Applying feminist legal principles to achieve gender equality in Vietnam’s labor legislation

Abstract

This article examines the application of feminist legal theory to Vietnam’s labor laws for advancing gender equality. Utilizing normative legal research methods, the study critically analyzes these laws, highlighting the integration of gender equality principles and their limitations. The analysis reveals deep-seated gender biases, indicating that Vietnamese female workers’ realities are inadequately reflected in the legal provisions. Feminist legal theory is employed to critique the reinforcement of women’s subordination by the legal system, urging reforms that recognize women’s experiences to eradicate gender biases. The study champions a feminist legal approach to reassess ‘neutral’ legal clauses and counteract biased interpretations, pivotal for exposing and rectifying the laws’ subtle perpetuation of gender inequalities. It advocates for a shift in labor law to a more inclusive framework that champions gender equity, abolishes discriminatory practices, and empowers women. This approach emphasizes the necessity of embedding gender perspectives in legal analysis and reform, aiming to create a fairer legal framework in Vietnam that aligns with international standards and authentically represents gender diversity in the labor market. The proposed paradigm shift seeks not only to meet global benchmarks but to genuinely embody inclusivity and fairness, transforming the labor landscape for all workers, particularly women and marginalized groups.

Keywords:

• Labor law
• gender equality
• Vietnam
• feminist legal theory
• men-targeted policies

REVIEWING EDITOR:

• Heng Choon (Oliver) Chan, Department of Social Policy, Sociology, and Criminology, University of Birmingham, Birmingham, UK

SUBJECTS:

• Asian Law
• Regulation
• Gender Studies - Soc Sci

1. Introduction

Although women make up half of the global population, their engagement and participation in carrying paid jobs have remained unequal (SNV, 2017). Women in any country often remain an underused resource, and their participation constitutes the minority in the workforce (OECD, 2008, p. 11). Even when they have jobs, they tend to work with relatively low earnings, poor working conditions, and limited career prospects compared to their male counterparts (Bertay et al., 2020, p. 3; ILO, 2016, p. xii). This situation generally widens the gap of gender inequality, prevents the process of social development, and consequently deepens stereotypes about the gender role of women, who are often labeled as home carers. To change this status, implementing laws and policies that remove labor market inequality is critical in supporting women to develop their potential and shortening the gender gap in the labor world (Elborgh-Woytek et al., 2013). When the gendered perspectives are considered, labor regulations, fair access to employment, and equal treatment for female workers in the workplace can be promoted. This is regarded as the premise of gender equality, which is an important indicator defining social and economic sustainable development (UNWOMEN, 2014, p. 19).

Within the context of striving to complete sustainable development goals, equality between male and female workers has been an appealing topic in Vietnam’s lawmaking process. The latest 2019 Labor Code of Vietnam can be regarded as a step forward in balancing gender issues in the workplace by characterizing a closer approach toward international standards (ILO, 2021a). Despite these advancements, gender inequality in the workforce and labor market remains a pervasive problem in Vietnam’s employment context. This can be seen not only through the lower participation rate of women in the workforce than men but also through the job quality and the lower payment women get for the same job taken by male workers (ILO, 2021c, p. 3). From a legislative perspective, this situation implies the current deficiency of Vietnam’s labor law, which gives rise to the need for a transformative approach to securing gender equality in employment and occupations. Extant research on gender equality within the Vietnamese context has predominantly concentrated on highlighting the roles of Vietnamese women in the country’s economic contexts and the prevalence of gender disparities across various industries (Duong, 2001; Goodkind, 1995; Knodel et al., 2005; Liu, 2004; Schuler et al., 2006; Tran & Walter, 2014; Werner, 2009). Generally, these studies have primarily focused on offering provisional solutions or targeting recommendations to alleviate gender inequalities within specific contexts. From the legal aspect, the discourse surrounding women in the Vietnamese labor market has primarily revolved around examining working conditions and advocating for the rights of female employees from diverse employment perspectives (Dang, 2021; Doan & Dang, 2023; Mừng, 2021; Phượng & Huyền, 2022; Phương, 2021; Thủy, 2019). However, there is a notable dearth in the literature regarding the exploration of theoretical frameworks that hold the potential to systematically address gender inequality issues while incorporating women’s experiences into legal narratives. Specifically, the application and implications of a gender theory in the Vietnamese labor legislative context remain underexplored. This gap signifies a missed opportunity to assess the efficacy of feminist perspectives in combatting gender inequality within the workforce, ensuring equal treatment in employment, and eradicating gender-based discrimination. Therefore, a thorough investigation into the reception and applicability of feminist legal approaches in Vietnam could yield significant insights. Such an inquiry would not only enrich the theoretical discourse on gender equality but also offer practical implications for the integration of gender-centric theories into Vietnam’s employment laws and policies.

Against that backdrop, this research seeks to illuminate the application of feminist legal theory as a catalyst for refining the legal architecture of the Vietnam labor law. Central to feminist legal theory is the critical examination of the nexus between gender and the law, anchored in the understanding that legal frameworks have historically been instrumental in the systemic marginalization of women (Lacey, 2004). This theoretical perspective advocates for the incorporation of women’s lived experiences into legal discourse, with the aim of restructuring the jurisprudential landscape to dismantle entrenched gender biases. Based on this understanding, this study adopts a sophisticated normative legal research approach, intricately weaving feminist legal analysis into the examination of the gender equality principle enshrined in the Labor Code, which is the foundational legal stipulation for employment relations in Vietnam. This involves a meticulous, layered analysis that not only scrutinizes the explicit articulations of gender equality within the legal texts but also critically assesses their practical implications and the covert mechanisms through which gender biases may persist. Specifically, by employing feminist legal theory as an analytical lens, this research evaluates the incorporation and efficacy of the gender equality principle outlined in Vietnam’s Labor laws to identify not only overt shortcomings but also subtler, systemic issues that may undermine gender equity efforts. The rationale of this methodology is to clarify the hypothesis that the female experiences are not fully embedded in the labor legal provisions as well as the legal reasoning while making the judgement. The findings of this analysis spotlight the multifaceted challenges that currently hinder the achievement of gender equality in the Vietnamese labor market, revealing both the overt and latent dimensions of gender discrimination. While investigating, this study will demonstrate the transformative potential of feminist legal theory in addressing these multifaceted challenges to propose a comprehensive set of legal reforms. These recommendations, grounded in feminist jurisprudence, aim to advance a more inclusive, equitable legal framework for labor laws, thereby contributing to the dismantling of gender barriers and fostering a more gender-inclusive workforce in Vietnam.

2. The theoretical framework of feminist legal theory

2.1. The development and characteristics

Legal feminist theory stands as a pivotal milestone in the evolution of legal discourse, weaving together the intricacies of law and gender politics (McBride & Parry, 2016, p. 1). The roots of legal feminist theory can be traced back to the 19th and early 20th centuries when women’s suffrage movements sought to dismantle legal barriers to gender equality (Boivman & Schneider, 1998). However, it was not until the 1960s and 1970s, amidst the second wave of feminism, that legal feminist theory began to crystallize as a distinct scholarly discourse (Boivman & Schneider, 1998). Influenced by critical legal studies and feminist thought, legal scholars such as Catharine MacKinnon, Carol Gilligan, and Patricia Williams laid the groundwork for this burgeoning field (Lacey, 1989; Whitman et al., 1991). Central to the development of legal feminist theory is the critique of law as a neutral and objective entity (Fineman, 2005). Instead, proponents argue that law is deeply embedded within patriarchal structures, reflecting and perpetuating gender biases and power differentials (Fineman, 2005). Through groundbreaking works like MacKinnon’s ‘Sexual Harassment of Working Women’ and Gilligan’s ‘In a Different Voice’, legal feminist theorists exposed the inherent gender inequalities within legal doctrines, institutions, and practices (Littleton & MacKinnon, 1989). At its core, legal feminist theory interrogates how law constructs and regulates gender, sexuality, and identity while also examining how gender shapes legal norms, procedures, and outcomes. It challenges traditional legal concepts such as rights, justice, and equality, positing that these concepts are often understood and applied in ways that disadvantage women and marginalized genders (Berger et al., 2017). One of the critical tenets of legal feminist theory is the concept of intersectionality, pioneered by Kimberlé Crenshaw (Crenshaw, 1991). Intersectionality underscores the interconnected nature of social identities, such as race, class, sexuality, and gender, and how these intersect to produce unique experiences of oppression. By incorporating intersectional analyses, legal feminist theory expands its scope beyond gender to encompass the complex interplay of various forms of discrimination within the legal system (Crenshaw, 1991, p. 1296).

From its nascent stages to its contemporary manifestations, legal feminist theory has traversed a profound journey, challenging conventional legal paradigms and advocating for substantive equality (Menkel-Meadow, 1992; Waltman, 2017). This enables legal feminist theory to encompass diverse perspectives and approaches and has contemporarily diversified into four predominant strands: formal equality theory, cultural feminism, dominance theory, and anti-essentialist (or postmodern) theory (Becker et al., 1994, pp. 1–14; Thomas, 2021). Formal equality theory, rooted in the principles of liberal democracy, posits that legal and social equality can be achieved by ensuring that women are treated identically to men. In contrast, cultural feminism advocates for the recognition and valorization of the distinct differences between men and women, arguing that these differences warrant different legal treatments to achieve true equality. Dominance theory represents a departure from the former models by concentrating on the entrenched power dynamics that elevate masculine traits as the standard against which ‘difference’ is measured and constructed. This approach critiques the foundational power imbalances within societal and legal structures that perpetuate gender inequality.

Conversely, anti-essentialist theory challenges the notion of a unified category of ‘womanhood,’ acknowledging the diverse experiences that arise from the intersections of gender, race, and class. This perspective highlights the complexity and multiplicity of identities, arguing against a monolithic understanding of women’s experiences. The latter three schools of thought, namely cultural feminism, dominance theory, and anti-essentialism, serve as critical responses to the limitations of formal equality theory (Boivman & Schneider, 1998). They emerged from the practical and theoretical challenges encountered in the application of formal equality principles, addressing the inadequacies of this approach in entirely eradicating gender-based discrimination. These critiques underscore the necessity of a more nuanced and intersectional approach to legal reform and gender equality, recognizing the multifaceted nature of discrimination and the complexity of human identities (Juergens, 1991; Olsen, 1998).

2.2. The significance of feminist legal theory to legislation

2.2.1. Deconstructing the man of law

Historically, the law has been constructed and upheld by men, reflecting and perpetuating masculine values, norms, and power dynamics (Collier, 1995, pp. 1–6; Scales, 1986). From the exclusion of women from legal professions to the prioritization of masculine perspectives in legal reasoning, the masculine nature of law has been deeply ingrained in its foundations (Berger et al., 2017; Boivman & Schneider, 1998). Concepts such as objectivity, rationality, and impartiality, often associated with the law, have been shaped by masculine norms, marginalizing alternative perspectives, including those of women (Charlesworth, 1999). Legal feminist theory provides a robust framework for deconstructing the masculine nature of law and advancing gender equality within legal systems (Fineman, 2005). It seeks to deconstruct the masculine nature of law by exposing its gendered assumptions, biases, and consequences (Scales, 1986). One key aspect of this deconstruction is the critique of legal reasoning, which has traditionally prioritized abstract principles over lived experiences, thereby silencing the voices and concerns of women (Schneider, 1994).

The deconstruction of the masculine nature of law has profound implications for achieving gender equality within legal systems. By interrogating and challenging existing legal norms and practices, legal feminist theory opens up space for alternative perspectives and approaches that center on the experiences and rights of women (Frańczak, 2022). To be more specific, legal feminists argue for a more inclusive and contextual approach to legal interpretation that takes into account the diverse experiences and needs of women. This includes advocating for legal reforms that address issues such as gender-based violence, discrimination, and economic inequality (Thomas, 2021). Moreover, by exposing the gendered biases inherent in legal systems, legal feminist theory contributes to a broader cultural shift toward gender equality (Lewandowicz-Machnikowska et al., 2023). In this way, legal feminist theory challenges the notion of law as neutral and objective, revealing how it often reflects and reinforces existing power structures, including patriarchy (Scales, 1986). By raising awareness of how law shapes and reflects social attitudes towards gender, the legal feminist approach dismantles harmful stereotypes and paves the way for more inclusive, equitable, and just legal systems that recognize and uphold the rights and dignity of all individuals, regardless of gender.

2.2.2. Advancing gender equality

As previously discussed in this study, feminist legal theory comprises a variety of perspectives and methodologies, each contributing uniquely to the ongoing pursuit of gender equality within legal systems (Bartlett, 1990). Feminist legal theory has thus played a pivotal role in promoting gender equality by challenging and reshaping legal norms, practices, and institutions (Cuvillo & Strid, 2023). This assertion can be substantiated through various feminist schools, such as liberal feminism, which is one of the earliest forms of feminist legal thought and emphasizes principles of equality, individual rights, and legal reform within existing legal frameworks (McClain & Hacker, 2021). This school of thought advocates for the removal of formal obstacles to gender equality, such as discriminatory laws and practices. It underscores the necessity of legal recognition and protection of women’s rights, including the right to vote, work, and receive education. Through strategies like litigation and legislative advocacy, liberal feminists have been instrumental in securing legal victories for women, including reproductive rights and equal pay legislation.

In contrast, the radical feminism approach adopts a more systemic perspective on gender inequality, challenging the foundational structures of patriarchy and capitalism that perpetuate women’s subordination (Cuvillo & Strid, 2023). Radical feminists posit that traditional legal systems are intrinsically patriarchal and serve to uphold male dominance and control over women’s lives. They critique not only overt forms of discrimination but also the subtle ways in which law reinforces gender roles and stereotypes. Radical feminists advocate for transformative change, including the development of alternative legal systems that prioritize the interests and experiences of women. Through their analysis of power dynamics and institutionalized oppression, radical feminists have deepened our understanding of the root causes of gender inequality and the necessity for radical social transformation. Difference feminism, on the other hand, underscores the importance of acknowledging and valuing the diverse experiences and perspectives of women, especially those marginalized due to factors such as race, class, sexuality, and disability (Okin, 1991; Thomas, 2021; Vujadinović, 2023). Difference feminists critique the universalizing tendencies of traditional legal frameworks, which often overlook the intersectionality of women’s identities and experiences. They argue for a more inclusive and context-sensitive approach to law that recognizes and addresses the unique challenges faced by different groups of women. By amplifying the voices and concerns of marginalized women, difference feminism aims to challenge power hierarchies and privilege within legal systems and society at large.

Lastly, postmodern feminism deconstructs traditional conceptions of law, power, and identity, emphasizing the fluidity and contingency of gender and the limitations of existing legal frameworks in capturing the complexities of lived experience (Rosenbury, 2019). Postmodern feminists critique the essentialist assumptions underlying legal categories such as ‘woman’ and ‘man,’ arguing that these categories obscure the diversity and multiplicity of gender identities and expressions. They advocate for a more flexible and responsive approach to law that acknowledges the dynamic and contested nature of gender and embraces plurality and difference. By destabilizing fixed categories and challenging binary thinking, postmodern feminism paves the way for envisioning and creating more inclusive and equitable legal systems.

2.2.3. Providing a new practical approach to legal reforms

Since feminist legal theory is rooted in a commitment to social justice and human rights, it proposes a fresh perspective on legal norms and principles, advocating for methods that better reflect the diverse needs and experiences of individuals (Lacey, 2004). Rather than relying solely on abstract justice and rights principles, feminist legal theorists highlight the importance of context, relationships, and empathy in legal decision-making (Buiten, 2022). This approach acknowledges the interconnectedness of social identities and the intersection and amplification of oppression systems (Crenshaw, 1991). Besides confronting gender biases, as previously shown, feminist legal theory fosters inclusivity by giving voice to the concerns of marginalized groups (Crawford et al., 2018). By bringing to light the experiences of women, people of color, LGBTQ+ individuals, and other marginalized communities, feminist legal theorists emphasize the crucial role of intersectionality in understanding and addressing systemic injustices (Crawford et al., 2018; Levit & Verchick, 2016, p. 29). This intersectional approach recognizes the complex ways in which multiple forms of oppression intersect and shape individuals’ lives, advocating for legal measures that tackle the root causes of inequality and marginalization (Crenshaw, 1991). By proceeding in this manner, feminist legal theorists strive to build a more just and equitable society for all individuals. This includes advocating for policies and practices that address issues such as gender-based violence, economic inequality, and reproductive rights (Ikemoto, 2018; Oxfam Canada, 2018), which thereby contribute to broader movements for social change and transformation.

2.3. Feminist legal theory and labor law

Feminist legal theory has been instrumental in transforming labor law, advancing gender equality, and addressing systemic workplace biases (Conaghan, 2017). The intersection of the feminist approach and labor law has evolved during significant global economic changes and reshaped traditional labor concepts (England & Lawson, 2005). Gender issues are central to this discussion, moving beyond being a sub-field of labor law. In this line, the shift from a ‘male norm’ (Fredman, 1997) to a ‘feminized work’ model (Jenson et al., 1988) and from a single breadwinner to dual-earners has transformed the labor market. This change is characterized by a rise in non-standard employment forms, often precarious, where women are overrepresented (Fudge & Owens, 2006). This trend, recognized as a ‘deeply gendered phenomenon,’ challenges existing legal norms as well as requires changes in labor law’s fundamental principles (Fudge & Owens, 2006).

By applying feminist jurisprudence principles to labor legislation, it anticipates a progressive shift towards more inclusive and equitable work environments, which is evidenced in three main areas: rectifying gender biases, promoting equal opportunities and pay, and enhancing work-life balance. In that line, the first contribution of feminist legal theory is to scrutinize how traditional labor laws have perpetuated gender biases and discrimination against women and other marginalized genders (Rhode, 1988). Labor laws, historically male-centric, often neglect unique challenges faced by women in the workforce, such as sexual harassment, pregnancy discrimination, and the gender wage gap (Vijeyarasa, 2020). Feminist legal scholars have advocated for reforms to make labor laws more gender-inclusive, leading to the introduction of anti-discrimination laws and policies protecting against workplace sexual harassment (Burgess & Borgida, 1999). These changes have not only made workplaces safer for women but also set a legal precedent for addressing other forms of discrimination, fostering a more inclusive labor environment.

Secondly, the principle of equality, central to feminist legal theory, asserts that all individuals, regardless of gender, should have equal workplace rights and opportunities. This principle has significantly influenced labor laws, leading to the implementation of equal pay and employment anti-discrimination policies (Levit & Verchick, 2016). These legislative changes aim to close the gender wage gap and ensure equal employment and career advancement opportunities for women. These changes have further paved the way for more equitable employment practices, benefiting not only women but also enhancing workforce productivity and diversity (Boivman & Schneider, 1998). Finally, feminist legal theory has contributed to the reevaluation of work-life balance, focusing on reconciling professional and domestic responsibilities (Isailovic, 2021). Traditional labor laws often failed to accommodate workers with caregiving responsibilities, predominantly women. Feminist legal scholars have advocated for family-friendly workplace policies, such as maternity leave, paternity leave, and flexible working hours (Cunningham-Parmeter, 2014). These policies recognize the dual roles many individuals play as workers and caregivers, aiming to reduce the conflict between professional and domestic responsibilities (Burton et al., 1991). By improving work-life balance, these reforms help retain a diverse workforce and ensure individuals do not have to choose between their careers and families (Katz, 2021).

It is worth noting that since feminist legal theory aims to dismantle systemic biases and promote workplace equality by focusing on the experiences of women and marginalized groups, it does not mean to unjustly or prejudicially favor women. Instead, this theory seeks to address the historical disadvantages that women and any marginalized groups face in the labor market (Crawford et al., 2018; Cuvillo et al., 2023; Levit, 1996). This approach encourages the development of equitable labor laws that recognize and meet the unique challenges faced by any vulnerable group, striving for justice and fairness for all employees, regardless of gender.

3. Feminist legal theory and Vietnam labor legislation

3.1. Gender equality in Vietnam labor law

3.1.1. A long-standing principle

The development of the gender equality principle in Vietnam’s labor law, mainly through the revisions of the country’s Labor Code, reflects a concerted effort to address and enhance gender equality in the workforce. Initially, the Labor Code of 1994 marked a significant step by establishing basic legal frameworks aimed at ensuring equality between male and female workers as stipulated in Section 5 that ‘All persons shall have the right to work, the right to freely choose an employment and occupation […] without any discrimination in respect of sex […]’. The role of the government and employers in securing gender equality in the workplace is particularly assigned with specific responsibilities. Accordingly, the government should equally grant rights to both sexes and favorably regulate the working conditions for women. In the same light, employers are strictly prohibited from conducting any discriminatory behavior that degrades female employee’s dignity and honor. Those guiding principles are translated into specific provisions stipulated in Chapter X of this Labor Code, with ten sections focusing on the specific rights of female employees. Besides clarifying the requirements for eliminating sex-based discrimination, that Chapter favorably set the provisions about equal treatment for female employees at the workplace (equal pay, equal promotion in the career, working time in specific circumstances, employer’s responsibility for special facilities serving female employee…) as well as their duties while exercising their motherhood (maternity leave, special treatment for female workers in maternity leave or while taking care of children…). Notably, this conceptual legislative structure has been kept unchanged in the succeeding versions of the Vietnam Labor Code. However, the 1994 Labor Code also included provisions that inadvertently restricted women’s participation in specific job categories, reflecting prevailing gender norms and protective attitudes towards female workers. Those restrictions potentially enhance the gender stereotypes about their domestic roles or turn them into law violators since they may accept jobs that legally do not allow them to work to earn a living.

Recognizing the need for more progressive legislation, the Labor Code underwent several amendments, with significant revisions in 2012 and 2019. The 2012 amendment began to address some of the earlier limitations by incorporating more gender-sensitive provisions. It aimed to create a more equitable working environment by acknowledging issues such as maternity leave, equal pay for equal work, and the prohibition of gender discrimination in employment. Once, the 2012 Labor Code remained some direct discrimination that prevented the participation of women in some specific working domains, and this limitation has been eliminated in the 2019 Labor Code. Accordingly, the 2019 Labor Code represented a more substantial leap forward in promoting gender equality. This latest revision eliminated previous restrictions on women’s employment in specific industries, acknowledging that such restrictions were outdated and discriminatory. For the first time, it introduced more robust provisions against sexual harassment in the workplace and expanded parental leave rights, not only for mothers but also for fathers. These progressive steps in regulating parental leave are not only promoting shared parental responsibilities and recognizing the evolving dynamics of modern family life but also aligning Vietnam’s legal framework with international standards and best practices (ILO, 2021a).

These legislative changes signify Vietnam’s commitment to advancing gender equality within its labor laws. By removing barriers to women’s full participation in the workforce and addressing gender-specific challenges, the Labor Code revisions demonstrate an evolving understanding of gender equality. This progression not only empowers women but also fosters a more inclusive, equitable, and productive workforce. It reflects a broader societal shift towards recognizing and valuing the contributions of all workers, irrespective of gender, and underscores the importance of legal frameworks in shaping equitable employment practices.

3.1.2. Evaluation

The evolution of gender equality principles within Vietnam’s labor legislation has been characterized by a consistent adoption of protective strategies aimed at mitigating the disadvantages faced by women and addressing gender-based discrimination. The recent iteration of the Labor Code heralded for its innovative approach to gender equality, is poised to address workplace gender disparities more effectively since the empowerment strategy, in which women are free to choose what they want to do without any restriction, is embedded (Social Committee of the Vietnam General Assembly, 2019). This iteration of the law not only strengthens the foundational moral norms aimed at eradicating unequal treatment of women but also significantly empowers them by dismantling previous legal obstacles to workforce participation (ILO, 07 March 2020).

This legislative progress has been accompanied by notable empirical outcomes, as evidenced by the participation rate of Vietnamese women in the workforce, which exceeds both regional and global averages (ILO, 2021c). Specifically, 70.9% of working-age women in Vietnam are engaged in the labor force. This figure starkly contrasts with the global participation rate of 47.2% and the 43.9% rate observed in Asia and the Pacific. Additionally, the gender gap in workforce participation stands at a comparatively low 9.5% versus an average of 32% across the Asia-Pacific region (ILO, 2021c). Despite these advancements, gender inequality remains entrenched within the Vietnamese labor market, primarily due to persistent gender stereotypes (ILO, 2021c). Vietnamese women are disproportionately burdened with dual expectations: excelling in professional environments while also fulfilling traditional maternal roles at home. This imbalance is rooted in societal norms that undervalue women, allocating them the bulk of unpaid care work and expecting their engagement in both subsistence agriculture and the formal economy (ILO, 2021b). Although women invest considerable time in caregiving, support from male partners is notably lacking, with nearly 20% of men reporting no participation in household duties (ILO, 2021b).

This dichotomy underscores the inadequacy of the enhancements made to Vietnam’s labor law in fully addressing gender inequality. Although protective and empowerment strategies in Vietnam’s labor law have successfully demonstrated their significance in enabling female workers to participate equally in the labor market, these strategies are less effective in eliminating the chronic perceptions about the existing stereotypes and maternal profiling, which refers to the beliefs about the costs and the job interruption that they often have on female workers (McPhail, 2008). Despite ongoing efforts to bolster protective legislation and anti-discrimination measures, the current labor laws fall short of comprehensively tackling gender equality challenges amidst the country’s dynamic socio-economic evolution. Moreover, the emphasis on female-centric protection within the legal domain may inadvertently perpetuate gender biases, subtly suggesting that caregiving responsibilities predominantly fall to women. The implementation of gender-specific legal provisions is complicated by economic considerations, as the cost associated with employing female workers—owing to stipulations regarding working conditions, maternity leave, and other gender-related issues—exceeds that of their male counterparts.

Addressing these complexities necessitates a recalibration of the gender equality principle within Vietnam’s labor law to better align with contemporary economic realities and gender perspectives. This involves transcending traditional views of women as either dependents or sole caregivers, characterized by communal attributes (Conaghan, 2000, p. 353). In the contemporary context of the labor world, modern Vietnamese women are striving to demonstrate that they are as competent and achievement-oriented as men. For them, breaking gender stereotypes means being recognized and rewarded similarly to men, and the workplace is the ideal setting for them to showcase their capabilities. In this line, Vietnam’s labor legislation and legal discourse should integrate these contemporary gender perspectives, moving beyond a sole focus on childbirth, childcare, or familial guardianship roles. Furthermore, legal measures must strive to balance the imperative of gender equality with the economic implications for employers, minimizing compliance costs to deter the reinforcement of maternal profiling practices. The greater the cost of compliance, the more it reinforces maternal profiling of female workers by employers. These requirements highlight the potential for feminist legal theory to refine and enhance Vietnam’s labor law, offering a nuanced understanding of gender equality challenges and advocating for a comprehensive strategy to address them.

3.2. The potential of the legal feminist approach to Vietnam labor law

3.2.1. Exposing gender bias in neutral legal provisions

Feminist legal scholarship has rigorously delineated the concept of indirect discrimination, elucidating its manifestation within the ostensibly gender-neutral norms and practices prevalent in employment settings. This discourse gains particular pertinence within the context of Vietnam’s labor laws, where the feminist critique of indirect discrimination underscores the urgent need for a comprehensive reevaluation of employment policies through a gender-sensitive lens. Such an analysis reveals the disproportionate adverse effects of ostensibly gender-neutral employment policies on women, highlighting the imperative for Vietnam’s legal framework to undertake a meticulous examination of employment norms with an acute awareness of their gender implications.

The necessity for legal reform in Vietnam is underscored by the recognition of the unique and frequently disregarded challenges encountered by women in the workforce. This advocacy for legal transformation emphasizes the importance of not merely identifying but actively redressing the subtle gender inequities embedded within the workplace. The demand for a reformed legal approach seeks to dismantle the entrenched gender biases concealed within policies such as retirement age and maternity leave provisions, which reflect a historical reliance on male-centric employment models that marginalize the experiences and contributions of women in the labor market. According to the realm of the Vietnam labor law, the prescribed retirement age differential between genders (62 for men and 60 for women) warrants critical examination. Contrary to the notion that this stipulation serves to safeguard female workers’ health, it inadvertently engenders counterproductive effects. Ostensibly, this regulation, underpinned by a benevolent intention, aims to alleviate the dual burdens borne by women by facilitating their earlier departure from the labor market compared to men. However, this policy inadvertently curtails women’s participation in the labor market and diminishes their employment opportunities. Further, it imposes constraints on women’s autonomy by limiting their ability to engage in economic activities. Notably, in some circumstances, this age restriction presents a paradox, transforming women who continue to work past the age of 60, which is often out of economic necessity, into inadvertent violators of laws ostensibly designed for their protection. From a feminist legal perspective, the resolution to this disparity in retirement age lies in empowering women with the freedom to make their own choices. This empowerment entails ensuring that women can decide their paths without restrictions grounded in arbitrary criteria.

It should be noted that the employment of this empowerment framework is especially pertinent in the context of occupations that pose risks to women’s reproductive health and motherhood. In such cases, employers are often legally barred from hiring women. The most recent iteration of Vietnam’s Labor Code represents a progressive shift in this regard. It grants women the autonomy to pursue any occupation of their choice, provided they are duly informed about potential risks associated with their roles. This provision signifies a substantial advancement in acknowledging and upholding women’s rights to make informed decisions about their employment, thereby contributing to the dismantling of gender-based barriers in the labor market.

Furthermore, the statutory provision of six months of maternity leave for Vietnamese female workers, with the possibility of extension under specific conditions, raises essential considerations regarding its impact on women’s employment opportunities. This regulatory framework prompts a critical inquiry into whether the mandated duration of maternity leave aligns with contemporary women’s aspirations for work-life balance, especially among those with achievement-oriented dispositions who may prefer to devote more time to their careers. As previously argued from the perspective of employers, extended maternity leave periods can exacerbate the phenomenon of maternal profiling. This refers to the apprehension among employers regarding the potential disruptions caused by extended workplace absences and the associated costs of training replacement staff during an employee’s maternity leave. Such concerns contribute to a gender bias in employment practices, where employers might be reluctant to hire women due to the anticipated interruptions and financial implications (Felmlee, 1982). This bias extends beyond pregnant women to encompass all female employees, as employers may generalize the expectation of decreased workplace engagement to all female candidates, irrespective of their individual intentions or circumstances. This generalization results in pervasive maternal profiling that affects all women, as they are often perceived as potential domestic caregivers, regardless of their parental status (Cunningham-Parmeter, 2014). Addressing this issue through a feminist legal lens involves reevaluating the rigidity of maternity leave durations. By allowing women the autonomy to tailor the length of their maternity leave to their personal and professional needs, the legal framework can better accommodate diverse preferences and circumstances. Concurrently, enhancing the provision for paternal leave in legislation is crucial for promoting equitable sharing of domestic responsibilities. Such legal reforms would mitigate the adverse effects of maternal profiling by ensuring that childcare and domestic duties are not perceived as the sole purview of women, thereby contributing to a more balanced and equitable distribution of domestic roles and reducing gender disparities in the workplace.

3.2.2. A critical tool for legal reasoning

Feminist legal scholarship critically examines formal legal reasoning to illuminate how the abstraction of law may inadvertently marginalize the nuanced realities of gendered experiences. By contesting the rote application of legal principles, feminist legal theorists advocate for a jurisprudence that acknowledges and addresses the complexities inherent in gender issues to reform legal practices to be more equitable and attuned to the diverse needs of individuals. This legal feminist approach posits that law is not merely a realm of detached logic but a dynamic arena where power relations, including those involving gender, are actively negotiated. Such a perspective urges a more introspective legal practice, one that is aware of and seeks to amend its role in reinforcing gender biases through adopting more inclusive and self-reflective methodologies.

The relevance of feminist legal theory becomes particularly evident when examining real-world cases in Vietnam involving a female worker. In the case Ng. v WC Ltd. (‘Ng. v WC Ltd.’, 2020), Ms. Ng. was employed as a shoe design developer by WC Ltd., and she was reassigned to a different company facility without her consent. Notably, this facility requires Ms. Ng to commute approximately 140 km daily by the company bus. She refused to comply with this reassignment, and based on her refusal, the company applied the disciplinary measure of dismissal to her. Ms. Ng. brought the case to the court and alleged that although the labor laws mandate prior consultation in decisions affecting employees’ work conditions, especially for female workers, the company failed to comply with this stipulation. Despite her objections, both the initial judgment and the appeal dismissed her claims, prioritizing the contractual provision that allowed the employer to dictate the location of work based on business needs over the statutory rights designed to protect workers like Ms. Ng.

From a feminist standpoint, these courts’ failures to consider the gender-specific challenges faced by Ms. Ng highlight a significant oversight in the legal reasoning activity. The physical and health implications of such an extensive daily commute for a woman were wholly disregarded in the legal reasoning process, undermining the credibility of the judgments and exposing a flaw in the judicial approach to justice, which failed to evaluate all facets of the case thoroughly. Assuming that the judges consider the facts of this case through a cultural feminist lens, which acknowledges the intrinsic differences between genders, a more equitable judgment might have been achieved since Ms. Ng’s health and other gender-related factors are considered comprehensively. Recognizing the unique disadvantages encountered by female workers allows for the implementation of more suitable measures, thus underscoring the importance of integrating a legal feminist perspective to ensure a comprehensive and fair consideration of gender-specific aspects in legal disputes.

3.2.3. Providing a new normative concept about gender equality

In numerous feminist analyses, there has been a tendency to treat the category of men as undifferentiated or even universal, a practice that contrasts sharply with the critiques of essentialism directed at generalized views of women (Levit, 1995). This can cause certain gendered biases since the male’s perspectives may not be fully engaged while investigating the laws (Jensen, 1995; Mann, 1986). Thus, this inconsistency underscores the need to focus on men’s perspectives within the framework of feminist legal analysis, especially when examining labor issues (Dowd, 2010). This methodology, grounded in anti-essentialist principles, significantly enhances feminist theoretical frameworks, ensuring a comprehensive consideration of gendered dimensions within labor policies. The integration of this perspective, in conjunction with a feminist legal analysis, is projected to advance a more inclusive treatment of gender in labor-related issues.

As presented, the deficiency in the traditional approaches of the Vietnam labor law to secure gender equality in the workplace, which focuses on protecting and empowering women, suggested that the Vietnam labor law should have a radical approach. Thus, investing in men-targeted policies can reveal certain potentialities. From a feminist jurisprudential standpoint, this proposition emphasizes that feminist legal theory does not disproportionately benefit women but engages the feminist experiences to identify and rectify the entrenched biases and disparities that disadvantage them. Accordingly, this approach can alter the employer’s antagonistic stance towards maternal profiling by promoting and incentivizing males to embrace conciliatory actions by actively participating in the distribution of home responsibilities alongside women (Doucet, 2000). Including men in the responsibility of family caring would help address imbalanced relationships and their negative consequences on a significant portion of society (Doucet, 2000). As Brighouse and Wright (Brighouse & Wright, 2008) or Issacharoff and Rosenblum elucidated (Issacharoff & Rosenblum, 1994), if both parents were equally likely to avail parental leave, the basis for employers’ gender discrimination would be significantly weakened, as the potential for career interruptions would apply universally to all employees of reproductive age, thereby diluting the rationale for discrimination. In this line, a well-designed parental leave scheme would not just shift the expenses of procreation onto one gender. If both moms and dads were equally likely to take parental leave, employers would no longer be able to assume that only women would leave the job. This would undermine employers’ justification for gender-based statistical discrimination in their recruiting practices (Brighouse & Wright, 2008, p. 370). Undoubtedly, employers may still engage in statistical discrimination against parents, but this would rely on a far less robust justification compared to the existing practice of using sex as a proxy (Brighouse & Wright, 2008). Indeed, considering the challenges that employees face in expressing their desire to parent or not, almost every employee of reproductive age would expose employers to the risk of early career disruptions, which would substantially undermine the ability to discriminate against any specific individual (Issacharoff & Rosenblum, 1994).

In light of this concept, several European countries, including Sweden, have considered the provision of paternal leave to male employees as a feasible strategy to promote gender equality (Figueroa et al., 2023). Despite its pioneering introduction of paid paternal leave in 1974, Sweden initially witnessed a low uptake among men, which perpetuated traditional gender roles and contributed to wage disparities (Bennhold, 2010). To address this, the Swedish government implemented a policy in 1995 that offered families an additional month of leave if fathers utilized a state-allocated thirty-day paid leave, known as ‘daddy month’ (Brighouse & Wright, 2008). Notably, this incentive could not be transferred to their female partners (Doucet, 2012). This strategic policy quickly produced significant results. After the introduction of the ‘daddy month’ legislation, the percentage of men taking leave during the first two years of their child’s life increased from 40% to 75% (Duvander & Johansson, 2012). With the addition of a second ‘daddy month’ in 2002, the proportion of men taking leave in Sweden rose to 90% by 2006 (Haas & Hwang, 2009). Furthermore, a substantial number of men took extended leave, with over 50% of fathers taking more than thirty days off work. Conversely, women’s use of leave decreased by an average of twenty days (Duvander & Johansson, 2012).

Within the employment context of Vietnam, this paper suggests that encouraging male participation in domestic responsibilities can alter the negative perceptions associated with maternal employment, thus addressing the issue of maternal profiling by employers. The introduction of a comprehensive parental leave policy, advocating for shared parental responsibilities, would not only redistribute the burden of childcare but also challenge the prevailing gender-based statistical discrimination in hiring practices. Vietnam could draw valuable lessons from Sweden’s experience in advancing gender equality through labor policy reforms. While the current law offers up to 14 days of paid paternal leave, this provision falls short of challenging entrenched stereotypes and fostering a more equitable distribution of domestic responsibilities. The paper advocates for a reevaluation of maternity and paternity leave policies to facilitate a more balanced participation in caregiving roles, thereby enhancing gender equality in the labor force. Although the immediate implementation of policies akin to Sweden’s ‘daddy month’ may be too ambitious for Vietnam, the positive outcomes observed in Sweden underscore the potential of such policies in transforming societal norms and contributing to a more gender-equitable labor market.

4. Conclusion

This research highlights the pivotal role of feminist legal theory in transforming Vietnam’s labor laws, advocating for a legal framework that fundamentally embraces gender equality. By examining the historical complicity of legal structures in the marginalization of women, this study elucidates the potential for legal reform to eradicate gender biases, especially within the labor domain. Feminist legal theory emerges as an essential tool for critically analyzing and reforming Vietnam’s labor legislation, ensuring it robustly safeguards the rights and dignity of women workers. Employing feminist legal critique and reasoning, the study proposes viable strategies for legislative amendments aimed at dismantling discriminatory practices and fostering gender equity in the Vietnamese workforce. The findings underscore the critical need for integrating feminist legal scholarship into the reformative discourse of Vietnam’s labor laws. By challenging existing legal provisions, enhancing legal reasoning, and deconstructing normative legislative frameworks, feminist legal theory lays the groundwork for significant advancements in legal protections for female workers.

Adopting a feminist legal perspective, this research sheds light on the gendered implications of ostensibly ‘neutral’ legal provisions and the legal reasoning behind them, revealing their disproportionate impact on women workers and their contribution to entrenched employment gender disparities. Furthermore, the study offers recommendations for refining the gender equality principles within Vietnamese labor law through a feminist legal lens, in which men-targeted policies can demonstrate specific potential. The contribution of this research extends beyond academic circles, providing valuable insights for policymakers, legal professionals, and activists committed to promoting gender equality in the workforce. It underscores the imperative of embracing a feminist legal framework to address the systemic shortcomings within Vietnam’s labor legislation, advocating for a future where workplace gender equity is not merely an aspiration but a normative standard. To sum up, the contribution of feminist legal theory to the examination and reform of Vietnam’s labor laws is indispensable. It serves as a cornerstone for legal scrutiny and amendment, aiming to eliminate gender biases and improve the legal framework’s quality. As Vietnam progresses in refining its labor laws, the integration of feminist legal principles will be crucial in ensuring that gender equality transcends theoretical discourse to become a tangible reality for all workers.

Acknowledgments

The authors have no financial or proprietary interests in any material discussed in this article.

Disclosure statement

The authors report there are no competing interests to declare.

Data availability statement

The data that support the findings of this study are openly available in the website of ILO Vietnam at https://www.ilo.org/hanoi/Whatwedo/Publications/WCMS_774433/lang–vi/index.htm

Additional information

Notes on contributors

Minh Hoang Dang

Minh Hoang Dang is a lecturer in law at FPT University - Vietnam, bringing a wealth of knowledge and expertise to his role. He possesses an LLM in International Business Law from Newcastle University, UK, showcasing his profound understanding and global perspective on legal matters. Currently, Dang is furthering his academic endeavors as a PhD student at the University of Economics and Law, Vietnam, which is affiliated with the National University in Ho Chi Minh City, Vietnam. His scholarly research is dedicated to the intricate study of law and gender in Vietnam employment context, aiming to contribute significant insights and advancements in this vital area of legal scholarship. Dang’s academic achievements and ongoing research underscore his dedication to legal education and his commitment to exploring the dynamic interplay between law and gender issues.