10.6092/issn.1561-8048/13859
The proposal for a Directive on transparency and wage equality presented by the Commission on 4 March 2021 confirms the saying that “knowledge is power”: the gender pay gap can be faced and solved if workers and, especially, female workers are enabled to know the salaries of their peers. Technology helps overcome privacy issues on a sensitive aspect of the employment relationship
application/pdf
1561-8048
13859
2
en
Anna Zilli
https://creativecommons.org/licenses/by/4.0
Italian Labour Law e-Journal
Gender pay gap
EU Strategy against gender pay gap through wage transparency: the best is yet to come.
Text.Serial.Journal
https://illej.unibo.it/
14
Miscellaneous
2021-12-22
2021-11-23
2021-12-22
2021-12-22
173-183
ILLeJ
Anna Zilli
2021/12/22
10.6092/issn.1561-8048/13859
173
Università di Udine
1561-8048
2
Gender pay gap
en
183
EU Strategy against gender pay gap through wage transparency: the best is yet to come.
https://illej.unibo.it/article/download/13859/13695
14
EU Strategy against gender pay gap through wage transparency: the                     Italian Labour Law e-Journal
best is yet to come.                                                                         Issue 2, Vol. 14 (2021)
Anna Zilli                                                                                         ISSN 1561-8048
Anna.zilli@uniud.it                                                 https://doi.org/10.6092/issn.1561-8048/13859




       EU Strategy against gender pay gap through wage
            transparency: the best is yet to come.
                                                   Anna Zilli
 1. Pay gaps: the data, the causes. 2. Equal pay for "work of equal value": from theoretical
 equality to equality in practice. 3. Wage transparency as a tool for gender equality in the
 labour market. 4. A (not modest) proposal: EU Proposal of Directive 2021/93 for "Binding
 transparency measures". 5. Transparency vs privacy? Technology at the service of equality.

                                                       Abstract

     The proposal for a Directive on transparency and wage equality presented by the Commission
     on 4 March 2021 confirms the saying that “knowledge is power”: the gender pay gap can be
     faced and solved if workers and, especially, female workers are enabled to know the salaries of
     their peers. Technology helps overcome privacy issues on a sensitive aspect of the employment
     relationship.

     Keyword: Wages; Transparency; Gender pay gap.




 1. Pay gaps: the data, the causes.

    When dealing with inequalities in the labour market, i.e. the different conditions of those
 seeking an employment or in employment, gender pay differentials are among the most
 discussed topics. This certainly does not happen because there is a lack of other
 discriminatory treatment, determined by ethnic origin, migrant status, sexual orientation, or
 the presence of more than one of them: on the contrary, “while some of the most obvious
 forms of discrimination at work have subsided, many others still persist and others new or
 less visible have taken hold. The combined effects of global migration, the redefinition of
 national borders, growing economic problems and rising inequalities have, for example,
 exacerbated problems of xenophobia and racial and religious discrimination”.1
    But the question of gender is fundamental if we want to study inequalities. The
 intersectional approach between the causes of discrimination, i.e. their combination in such
 a way as to aggravate the condition of the discriminated person, passes through gender. If
 the discrimination suffered by African American women in the United States is the
 prototypical case of intersectionality, the same can be said by observing the events related to

 
   Anna Zilli, Associate Professor at the University of Udine. This article has been submitted to a double-blind
 peer review process. This article is part of the PRIN Project 2017EC9CPX “Dis/Connection: Labor and Rights in
 the Internet Revolution”.
 1ILO, Time for equality at work. Global report under the follow-up to the ILO Declaration on Fundamental
 Principles and Rights at Work. Report of the Director-General, 2003.
    Anna Zilli                                                                      Italian Labour Law e-Journal
                                                                                           Issue 2, Vol. 14 (2021)
                                                                                           Section: Miscellaneous




the use of the Islamic headscarf at work in Europe2 where the religious element concerns
exclusively women.3
   Assuming that gender is the theme from which to address the causes of the hateful
discrimination that people suffer in the world of work, talking about gender pay gap means
studying the causes and the appropriate tools to remove these disparities in relation to the
condition of women.
   If we consider the gender pay gap as the difference in gross hourly earnings between men
and women, it, while existing, is modest in Italy (5%) and, apparently incredibly, far below
the European average (14.1%) and really far, for example, compared to Austria (19.9%) and
Germany (19.2%) which instead occupy better positions in the European Index on Gender
Equality.4
   The small gap found in Italy in terms of the hourly pay differential, that is explored in
these statistics, is almost eliminated by the de facto application of the collective agreement, at
least at the first level, by almost all employers. In other words, with the same classification
and level, women and men are almost equally paid and the gender pay gap thus detected can
be explained in terms of so-called individual personal wages. It is the result of the negotiation
of better treatments compared to the 'basic' treatment of the collective agreement, which
occurs mostly in top positions, where women are less present and, therefore, also less
"strong" in haggling over salary and benefits, which constitute a significant slice.
   The low differential between the hourly compensation of men and women can be
explained through the understanding of the concept and reasons that determine the overall
gender pay gap, understood as the difference between the average annual salary received by
women and men. The gap in Italy is 43.7% and in the EU 39.3%. This is a very significant
inequality, albeit with enormous differences between the Mediterranean countries and the
Nordic countries.5
   This gap stems, in the first place, from the low participation of women in the labour
market, in which the female component is employed for 49%. compared to 67.4% of men.6
   Furthermore, the phenomena of the so-call horizontal segregation (for production
sectors) and vertical (for access to top roles) of female workers insist in the labor market,
who are more employed in sectors with lower average wages and perform less prestigious
tasks, with consequent further salary differential in a pejorative sense.
   In addition, women work fewer hours than their male colleagues: it is common experience
and confirmed by all statistical studies that part-time work concerns much more female
workers than workers and in any case for different reasons.7


2   ECJ C-157/15 Achbita and ECJ C-188/15 Bougnaoui.
3 Crenshaw K., Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination

Doctrine. Feminist Theory and Antiracist Politics, in The University of Chicago Legal Forum, 1989, 139-167; ante
litteram Davis A., Women, Race & Class, Random House, New York, 1981.
4 https://eige.europa.eu/gender-equality-index/2020/compare-countries.
5 https://ec.europa.eu/eurostat/statistics-explained/index.php/Gender_statistics#Labour_market.
6 Istat, September 2020:

https://www.istat.it/it/files//2020/10/CS_Occupati-e-disoccupati_SETTEMBRE_2020.pdf.
7 https://www.istat.it/donne-uomini/bloc-2b.html.



https://doi.org/10.6092/issn.1561-8048/13859                                                                   174
    Anna Zilli                                                                    Italian Labour Law e-Journal
                                                                                         Issue 2, Vol. 14 (2021)
                                                                                         Section: Miscellaneous




    While female part-timers fill their “free” time by carrying out care activities (for children,
the elderly and/or family members with disabilities);8 male part-time workers opt for the
reduction in hours to cultivate a second professional life (typically, a freelance profession or
a business activity).9
    In addition, absences related to parental functions lead to a further reduction in hours
worked. Out of 100 parents who requested an expectation, 97% were women in the years
2015-2016; in the two-year period 2017-2018, 90%. In addition, mothers also benefited from
longer expectations (in addition to the mandatory 20 weeks related to maternity, they
represented 76% of parental leave users in the two-year period 2015 - 2016; 64% in the
following one).
    It has been considered that women work fewer hours also because they are employed in
more precarious jobs:10 in the EU of 27 countries, 27% of women and only 15% of men are
inserted into the labor market with "part time and fixed term " contracts. This is a gap that
increases for women with a low level of education (50% precarious).
    Job instability is in itself one of the causes of the constant professional and economic gap
between men and women, both during working life and in retirement age.11
    It is a harmful condition for female workers and, overall, for European society,
compressed between the very low fertility and the aging of the population, respectively
minimum and maximum in Italy. The most recent analysis of the professional status of Italian
mothers, for example, shows that two-thirds of children are born to women who worked
before giving birth; while only one in ten born is the child of dis/unemployed mothers. It is
striking, however, that only half of mothers then maintain a working occupation (55.4%)12:
children, in short, are born to women who work but who then often abandon work: partially,
with involuntary hourly reduction, or, dramatically, involuntarily withdrawing from the
professional scene, especially when the children are more than one and the availability of
caring family members is lacking.
    Certainly, the choice of girls' training paths, when they are there, has a weight. On the
other hand, the role of re-orientation and support for study and, consequently, for work in
the so-called STEM (scientific-technological-mathematical) sectors, suitable for
strengthening women’s employment quantitatively and qualitatively, in sectors where well-
paid employment is more easily found, has been explored.
    But it cannot be silenced how the persistence of gender stereotypes in family education
and early childhood, which is the main reason for the lack of affection of girls for technical-
scientific studies, cannot be eliminated in a short time.13 In fact, the generality of educators

8   https://www.istat.it/it/files/2019/11/Report-Conciliazione-lavoro-e-famiglia.pdf.
9-https://ec.europa.eu/eurostat/statistics-

explained/index.php?title=Labour_market_slack_%E2%80%93_annual_statistics_on_unmet_need
s_for_employment .
10 Zilli A., Di genere precario, in Argomenti di diritto del lavoro, 6, 2020, 1345 ff.
11-EIGE, Work in the EU: women and men at opposite ends, in http://eige.europa.eu/rdc/eige-

publications/work-eu-women-and-men-opposite-ends, 2017.
12 Cedap, Analysis of the Birth event, 2018.
13 Kersey A.J., Csumitta K.D., Cantlon J.F., Gender similarities in the brain during mathematics development,

in npj Science of Learning, 4, 19, 2019.

https://doi.org/10.6092/issn.1561-8048/13859                                                                 175
     Anna Zilli                                                                    Italian Labour Law e-Journal
                                                                                          Issue 2, Vol. 14 (2021)
                                                                                          Section: Miscellaneous




(parental or professional) lacks awareness of the mechanisms of functioning of the mind and
the ability of childhood play to shape them and orient them or not, towards mathematical
thinking.14
   In the absence of a radical change in the availability and stimulus towards logical-spatial
games towards girls, girls will be less performing in scientific subjects and, consequently, will
be oriented towards humanistic studies, in which they " better succeed", but which, at
present, have less appeal in the labor market (both for employment and for salaries).
   If the objective is therefore equal pay, it needs suitable instruments. The best
reconciliation between personal life and family needs is to help the female condition, given
that the parental function is those that often determine the improvement of the male position
(hourly increase, career advancement) to the detriment of the female one (characterized by
contraction and less flexibility of hours, absences from work, increase in time dedicated to
care).15
   But it has been observed that, even in cases where motherhood does not come into play,
women do not enjoy the same or comparable economic treatment and career prospects as
those of their male colleagues. In fact, all the data show that, for the same employment,
women are still paid less, even in the best sectors.
   Ultimately, the labor market is worse for women even when they do not have children
and even in cases where they are in possession of the best and most expendable titles: the
reasons for this gap remain in some part obscure even to the largest and most accurate
surveys, but which could well be indicated as the "net" weight of gender prejudice.16


2. Equal pay for "work of equal value": from theoretical equality to equality in
practice.

    The issue of gender pay equality is one of the founding principles of labour law: "equality
of work" was then declined as the right to equal pay between "male and female labour for
work of equal value" (ILO, Convention No. 100 and Resolution No. 90 of 1951).
    The same principle was accepted in the European Treaties: first in the Treaty of Rome on
the EEC, where art. Article 119 established an obligation on Member States to respect the
principle of equal pay for workers for equal work. The regulation was then modified with
art. 141 of the Treaty of Amsterdam of 1997, in the sense that "Each Member State ensures
the application of the principle of equal pay for male and female workers for equal work or
work of equal value. For the purposes of this Article, 'remuneration' means the normal basic
or minimum wage or salary and all other benefits paid directly or indirectly, in cash or in
kind, by the employer to the worker by reason of his/ her employment...".


14 Zilli A., Con gli occhi (e il cervello) delle bambine, in https://www.dirittoantidiscriminatorio.it/con-gli-
occhi-e-il-cervello-delle-bambine.
15 https://www.istat.it/it/files/2019/11/Report-Conciliazione-lavoro-e-famiglia.pdf.
16 ILO, Understanding the gender pay gap, 2020:

https://www.ilo.org/actemp/publications/WCMS_735949/lang--in/index.htm.

https://doi.org/10.6092/issn.1561-8048/13859                                                                  176
     Anna Zilli                                                                         Italian Labour Law e-Journal
                                                                                               Issue 2, Vol. 14 (2021)
                                                                                               Section: Miscellaneous




   Dir. CE 75/117 and Dir. 2006/54/EC provided that "with regard to the same work or
work to which an equal value is attributed, direct and indirect discrimination based on sex
and concerning any aspect or condition of remuneration must be eliminated. Where a job
classification system is used to determine wages, it must be based on common principles for
male and female workers and be designed in such a way as to eliminate discrimination on
grounds of sex".
   However, these are formulas that are difficult to implement: on the one hand, it is well
known the difficulty of access to justice by individual workers discriminated against: although
Dir. 78/2000/EC emphasizes the role of civil society organizations that deal with the
protection and affirmation of minority rights in the fight against discrimination, giving these
collective subjects the legitimacy to sue, both in the name of an applicant natural person and
independently.
   The fundamental intersection is then not represented by what "there is" but by what is
missing": in private employment there is no technical possibility of comparing treatments,
because the total salary of the comparable worker is not known; in the civil service, where
wages are also relatively transparent (and in fact the17 hourly gender pay gap almost does not
exist) there is still no comparison test that concerns the assignments and weighing of
managerial functions. In the liberal professions, gender is not considered in claiming the right
to fair compensation.
   When the level of classification is not identical, any comparison is almost impossible; but
even when it is, the worker is precluded from accessing information relating to the salary of
others, which - indeed - turns out to be among the most intimate secrets between employer
and worker, sometimes assisted by an ad hoc confidentiality pact but often only by the
conviction on the part of workers that it is forbidden to share data18 relating to their salary.19


3. Wage transparency as a tool for gender equality in the labour market.

    If "knowledge is power", the tool that seems to be most effective in combating inequalities
is represented by wage transparency. Through the knowledge of the contractual conditions
due to other workers, one can therefore well compare one's own with the performance of
others, thus finding that work "equal or of equal value" so long sought.
    The decrease of information asymmetries is a fundamental junction for equal
opportunities in employment relationships is nothing new.


17 ECJ C-256/01, Allonby.
18 Neale N., The trouble with secrets: pay secrecy, satisfaction and climate, in International Journal of Organization
Theory & Behavior, 2020; Morand D., Merriman K., Deckop J., Making sense of egalitarian pay:
Reconceptualising its treatment in organisations, in Human Resource Management Journal, 2019, 2, 180 ff.;
Belogolovsky E., Bamberger P.A., Signaling in Secret: Pay for Performance and the Incentive and Sorting Effects
of Pay Secrecy, in Academy of Management Journal, 2014, 6, 1706 ff.
19 Fawcett Society, Report 2018, in https://www.fawcettsociety.org.uk/right-to-know: 53% of women

and 47% of men are reluctant to share information about their salary, but more than 30% believe
that disclosing such information is prohibited.

https://doi.org/10.6092/issn.1561-8048/13859                                                                       177
 Anna Zilli                                                           Italian Labour Law e-Journal
                                                                             Issue 2, Vol. 14 (2021)
                                                                             Section: Miscellaneous




    Wage transparency, at whatever level one stands, is therefore a necessary condition for
combating inequalities. It has been at the heart of the European strategy to combat the gender
pay gap at least since 2008, when, after the Dir. 54/2006/EC on equal treatment of men and
women in matters of employment, the European Parliament adopted the first resolution on
equal pay for women and men, indicating wage transparency and gender-neutral systems for
assessing and classifying work as the means of applying the principle of equal pay.
    Similarly, in its Conclusions of 6 December 2010 on "strengthening efforts and stepping
up action to close the gender pay gap and on reviewing the implementation of the Beijing
Platform for Action" the Council urged Member States to implement appropriate measures
to promote pay transparency, as well as for evaluation and evaluation. neutral classification
of professions.
    These stresses were repeated in the (second) ris. of Parliament of 24 May 2012 and
commission communication COM(2013) 83 calling on Member States to "close the pay gap
between women and men, remove other barriers to women's participation in the labour
market and encourage employers to end discrimination in the workplace as part of their
efforts to pursue an active inclusion strategy".
    Clearly, it was represented that the implementation of the principle of equal pay was
hampered by the lack of transparency of pay systems, the lack of legal certainty on the
concept of work of equal value and procedural obstacles, such as "the unavailability of the
information that workers need to bring a lawsuit that has a good chance of success, in
particular information on the remuneration of staff doing the same work or work of equal
value" [Report from the Commission to the European Parliament and the Council
COM(2013) 861].
    The adoption of Commission Recommendation No 124 of 2014 on strengthening the
principle of equal pay for women and men through transparency has certainly been an
advance on this instrument, which is based on four lines of action.
    First, it was considered that transparency could be ensured through the preparation of
"pay reports”, suggesting that Member States implement "measures to ensure that employers
in enterprises and organizations with at least 50 staff regularly inform employees, workers'
representatives and social partners about the average pay per category of employee or
position, broken down by gender" (point 4) to be read together with salary audits, i.e.
independent assessments conducted by third parties "in companies and organizations with
at least 250 employees.
    These audits should include analysis of the proportion of women and men in each category
of employees or position and the job evaluation and classification systems used, and provide
detailed information on remuneration and gender pay differentials. Such independent
analyses should be made available to workers' representatives and social partners upon
request” (point 5). Furthermore, the 2014 Recommendation suggested collective bargaining
on pay disclosure (point 6) that would also be based on “updated data on the gender pay gap"
that would allow Eurostat to provide annual surveys “broken down by sex, economic sector,
working time (full-time/part-time), economic control (public/private) and age" (point 7).




https://doi.org/10.6092/issn.1561-8048/13859                                                     178
     Anna Zilli                                                                    Italian Labour Law e-Journal
                                                                                          Issue 2, Vol. 14 (2021)
                                                                                          Section: Miscellaneous




   Finally, states were recommended to provide the Commission with "data on the type and
number of cases of pay discrimination" (point 8) for the purpose of the report on the
implementation of the Recommendation, published in 2017.20
   Collective bargaining has been used to encourage or oblige the social partners to address
the issue of equal pay in collective bargaining, considering this forum the ideal place to
combat the gender pay gap.21
   Employers are required to undergo independent audits if they employ, respectively, more
than 25 (Sweden), 50 (France) or 500 employees (Germany), while in the United Kingdom
such investigations may be requested by the court.22
   In other contexts, attempts have been made to achieve wage transparency through the
voluntary adhesion of organizations to forms of disclosure, up to the full availability for all
employees to know the salary and bonuses of colleagues for the previous year or to make them
known in real time.23
   The possibility of showing salary fairness and the absence of discriminatory remuneration
policies, even for the purpose of obtaining an ethical label, is certainly interesting for the
productive giants, especially Overseas. This utility, however, struggles to impose itself in the
narrative of the Old Continent, where certifications are not taking off, because not
mandatory.


4. A (not modest) proposal: EU Proposal of Directive 2021/93 for "Binding
transparency measures".

    If, therefore, the lack of pay transparency is one of the main obstacles to equal treatment,
all that remains is to remedy it. In the knowledge that European countries would hardly have
taken further paths than those accepted in the 2014 Resolution, the promotion of wage
transparency24 at EU level was entrusted to dir.'s proposal of European Parliament and


20  See https://ec.europa.eu/transparency/regdoc/rep/1/2017/IT/COM-2017-671-F1-IT-MAIN-
PART-1.PDF.
21 ETUC, Negotiate parity. How collective bargaining helps to eliminate the pay gap between men and women doing

the same work or work of equal value, in www.etuc.org. See also Carchio C., Roiatti M., Closing the gender pay
gap, ADAPT Bulletin 8 March 2021, n. 9, in http://www.bollettinoadapt.it/wp-
content/uploads/2021/03/GPGreport.pdf.
22 The provision of independent investigations requested by the court could be assimilated to the

technical advice of office. On this point, see Italian Supreme Court (Cassazione Civile) 6 December
2019, n. 31886, in Foro italiano, 2020, 6, I, 2099, has recently specified how the technical advice cannot
investigate facts never ritually offered by the parties; nor acquire on its own initiative proof of the
facts constituting the application or the exception, nor acquire from the parties or from third parties
documents providing that evidence; this principle may be waived only where proof of the fact
constituting the application or an exception cannot objectively be provided by traditional means of
proof, under penalty of nullity of the advice.
23 The list includes, for example: AT&T, eBay, The Estée Lauder Companies, InterContinental Hotels

Group, Mastercard, Yahoo, Square, Zillow Group.
24 See the assessment of the relevant legal provisions of the EU on equal pay, 2020, in https://eur-

lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:52020DC0152&from=EN.

https://doi.org/10.6092/issn.1561-8048/13859                                                                  179
 Anna Zilli                                                              Italian Labour Law e-Journal
                                                                                Issue 2, Vol. 14 (2021)
                                                                                Section: Miscellaneous




Council 2021/93 "to strengthen the application of the principle of equal pay for men and
women for equal work or work of equal value through pay transparency and enforcement
mechanisms".25
    Firstly, the proposal seeks to clarify what is meant by 'work of equal value' by calling for
the comparison between posts and wages to be made according to objective and gender-
neutral standards, such as education, professional and training requirements, skills,
commitment and responsibilities, the work done and the nature of the tasks to be performed.
    It is noted that the proposal does not prevent employers from remunerating workers who
do the same work or work of equal value differently but calls for these differences to be
based on objective, gender-neutral and not biased criteria. This would make it possible, at
national level, to facilitate the proof of discrimination, even going beyond the jurisprudential
orientation that has so far allowed differentiated disbursements and premiums at their
discretion.
    The proposal composes a broad concept of remuneration, which includes not only the
basic pay, but also the ancillary components, in cash or in kind, that workers receive directly
or indirectly from the employer. The reference is to bonuses, overtime allowances, transport
services (including cars provided by the employer and season tickets), accommodation
allowances, allowances for participation in training courses, sums paid in the event of
dismissal, overtime increases, one-off discretionary allowances, statutory sickness allowances,
statutory allowances and supplementary pension benefits.
    With regard to the scope, the proposal covers all workers, including part-time, fixed-term
and agency workers. Domestic workers, on call, occasional and employed via digital platform,
as well as trainees and apprentices, fall within the scope of the (proposed) directive, if they
meet the criteria established by the Court of Justice to identify who a worker is.
    On the employers' side, the proposal covers both the public and private sectors,
stipulating that, as from the job offer, they must be transparent, offering candidates objective
information on the remuneration linked to the position offered, to be communicated
through a public offer, or on the occasion of selections. In addition, employers will be
prohibited from investigating the candidate's previous salary conditions.
    In the report, organizations will have to answer to workers' demands within a reasonable
timeframe. Only for employers over 250 workers, there are annual information obligations
and preparation of reports relating to the total gender pay gap (a) with respect to ancillary and
variable components; (b) indicating the average salaries of men and women in total and (c)
in the ancillary and variable component parts and (d) showing the ratio of men and women
to additional remuneration. In addition, (e) the distribution of staff by gender in each quartile
of pay and (f) the pay gap between female and male workers by categories of workers, broken
down by ordinary basic salary and complementary or variable components (Article 8,
proposal for Directive 2021/93).
    The estimated costs for the planned activity would be very modest (from EUR 20 for the
single request to EUR 900 for the preparation of the prospectuses required of large

25-https://ec.europa.eu/transparency/regdoc/rep/1/2021/IT/COM-2021-93-F1-IT-MAIN-

PART-1.PDF.

https://doi.org/10.6092/issn.1561-8048/13859                                                        180
     Anna Zilli                                                              Italian Labour Law e-Journal
                                                                                    Issue 2, Vol. 14 (2021)
                                                                                    Section: Miscellaneous




employers): these are small efforts, capable of generating enormous benefits for the
community.26
    Above all, should the remuneration report reveal a gender pay gap of 5% or more, which
the employer is unable to justify on the basis of objective and gender-neutral factors, the
situation will have to be "remedied", including in cooperation with workers' representatives,
the Labour Inspectorate and/or equality bodies (Article 9, proposal for Directive 2021/93).
A simple look at the statistics proposed so far immediately makes it clear that, in Italy, there
is no sector free from salary discrimination.
    As regards the procedural aspects, the proposed directive stipulates that, if the employer
has not complied with his obligations of transparency, anyone who considers herself /
himself discriminated against will not even have to submit evidence of discrimination.
    As litigation costs are known to be a procedural obstacle that creates a serious disincentive
for victims of gender pay discrimination to claim the right to equal pay, in order to ensure
greater access to justice and to encourage workers to assert their rights in the in cases where
the workers are unsuccessful, the costs must be compensated, unless the case has been
brought in bad faith, for spurious reasons or in cases where the non-recovery is considered
unreasonable in relation to the specific case (for example, in the case of micro-enterprises
in difficulty, Art. 19 , proposal for Directive 2021/93). This is a welcome reading of the
principle that the cancellation of expenditure is also allowed for "serious and exceptional
reasons", hopefully to be extended to all events in which there is an imbalance of power
(economic and not only) between the parties.
    As regards the sanctioning aspects, Member States are asked to put in place effective,
proportionate, and dissuasive sanctioning mechanisms, which consider the gravity and
duration of the infringement, any intention or gross negligence on the part of the employer
or any other circumstance of the case (Article 15, proposal for Directive 2021/93).
    Furthermore, the discriminated subjects will be entitled to full compensation for any
damage suffered, including the loss of chances and damage to the person who works: on them
the legislator will have to express himself "avoiding providing for a ceiling for compensation
(art. 14, proposal for Directive 2021/93) but also to perpetuate the discretions related to the
very thorny issue, relating to the exercise of the equitable power of the judge when it comes
to injuries to the moral personality of the provider".




26 According to the European Added Value Unit (AVA), European added value assessment on the application
of the principle of equal pay for men and women for equal work of equal value, please refer to:
https://op.europa.eu/it/publication-detail/-/publication/98a2b7d9-eb87-490b-81cb-
987deea0d078 a reduction of one percentage point in the gender pay gap would lead to an increase
in GDP of 0.1%; according to estimates joint research centre of the Commission (in
https://op.europa.eu/it/publication-detail/-/publication/4320dc0c-7cd4-11eb-9ac9-
01aa75ed71a1/language-it/format-PDF/source-200724836). The socio-economic consequences of
reducing the gender pay gap by 3 percentage points reduces the risk of poverty (in particular for
single-parent families, which mostly affect women) and leads to an increase in public tax revenues.

https://doi.org/10.6092/issn.1561-8048/13859                                                            181
     Anna Zilli                                                           Italian Labour Law e-Journal
                                                                                 Issue 2, Vol. 14 (2021)
                                                                                 Section: Miscellaneous




5. Transparency vs privacy? Technology at the service of equality.

    The apprehension that is the background to the initiatives about wage transparency is the
protection of the confidentiality of the workers involved. Already the Recommendation 2014
was concerned that the disclosure of information, which contained personal data, respected
the discipline on data protection, now governed by Reg. EU no. 2016/679 of the European
Parliament and of the Council of 27 April 2016 on the protection of individuals with regard
to the processing of personal data and on the Reg. EU No. 2018/1725 of the European
Parliament and of the Council of 23 October 2018 on the protection of individuals with
regard to the processing of personal data by the institutions, bodies, offices and agencies of
the Union and on the free movement of such data.
    The personal data contained in the salary slip of employees, as they are connected to
identified or identifiable natural persons, certainly fall within the notion of "personal data”
already contained in art. 1, Law no. 675/1996.
    With respect to them, the Guarantor Authority considered it necessary to "adopt the
appropriate measures aimed at protecting the confidentiality of the interested parties (e.g.:
bending and tapping the slip, enveloping it, affixing a cover of the most significant parts, or
introducing a 'courtesy distance' at the counters), so that such data are not immediately
accessible to third parties, but remain knowable only by the persons in charge of processing
who must necessarily use them for the management of the employment relationship".
In27order to guarantee the confidentiality of the worker, the employer has been asked to
process the personal data contained in the payslips (both in the processing and delivery
phases) with all the necessary precautions.28
    Technological evolution has then dematerialized the paycheck and, finally, automated the
activities related to its training, allowing a meticulous breakdown of all the elements that
define the worker. The result is the "production of new knowledge" about the working
person, which is also achieved through the extraction of information from the available data
and the consequent re-elaboration.29
    But big data thus produced, and which today represent, as far as we are concerned,
incredible human resource management tools, could finally also be used pro-labour: in a sort of
reverse profiling, they allow to position the individual worker, with personal characteristics, in
the ranking of company salary treatments.
    If the company or plant is too small (in an absolute or comparable sense) and there is the
danger that disclosure could lead to the identification, directly or indirectly, of the
remuneration of an identifiable employee, Article 10 of the proposal entitles Member States
to ensure the accessibility of information only to workers' representatives or equality bodies,
which will be able to make workers aware of the situation, without revealing the actual wage
levels of individual workers who perform the same work or work of equal value.



27 31 December 1998, in Bulletin, 6, 100 [doc. web n. 39324].
28 16 July 2003 [Doc. web n. 1080576].
29 Dagnino E., People Analytics, in Labour & Law Issues, 2017, 3, 1 ff.



https://doi.org/10.6092/issn.1561-8048/13859                                                         182
 Anna Zilli                                                                   Italian Labour Law e-Journal
                                                                                     Issue 2, Vol. 14 (2021)
                                                                                     Section: Miscellaneous




   If, therefore, access to data concerning salary classes, wages, allowances and other
emoluments paid to civil servants has already been accepted because the requirements of
transparency and clarity of administrative action prevail, technology helps workers in the
private sector in the search for justice, through transparency, allowing, as never before, now,
to access the data of the sector and of the individual work context, adequately anonymized
and reworked and, finally, usable in court. Not only that: the perception of living in a fair
work environment increases the levels of satisfaction and commitment, which represent
fundamental levers for the well-being of the working person, which also translates into
greater productivity
   It is true that today there are no detailed economic analyses concerning the specific effects
of the introduction of measures in favour of wage transparency, but the link between the
adoption of these measures, the achievement of equal pay and equal opportunities for men
and women in the world of work and in society in general can certainly be noticed. The road
of the directive is under way and, if everything goes as planned, the results will be seen within
a decade. It is therefore a question of seizing the opportunities that new technologies offer,
to ensure in practice the respect of a fundamental right and to support cultural change
towards gender equality.


                                               Bibliography

Belogolovsky E., Bamberger P.A., Signaling in Secret: Pay for Performance and the Incentive and
Sorting Effects of Pay Secrecy, in Academy of Management Journal, 2014, 6, 1706 ff.;
Carchio C., Roiatti M., Closing the gender pay gap, ADAPT Bulletin 8 March 2021, n. 9, in
http://www.bollettinoadapt.it/wp-content/uploads/2021/03/GPGreport.pdf;
Crenshaw K., Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine. Feminist Theory and Antiracist Politics, in The University of Chicago Legal
Forum, 1989, 139-167;
Dagnino E., People Analytics, in Labour & Law Issues, 2017, 3, 1 ff.;
Davis A., Women, Race & Class, Random House, New York, 1981;
Kersey A.J., Csumitta K.D., Cantlon J.F., Gender similarities in the brain during mathematics
development, in npj Science of Learning, 4, 19, 2019;
Morand D., Merriman K., Deckop J., Making sense of egalitarian pay: Reconceptualising its treatment
in organisations, in Human Resource Management Journal, 2019, 2, 180 ff.;
Neale N., The trouble with secrets: pay secrecy, satisfaction and climate, in International Journal of
Organization Theory & Behavior, 2020;
Zilli A., Con gli occhi (e il cervello) delle bambine, in https://www.dirittoantidiscriminatorio.it/con-
gli-occhi-e-il-cervello-delle-bambine;
Zilli A., Di genere precario, in Argomenti di diritto del lavoro, 6, 2020, 1345 ff.


Copyright © 2021 Anna Zilli. This article is released under a Creative Commons Attribution
4.0 International License

https://doi.org/10.6092/issn.1561-8048/13859                                                             183
