Marknadsargumentet- och hur Arbetsdomstolen kan begränsa den strukturella diskrimineringen på arbetsmarknaden

Abstract Hidden in the construction of society lies subconscious structural wage discrimination. International and national law is only applicable on the individual wage discrimination, which means that the structural discrimination is automatically tolerated. The aim of this bachelor thesis is to investigate and question the current legislation regarding individual wage discrimination and highlight the structural wage discrimination. Finally the thesis examines whether the Swedish Labour Court can set a higher standard for the burden of proof from the employers who argue that market forces are the reason behind the pay gap. To fulfil the purpose and answer the questions a legal dogmatic method and EU-methods were used. Since national law is subordinate to the EU-law the EU law has been given great emphasis. After a thorough legal inquiry of the individual discrimination, the Swedish Labour Courts practices concerning evaluation of the value of labour and the argument concerning market forces are studied in depth. The thesis concludes that the demands on proof concerning evaluation of the value of labour are far reaching when it comes to proving that two jobs are of equal value. Further it is found that the demands of proof are far less when it comes to cases where the employer points at the market forces as the cause of the wage gap. The Labour Court sees the market as a gender-neutral factor that affects the wage setting without further investigating whether that is the reality. A final conclusion is that with support from among others British Courts practices and in the recast-directive 2006/54 that there is room for the Swedish Labour Court to raise the bar concerning the demand of proof in cases where the employer is pointing at market forces without departing from EU-law.