Maurer School of Law: Indiana University Digital Repository @ Maurer Law Theses and Dissertations Student Scholarship 6-2013 Neither a Pedestal nor a Cage: In Pursuit of Genuine Gender Equality in the Philippine Workplace Emily Sanchez Salcedo Maurer School of Law - Indiana University, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/etd Part of the Civil Rights and Discrimination Commons, Labor and Employment Law Commons, and the Law and Gender Commons Recommended Citation Salcedo, Emily Sanchez, "Neither a Pedestal nor a Cage: In Pursuit of Genuine Gender Equality in the Philippine Workplace" (2013). Theses and Dissertations. 80. https://www.repository.law.indiana.edu/etd/80 This Dissertation is brought to you for free and open access by the Student Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. NEITHER A PEDESTAL NOR A CAGE: IN PURSUIT OF GENUINE GENDER EQUALITY IN THE PHILIPPINE WORKPLACE Emily Sanchez Salcedo Submitted to the faculty of Indiana University Maurer School of Law in partial fulfillment of the requirements for the degree Doctor of Juridical Science June 2013 Accepted by the faculty, Indiana University Maurer School of Law, in partial fulfillment of the requirements for the degree of Doctor of Juridical Science. Doctoral Committee /.,' /.------·-···,v~··- \ .?f:-,. ,. '.:CL ./. ,,,, j ·,..-c..-J'1!""-t~".c -- -...;;;~_, .- <.. r __ I'""=-,.,. __ .,.~·'--:-; Prof. Susan H. Williams ~ l - Prof. Deborah A. Widiss ~l Prof. Dawn E. Johnsen May 24, 2013 ii Copyright© 2013 Emily Sanchez Salcedo iii ACKNOWLEDGMENT This work would not have been possible without the generous support extended by The Fulbright Program, American Association of University Women, Delta Kappa Gamma Society International, De La Salle University - Mme. Maillefer Study Program, and Mr. Manuel L. Yu; the meticulous guidance of Prof. Susan H. Williams, Prof. Deborah A. Widiss, and Prof. Dawn E. Johnsen; the endearing wisdom of Onia V. Sanchez; and the unwavering love, patience and understanding of Senen F. Salcedo. This author is forever grateful. iv For my everdearest Sophie, and the little girls and boys ofher generation. V Table of Contents Introduction 1 Chapter I - Paternalism and the Models of Equality 8 A. Introduction 8 B. The Three Strains of Paternalism 9 C. The Three Models of Equality 12 1. The "Separate But Equal" Model of Equality 12 2. The Formal Model of Equality 20 3. The Substantive Model of Equality 25 D. Conclusion 33 Chapter II - Tracing the Roots of Paternalism in Philippine History and Culture 3 7 A. Introduction 3 7 B. A Peek into the Status oflndigenous Filipino Women 38 C. The Era of Western Colonization 50 1. Four Centuries of Spanish Rule 50 2. Four Decades of American Regime 55 D. The Most Compelling Eastern Influences 60 1. The Chinese Merchants in the Philippines 62 2. The Muslim Traders and Clerics Who Brought lslam to Mindanao 67 3. The Japanese Occupation During the Second World War 73 E. Conclusion 75 vi Chapter III - Paternalism in Present - Day Philippines 78 A. Introduction 78 B. Romantic Paternalism in Protective Labor Legislations 81 C. On Maternity Leave and Breastfeeding Policies 91 D. On Childcare Support 96 E. Conclusion 100 Chapter IV - Looking at the American Experience 107 A. Introduction 107 B. Romantic Paternalism in Early American Jurisprudence 110 C. Romantic Paternalism in Protective Labor Legislations 113 D. On Maternity Leave and Breastfeeding Policies 122 E. On Childcare Support 129 F. Conclusion 135 Chapter V - Considering the Canadian Alternative 140 A. Introduction 140 B. Romantic Paternalism in Early Canadian Jurisprudence 144 C. Romantic Paternalism in Protective Labor Legislations 147 D. On Maternity Leave and Breastfeeding Policies 160 E. On Childcare Support 170 F. Conclusion 174 Chapter VI - Exploring the French Model 179 A. Introduction 179 vii B. Romantic Paternalism in Protective Labor Legislations 184 C. On Maternity Leave and Breastfeeding Policies 189 D. On Childcare Support 193 E. Conclusion 198 Chapter VII - Admiring the Internationally-Acclaimed Best Practices in Sweden 203 A. Introduction 203 B. Romantic Paternalism in Protective Labor Legislations 206 C. On Maternity Leave and Breastfeeding Policies 214 D. On Childcare Support 218 E. Conclusion 221 Chapter VIII -Analysis of the Models of Equality Adopted in the United States, Canada, France and Sweden and Proposed Application to the Philippines 227 A. Entrenching Equality in the Constitution 227 B. A Proposed Model for the Philippines 233 C. Recommended Reforms 239 1. Reforms Based on Formal Equality 240 2. Reforms Based on Substantive Equality 243 D. Conclusion 253 Chapter IX - Conclusion 259 Bibliography 265 viii Introduction “I know my limitations, and I don’t like politics. I was only involved because of my husband.” Corazon Cojuangco Aquino1 A little over four years ago, when I was still seeking sponsorship and funding support for this research, a member of the screening panel of the Fulbright Commission in Manila inquired about the utility and timeliness of this work considering that the Philippines has had two female chief executives already - President Corazon Cojuangco Aquino, whose term spanned the period between 1986 to 1992, and the incumbent chief executive at that time, President Gloria Macapagal Arroyo, who held office from 2001 to 2010. I had no ready answer and feared that the first spontaneous thought that swept my mind was too disrespectful and since I was pressed for time, and instantly lost all gifts of glib amid the searching stare of a panel of ten interviewers, I had no alternative but to translate my despicable thoughts into more contemptuous words – “the first was her husband’s widow and the second, her father’s daughter.” Right there and then, I bid my dream goodbye. Several weeks after, however, I received the biggest surprise of my life. The scholarship that I applied for was granted and before I knew it, I was off to Maurer Law in lovely Bloomington, Indiana. The panelist’s question and what I then thought to be the 1 A popular line from the much revered first female president of the Republic of the Philippines. See Seth Mydans, Family Vaults Women to Leadership in Asia, N.Y. TIMES, Feb. 7, 2010, http://www.nytimes. com/2010/ 02/08/world/asia/08iht-asiawomen.html?_r=0. most moronic answer I ever mustered were shoved to the back burner as I was overwhelmed with all things bright and beautiful. Indeed, it stayed there until the day I presented a rough draft of a couple of chapters of this dissertation in a conference in St. Louis, Missouri on International and Comparative Law. No less than the director of the conference roused the sleeping skeleton in my closet. What am I still fighting for when men are already doing all the hard work for women, to the point of dying on the battlefield? It wasn’t difficult to discern that he was not asking a question to stimulate my intellectual analysis of the issue. This was a declaration of personal opinion and it was coming from an esteemed professor in one of the top twenty law schools in the United States. If this view is still very much alive in the land of the free in the twenty-first century, then this research is indeed worth pursuing for my people and my country. The ten seconds of infamy that I tried to hide under lock and key in the innermost recesses of my mind with the hope that they shall not haunt me ever again instantly popped out like a eureka moment. For seven straight years since 2006, the Philippines ranked among the top ten countries in the World Economic Forum’s Global Gender Gap Index that rates countries based on their ability to close the gender gap in four fundamental categories, to wit: economic participation and opportunity, educational attainment, health and survival, and political empowerment. At eighth place, the country leads the rest of Asia and proudly shares the top spot in educational attainment and health and survival while managing to land in the top twenty in terms of economic participation and opportunity and political 2 empowerment.2 While these rankings warm the heart, to say the least, it also prompts a deeper analysis of what lies behind such stellar performance. For while it flatters on the surface, it may not necessarily look the same from an insider’s perspective. Genuine gender equality remains elusive in the Philippine workplace, and the purpose of this paper is to examine this small, unsavory slice of the otherwise sweet pie. It shall start from the premise that an attitude of romantic paternalism burdens the country’s labor policies and this can be traced back to a long history of colonization that deeply embedded such attitude in the country’s culture and traditions and, consequently, its societal institutions. The objective is to recommend sound statutory and political reforms that will remove this barrier to gender equality. To achieve this goal, this paper will examine three models of equality and analyze how these are applied in four jurisdictions: the United States, Canada, France and Sweden. The paper will gather the best practices that can be adopted from these settings and transported to the Philippines, taking into consideration the peculiarities of its past history, present struggles, and future aspirations. Towards this end, the various chapters will unfold as follows: Chapter I starts with a discussion of paternalism and the three strains with which it manifests itself. The first is romantic paternalism, or the attitude of protecting women because of their divine design, that is, the ability to bear a child.