation on 1 January 1976. ⁴⁴ The following June, the Minister for Labour, Michael O’Leary reaffirmed that the government ‘would not be seeking any derogation’ from the EEC's equal pay directive. He indicated, however, that the government was receptive to industry claims concerning the detrimental effects of equal pay, declaring that if employers, trade unions and industry ‘were convinced’ that equal pay risked their industries’ viability, that their claims would receive ‘consideration’. ⁴⁵ Government receptivity to such claims indicated at the very least a lack of commitment on their part to equal pay implementation, but more seriously, forewarned of future attempts to avoid its implementation completely.

In December 1975, less than a month before equal pay was due to become law, the government deviated radically from their plans. They hurriedly ushered in a new bill—the Anti-Discrimination (Pay) (Amendment) Bill 1975 whose purpose was to amend the existing act and which would come into effect just a month later, in January 1976. ⁴⁶ Minister O’Leary described how the bill provided a mechanism allowing organisations adversely affected by the 1974 act to seek an ‘exemption’ from its provisions. To qualify, three ‘stringent conditions’ had to be met by businesses. Firstly, trade union and the employer representatives had to agree that equal pay would lead to job losses. Secondly, equal pay implementation had to lead to probable financial difficulties for the business. Finally, the Labour Court was required to investigate and authenticate the business’ claim. ⁴⁷

O’Leary had been approached by management and union representatives from the footwear industry in September 1975 requesting that equal pay implementation be delayed due to potential adverse financial effects on their industry. ⁴⁸ The expression of these concerns by footwear industry representatives was significant due to the high proportion (58 per cent) of women employed in the industry, and had implications for other industries relying on female labour. A report on the footwear industry prepared by Labour Court assessors at the minister's request predicted significantly reduced profits and job losses arising from equal pay implementation. Companies expecting losses increased threefold whilst industry profits for 1976 were predicted to fall by 35 per cent. ⁴⁹ Companies from a wide variety of industries dependent upon female labour such as food manufacturers, hotels and supermarkets also requested equal pay postponement. Representations were made by household names such as Beecham's of Ireland and Jefferson Smurfit Group Ltd. One company with a 33 per cent gender pay differential expressed fears that equal pay would make their industry ‘completely non-viable and uncompetitive’. ⁵⁰ Consequently, the government applied to the European Commission to derogate from the EEC Equal Pay Directive (75/117/EEC) 1975, based on the provisions of Article 135 of the Act of Accession allowing member states to request permission to introduce ‘protective measures’ in response to negative economic consequences. If the European Commission refused this request, the terms of the 1974 act would apply. ⁵¹

The amendment bill and the government's explanations were completely rejected by the opposition. Fianna Fáil TD Gene Fitzgerald accused the minister of ‘using alleged difficulties, imagined difficulties, difficulties he has not investigated and of which he is not aware, to get the government off the hook of their commitment to the public sector which is not covered in this amending bill’. He argued that the footwear industry's difficulties provided ‘an excuse’ to introduce amending legislation. ⁵² Fitzgerald's views were not unjustified, the government's actions did not reflect a commitment to equal pay. In the face of the potentially costly introduction of equal pay in the public sector, and widespread desire for its postponement within the private sector, the footwear industry's difficulties indeed presented a clear excuse to defer the legislation. John Walsh plausibly argued that ‘it was difficult to understand why the Cabinet proceeded with such a confused and half-baked measure in the first place’ describing it as a ‘muddled compromise’ making ‘little practical sense’ and ensuring ‘that female workers were still subject to pay discrimination’. ⁵³

The European Commission ultimately rejected Ireland's derogation request. John Devine captured the shock caused by the decision describing the refusal as a ‘bombshell’. ⁵⁴ Government demands for £20 million in aid ‘financed entirely by the EEC’ were also rejected. Walsh argued that ‘the Irish position amounted to a demand that the commission pay for the implementation of European legislation’. ⁵⁵ Since government investment plans are usually reflective of fiscal priorities, this position revealed the true importance the government assigned to equal pay. The expectation of EEC funding demonstrated a lack of commitment to, or ownership of the entire equal pay concept. Fianna Fáil Senator Michael Yeats highlighted the government's ‘inept’ handling of equal pay implementation, deeming that their stance in relation to ‘a relatively small issue’ was ‘extraordinary’. ⁵⁶ As negotiations progressed, however, a compromise was eventually reached whereby aid would be provided from the European Social Fund—an outcome unlikely to have been completely satisfactory to the government. ⁵⁷

The provisions of the Anti-Discrimination (Pay) Act 1974 came into force in December 1975. Its central provisions granted women and men the right to equal pay when working for the same, or associated employers, in the same workplace and when engaged upon ‘like work’. The term ‘like work’ was crucial and was defined as work that was extremely similar, interchangeable, with few significant differences and was performed under the similar conditions. Work that was of equal value, requiring a similar level of skill or effort also constituted ‘like work’. ⁵⁸ While the act was very similar to UK equal pay legislation, differences existed. For instance, the Irish legislation did not consider the use of job evaluation techniques for job comparison, something explicitly referred to in the British legislation. ⁵⁹ Irish employers were permitted to pay differing rates to employees employed on like work, however, provided that this was ‘on grounds other than sex’. ⁶⁰

The act established enforcement procedures. Disputes would be initially referred to a Labour Court equality officer, who was granted authority to carry out investigations, ‘at all reasonable times enter premises’, to require employers and their representatives to produce employment records upon request, and to ‘inspect and copy or take extracts’ from these records. An officer could also ‘inspect any work in progress in the premises’ and hear confidential matters in private. ⁶¹ When it was ‘not reasonable to expect the employee concerned to refer a dispute … to an equal pay officer’ the Minister for Labour was empowered to refer the case themselves. ⁶² Appeals could be made to the Labour Court when necessary. ⁶³ Further appeal to the High Court was available where necessary. ⁶⁴ Notably, the act protected equal pay claimants from being dismissed as a result of their case. ⁶⁵ Equal pay claimants were entitled to damages dating back to three years before the proceedings were started. ⁶⁶ Irish provisions in this respect were considerably more generous than comparable UK provisions, which limited compensation to just two years damages. ⁶⁷ Pensions were not considered in the 1974 Irish act—an omission illustrating a carelessness regarding women's finances in their old age, once again belying government claims to support workplace equality.

Merely implementing legislation was insufficient. In 1976, Senator Mary Robinson highlighted continued government failure to promote equal pay. For instance, the government had not used ‘notices or advertisements in the national newspapers’ to provide information on the act, even though this was usual ‘in relation to EEC matters’. She described how this situation differed greatly from Britain, where the introduction of equal pay legislation was accompanied by ‘large notices’ and ‘huge advertisements paid for by the Department of Employment’. Senator Robinson exposed a government who, by not drawing public attention to the act, was attempting ‘to promote a status quo’ concerning women's remuneration, with an ultimate intention of minimising discussion of the fact that a law existed to enforce equal pay rights. ⁶⁸

Path to Anti-Discrimination Legislation

Besides unequal remuneration, other habitual discriminatory practices adversely affected working women. Economists Mark Cassidy, Eric Strobl and Robert Thornton argue that the effectiveness of Irish equal pay legislation depended on effective employment equality legislation, without which, the risk arose that employers of equally productive men and women would simply dismiss women workers. ⁶⁹ In February 1975, the European Commission submitted a new draft directive addressing equality of treatment in employment. A government memorandum revealed the Minister for Labour's concerns regarding a number of its provisions. He questioned whether it was appropriate to include social security issues noting that the draft directive made ‘no provision …for exemptions and exceptions’ that were to be included in Irish anti-discrimination legislation in relation to the Garda Síochána, the defence forces and the prison service. ⁷⁰ These concerns once again revealed true Irish government priorities—a preoccupation with imposing ‘exemptions and exceptions’ and fears of far-reaching social changes that could prove both costly and controversial.

The memorandum's contents also indicated that the prospect of anti-discrimination legislation alarmed many Irish government ministers, exposing senior government members whose opinions were starkly at odds with official government support for employment equality. The Minister for the Public Service, Richie Ryan, did not wish the legislation to ‘lead to greater participation by women, particularly married women in employment’ considering the prospect of young mothers with children seeking employment as undesirable. Instead, he suggested that the legislation offered an opportunity ‘to emphasise the importance to society of the family and of mothers who devote themselves wholly or mainly to the care of their children while young’. O’Leary, Minister for Labour, agreed that the legislation's purpose was not ‘to influence women to take up work outside the home’. ⁷¹

Implementing anti-discrimination legislation in the Garda Síochána was particularly contested. Minister for Justice Patrick Cooney expressed concerns as to the impact of anti-discrimination legislation on the Gardaí. He argued that ‘traditionally’ much of their activities were ‘appropriate only for men’ and that views that policing was ‘man's work’ could not be ‘dismissed lightly or without full analysis’. He raised a number of issues, such as whether Ban-Gardaí should do night patrols or work in riot-control and questioned whether pregnant Ban-Gardaí should perform outside duties ‘even in the early stages of pregnancy’. However, it was clear that these concerns did not extend to the well-being of Ban-Gardaí. The minister explained putting male Gardaí ‘under the command of female superiors’ was likely to create problems with ‘efficiency and morale’. O’Leary acknowledged that both the Garda Síochána and the prison service presented ‘specific problems’ for implementing anti-discrimination legislation, but reassured Cooney that issues relating to the Garda Síochána would be ‘examined’. ⁷² Reservations concerning women's involvement in garda activities, as exemplified by Cooney's views, were not a new phenomenon. John Johnston-Kehoe's work describes negligible levels of female involvement in the Garda Síochána from its establishment as ‘the single, national police of independent Ireland’ in 1925 until 1978 when issues regarding women's involvement and pay began to be addressed. ⁷³

Minister for Agriculture Mark Clinton viewed anti-discrimination legislation as extremely problematic, and held ideological objections. He completely opposed any departure from traditional male and female family roles, emphasising ‘considerable reaction against the “Women's Lib” movement’ and against supposed beliefs that ‘the time has come to “create a society in which all functions other than child-bearing will be regarded as equally appropriate for men and women”’. ⁷⁴ Once again, Minister O’Leary adopted a conciliatory tone, referring to the recommendations of the CSW alongside government pledges to end discrimination. He reassured Clinton that employers would not be forced to employ women against their will or pay them above their ‘market value’, but advised that it was ‘unrealistic’ to expect that ‘reforming legislation’ would not incur certain costs. ⁷⁵

Ultimately, despite such internal opposition within government, the Employment Equality Act passed into law on 1 June 1977 and contained exemptions relating to the Gardaí and prison service. It was welcomed by the ‘Ms.Cellany!’ column in the Irish Independent, which described the new employment equality agency established by the act as possessing ‘teeth’. Its functions, limited to ‘the field of employment’ were compared to those of the existing Women's Representative Committee (WRC) which had been established in 1974 for a 3-year period. The WRC's activities had not been limited to ‘the field of employment’ as the new agency would be and it had ‘made inroads’ on areas such as the media and family planning. However, the WRC's future was considered uncertain, creating a potential gap in relation to discrimination unrelated to employment. ⁷⁶

The Employment Equality Act 1977 focused on discrimination on the basis of sex or marital status and addressed employment discrimination only. It differed significantly from the British Sex Discrimination Act 1975, which considered discrimination outside of employment such as in educational establishments and the provision of goods and services. Discrimination in employment involved treating one individual less favourably than another and could occur during recruitment (for instance by failing to recruit an individual due to sex or marital status), in the terms and conditions of employment or when dismissing an employee. The legislation applied equally to both sexes and safe-guarded existing protections for women in relation to pregnancy and childbirth. ⁷⁷ Crucially, it mandated that an equality clause was automatically included in all employment contracts and agreements such as collective agreements. ⁷⁸

A key aspect of the legislation lay in its specified exemptions. The police force, the defence forces and prison services were exempted from the provisions of the Employment Equality Act. ⁷⁹ In comparison, British legislation contained only limited exemptions, for example providing exemptions for the police force for issues ‘relating to height, uniform or equipment’, for matters relating to pregnancy and childbirth and in some matters concerning police pensions. ⁸⁰ Notably, both the Irish and British legislation updated their respective midwifery acts to allow men to work as midwives. ⁸¹ The Irish legislation also included exemptions for activities complying with the provisions of four existing acts – the Conditions of Employment Act 1936, the Shops (Conditions of Employment) Act 1938, the Factories Act 1955 and the Mines and Quarries Act 1965. These acts contained protective provisions governing certain aspects of female employment (such as participation in certain industrial activities), and this reference to their provisions indicated government reluctance to relinquish such control and the continuing-controversial nature of doing so.

The Employment Equality Act also addressed indirect discrimination and victimisation. ⁸² ‘Indirect discrimination’ occurred when ‘a condition or requirement’, inessential for the job was applied equally to both men and women, but could only be complied with by ‘a considerably smaller proportion of women than of men’. Victimisation occurred when individuals pursuing their rights under the act were treated in a discriminatory manner. ⁸³ Situations where sex was an occupational qualification for a job were exempt from the act's provisions, as was employment in private residences or households. ⁸⁴ While Irish legislation did not differentiate between employers on the basis of employee numbers, British legislation stipulated that employers with five or fewer employees were exempt from the Sex Discrimination Act. ⁸⁵ Draft Irish anti-discrimination legislation initially included such proposals, exempting employers with less than 10 to 15 employees, however, these measures were dropped since they potentially excluded ‘many areas of employment in which there is discriminatory practice at present’ such as the licensed trade. ⁸⁶ Discrimination by employment agencies, vocational training bodies (offering access to training necessary for work) and professional or trade organisations (to whom membership or whose qualifications were necessary for certain work) was also prohibited by the act. ⁸⁷ Discriminatory advertisements were also made illegal. ⁸⁸

The act permitted some degree of positive discrimination, allowing women or men, previously under-represented in an area of employment to receive appropriate training and thus achieve more equal representation. The British act went further in this regard, allowing for positive discrimination in elected bodies such as trade unions. ⁸⁹ The Employment Equality Agency was also established under the act. ⁹⁰ Disputes under the act's provisions would be settled by an industrial relations officer of the court, or, where necessary, referred to an equality officer for further investigation. ⁹¹ Potential claimants had the right to ‘ascertain’ the reason for potentially discriminatory acts when planning to take their employer to court. In such cases, the employer was obliged to ‘state the reason in writing to the employee’. ⁹² When it was not reasonable for a claimant to refer their case to court, the Minister for Labour was empowered to do so. ⁹³

Maternity Legislation

While this article is primarily concerned with equal pay and anti-discrimination legislation, maternity legislation must be briefly mentioned. Whilst the introduction of equal pay and anti-discrimination legislation alongside marriage bar abolition represented considerable progress, pregnancy and childbirth often comprised an insurmountable barrier to long-term employment. In the late 1970s, most private sector companies operated an unofficial ‘maternity bar’ with women very rarely returning to work after childbirth, and when they did, on less favourable terms and conditions. The CSW report made several recommendations regarding maternity legislation notably concerning maternity leave, maternity pay and protection from dismissal. ⁹⁴ Subsequently, the Irish government introduced the Maternity Protection of Employees Act 1981 providing rights to maternity leave. This act worked in conjunction with the Unfair Dismissals Act 1977, the Employment Equality Act 1977 and the Redundancy Payments Act 1979, while the Social Welfare (Consolidation) Act 1981 established the terms for payment of maternity leave. Under the Maternity Protection of Employees Act 1981, women were granted fourteen consecutive weeks of maternity leave. ⁹⁵ Eligibility for maternity leave was governed by strict conditions. ⁹⁶ Rights to a ‘maternity allowance’ and minimum contributions required to qualify were set out in the Social Welfare (Consolidation) Act 1981. ⁹⁷ Women were protected from dismissal as a result of their pregnancy, while the Employment Equality Act protected women's rights to ‘special treatment’ connected to pregnancy or childbirth. ⁹⁸ Employers were required to allow their employees to return to work following maternity leave. If their previous job was unavailable, its replacement was required to be ‘suitable’, ‘appropriate’ and on terms not ‘less favourable’ than their previous contract. ⁹⁹ These protections were stronger in some regards than equivalent UK legislation which allowed employers with five or fewer employees the right to refuse to re-admit employees under the same contract if it was not ‘reasonably practicable’ to do so. Employees refusing to return under a differing contract deemed to be ‘not substantially less favourable’ could not claim unfair dismissal. ¹⁰⁰

Equal Pay Claim – the Women Confectioners

The proceedings of individual equal pay cases provide insight into the effectiveness of employment equality legislation, alongside the inequities experienced by working women and the difficulties involved in pursuing such cases. Two cases will be discussed – the first was made on behalf of a group of women on an industry-wide basis, before the introduction of equal pay legislation, whilst the second was made after the introduction of legislation, on behalf of a large group of women working for a single company. In 1973, the first equal pay commissioner appointed by the Labour Court, James Maher, was asked to investigate a case relating to 100 women confectioners from the bakery trade. They were making an equal pay claim in relation to the greater earnings of male confectioners. ¹⁰¹ The claim was made following publication of the equal pay recommendations of the CSW and in the wake of the 1972 National Wage Agreement which contained clauses addressing disparities between male and female pay. ¹⁰² Equal pay legislation, however, was yet to be enacted and the women lacked the sound foundation of a legal requirement for equal pay and definition of ‘like work’ that would be provided by the Anti-Discrimination (Pay) Act 1974 and which would allow a legal case to be taken.

These confectioners were undeniably skilled workers, typically serving an apprenticeship lasting 4 years. ¹⁰³ Their claim was submitted by James Young, general secretary of the Irish Bakers, Confectioners and Allied Workers Union who indicated that the case's outcome was eagerly anticipated by trade unions, because of its implications for large numbers of working women. The women earned approximately 70 per cent of the basic male rate. Their union maintained that they performed equal work to their male counterparts and that their claim met ‘the conditions laid down in the report of the commission on the Status of Women as well as the conditions in the national agreement’. Employer resistance centred on the argument that the women did not perform the same duties as comparable male workers, who were required to be ‘general bakers’ and started work at 6am, two hours earlier than the women. Male confectioners were also required to lift heavy loads occasionally, while the women were not. ¹⁰⁴

Maher ‘delved deeply’ into the confectionery trade, but ultimately rejected the claim. ¹⁰⁵ The ‘industry-wide’ nature of the claim was a deciding factor. While he concluded that the women were not performing equal work ‘on the whole’, he highlighted that individual women were performing work eligible for equal pay under the terms of the National Agreement. His report considered ‘other approaches’ for such claims, pre-empting the forthcoming equal pay legislation. ¹⁰⁶ This case was significant for a number of reasons. It was the first to be submitted to the adjudication of a Labour Court-appointed equal pay commissioner and was raised before the Anti-Discrimination (Pay) Act 1974 became law. ¹⁰⁷ The claim's outcome illustrated the urgent need for legislation. An Irish Times editorial considered the case's legacy. The decision opposed a growing popular consensus, where ‘most people, however bigoted in the area of sex loyalties, would assume that a female confectioner could measure up to the standard of performance of a male confectioner’. The decision went ‘against the trend of contemporary thinking by the government’ in rejecting the recommendations of the CSW. ¹⁰⁸ Considering the claim's circumstances, it is likely that the individuals considered by Maher to be performing work equal to that of their male colleagues would have had grounds to successfully pursue an equal pay claim if the relevant legislation had been in place at the time of the claim.

Equal Pay Claim – Glass Workers

In 1976 the Amalgamated Transport & General Workers’ Union supported an equal pay claim made by 457 women employees of Waterford Glass Ltd. The union contended that the women's work was ‘of at least equal value’ to 180 male ‘general workers’. The company had offered to negotiate the ‘phasing-in’ of equal pay in September 1976, however, the union rightly rejected this offer on the basis that equal pay had been established law since the end of 1975. The women were employed in a diverse array of roles across many operational areas, whilst the male general workers worked as ‘general operatives’ in areas such as transport, security and quality control. The union established a workers’ committee which compiled job descriptions, however, the company rejected their findings and subsequently, the case was referred to an equality officer.

The union emphasised the company's healthy economic situation and ability to implement equal pay. They argued that the women's work was at least equal in value to work performed by the male general workers, with some women actually performing work of a greater value. Women comprised a significant proportion (25 per cent) of the company's labour force with most of their jobs central to production or quality control. In contrast, the male general workers performed tasks such as moving materials and servicing the production areas. Company pay scales allowed male workers to take six months to attain their maximum earning potential, compared to three years for women. The unions demanded that the women were entitled to ‘at least the minimum basic male rate’ – a modest demand since the vast majority (97 per cent) of the male general work force were paid in excess of this rate.

The company conceded their healthy financial state, but expressed concern at Ireland's high inflation rate. It exceeded the US rate – a worrying development since the US constituted their main market. They claimed that the union had ‘inflated’ some jobs ‘beyond their true value’ and opposed creating a hierarchy of female jobs due to fears of ‘industrial relations problems’. The company undervalued the abilities of their female factory workers, arguing that their work required ‘little skill’ and was ‘less physically demanding’ than that of the male general workers. They claimed that the women's jobs were performed in ‘better working conditions’. Ultimately, while acknowledging the ‘extremely unpleasant’ working conditions endured by male general workers, the equal pay officer recognised the ‘skill, dexterity and concentration’ required of the women. They performed tasks that were ‘as demanding as the physical energy required of the male general workers’. The officer judged that the majority of the roles performed by the women warranted equal pay, whilst a smaller group (less than a third of the jobs that were entitled to equal pay) did not. ¹⁰⁹

The existence of equal pay legislation enabled the glass workers to claim their rights, an advantage not available to the women confectioners. Both cases demonstrate that women workers’ skills such as dexterity and concentration often went unacknowledged by employers who frequently chose to prioritise male employees by emphasising minor role differences and insisting on the primacy of physical strength. Cassidy, Strobl and Thornton highlighted that between 1976 and 1998 ‘on average only twenty-three equality officer recommendations concerning equal pay complaints were issued per year’. ¹¹⁰ Between 1976 and 1981 – the years following equal pay implementation, an average of 80 cases per year were referred to equal pay officers (107 in 1980 alone). On average 40 recommendations were issued per year, the majority of which favoured the claimant. ¹¹¹ While these numbers appear low, they compared very favourably with England and Wales where just 72 equal pay hearings took place in the three years between 1980 and 1982 (out of 770 sex discrimination and equal pay complaints initially filed) with a success rate for claimants of just 29 per cent. ¹¹²

Conclusion

Despite considerable efforts made during the 1970s to address employment inequities, the gender pay gap remains. Initially, the legislation's impact appeared promising. Cassidy, Strobl and Thornton found that during the five years following the 1974 act's introduction, the female-male earnings ratio increased from .61 in 1975 to .69 in 1980. However, their analysis suggested that from the 1980s onwards, other factors, particularly ‘the changing distribution of employment’ were responsible for these changes and ultimately, only ‘about four per cent’ of this change was attributable to legislation. ¹¹³ The equal pay claims discussed amply illustrate that making such claims invited considerable scrutiny, employer opposition and were not guaranteed success.

Legislation's limited success as suggested by Cassidy, Strobl and Thornton may be partly attributable to its provisions, particularly requirements on claimants to identify a suitable male comparator to qualify for equal pay. This provision excluded large groups of low-paid women in female-dominated industries such as hairdressers, typists, and machinists. However, such provisions were not unique and also appeared in British legislation. Irish government intentions towards employment equality are also significant. After accepting the equal pay concept to achieve EEC membership, government actions in implementing it were less enthusiastic. Following the failed attempt at derogation from the EEC's Equal Pay Directive 1975, the government effectively requested that the European Commission fund equal pay. Senator Mary Robinson exposed government inaction in promoting the new legislation. Particularly notable was the vehement opposition to women workers expressed by senior government members responding to imminent sex discrimination legislation.

Government members were demonstrably unsupportive and occasionally actively hostile towards their own legislation. The primary reason for its enactment was most likely attainment of EEC membership rather than betterment of society. Since governments constitute a microcosm of wider society, the intransigence demonstrated by its members revealed at best ambiguity and at worst a rejection of any expansion of women's rights within wider Irish society. Even after the introduction of employment equality legislation the burdens of domestic life often continued to fall on female shoulders, limiting employment options for women with family responsibilities. The 1993 CSW report discussed the challenges faced by women seeking full-time employment following the rearing of children. They quoted a submission that asked ‘who would employ a worn-out mother and housewife?’ – a question asked twenty years after the report of the first CSW and revealing that considerable progress was still necessary. ¹¹⁴

In Ireland however, economic pragmatism sometimes acted in tandem with traditional societal attitudes in defining women's status, for instance in the case of the marriage bar. Similarly, the decades following the introduction of employment equality legislation saw increasing feminisation of the workforce with women's workplace participation increasing from 28 per cent in 1971 to 39 per cent in 1996. ¹¹⁵ The earnings gap between men and women has narrowed considerably since the 1970s. OECD data indicated that in 2018 the Irish gender pay gap was 8.3 per cent in comparison to 10.3 per cent in 2020 in the European Community. ¹¹⁶ However, research indicates that such high-level statistics can conceal considerable differences existing between different groups of workers. ¹¹⁷ Complacency is not, therefore, an option.

The equal pay and sex discrimination legislation enacted in 1970s Ireland saw the country embark on a path towards employment equality and there are still lessons to be learned from this process. Government support for, and promotion of legislation that introduces social change is vital in combination with deep consideration of the provisions of potential legislation to ensure its effectiveness. Sufficient support must exist to allow individuals to claim their rights under legislation and employer evasion must be rigorously pre-empted in the legislation's provisions. While the employment equality legislation introduced in 1970s Ireland did not radically alter the employment landscape, it created a foundation upon which subsequent battles could be fought.