![FROM PRINCIPLES TO PR ACTICE
Box 2.21
Why should I employ someone with HIV?
A 2008 UNDP study from Estonia, Georgia, the Russian Federation, Ukraine and Uzbekistan found that
participants with HIV and AIDS showed a high level of sensitivity to the potential for discrimination in the
workplace. Almost all participants said that obtaining a job would be impossible if they disclosed their
status during the application process. Many participants lacked the motivation to seek work owing to fear
of rejection, and resigned themselves to unemployment or to participation in the informal sector. One well-
educated woman living with HIV said that her status would either prevent her from being hired altogether
or would relegate her to low-level, manual labour. Participating employers disclosed that, when choosing
between an applicant with HIV and one without, their inclination would be to hire the non-infected person.
A Georgian employer asked, “Why should I employ someone with HIV and spend more on an infected
person when I can employ someone else?” As a result of this discrimination, many PLHIV revealed that
they would conceal their status, provide falsified documents attesting to their health when required by an
employer, or pay bribes to keep their status secret.
Source: ILO AIDS and UNDP [Bratislava Regional Centre]: Living with HIV in Eastern Europe and the CIS: The Human Cost
of Social Exclusion (Bratislava, 2008).
Marginalization of persons HIV testing and screening
living with HIV and AIDS
177. Discrimination against PLHIV in the work-
175. Stigma and discrimination against persons place often takes the form of mandatory HIV
living with HIV (PLHIV) are key human rights and testing, which is carried out to determine the HIV
development issues that have a direct impact on the status of job applicants and workers. Other forms of
workplace. Discrimination on the basis of real or per- discriminatory testing would include testing under
ceived HIV status can result in workers being unable conditions which are not genuinely voluntary and are
to access employment and may lead to those in em- therefore not based on informed consent, or which
ployment losing their livelihoods. Discrimination do not guarantee the confidentiality of test results.
also deters individuals from accessing prevention Discriminatory screening may also be used, often
measures such as voluntary HIV testing, as well taking the form of questions aimed at determining
as treatment, care and the support services needed the propensity of workers to engage in high-risk be-
to halt the spread of the pandemic and mitigate its haviours or lifestyle choices that could lead to an
impact.144 HIV infection. Such screening can result in HIV-
176. In India, for example, employment is often related discrimination based on stereotyping. An
denied at the time of recruitment if the applicant is ILO-commissioned study in East Asia revealed that
HIV-positive, and employment may be terminated some employers conducted “voluntary” testing yet at
if the applicant’s status is discovered after hiring. the same time did not hire those individuals who re-
Discrimination is also common in less explicit forms fused to participate “willingly”.
such as gradual demotions, ostracism or physical 178. The HIV and AIDS Recommendation, 2010
separation, and/or employers asking HIV-positive (No. 200), provides that HIV testing should always
workers not to report to work despite being kept on be voluntary, with pre- and post-test counselling, and
the payroll.145 Changes in job requirements may be that testing or screening should never be carried out
made to impose additional burdens on PLHIV and for employment purposes. All HIV-related informa-
force them into leaving their jobs.146 HIV-positive tion should be kept confidential. Moreover, all HIV
workers may be denied both compassionate employ- testing programmes should respect international
ment (flexible working arrangements) and benefits guidelines on confidentiality, counselling and con-
granted to individuals suffering from other illnesses, sent, and HIV testing should not endanger access
such as payments to surviving spouses. to jobs, tenure, job security, or opportunities for ad-
vancement. Where a medical examination is carried
out, its purpose should be to assess an individual’s
144. OHCHR and UNAIDS: Handbook on HIV and Human Rights for National Human Rights Institutions (Geneva, 2007), p. 10.
145. See N. Maske and S.M. khare: HIV and AIDS and human rights: An Indian perspective, Social Science Research Network eLibrary
(2009), p. 9.
146. OHCHR and UNAIDS, op. cit., p. 10.
45](https://image.slidesharecdn.com/equalityatworkthecontimuingchallenge-13070321408288-phpapp01-110602113128-phpapp01/85/Equality-At-Work-The-Contimuing-Challenge-61-320.jpg)
Equality At Work The Contimuing Challenge
- 1. REPORT OF THE DIRECTOR-GENERAL Equality at work: The continuing challenge Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work INTERNATIONAL LABOUR CONFERENCE 100th Session 2011 Report I(B) INTERNATIONAL LABOUR OFFICE GENEVA
- 2. This Report may also be consulted on the ILO website (www.ilo.org/declaration). ISBN 978-92-2-123091-5 (print) ISBN 978-92-2-123092-2 (web PDF) ISSN 0074-6681 First published 2011 The designations employed in ILO publications, which are in conformity with United Nations practice, and the presentation of mater ial therein do not imply the expression of any opinion whatsoever on the part of the International Labour Office concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its frontiers. The responsibility for opinions expressed in signed articles, studies and other contributions rests solely with their authors, and publication does not constitute an endorsement by the International Labour Office of the opinions expressed in them. Reference to names of firms and commercial products and processes does not imply their endorsement by the International Labour Office, and any failure to mention a particular firm, commercial product or process is not a sign of disapproval. ILO publications can be obtained through major booksellers or ILO local offices in many countries, or direct from ILO Publications, International Labour Office, CH-1211 Geneva 22, Switzerland. Catalogues or lists of new publications are available free of charge from the above address, or by email: pubvente@ilo.org. Visit our web site: www.ilo.org/publns. Photocomposed in Switzerland WEI Printed in Switzerland SRO
- 3. Contents Executive summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix List of abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Part I. An evolving picture: Capturing the trends . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The impact of the global economic crisis on non-discrimination in employment and occupation . 5 Impact on migrant workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The crisis and women workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Poverty and discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Responding to the crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Stimulus packages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Preventing harmful effects of fiscal consolidation . . . . . . . . . . . . . . . . . . . . . . . . 10 Institutional capacity to deal with non-discrimination . . . . . . . . . . . . . . . . . . . . . . . 11 Monitoring the impact of policies and measures . . . . . . . . . . . . . . . . . . . . . . . . 12 Measuring discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Recent legal developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ratification of core Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Legislative trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Remaining challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Discrimination based on multiple grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Addressing multiple discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Part II. From principles to practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Discrimination based on sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Promoting gender equality through gender mainstreaming . . . . . . . . . . . . . . . . . . . 19 Affirmative action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Persistence in gender pay gaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Means to narrow the gender pay gap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Maternity and paternity status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Balancing work and family responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Girls’ access to education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Legislation on marital status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 v
- 4. EqUALITy AT WORk: THE CONTINUING CHALLENGE Complaints of sexual harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Discrimination based on race and ethnicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Alarming trends worldwide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Little progress for people of African descent . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Indigenous peoples: The case of Latin America . . . . . . . . . . . . . . . . . . . . . . . . . 31 Policies and measures targeting indigenous peoples . . . . . . . . . . . . . . . . . . . . . . . 32 Europe and the Roma people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Discrimination based on nationality and the case of migrant workers . . . . . . . . . . . . . . . 34 Manifestations of discrimination in employment . . . . . . . . . . . . . . . . . . . . . . . . 35 Working conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Measures aimed at limiting migration and expelling migrant workers . . . . . . . . . . . . . 36 Integration versus assimilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Xenophobia and violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Limited awareness of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Legal developments and proactive measures . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Diversity policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Discrimination based on religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Increasing visibility of religious discrimination . . . . . . . . . . . . . . . . . . . . . . . . . 40 Manifestation of religion in the workplace . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Freedom not to disclose one’s religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Managing a religiously diverse workplace . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Discrimination based on political opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Legislative measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Discrimination based on social origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Caste-based discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Legislative and policy developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Discrimination based on HIV status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Marginalization of persons living with HIV and AIDS . . . . . . . . . . . . . . . . . . . . . 45 HIV testing and screening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Recent legal developments and remaining gaps . . . . . . . . . . . . . . . . . . . . . . . . . 46 Role of the social partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Discrimination based on disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Pervasive inequalities in employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Limited access to education and vocational training . . . . . . . . . . . . . . . . . . . . . . 47 Failure to provide reasonable accommodation . . . . . . . . . . . . . . . . . . . . . . . . . 47 Recent efforts to provide adequate legal protection . . . . . . . . . . . . . . . . . . . . . . . 48 Enhancing the employability of persons with disabilities . . . . . . . . . . . . . . . . . . . . 48 Discrimination based on age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 An increase in age-related complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Measures to achieve equality for older workers . . . . . . . . . . . . . . . . . . . . . . . . . 49 The situation of younger workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Discrimination based on sexual orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Progress on anti-discrimination measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Trade unions taking action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Discrimination based on genetics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Legislative developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Discrimination based on lifestyle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Discrimination based on body weight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Discrimination based on smoking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 vi
- 5. CONTENTS Part III. The ILO’s response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Decent work for all . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Promoting action on non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Better design and enforcement of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Gender equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Equal remuneration for men and women . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Reconciling work and family responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Equality with respect to race and ethnicity . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Protecting migrant workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Equal opportunities for persons with disabilities . . . . . . . . . . . . . . . . . . . . . . . . 65 Age discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Part IV. Towards an action plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Promoting the relevant ILO instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Developing and sharing knowledge on the elimination of discrimination in employment and occupation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Developing the institutional capacity of ILO constituents to effectively implement non-discrimination at work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Strengthening international partnerships with major international actors on equality . . . . . . . 69 vii
- 7. Executive summary T he global economic and financial crisis, which has predictably turned into a major employment crisis, forms the background to the third Global discrimination. Attitudes are influenced, and it be- comes more difficult to strengthen policies and legis- lation against discrimination. Discrimination occurs Report on discrimination. The aim of the Report is as a result of actions by employers, national legis- to provide a dynamic picture of trends over the last lation and practice, social and cultural factors, and four years and present some findings, conclusions different perceptions of the causes of economic and and recommendations for future action by the ILO social troubles. And yet, the link between non-dis- and its constituents. crimination and social stability is particularly im- This Report contains both good and bad news portant at a time of economic adversity. about recent worldwide trends regarding discrimin- Different economies and sectors of the economy ation in employment and occupation. On the posi- have been affected in different ways. Workers in tive side, there is more legislation, there are more more stable employment relationships are naturally institutional initiatives, and, in general, a growing less affected by the crisis than those in temporary or awareness of the need to overcome discrimination precarious employment. The risk is especially acute at work. However, capacity does not keep pace with for the low-skilled, older and migrant workers, as the political will, and a prolonged economic down- well as those workers – including university gradu- turn exposes structural weaknesses and even aggra- ates – who are looking for their first job. vates structural discrimination. Furthermore, the The employment of women has been seriously agenda of discrimination at work is continuously di- affected in several countries by the impact of the versifying, and new challenges arise where old ones crisis on export sectors. Earlier downturns have re- remain at best only partially answered. vealed a similar impact on the employment and income of women as many have been pushed into in- formal employment. Despite this, in many developed Weathering the effects of the global crisis market economy countries the crisis has not had a disproportionate impact on women’s employment This Report shows that discrimination continues to that could be attributed to discrimination. It is also be persistent and multifaceted. A major area of con- too early to draw conclusions from available data on cern is access to jobs. The proportion of workers who the wage gap, and the trends so far discerned appear are vulnerable to poverty is on the increase again, to be contradictory. What is clear is that institutional reversing the positive trends noted over the last few solutions, such as equal remuneration mechanisms, years. Discrimination has also become more varied, are helpful at least for those in employment whose and discrimination on multiple grounds is becoming jobs are not immediately threatened. the rule rather than the exception. Such trends have Measures that have been adopted in order to been witnessed by equality bodies, which have re- mitigate the effects of the crisis, in particular aus- ceived an increased number of complaints of work- terity packages, have on occasion indirectly and place discrimination. inadvertently increased discrimination against cer- In times of crisis, inequality, insecurity and the tain groups of workers. Growth and unemployment danger of exclusion are fed by direct or indirect concerns are naturally important, and concerns ix
- 8. EqUALITy AT WORk: THE CONTINUING CHALLENGE about discrimination can easily take second place new policies for continual training for older workers to short-term economic and employment policies or and quotas for women in managerial positions. Such budgetary decisions which affect both public and policies have been implemented at the enterprise and private institutions dealing with discrimination. national levels. In many developing countries, transfer pro- R at i f ic at ion s of t he t wo f u nd a ment a l grammes that are targeted at the poor provide Conventions in this area – the Equal Remuneration income support on condition that children attend Convention, 1951 (No. 100), and the Discrimination school and that they and their parents visit health (Employment and Occupation) Convention, 1958 centres. These measures may, however, have only a (No. 111) – stand at 168 and 169 respectively, out of limited impact on poverty reduction if they do not a total of 183 ILO member States. That makes them also address factors of economic vulnerability such as the fifth and fourth most ratified ILO Conventions. ethnic, racial and gender discrimination. When ratification levels are over 90 per cent, the The fundamental right of non-discrimination in target of universal ratification is attainable. employment and occupation for all women and men New ombudsman offices dealing specifically needs to be at the core of policies for recovery and with discrimination on several grounds have been of action to reduce poverty in order to achieve more established in six European countries. Enforcement sustainable growth and fairer societies. The right mechanisms include effective labour inspectorates, response includes legislation, institution building, specialist courts or ombudsman authorities, ade- awareness raising, voluntary action by the social part- quate protection against victimization, the avail- ners, and a change in attitudes through education. ability of effective remedies, and a fair allocation of the burden of proof. They also call for adequate awareness of rights on the part of workers who may The good news: Trends in anti-discrimination suffer discrimination – which means all workers – as legislation and policies well as readily accessible complaints procedures. In many countries, equality bodies have significantly In spite of the crisis and the prevailing policy envir- contributed to a better implementation of laws and onment, there have continued to be positive advances policies against discrimination at work; in others, in anti-discrimination legislation and policies. These they have faced serious constraints in fulfilling their concern both the amount and the content of new mandate. legislation. Thus, in the middle of a hardening global climate, laws on equality and non-discrimination at work cover an increasingly broad set of grounds for The bad news: Capacity constraints discrimination and stipulate more comprehensive protection. Having laws and institutions to prevent discrimin- For instance, rapid advances have been made ation at work and offer remedies is not enough; with legislation to prohibit discrimination on the keeping them functioning effectively is a challenge, basis of disability and age. Race and sex continue to especially in troubled times. Many of the institutions be the two grounds of discrimination which are spe- are faced with a shortage of human and financial cifically included in almost all legislation for equality resources, inadequate policy coherence at the na- and against discrimination at work. However, less tional and local levels, and insufficient synergy and progress has been made in obtaining explicit mention cooperation with other relevant institutions. Labour of other grounds for discrimination, such as national inspectors, judges, public officials and other compe- extraction, social origin and political opinion. tent authorities encounter a lack of knowledge and In Europe, anti-discrimination legislation has inadequate institutional capacity when they attempt been consolidated, and definitions of discrimination to identify and address discrimination cases. This and the allocation of the burden of proof have been prevents victims of discrimination from submitting brought into line with European Union directives. their claims successfully. Around the world, new laws have been introduced or During economic downturns, there is a tendency existing legislation amended to eliminate discrimin- to give lower priority to policies that are targeted ation based on age, maternity and marital status, dis- against discrimination and promote awareness of abilities, lifestyle and genetic predisposition. Existing workers’ rights. Austerity measures and cutbacks in legislation has been complemented by family-friendly the budgets of labour administrations and inspection policies relating, for example, to parental leave, ma- services, and in funds available to specialized bodies ternity protection and breastfeeding, as well as other dealing with non-discrimination and equality, can x
- 9. EXECUTIVE SUMMARy seriously compromise the ability of existing institu- Flexible and negotiated arrangements on working tions to prevent the economic crisis from generating schedules, job sharing and teleworking are gradu- more discrimination and more inequalities. ally being introduced as an element of more family- The value of available data is often limited be- friendly policies, which can reduce the structural cause of differences in definitions of discrimination disadvantages experienced by workers with family at work in different countries. Data are typically responsibilities. collected through ad hoc research or situation tests, but seldom in a systematic way. In particular, inter- national comparisons are at best scant and sketchy. Maternity and paternity protection The lack of reliable data makes it difficult to monitor and assess the impact of measures that have Discrimination related to pregnancy and maternity been taken. If statistics are meagre or unreliable, the is still common. The access of women to certain jobs extent of discriminatory practices will remain largely can be restricted on the basis of their reproductive unknown. Among the serious capacity constraints role. Several equality bodies worldwide have even wit- is an inadequate commitment by governments to nessed increased discrimination against women on put into place human, technical and financial re- grounds of maternity. Specific cases concern dismissals sources to improve data collection at the national for pregnancy and nursing, failure to grant time for level. Taking this important but complex first step nursing, withholding of pre- and postnatal benefits, will significantly contribute to the identification of denial of promotion, and refusal to allow workers to problems and the measures needed to tackle them. return to posts occupied before maternity leave. At the same time, new legal provisions are being introduced to protect women against dismissal and Gender equality discrimination due to pregnancy, marital status, family responsibilities or maternity leave. Many Significant progress has been made in recent decades countries provide women with paid leave if they have in advancing gender equality in the world of work. a miscarriage or stillbirth or suffer from some other National policies and legislative frameworks have im- abnormal condition. There are increasing provisions proved, but major challenges remain. Women con- for paternity leave. However, groups such as part- tinue to suffer discrimination in terms of the jobs time workers or those in export processing zones may available to them, their remuneration, benefits and not be able to benefit from such improvements. working conditions, and access to decision-making positions. Recent data show that 829 million women live in poverty worldwide, while the equivalent figure Sexual harassment for men is 522 million. Women’s wages are on average 70–90 per cent Sexual harassment occurs on every continent and in of men’s. The gender pay gap still exists despite ad- different types and categories of occupations. Surveys vances in education, and women continue to be show that it is a significant problem in workplaces. over-represented in low-income jobs. A significant Women who are most vulnerable to sexual harass- proportion of this pay gap is explained by occupa- ment are young, financially dependent, single or tional and sectoral segregation. divorced, and migrants. Men who experience harass- ment tend to be young, gay and members of ethnic or racial minorities. Experiences in many countries Reconciling work and family responsibilities have shown that effective action against sexual har- assment in the workplace requires a combination of The availability of affordable childcare facilities out- legal frameworks, stronger enforcement, adequately side the family is a precondition for many women funded institutions and greater awareness. and men to engage fully in working life and earn their living. A lack of such services places workers with family responsibilities at a disadvantage and Race and ethnicity reduces the range of jobs accessible to them. The lack of adequate paid leave can also render sectors In line with previous Global Reports on discrimin- of the labour market inaccessible or unattractive for ation at work, it is important to emphasize that the workers with family responsibilities. These are eve- need to combat racism is as relevant today as it ever ryday examples of structural discrimination. was. Although some progress has been made, there xi
- 10. EqUALITy AT WORk: THE CONTINUING CHALLENGE are still many areas where achievements are lacking create a job-rich recovery; and an active role for em- or insufficient. What is called for is a mix of legal, ployers’ and workers’ organizations in leading debate policy and other instruments, including guaranteed and action in the right direction and ensuring that access to effective remedies for all victims. Barriers racism and violence remain unacceptable. impeding equal access to the labour market need to be dismantled. This concerns, in particular, people of African and Asian descent, indigenous peoples Religion and ethnic minorities, and above all women within these groups. Labelling certain groups in a stereo- Over the last four years, there appears to have been a typical way can have a significant damaging effect. rise in the number of women and men experiencing discrimination on religious grounds. This trend is reflected in the number of cases of religious dis- Migrant workers crimination referred to equality commissions. Where systemic religious discrimination exists, it usually In many countries migrant workers make up 8 to concerns all aspects of life and is not limited to em- 20 per cent of the labour force, and in certain regions ployment and occupation. Nevertheless, over the the figure is significantly higher. Research shows last four years, religious discrimination in employ- consistently that they face widespread pervasive dis- ment appears to have increased and is combined with crimination in access to employment, and many en- anxieties over labour migration in a context of eco- counter discrimination when employed. Migrant nomic and social insecurity. workers have also been particularly affected by the economic crisis, with reduced employment or migra- tion opportunities and increased xenophobia, a de- Political opinion terioration in working conditions and even violence. Unfair working conditions are faced by migrants in The right to hold and express political opinions both developed and developing countries. is inextricably linked to freedom of expression. Some countries exclude migrant workers from Discrimination on the basis of political opinion tends social insurance programmes. Others only allow access to take place in the public sector, where loyalty to the for migrants to short-term programmes, such as health policies of the authorities in power can be a factor in care, but deny them long-term portable benefits such access to employment. In some countries legislation as old-age pensions. Countries may allow access to requires that job applicants satisfy certain political long-term benefits but not permit portability between prerequisites in order to have access to public service countries, which in turn discourages return migration. jobs. However, individual complaints relating to ter- In some cases, discriminatory tendencies have re- mination of employment can be difficult to prove. cently been aggravated by hostile political discourse, Some political parties are closely linked with and there is a risk that this may lead to exclusion, re- an ethnic, linguistic or religious identity. In such jection and expulsion of migrant workers. Social ten- cases any discrimination based on political opinion sions and hardening attitudes towards migrants – as may coincide with discrimination on other grounds. with any social group – can result in systematic and Discrimination on grounds of political opinion may widespread discrimination. Populist policies can also be combined with anti-union discrimination. foster greater xenophobia and discrimination di- This typically involves trade union members being ac- rected towards migrants. cused of engaging in unacceptable political activities. There is a need for prompt and comprehensive responses to emerging trends in discourse and policies which can harm existing and future efforts to ensure Social origin equality of treatment and employment opportunities for all. With increased economic insecurity for the Discrimination on the basis of social origin persists entire population, minorities and foreign or foreign- where rigid social stratification prevails. One example born workers run the risk of becoming scapegoats. of this is caste-based discrimination in South Asia. The remedies needed include strengthening anti- Even in open societies, where social mobility is more discriminatory measures that have been identified by common, there are large differences in educational the United Nations conferences; attention to political attainment. Such differences undermine equality of rhetoric to avoid stigmatization and xenophobic acts; opportunity in employment and advancement for macro- and microeconomic policies to maintain and various social categories. xii
- 11. EXECUTIVE SUMMARy Persons with disabilities Age discrimination Work-related discrimination against persons with Countries are increasingly making efforts to enact disabilities ranges from limited access to education, legislation against discrimination on the basis of age. vocational training and rehabilitation, to marked dif- Awareness of age discrimination appears to have in- ferences in wages between workers with disabilities creased. According to a survey carried out by the and the rest of the workforce as well as exclusion European Commission in November 2009, 58 per from certain jobs. About 10 per cent of the world’s cent of Europeans considered that age discrimin- population, or some 650 million people, suffer from ation was widespread in their country, compared physical, sensory, intellectual or mental impairments with 42 per cent the year before. A total of 64 per of one form or another, and over 470 million of these cent of those surveyed expected that the economic are of working age. Available statistics show that crisis would lead to more age discrimination in the their employment rate is low compared with non- labour market. disabled persons. Legislation as well as policies at the national and The United Nations estimates that 80 per cent enterprise levels can play a major role in overcoming of persons with disabilities in developing coun- stereotypes concerning older workers. A number of tries live in poverty, many of them in rural areas. countries have carried out large-scale government- According to the World Bank, 20 per cent of the sponsored information campaigns to overcome the world’s poor suffer from some form of disability. An reluctance to retain and hire older workers. important advancement in terms of disability legis- As for young people, their difficulties in the lation was the entry into force in 2008 of the United labour market cannot all be attributed to discrimin- Nations Convention on the Rights of Persons with ation, although they do face hurdles to employment. Disabilities. As recent developments have shown, this can be par- ticularly explosive in situations where young people are unable to find suitable employment after com- HIV/AIDS pleting their education or training. While this is more of a general economic and employment policy Since the majority of people living with HIV are em- question, it is important to avoid any unintended dis- ployed, the workplace remains a key arena for the criminatory measures when promoting jobs for the fight against the pandemic and its effects. Preventing growing number of young people who try to enter stigmatization and discrimination in employment is the labour market, whether they are coming from also a way of alleviating poverty and respecting the the “high end” of education systems or trying to human rights of all individuals. enter the labour market without qualifications. Discrimination against persons with HIV can take place through mandatory testing of workers, or testing under conditions which are not genuinely Sexual orientation voluntary or do not guarantee the confidentiality of test results. A study commissioned by the ILO in Violence, harassment, discrimination at work, exclu- East Asia revealed that some employers conducted sion, stigmatization and prejudice are sometimes faced tests which formally were voluntary but in prac- by lesbian, gay, bisexual and transgender persons in or tice denied employment to anyone who refused to seeking employment. Homosexuality remains crimi- participate. nalized in a number of countries. Some studies put In June 2010, the International Labour Conference the salary gap between gay and non-gay employees adopted the HIV and AIDS Recommendation, 2010 at 3 to 30 per cent. Same-sex partners do not always (No. 200). The new Recommendation is the first acquire the same benefits as married couples, and the international labour standard on HIV and AIDS. It right to include partners in health insurance plans and contains protections against discrimination in recruit- other work-related benefits may not be guaranteed. ment and terms and conditions of employment, and The European Union’s Charter of Fundamental prohibits termination of employment on the basis of Rights, which strengthens and expands the non-dis- real or perceived HIV status. crimination provisions of the Employment Equality Directive 2000/78/EC, is the first international human rights instrument to completely prohibit discrimin- ation based on sexual orientation. It entered into force with the ratification of the Lisbon Treaty in 2009. xiii
- 12. EqUALITy AT WORk: THE CONTINUING CHALLENGE Lifestyle Action by the ILO In some regions and countries, discrimination based Over the last four years, several programmes on lifestyle has emerged as a topical issue, especially have been developed and activities implemented in relation to smoking and obesity (which could also at the global, regional and national levels. Non- be regarded as health issues). The issue is still concen- discrimination has been included as a priority in the trated around a limited number of mainly industrial- Decent Work Country Programmes (DWCPs) of 36 ized countries, and further monitoring and research countries. Particular attention has been paid to equal will certainly shed light on emerging patterns so that remuneration, the elimination of racial discrimin- appropriate guidance and interventions by govern- ation and better enforcement of legislation in general. ments and the social partners can be designed. Promoting the rights of vulnerable groups, such as workers with HIV/AIDS or disabilities and indi- genous peoples, are among the major areas of focus. Action by employers’ and workers’ Technical cooperation projects have included aware- organizations ness raising, capacity building, information gathering and sharing, research, and training. The emphasis Discrimination must be addressed at the national has been on providing advisory services and practical level, where governments need to act and political, materials for capacity development. legislative and administrative interventions and social With ILO support, more equality policies and dialogue are required to ensure equality at work. action plans have been adopted and implemented Action is also required at the workplace level, with at the national and workplace levels over the past the direct involvement of the social partners. Many four years. The work of bringing national legislation employers have successfully turned diversity into an into line with the relevant ILO Conventions has con- asset and promoted both productivity and innov- tinued. ILO tools have been used more regularly; ation, and human resources policies are increasingly judges have increasingly referred to ILO Conventions embracing considerations of non-discrimination. in their case reviews; and constituents are more aware Preventing discrimination in practice contrib- of their rights. utes to the retention of knowledgeable and high- performing staff. This is also important for the reputation of a company or establishment. A policy Looking ahead of non-discrimination sends a clear signal that re- cruitment decisions are based on the competencies This Global Report has tried to give a picture of required to do a job. This is a sound business decision both progress and shortcomings. There is a distinct that is also in the interests of workers. Employers’ and positive message that there is a growing system of workers’ organizations should share their experiences legislation and institutional arrangements which and study the available information on good practices would not have come about without an increased in this regard. level of general awareness and political acceptance The International Organisation of Employers of the need to combat discrimination at work. This (IOE) and its members have continued to support progress is rooted in the fundamental principles and efforts to combat discrimination at the workplace. rights at work and reflects a constant endeavour to They have provided leadership and advocacy, of- translate them into reality, to monitor them, and to fering practical guidance to national employers by enhance the collective and individual means of exer- drafting codes, promoting good practices, arranging cising these rights. training and providing guidance materials. Nevertheless, it has to be noted that by far the The International Trade Union Confederation biggest challenge to the effective realization of these (ITUC) gives priority to defending the rights of rights comes from the external economic and social workers who are most vulnerable to discrimination, context. This has been affected, in some places seri- including women, migrants, and racial or ethnic ously, both by adverse macroeconomic developments minorities, through its Decent Work Decent Life and by the effects of pervasive poverty and a lack Campaign. A new campaign, launched in 2008, fur- of sustainable growth. In a worst-case scenario, this ther promotes gender equality in national policies could threaten the achievements of several decades. on the basis of the Equal Remuneration Convention As we see in some current political discourse, in 1951, (No. 100). Altogether 102 trade unions from particular where populist solutions are advocated, 64 countries have participated in this campaign. economically adverse times open up new space for xiv
- 13. EXECUTIVE SUMMARy discrimination in general, including discrimination universal ratification and application of the two at work. This tide will not be turned by ILO in- fundamental ILO Conventions on equality and terventions alone. The ILO’s constituents should non-discrimination; (b) development and sharing be playing a key role in strategic interventions that of knowledge on the elimination of discrimination maintain the shared will to advance the non-discrim- in employment and occupation; (c) development ination agenda, as well as the legislative and institu- of the institutional capacity of ILO constituents to tional basis of action against discrimination, through more effectively implement the fundamental right of data generation and knowledge sharing as well as non-discrimination at work; and (d) strengthening capacity building at all levels. of international partnerships with major actors on In the light of all this, four priority areas are equality. proposed for future action: (a) promotion of the xv
- 15. List of abbreviations CEACR Committee of Experts on the Application of Conventions and Recommendations CELADE Latin American and Caribbean Demographic Centre DWCP Decent Work Country Programme EEOC Equal Employment Opportunity Commission (United States) EPZ export processing zone HALDE Haute Autorité de Lutte contre les Discriminations et pour l’Egalité (France) HIV/AIDS human immunodeficiency virus/acquired immune deficiency syndrome IILS International Institute for Labour Studies IMF International Monetary Fund IOE International Organisation of Employers ITUC International Trade Union Confederation LGBT lesbian, gay, bisexual and transgender MNE multinational enterprise OECD Organisation for Economic Co-operation and Development PLHIV persons living with HIV UNDP United Nations Development Programme UNESCO United Nations Educational, Scientific and Cultural Organization xvii
- 17. Introduction 1. The elimination of discrimination at work has and unjustifiable effect on one or more identifiable been a cornerstone of the ILO’s mandate since its in- groups. An example is requiring applicants to be of ception in 1919. Its paramount importance is echoed a certain height, which could disproportionately ex- in the 1944 Declaration of Philadelphia, the 1998 clude women and members of some ethnic groups. ILO Declaration on Fundamental Principles and Structural discrimination is inherent or institution- Rights at Work, the 2008 ILO Declaration on Social alized in social patterns, institutional structures and Justice for a Fair Globalization, and the 2009 ILO legal constructs that reflect and reproduce discrimin- Global Jobs Pact. atory practices and outcomes. These may include dif- 2. Clarity of concept helps us to understand the ferential or inferior conditions of training for ethnic problem and to tackle it efficiently. Article 1 of the minorities.1 Discrimination (Employment and Occupation) 4. Two earlier Global Reports on the theme of Convention, 1958 (No. 111), defines discrimination as equality were produced under the follow-up to the “any distinction, exclusion or preference made on the 1998 Declaration, presenting a dynamic global pic- basis of race, colour, sex, religion, political opinion, ture related to the elimination of discrimination in national extraction or social origin, which has the employment and occupation. The first of these, Time effect of nullifying or impairing equality of oppor- for equality at work, stressed that the workplace – be tunity or treatment in employment or occupation”, it a factory, an office, a farm or the street – was a and allows for additional grounds to be included after strategic entry point for freeing society from dis- consultation with national workers’ and employers’ crimination. 2 It highlighted the high economic, organizations. The Equal Remuneration Convention, social and political costs of tolerating discrimination 1951 (No. 100), provides for “equal remuneration for at work, and argued that the benefits stemming from men and women workers for work of equal value”. more inclusive workplaces surpassed the cost of re- 3. Discrimination in employment and occupation dressing discrimination. can occur in many different settings and can take 5. The second, Equality at work: Tackling the chal- many forms. It can relate to hiring, promotion, job lenges, highlighted the fact that despite encouraging assignment, termination, compensation, working developments in the fight against long-recognized conditions and even harassment. Discrimination is forms of discrimination at the workplace, problems direct when rules, practices and policies exclude or still persisted. Moreover, other forms based on fac- give preference to certain individuals just because tors such as age, disability, migrant status, HIV and they belong to a particular group, for example, job AIDS, sexual orientation, genetic predisposition and advertisements which indicate that only men should unhealthy lifestyles, had become more evident. To apply. Discrimination is indirect when apparently make the fight against all forms of discrimination at neutral norms and practices have a disproportionate the workplace more effective, the Report advocated, 1. ILO: Equality at work: Tackling the challenges, Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, Report I(B), International Labour Conference, 96th Session, Geneva, 2007, paras 28, 29, 31. 2. ILO: Time for equality at work, Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, Report I(B), International Labour Conference, 91st Session, Geneva, 2003, para. 11. 1
- 18. EqUALITy AT WORk: THE CONTINUING CHALLENGE among other things, better enforcement of legislation Report on discrimination, it also reviews develop- as well as non-regulatory initiatives by governments ments in combating discrimination in employment and enterprises, and enhancement of social partners’ and occupation by measuring discrimination through capacity to address and overcome discrimination.3 data collection and testing; by evaluating identified 6. Over the past few years, the world has expe- “good practice” measures; and by reviewing the ef- rienced the worst economic crisis since the Great fectiveness of national equality bodies. Depression, a crisis that has resulted in widespread 9. Part II, From principles to practice, highlights job losses and social hardship. The ILO has esti- recent trends and developments in discrimination mated that globally 22 million more jobs will be on different grounds. Specific attention is paid needed in 2011 to restore pre-crisis employment to discrimination based on sex, race and ethnicity rates.4 Experience from earlier crises suggests that and the situation of migrant workers, a group con- the risk is especially acute for low-skilled, migrant sidered to suffer the highest incidence of discrimin- and older workers. young people, who are dispropor- ation. Other long-recognized grounds, including tionately hit by unemployment, will face still greater religion and social origin, as well as new trends in difficulties in obtaining decent work. There are some discrimination based on age, sexual orientation, real indications that the proportion of people of working or perceived HIV status and disabilities, are also dis- age who do not participate in the labour market at all cussed. Discrimination based on political opinion is has started to increase. addressed for the first time in this Global Report. 7. This Report, the third Global Report on non- Reference is also made to emerging issues related to discrimination, builds on the findings, conclusions discrimination based on lifestyle and genetic predis- and recommendations of the first two. It reviews pro- position. It outlines the role of governments in dem- gress and challenges with respect to various grounds onstrating political commitment and providing an of discrimination and proposes priority areas for enabling environment, reviews action taken by em- future action, informed by lessons learned from pre- ployers’ and workers’ organizations, and provides a vious and ongoing programmes and activities. It critical review of legal frameworks and policies at does so against the background of a slow and uncer- both the national and enterprise levels against dis- tain recovery from a global economic and financial criminatory practices. crisis which has led to a deep employment crisis. The 10. Part III, The ILO’s response, reviews ILO as- Report therefore addresses discrimination in the con- sistance to member States for the elimination of dis- text of broader developments as regards inequality crimination in employment and occupation since the and vulnerability. adoption by the Governing Body of the 2007 tech- 8. The Report is divided into four parts. Part I, nical cooperation priorities and action plans.5 It high- An evolving picture: Capturing the trends, provides a lights programmes and activities undertaken by both general overview of the impact of the crisis on cer- ILO field offices and headquarters units at the na- tain groups of workers who are more vulnerable to tional, regional and global levels which have achieved discrimination, with a focus on the ILO’s response positive results and could be regarded as good prac- and particularly on the Global Jobs Pact. It highlights tices and provide lessons for the future. progress on the ratification and implementation of 11. Building on the assessment of the impact of the fundamental ILO standards addressing discrimin- different programmes and activities carried out by ation – the Equal Remuneration Convention, 1951 the ILO over the past four years, Part IV, Towards (No. 100), and the Discrimination (Employment and an action plan, recommends priority themes and Occupation) Convention, 1958 (No. 111) – and con- areas, and appropriate strategies for future action by siders general trends in key areas over the past four the ILO and its constituents in line with the ILO’s years. Building on the findings of the second Global Decent Work Agenda. 3. ILO: Equality at work: Tackling the challenges, op. cit., p. ix. 4. International Institute for Labour Studies (IILS): World of Work Report 2010: From one crisis to the next? (ILO, Geneva, 2010), p. 17. 5. See ILO: Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work: Technical cooperation priorities and action plans regarding the elimination of discrimination in employment and occupation, Report of the Committee on Technical Cooperation, GB.300/TC/4, Governing Body, 300th Session, Geneva, Nov. 2007. 2
- 21. Part I An evolving picture: Capturing the trends The impact of the global economic crisis the global nature of the crisis, returning home may on non-discrimination in employment not have been a viable option this time, as equal or and occupation greater job displacement has taken place in the mi- grant workers’ countries of origin.3 Migrants tend to 12. Discrimination on various grounds can be ex- experience job losses before other individuals partly acerbated in times of economic uncertainty. There because they are widely employed in sectors – like may be a tendency for governments to give lower construction and tourism – which are most immedi- priority to action against discrimination during pe- ately affected by economic downturns.4 riods of economic downturn.1 Whatever has been 14. Many countries have lowered their quotas the social impact of the financial crisis, post-crisis for economic migrants. Australia, for example, de- recovery strategies and measures must not ignore the creased its cap of 133,500 skilled migrants in 2008 principles of non-discrimination and equality. This to 108,100 in 2009.5 In Thailand, the registration of is a challenging context, in which it is of the utmost 700,000 foreign workers was delayed in a bid to keep importance for governments and other economic and jobs for Thai workers. In Italy, some employers aban- social actors to reaffirm their commitment to main- doned applications they had filed when the business taining and strengthening non-discrimination pol- outlook was better. In 2008, about 10,000 employers icies and institutions. (5.6 per cent of processed applications) withdrew re- quests they had filed in December 2007.6 Similarly, some trade unions in Poland called for restrictions Impact on migrant workers on the entry of workers from outside the European Union (EU), mainly from Ukraine, Belarus and 13. According to a recent ILO study, migrant China, in order to make room for returning Polish workers have been particularly affected by the crisis, workers expected to lose their jobs in other EU coun- with more situations of discrimination in access to tries. The anxiety about migrant workers created by employment and migration opportunities, increased the crisis was revealed by a Financial Times/Harris xenophobia and violence, and worsened conditions of poll, which found that over 50 per cent of United work, among other factors.2 These have added to the kingdom nationals wanted to apply restrictions existing situations of inequality and discrimination on access to the British labour market to workers against migrant workers. In previous downturns, a from fellow EU Member States.7 In Ireland, the certain number of migrants returned home. Given Government has increased restrictions on both the 1. ILO: Global employment trends for youth, special issue on the impact of the global economic crisis on youth (Geneva, Aug. 2010), p. 10. 2. See I. Awad: The global economic crisis and migrant workers: Impact and response (Geneva, ILO, 2009). 3. IOE: Trends in the workplace survey 2009, p. 31. 4. ibid. 5. OECD: International Migration Outlook: SOPEMI 2009, p. 36. 6. OECD: International Migration Outlook: SOPEMI 2009 – Special focus: Managing labour migration beyond the crisis, p. 31. 7. I. Awad, op. cit., p. 44. 5
- 22. EqUALITy AT WORk: THE CONTINUING CHALLENGE Figure 1.1. Gap between immigrant and non-immigrant unemployment, 2007 and 2009 (per cent) 14 12.9 12 Pre-recession gap (2007-Q4) 10 End of recession gap (2009-Q4) 9.8 8.9 8.6 8.1 8.3 8 7.1 7.1 6 5.3 4.3 4.4 4.0 4 3.0 2.8 2.2 2.1 1.9 2 1.6 1.5 0.7 0 United United Ireland Italy Portugal Germany Netherlands Sweden France Spain Kingdom States Source: Eurostat, Current Population Survey (United States) and Quarterly National Household Survey (Ireland). entry of work permit holders and their rights and en- groups that fared better were generally concentrated titlements once they arrive.8 in jobs requiring higher levels of education.10 15. A study on the impact of the crisis on em- ployment gaps between immigrant and native-born workers has shown large variations between coun- The crisis and women workers tries.9 In Spain, for example, the gap widened greatly, while in Germany it actually narrowed. In most 17. Female employment has been seriously affected major immigrant-receiving countries for which data in several countries by the particular impact of the were available, unemployment increased faster among crisis on export sectors.11 The African textile industry, immigrants than among natives between late 2007 for example, with a 90 per cent female low-skilled and late 2009. In some cases, the unemployment gap and low-educated workforce, has experienced cuts opened up where it had previously been negligible as a result of import contraction in foreign markets. (for example, in the United States), while in others, 18. Past crises have revealed a similar dispropor- immigrants both entered and left the recession with tionate impact on the employment of women in much higher jobless rates (see figure 1.1). developing countries. In the 1990s crisis in Asia, 16. Not all situations of inequality can be at- women’s incomes declined steeply compared to men’s tributed to acts of direct discrimination. The con- as a result of contractions in sectors that employed sequences of crisis on migrant workers have been more women. Increased competition for casual harshest in the sectors and countries most severely af- and domestic work placed a downward pressure on fected by the crisis. For example, in countries where women’s wages as many women had little choice but construction had been the engine of growth in pre- to enter into informal employment following eco- vious years, migrant workers have suffered the big- nomic contraction. A United Nations report indi- gest loss of employment. Similarly, certain immigrant cates that the current crisis is following a similar groups have been hit harder than others, for instance, pattern, partly as a result of attitudes that give prefer- Pakistanis and Bangladeshis in the United kingdom ence to male employment by promoting the image of and Hispanics in the United States. By contrast, the male breadwinner. When jobs are scarce, women 8. D. Papademetiou, M. Sumption and A. Terrazas: Migration and immigrants two years after the financial collapse: Where do we stand?, BBC World Service, Migration Policy Institute, 2010, p. 92. 9. ibid., pp. 10, 20. 10. ibid., p. 10. 11. This and the following paragraphs are based on International Trade Union Confederation (ITUC): Gender in(equality) in the labour market: An overview of global trends and developments (Brussels, 2009). 6
- 23. AN EVOLVING PICTURE: CAPTURING THE TRENDS encounter tougher competition in access to jobs, in- 22. Recent data show that 829 million people creasing the influence of existing and persistent bar- living in poverty in the world are women, compared riers to their employment. to 522 million men.18 With women’s wages equal to 19. The same UN report also noted that newly only 70 to 90 per cent of men’s for work of equal unemployed women who must earn incomes to value, non-discrimination in remuneration should be support their families turn to precarious forms of a core component of measures aimed at both gender employment in the informal economy, often with equality and reducing poverty. harsh working conditions. A 2009 study in Thailand found that 80 per cent of surveyed street vendors in the country reported higher levels of competition Poverty and discrimination since the beginning of the economic crisis.12 It is im- portant that governments remain proactive and pro- 23. In 2009, the number of workers worldwide tect women in the informal sector, but the priority in poverty was estimated to be between 1.48 and given to narrowing the gender pay gap or to public 1.59 billion. These figures reflect a likely increase in awareness campaigns for gender equality at the work- the number of such vulnerable workers by between place is likely to be adversely affected in an envir- 41.6 and 109.5 million during the period 2008–09. onment of budget cuts and crisis response. They also show that the global financial and eco- 20. In developed market-economy countries, the nomic crisis is likely to have had a severe impact on crisis has not had a clear disproportionate impact on many millions of women and men around the world. the employment of women that could be attributed Before the crisis, the proportion of workers in em- to discrimination. In the United States, for example, ployment vulnerable to poverty was on a downward from December 2007 to April 2010, women lost only trend in all regions. Some evidence suggests that in 46 jobs for every 100 jobs lost by men, and an ILO the period 2007–08, the global number of workers in study showed that female migrant workers are con- vulnerable employment decreased for the first time, centrated in sectors that have either expanded during by around 10.5 million people, to just below half of the crisis or have not been affected.13 In the United all workers (49.5 per cent).19 That trend may now be kingdom, there was also a greater decline in em- reversed. ployment rates for men than for women during the 24. Living in poverty is not only about low in- second and third quarters of 2008.14 comes. It also means a vicious cycle of diminished 21. Similarly, data on the wage gap have yet to health, reduced working capacity, bad working and evolve in any clear or definitive direction. In the living conditions, low productivity and reduced life United kingdom, for example, the 2008 Annual expectancy. Combined with illiteracy, hunger, child Survey of Hours and Earnings showed that the gender labour and early parenthood, the pervasive effect of pay gap had increased from 12.5 per cent in 2007 poverty can be transferred from parents to their chil- to 12.8 per cent in 2008, based on stronger growth dren. Globally, this phenomenon appears to affect in men’s hourly earnings.15 However, the trend was certain groups disproportionately. In some coun- reversed the following year as the gender pay gap tries, women register higher levels of poverty 20 and decreased to 12.2 per cent in 2009.16 In the United households headed by females are more likely to be States, the gender pay gap (by median wage) in- poor. Similarly, indigenous peoples, tribal groups creased, with women’s wages declining from 80.2 per and people of African descent are also over-repre- cent of men’s in 2007 to 79.9 per cent in 2008, com- sented among the poor. The world’s population of paring full-time wage and salaried workers.17 indigenous peoples, for instance, is about 300 to 370 12. A. Ellis, D. kirkwood and D. Malhotra: Economic opportunities for women in the East Asia and Pacific region (Washington, DC, World Bank, 2010), p. 68. 13. United States Congress: Understanding the economy: Working mothers in the Great Recession, report by the US Congress Joint Eco- nomic Committee (Washington, DC, May 2010), p. 1; I. Awad, op. cit., pp. 41, 43. 14. ITUC: Gender in(equality) in the labour market, op. cit., p. 36. 15. United kingdom Office for National Statistics: First release, 2008 Annual Survey of Hours and Earnings, 14 Nov. 2008, p. 6. 16. United kingdom Office for National Statistics: 2009 Annual Survey of Hours and Earnings, 12 Nov. 2009, p. 4. 17. ILO: Global wage report: Update 2009 (Geneva, 2009), para. 12. 18. ILO: Gender equality at the heart of decent work, Report VI, International Labour Conference, 98th Session, Geneva, 2009, para. 58. 19. ILO: Global employment trends (Geneva, Jan. 2010), p. 18. 20. The simple disaggregation of poverty counts by sex will lead to underestimates of gender gaps in poverty because poor women might also be found in some non-poor households. Second, the gender gap in poverty may appear larger in some countries which have a higher proportion of households with over-representation of women. 7
- 24. EqUALITy AT WORk: THE CONTINUING CHALLENGE million. They make up 15 per cent of the world’s 27. The already dire labour market prospects for poor and about one third of the world’s 900 mil- young workers appear to have worsened as a conse- lion extremely poor rural people.21 In South Asia, quence of the crisis. There were a record 81 million Dalit communities also register dramatically high unemployed young people in the world at the end levels of poverty. In India, the poverty rate for Dalits of 2009, and a record 1 per cent annual increase in (65.8 per cent) is almost twice the rate for the rest of youth unemployment, compared to a 0.5 per cent the population (33.3 per cent).22 change in the adult rate, between 2008 and 2009.27 25. The disproportionate impact of poverty on young women and men have been disproportionately these groups is not a simple coincidence. It has its harmed since the onset of the crisis, and if similar origins in structural discrimination based on one or patterns are experienced as in past recessions, it could a combination of grounds such as sex, race, colour, take around 11 years for youth employment to return ethnicity or religion. 23 This situation is often a to pre-recession levels.28 Unemployed young people result of social exclusion and exploitation, such as encountering the crisis environment may lose hope of forced labour or child labour in its worst forms. obtaining employment and detach themselves from Discrimination in employment and occupation the labour market altogether, leaving a legacy of a emerges as a crucial factor in causing and exacer- “lost generation”.29 bating poverty. Not only can discrimination substan- 28. The impact of wage discrimination on poverty tially shrink wage and other incomes; people affected has been demonstrated and quantified by a number by it often register lower participation levels and em- of recent studies. In 2008, one such study 30 analysed ployment rates. Once in employment, low incomes the effects of gender discrimination on poverty in that result from wage discrimination and occupa- Brazil between 1992 and 2001, using data obtained tional segregation in poorly remunerated activities from the National Household Survey.31 The results prevent individuals from working their way out of show that, when gender discrimination is elimi- poverty. Discrimination in employment and occupa- nated, the percentage of poor people tends to de- tion can also result in long-term poverty by limiting cline by an average of 10 per cent. Results were even access to assets and services. more striking among the most vulnerable segments 26. The crisis has resulted in severe job losses in of the population, such as members of households high-income economies. At the beginning of 2010, headed by black women who lack a formal employ- 14 million jobs were still needed to restore employ- ment contract or are not trade union members. ment to pre-crisis levels.24 At the same time, larger Similar conclusions have been drawn from other re- numbers of workers are signalling their wish to emi- search in developed countries. For example, an EU grate for work. In the case of Ireland, for example, study 32 shows that, despite the very low employment 100,000 people are predicted to leave the country rates among women living in low-income house- over the coming four years.25 Persons with disabilities holds, removing wage discrimination of working have seen a decrease in job opportunities. In Japan, women would substantially reduce poverty in most for example, the number of dismissed workers with EU countries. That impact varies widely across the disabilities increased on a quarter-to-quarter basis EU; it is larger for countries with the highest levels for five consecutive months from November 2008 to of wage discrimination (where about 10 per cent March 2009.26 of the poor would be assisted out of poverty) and 21. International Fund for Agricultural Development: Fact Sheet, 2007, p. 1. 22. S. Alkire and M.E. Santos: Acute multidimensional poverty: A new index for developing countries, OPHI Working Paper No. 38 (Oxford, OPHI, July 2010), p. 127. 23. ILO: Working out of poverty, Report of the Director-General, International Labour Conference, 91st Session, Geneva, 2003, p. 34. 24. International Institute for Labour Studies (IILS): World of work report 2010: From one crisis to the next? (ILO, Geneva, 2010), p. 3. 25. M. Savage: “Economic crash to drive 100,000 out of Ireland”, The Independent, 18 Nov. 2010. 26. Ministry of Health, Labour and Welfare: Employment measures in post-financial crisis Japan, July 2009, p. 30. 27. ILO: Global employment trends for youth, op. cit., pp. 1, 4, 5. 28. IILS: World of work report 2010, op. cit., p. 2. 29. ILO: Global employment trends for youth, op. cit., p. 1. 30. R.C. Santos Simão and S.E. Monsueto: “The impact of gender discrimination on poverty in Brazil”, in CEPAL Review 95 (Aug. 2008), p. 141. 31. In studies of this type, the methodology is based on an estimation of counterfactual distribution of per capita household income based on a hypothetical scenario in which the labour market pays equal wages to men and women in accordance with their qualifica- tions. 32. C. Gradín, C. del Río and O. Cantó: “Gender wage discrimination and poverty in the EU”, in Feminist Economics, 12 May 2010, p. 100. 8
- 25. AN EVOLVING PICTURE: CAPTURING THE TRENDS smaller in those with the lowest levels of wage dis- for women and men who are more vulnerable to crimination (where only between 2 and 4 per cent discrimination, including youth at risk, low-wage, of the poor would cross the poverty threshold). low-skilled, informal economy and migrant workers. However, the study underlined the fact that the Furthermore, it calls on countries to enact policies impact of wage discrimination on poverty is critical that promote core international labour standards, in all EU countries for paid working women and such as equal remuneration for work of equal value their households. and elimination of discrimination in employment, 29. There is a crucial link between poverty eradi- in order to reduce gender inequality and discrimin- cation, employment and equality. This is reflected ation at the workplace.34 These objectives were en- in the slow but progressive acceptance of the need dorsed by the leaders of the G20 at the Pittsburgh to rethink poverty reduction strategies and to shift Summit in 2009, when they committed their na- from a one-dimensional approach based on income tions to adopting key elements of the general frame- levels to a multidimensional strategy that effectively work of the Global Jobs Pact to advance the social addresses the underlying causes of persistent high dimension of globalization. They also called on poverty and economic insecurity. Some countries international institutions to consider the goals of have started to align their income-generating pol- the Global Jobs Pact in their crisis and post-crisis icies in poor areas with social policies. Those pol- analysis and policy-making activities.35 Similarly, icies may still be ineffective in reducing poverty if G20 labour ministers emphasized the importance they do not take into consideration the effects of of following the Pact’s guidelines for strong, sustain- discrimination in employment and occupation. In able and balanced global growth.36 The ILO is co- many developing countries, transfer programmes operating actively with several countries which have targeted at the poor are designed to provide income reflected the Pact in their stimulus packages and re- support and are made conditional on keeping chil- covery measures. dren in school and/or visits by mothers and children to health centres. However, these measures may have only a limited impact on poverty reduction Stimulus packages if they do not at the same time address the deter- minants of economic vulnerability, including the 32. While the crisis had the effect of increasing ethnic, racial and gender discrimination that keep vulnerability for many workers, the stimulus meas- wages at a low level.33 ures designed to bring about recovery have not always contributed to correcting the disparities. With the goal of economic recovery in mind, many coun- Responding to the crisis tries have focused their stimulus packages on sectors that have endured significant damage from the crisis. 30. A job-rich recovery, with macro- and micro- In many cases these were male-dominated sectors of economic policies supporting employment and employment. While stimulus measures have been growth, is essential in the current context. However, credited for averting a deeper crisis and helping to non-discrimination efforts can all too easily be un- jump-start the economy, prioritization of responding dermined by short-term measures taken to alleviate to the fiscal effects of the crisis has resulted in na- difficult fiscal conditions. Non-discrimination laws tional resources not always being distributed rela- and policies, equality institutions and political com- tively equally among all sectors of the labour market. mitment, have been hard won over a number of dec- Responses may have resulted in the indirect exclusion ades; care should be taken to protect them. Lessons of vulnerable groups from the benefits of stimulus should have been learned from the experiences of the measures. Those groups include young people, ethnic last century. minorities and women, who are often under-repre- 31. In June 2009, the ILO adopted the Global sented in the targeted industries. Jobs Pact, a centrepiece of its response to the crisis. 33. In Germany, two recovery packages initiated by The pact emphasizes the need to enhance support the Government have targeted sectors comprising a 33. United Nations: Retooling global development, World Economic and Social Survey 2010, UN Department of Economic and Social Affairs (2010), p. 36. 34. ILO: Recovering from the crisis: A Global Jobs Pact, International Labour Conference, 98th Session, Geneva, 2009, Part II(9)(2) and (9)(7). 35. Leaders’ Statement, Pittsburgh G20 Summit, 24–25 Sep. 2009. 36. ILO: “El Salvador and Argentina adopt ILO Jobs Pact”, ILO Policy Integration Department, 8 July 2010. 9
- 26. EqUALITy AT WORk: THE CONTINUING CHALLENGE 78 per cent male and 22 per cent female workforce.37 the International Institute for Labour Studies has The automotive industry, construction, laboratory and emphasized the need for further measures targeted medical technologies, and financial intermediation, at vulnerable groups such as young people, and are all male-dominated sectors that have received for employment-oriented social protection.39 The significant financial support from the Government. Institute’s World of work report 2010 expands on the While the packages have been successful in benefiting Global Jobs Pact, which calls on national govern- men in the targeted sectors, reducing their employ- ments to develop income support systems, provide ment decline, a 2010 study has indicated that the skills development programmes and improve en- neglect of female-dominated sectors, including most forcement of non-discrimination rights in order to prominently the services sectors, poses a long-term help vulnerable groups to recover from the crisis and risk to women’s employment. As a consequence, a prevent increased poverty and social hardship, while decline in female employment remains a long-term at the same time stabilizing the economy and pro- possibility, which could be harmful to national econ- moting employability.40 omies since female employment in the services sector was previously fuelling national employment. 34. In the United States, the stimulus package Preventing harmful effects of fiscal consolidation appears to have had a mixed impact on vulner- able groups in society. While 10 per cent of rural 36. In the aftermath of the financial crisis, global infrastructure grants must be targeted to counties attention has increasingly been paid to reducing large with persistent poverty, and the Home Investments budget deficits and public debts in many countries. Partnership Program in the stimulus package calls yet many have urged caution in formulating fiscal for equitable distribution of resources between urban consolidation policies – defined by tax increases and and rural communities, with a prioritized focus on cuts in government spending – since the measures in- areas with severe economic problems, a 2009 Ohio volved could jeopardize recovery efforts, propel coun- State University report notes that the substantial tries into deeper recession and exacerbate inequalities funding given to infrastructure projects could dis- in the workforce.41 A joint ILO–IMF paper in 2010 advantage racial minorities and women. African warned that a premature consolidation push could Americans represent 13 per cent of the population damage macroeconomic growth and subsequently and women make up half of the population, but they lead to even larger deficits and debts.42 Nevertheless, hold only 6 per cent and 9.4 per cent of construction fiscal consolidation plans have already been initi- jobs respectively.38 ated in countries with particularly severe deficits, 35. In order to protect all segments of society including Greece, Latvia and Ukraine. The Trade equally and prevent further marginalization of vul- Union Advisory Committee to the Organisation for nerable groups, national governments should ensure Economic Co-operation and Development (OECD) that the disproportionate effects of stimulus meas- has estimated a total resource gap of US$372 billion ures are considered when they are developed and that per year from 2012 to 2014 if deficit reduction plans any disproportionate effects of policies are moni- proposed by the OECD to its member countries are tored and corrected, thereby halting growing eco- implemented.43 nomic inequalities. With the aim of stimulating job 37. Certain groups may be particularly susceptible creation and surmounting the crisis, in addition to to the bulk of the effects of fiscal consolidation meas- calling for financial reform and sustainable job cre- ures, as austerity policies in many countries could ation through the promotion of a closer link between take the form of cuts in the welfare programmes that wages and productivity gains in surplus countries, assist lower-income workers in access to employment 37. Information in this paragraph is based on European Industrial Relations Observatory On-line: “Gender impact of recovery packages investigated”, 2010, p. 1. 38. Ohio State University kirwan Institute for the Study of Race and Ethnicity: Preliminary report of the impact of the economic stimulus plan on communities of color, 25 Feb. 2009 update, pp. 1–2. 39. ILO: “World of work report 2010: ILO says long ‘labour market recession’ worsens social outlook in many countries”, press release, 30 Sep. 2010. 40. ILO: Recovering from the crisis: A Global Jobs Pact, op. cit., pp. 6–7. 41. Global Unions Group: A financial transactions tax for job creation and development goals, statement by Global Unions to G20 Finance Ministers and the 2010 spring meetings of the IMF and the World Bank, Washington, DC, 23–25 Apr. 2010, pp. 3–5. 42. ILO–IMF: The challenges of growth, employment and social cohesion, discussion document for a joint ILO–IMF conference in cooper- ation with the office of the Prime Minister of Norway, 13 Sep. 2010, p. 8. 43. Global Unions Group, op. cit., pp. 4–5. 10
- 27. AN EVOLVING PICTURE: CAPTURING THE TRENDS as well as direct job cuts. In Ireland, for example, the Government has called for a variety of austerity meas- Box 1.1 ures, including a €3 billion cut in capital expendi- Overview of competencies of specialized ture, a reduction in public service programmes and bodies dealing with non-discrimination welfare payments, an increase in students’ contribu- Legal work tions to tertiary education, and the introduction of a reformed pension scheme for new entrants to the c Recommendations on equality legislation and policies public service as well as a reduction in their sala- c Investigative powers ries.44 The International Trade Union Confederation (ITUC) has also noted that the requirements of c Legal assistance to victims of discrimination the International Monetary Fund (IMF) lending c Adjudication of complaints and dispute settle- agreements in Latvia and Ukraine are eliminating ment services investments in education and could leave a “lost gen- Promotional work eration” of young people without adequate skills for c Awareness raising and communication employment.45 c Cooperation with stakeholders 38. It is important to ensure that stimulus meas- c Institutional capacity building ures are not stopped prematurely and that basic social protection floors, which guarantee access to c Knowledge sharing health, education, housing and a minimum income, are provided in all countries. Adequate social pro- tection policies encompass unemployment benefits, 40. Recent announcements of cutbacks and health care, childcare and income security for vul- austerity measures, in the budgets of labour ad- nerable groups such as the elderly and persons with ministration and inspection services and of the spe- disabilities. The joint ILO–IMF paper referred to cialized bodies that deal with non-discrimination above noted the need for deficit reduction strategies and equality, may compromise the ability of those to be well coordinated and linked with fairness in institutions to address what could be counted among the sharing of the burdens and benefits of adjust- the worst social consequences of the economic crisis: ment, in order to prevent a disproportionate impact more discrimination, more inequality, and increased of fiscal consolidation measures on the most vulner- social instability and societal tension. able people in the labour market. 41. The role of such bodies has been increasingly recognized as indispensable for achieving real and sustainable change. This recognition has resulted in Institutional capacity to deal the establishment, expansion and restructuring of with non-discrimination these bodies in some countries. The past four years have seen, for instance, the establishment of new om- 39. One lesson learned from the crisis is that the budsman offices in Latvia 46 and Sweden 47 as well as institutional safeguards for non-discrimination new human rights commissions in Brazil 48 and the and equality should be strong enough to withstand United kingdom.49 changes in economic and social circumstances. 42. Countries have taken different paths in de- Government policies are subject to change in re- fining the composition, competencies, structures and sponse to economic fluctuations, prevailing hopes ground covered by such bodies. Generally, the com- and fears, or perceived threats and promises. At petencies of specialized bodies are divided into two times of crisis, when fears predominate, it is more areas: legal and promotional. Their specific areas of important than ever to have robust institutional ar- action vary greatly from one country to another, but rangements in place to safeguard fundamental rights generally encompass two or more of the specific com- and equality. petencies listed in box 1.1. 44. National Recovery Plan 2011–14, Stationery Office, Dublin, p. 11. 45. Global Unions Group, op. cit., pp. 3–4. 46. See the History of the institution of the Ombudsman of the Republic of Latvia, available at www.tiesibsargs.lv/eng/ombudsman/history/, accessed 9 Nov. 2010. 47. Equality Ombudsman (Sweden): “About the Equality Ombudsman”, available at www.do.se/en/About-the-Equality-Ombudsman-/, accessed 9 Nov. 2010. 48. Ministry of Labour and Social Security, Brazil, Order (Portaria) No. 219 of 7 May 2008. 49. Equinet Europe: “GB Equality and Human Rights Commission”, Oct. 2007. 11
- 28. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 1.2 Sectoral-level partnerships The Belgian Centre for Equal Opportunities and Opposition to Racism signs a yearly agreement with the Football Cell of the Federal Department of Internal Affairs. The central point of this agreement is opposition to racism and discrimination and promotion of diversity in Belgian football. In 2007, as in preceding years, several concrete action points were defined such as developing awareness-raising campaigns, drawing up clear guidelines and procedures against verbal abuse, working with football clubs and developing an educational DVD and training package. The Italian National Office against Racial Discrimination has entered into partnership with the Italian Banking Association (ABI) and organized study days to inform and raise awareness among people working in the credit sector. The Irish Equality Authority has developed a partnership with the Department of Health and Children and the Health Service Executive to disseminate information on the application of equality legislation in this sector and to identify and promote initiatives to develop equality-competent health service provisions. Source: Equinet Europe: Promoting equality: Overview of positive measures used by national equality bodies, Equinet Report (2008). 43. In deciding some of the most effective ways is a need to address widespread and structural dis- for specialized bodies to address discrimination and criminatory practices as well. Experience from the promote equality, previous experiences and lessons work of specialized bodies dealing with equality and learned are instructive.50 An independent and clear non-discrimination reveals that a strategy combining mandate lays the ground for their effective operation litigation with a strong focus on promoting equality and gives them credibility. They should enjoy firm through a variety of measures can enhance their ef- legal, financial and operational independence in fectiveness. These promotional measures range from order to be able to assist victims of discrimination, awareness-raising campaigns and training activities and to investigate, report and address discrimination to practical guidance and research on how to imple- in all its forms, in an impartial manner. Applicable ment equality and non-discrimination legislation. procedures and mechanisms should be accessible to Some of these bodies have invested in their cooper- all potential victims. In addition, the continuous in- ation with social partners to achieve better impact. crease in the number of equality bodies dealing with several grounds of discrimination, instead of separate bodies dealing with single grounds of discrimination, Monitoring the impact of policies suggests that this approach is conducive to a more and measures effective use of resources and expertise. 44. In Sweden, for instance, the Ombudsman 46. The implementation of anti-discrimination has emphasized that this broad approach allows re- policies and measures needs to be monitored and as- sources to be used for identified priority needs and sessed. For this purpose, appropriate follow-up mech- experts with knowledge of multiple grounds of dis- anisms need to be in place to evaluate the impact crimination to address them in an integrated way.51 of action taken. Such mechanisms have recently The Ombudsman also sees in this approach a way to been created in Argentina, the Netherlands, South deal effectively with cases of multiple discrimination, Africa and Sweden. In Argentina, the National which represented 40 of the 1,000 complaints re- Institute against Discrimination, Xenophobia and ceived in the first six months of operation. The ability Racism (INADI) in 2008 established an organ- of equality institutions to deal with cases of multiple izational framework, the Federal Council for Anti- discrimination is of particular relevance, and this Discriminatory Public Policies, to implement, will be further developed later in this section. monitor and supervise the National Plan against 45. Court cases on discrimination may redress Discrimination.52 In South Africa, the Commission specific situations on an individual basis but there for Gender Equality 53 monitors and evaluates policies 50. Based on Equinet reports Promoting equality: Overview of positive measures used by national equality bodies, Sep. 2008; and Strategic role of equality bodies, Dec. 2009. 51. Equinet Europe: “The Swedish Equality Ombudsman in the spotlight”, Oct. 2010. 52. Information on the Federal Council available at INADI website. 53. See Functions of the CGE, available at www.cge.org.za/. 12
- 29. AN EVOLVING PICTURE: CAPTURING THE TRENDS relating to gender equality to ensure compliance with under the principle of “equal opportunity and treat- equality standards. ment in employment”: (1) occupational segregation 47. In the Netherlands, the Equal Treatment by sex; and (2) female share of employment in man- Commission, which has been pursuing policies to agerial and administrative occupations. These indi- combat discrimination, receives discrimination com- cators are based on the categories established by the plaints, provides information and options for resolving International Standard Classification of Occupations the issues, and has instituted a follow-up mechanism (ISCO-88).57 to monitor progress. Results from the process show 51. The method developed for the EU distin- that 74 per cent of the recommendations made by guishes between three types of indicators: (a) indica- the Commission were implemented by some sort tors for the measurement of discrimination, which of measure. Eight per cent of the measures adopted serve to establish and expose disadvantages, gaps, in- were individual in nature, 39 per cent were structural equalities and other differentials affecting individuals measures and 27 per cent included elements of both.54 and/or groups protected by anti-discrimination law These figures indicate that in most cases there is a and/or covered by equality policies; (b) indicators need for structural rather than individual measures. for the measurement of progress with anti-discrim- 48. In Sweden, the Equality Ombudsman, in add- ination policies, which identify the degree of mobili- ition to making decisions and mediating complaints, zation and implementation of legal tools and public is responsible for supervising the pay surveys, now policy instruments provided for by anti-discrimin- incorporated into the Discrimination Act, to deter- ation laws; and (c) indicators for the measurement mine whether any unjustified wage differentials exist of the effects of anti-discrimination policies, which between the sexes.55 As a result of surveys conducted serve to evaluate how well these policies can effect- from 2001 to 2008, pay adjustments were made by ively and efficiently combat the disadvantages and 60 per cent of participating employers. Consequently, inequalities affecting individuals and/or groups pro- some 5,800 employees (90 per cent of them women) tected by anti-discrimination law and/or covered by received a monthly pay increase of approximately equality policies.58 €100. In addition, one third of the employers con- 52. In this regard, good practices in gathering cerned undertook measures such as professional de- data have been recognized in countries such as velopment of staff members, training for pay-setting Austria, where the Equal Treatment Body requires managers and recruitment measures to place more both private sector and public entities to report women in senior positions. cases for publication, and Finland, which has un- dertaken a number of data collection projects under the Community Action Programme to Combat Measuring discrimination Discrimination.59 53. The ILO “situation testing” methodology has 49. Over the past few years, new methods, such as been used in more than ten countries in Europe the ILO decent work indicators and the EU frame- and North America to assess the extent and nature work for evaluating progress in equality and anti- of discrimination actually taking place in access to discrimination, have been developed to measure employment. It is cited as the widely used measure discrimination. In spite of these advances, challenges of actual behaviour in labour markets and may be persist, given the frequent unavailability of data and considered for wider use in the EU. The approach the absence of a clear definition of the grounds of consists of sending pairs of equally qualified candi- discrimination at the national level.56 dates differing only in migrant or ethnic situation, to 50. The decent work indicators developed by the apply for jobs and measuring the difference in out- ILO in 2008 include the following two indicators comes over a large, statistically significant sample. Its 54. Equal Treatment Commission (CGB), Netherlands: Annual report 2009, pp. 13–14. 55. Information in this paragraph is based on Equality Ombudsman, Sweden: Pay Surveys – Provisions and outcomes, Series DO I1 ENG (2009), p. 13. 56. The absence of a clear definition of the grounds of discrimination is particularly problematic when comparisons between countries need to be made. 57. ILO: Revised Office proposal for the measurement of decent work based on guidance received at the TME on the measurement of decent work, Policy Integration Department, 14 Oct. 2009, p. 2. 58. European Commission (Employment, Social Affairs and Equal Opportunities DG): The fight against discrimination and the promo- tion of equality: How to measure progress done (Luxembourg, Mar. 2008), pp. 8–9. 59. European Commission (Directorate-General for Employment, Social Affairs and Equal Opportunities): Multiple Discrimination, report on the work carried out by Governmental Expert Group on Non-Discrimination 2008–09, p. 7. 13
- 30. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 1.3 Collecting “sensitive data” An EC-commissioned study on the collection of sensitive data (ethnic origin, religion or belief, disability, or sexual orientation) concluded that “contrary to widespread belief, international, European and national laws on protection of privacy and data do not categorically prohibit the collection of data in relation to discrimin- ation”. The study points out that data protection laws cover personal information and that the statistical data enable consolidated and anonymous information about certain population groups to be produced. Once the data are rendered anonymous, e.g. when they are released in an aggregate form, they do not, as a rule, constitute personal data and are therefore not covered by data protection laws. In the Netherlands, for example, the processing of data relating to racial and ethnic origin is allowed even without the consent of the subject, since the law establishes that such processing is necessary for the purpose of remedying existing inequalities, that the identification of the persons concerned is based on objective criteria, and that the persons concerned have not indicated any objection to such processing in writing. Other countries, such as Austria, Denmark, Hungary and Sweden, expressly allow the processing of sensitive data for statistical and scientific purposes, although processing for these purposes requires prior authorization from the national data protection body. Source: T. Makkonen: Measuring Discrimination. Data Collection and EU Equality Law, European Commission Directorate- General for Employment, Social Affairs and Equal Opportunities Unit G2, 2007. utility and effectiveness lie in the fact that it meas- Universal ratification is not far off and is an attain- ures actual behaviour rather than outcomes, which able objective. cannot determine whether differences are due to dis- 56. The ILO member States that have not yet crimination or to other factors, and it differs from ratified Convention No. 111 are: Brunei, Japan, attitude and opinion surveys, which are influenced Malaysia, Maldives, Marshall Islands, Myanmar, by subjective factors. Oman, Singapore, Solomon Islands, Suriname, 54. If statistics are meagre, weak or unreliable, the Thailand, Timor-Leste, Tuvalu and United States. extent of discriminatory practices will remain largely Convention No. 100 has not been ratified by Bahrain, unknown. It is crucial that governments commit Brunei, kuwait, Liberia, Maldives, Marshall Islands, themselves to putting in place human, technical and Myanmar, Oman, qatar, Solomon Islands, Somalia, financial resources to improve data collection at the Suriname, Timor-Leste, Tuvalu or United States. national level. This important and complex first step will significantly contribute to the identification of the problem and thus to the measures needed to Legislative trends tackle it. 57. Over the last four years, the global picture with respect to legal measures to protect the fundamental Recent legal developments right of non-discrimination has been marked by both progress and persistent gaps. As Part II of this Report Ratification of core Conventions shows, progress has been particularly marked by the adoption, in many countries, of new or revised legal 55. Ratification levels of both ILO core Conven- provisions aimed at non-discrimination and equality. tions on equality, namely Conventions Nos 100 and As regards the thrust of the new legislation, two 111, have continued to increase. Since 2006, Lao major trends are evident: equality and non-discrimin- People’s Democratic Republic, Montenegro, Na- ation legislation is covering an increasingly broad set mibia, Samoa and Vanuatu have ratified Conven- of grounds for discrimination; and it provides more tion No. 100, while China, kiribati, Lao People’s comprehensive protection in employment and occu- Democratic Republic, Montenegro, Samoa and Va- pation. These two trends suggest a greater recogni- nuatu have ratified Convention No. 111, bringing the tion, at the national level, of the importance of more number of their ratifications to 168 and 169 respec- effectively responding to the evolving and complex tively out of a total ILO membership of 183 States. realities of discrimination with legislative measures. This places the two non-discrimination Conven- 58. Malaysia and Botswana recently included sex tions among the five most ratified ILO Conventions. as one of the prohibited grounds of discrimination 14
- 31. AN EVOLVING PICTURE: CAPTURING THE TRENDS in their Constitutions. This adds to the long list of grounds affords the possibility of addressing cases of countries whose Constitution provides for equality multiple discrimination. and non-discrimination on grounds of sex. More 61. The ILO’s Committee of Experts on the numerous have been the new labour provisions Application of Conventions and Recommendations prohibiting discrimination on several grounds. In has considered that in most cases, comprehensive Belgium, for instance, following the 2007 General legislation is needed to ensure the effective applica- Anti-Discrimination Act, legislation now contains tion of the right of equality in treatment and occu- all the criteria enumerated by Convention No. 111. pation for all. This type of legislation is now more In Macau, China, the 2008 Labour Act provides commonly found in the EU as a result of the trans- for equal rights and obligations for all workers or position of the EU directives on equality into na- candidates for employment. The Act also prohibits tional legislation. Similar legislation has been adopted discrimination on additional grounds such as sexual in an increasing number of countries in other re- orientation, age, civil status, language, membership gions, including kenya, Montenegro, Mozambique, of an association, education or economic situation. Serbia and United Republic of Tanzania. Particularly In Montenegro, following a 2008 amendment to the comprehensive is kenya’s 2007 Employment Act. Labour Law, discrimination is prohibited on the ad- The Act provides for a prohibition of direct and in- ditional grounds of language, age, pregnancy, health direct discrimination at all stages of employment status, marital status, family duties and sexual orien- on all grounds enumerated by the Convention and tation. In the Republic of korea, the 2008 Act on shifts the burden of proof to the employer in cases Prohibition of Age Discrimination in Employment of alleged discrimination. It also requires employers and Employment Promotion for the Aged intro- with more than 20 employees to adopt and imple- duced a ban on age discrimination. ment a policy statement on sexual harassment. The 59. Other countries have included prohibition Act explicitly assigns supervisory responsibilities of discrimination on additional grounds in more to competent national authorities on equality and general legislation on equality and non-discrim- non-discrimination. ination. In Albania, the 2010 Law on Protection from Discrimination, which also applies to employ- ment, covers a list of 24 grounds, including preg- Remaining challenges nancy and family or marital status, and imposes obligations on employers “to implement, protect and 62. A number of countries have not yet adopted encourage the principle of equality and the prohib- legal provisions prohibiting all the well-recognized ition of every kind of discrimination”. In Sweden, forms of gender discrimination. In many, legislation the 2008 Anti-Discrimination Act is designed to fails to prohibit sexual harassment and also lacks pro- combat discrimination and promote equality of visions ensuring equal remuneration for women and rights and opportunities regardless of sex, ethnicity, men for work of equal value, a right embodied in religion or other belief, disability, sexual orientation Convention No. 100. While that Convention has or age. In Slovakia, the 2008 Amendment of the been widely ratified, the Committee of Experts noted Anti-Discrimination Act provides, inter alia, for the in 2006 that the majority of countries that have rat- adoption of compensatory measures in the field of ified Convention No. 100 have not fully reflected employment and occupation to eliminate forms of the principle of “equal remuneration for men and social and economic disadvantages arising from age women for work of equal value” in their national or disability. legislation. In a number of countries, national legis- 60. Race and sex continue to be the two grounds of lation continues to refer only to equal pay for equal discrimination specifically included in equality and work. Some countries have introduced the principle non-discrimination legislation in almost all coun- of “equal remuneration for work of equal value” in tries. Less progress has been made with regard to ex- their law, but subsequently narrowed the scope of plicit reference to other grounds listed in Convention “work of equal value” to mean only “equal work.” In No. 111, such as national extraction, social origin addition, the definition of “remuneration” in national and political opinion. In contrast, rapid advances laws does not always encompass all forms of compen- have been made on the adoption of legal provisions sation, including wages and all other benefits. prohibiting discrimination on the basis of disability 63. Recently, a number of countries have given or age, which are not addressed by the Convention. effect to Convention No. 100 in their national Importantly, the increasing adoption of equality and legislation. Ecuador and Bolivia promulgated new non-discrimination legislation that covers several Constitutions, in 2008 and 2009 respectively, 15
- 32. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 1.4 Measuring work of equal value Determining whether two jobs that differ in content are equal in value requires a method of comparison. Job evaluation methods are tools that help to establish the relative value of jobs and thus determine whether their corresponding pay is just. The process of developing job evaluation methods and the way they are applied are as important as the technical contents of those methods. Unintended gender biases may arise at any stage in their design and use. In 2008, the ILO published a step-by-step guide on con- ducting gender-neutral job evaluations, explaining the steps for an objective and fair assessment of jobs free from gender bias, including the following sequence of operations: c developing a weighting grid free from gender bias; c assigning points to jobs based on levels of sub-factors and identifying jobs of the same value; c calculating the total points assigned to each job; c grouping jobs into point intervals. Source: ILO: Promoting equity – Gender-neutral job evaluation for equal pay: A step-by-step guide (Geneva, 2008). expressly including the right of “equal remuneration providing credible evidence and, as a result, some for work of equal value”. Labour laws in kenya and countries have shifted the burden of proof to the em- Romania have also recently given full legislative ex- ployer, as we have already noted. pression to that right. 67. Victims of discrimination may be dissuaded 64. In many countries, certain categories of from exercising their rights in court for fear of re- workers continue to be excluded from legal pro- taliation, or because of weak legislation, lack of faith tection on equality and non-discrimination in em- in judicial settlements, or the complexity of pro- ployment. Particular examples are casual workers, cedures. yet nothing can replace the role of courts in domestic workers or workers in the agricultural the enforcement of legislation. Even where there are sector and export processing zones (EPZs), which legal provisions to protect individuals from reprisals, are often excluded from the practical application of the proof requirements are often quite demanding, labour laws and therefore from their provisions on and evidence suggests that reprisals are still not un- non-discrimination. common in discrimination disputes.60 Bringing a 65. Provisions maintaining the burden of proof on claim to court on the grounds of discrimination would the claimant in discrimination cases limit the effect- appear futile in those countries where procedures are iveness of protection in judicial proceedings and the costly and time-consuming, and remedies uncertain. possibility of seeking remedies for damages inflicted. 68. However, successful prosecutions for dis- Because of the difficulties of proving discrimin- crimination, even if few in number, may be an ation in courts, some countries have been shifting important vehicle for wider change if they are suf- the burden of proof to the employer. This shift is ficiently publicized. In fact, many of the potential a requirement of the European Council Directive benefits of pursuing discrimination cases are col- 2000/78/EC, which most EU member countries lective, while many of the costs of pursuing them are have now transposed into national law and prac- individual.61 tice. In many other countries, however, this very important provision has not yet been introduced or applies only to some grounds of discrimination. Discrimination based on multiple grounds 66. In some countries, getting a discrimination case heard before a court is very difficult, if not im- 69. Increasing attention is now being paid to the possible, owing to inadequate complaints procedures. importance of considering and remedying multiple Particularly detrimental to the success of legal action discrimination in the labour market.62 Groups such on discrimination in many countries is the con- as women with disabilities, indigenous women and tinued existence of unrealistic demands in terms of young people from minority racial or religious groups 60. OECD: Ending job discrimination, Policy Brief, July 2008, p. 5. 61. ibid., p. 6. 62. For the purposes of this Report, “multiple discrimination” means discrimination on a number of grounds. 16
- 33. AN EVOLVING PICTURE: CAPTURING THE TRENDS have been increasingly vocal about their experiences economies of scale and makes optimal use of limited of disadvantage and exclusion and the ways in which expertise and resources. However, caution is needed this is affected by the multiple dimensions of their to ensure that such administrative integration is not identity. simply a pretext for budget cuts resulting in lesser 70. The debate on multiple discrimination is visibility and lesser accessibility. evolving as more studies are published. These 74. The predominant approach in courts con- studies show that those experiencing discrimination tinues to involve a focus on single grounds of dis- on several grounds register the highest levels of un- crimination. This tendency is partially explained by employment and are largely concentrated in poorly the fact that institutional and evidentiary processes remunerated and precarious jobs. for seeking redress remain structured on the basis 71. A recent study undertaken by the Center for of single grounds of discrimination, even if the law Labor Research and Education of the University of encompasses protection against discrimination on California, Berkeley, in the United States, indicates that several grounds.64 Other significant barriers to ad- in June 2010, unemployment for African Americans dressing cases of multiple discrimination in courts stood at 15.4 per cent, significantly higher than the arise from the lack of awareness and understanding 8.8 per cent unemployment rate for whites. When the of multiple discrimination, a situation closely linked data are disaggregated on the basis of age and gender, to the scarcity of both quantitative and qualitative the unemployment rate rises to 43.2 per cent for young data and research on the subject. African American men and 36.5 per cent for young 75. Encouraging progress has been made through African American women (ages 16–19).63 the adoption of proactive measures such as affirm- ative action, employment equity policies or aware- ness-raising activities, and training programmes that Addressing multiple discrimination can deal with combined grounds of discrimination. In Lithuania, for instance, the 2009–11 National 72. Two recent key developments in international Anti-Discrimination Programme includes plans to human rights law reflect the growing attention given carry out studies, overviews and reports, including to multiple discrimination. The 2006 Convention on multiple discrimination.65 In the Netherlands, on the R ights of Persons with Disabilities, in several projects address the intersection of various Articles 6, 7 and 24, explicitly recognizes the mul- grounds of discrimination, particularly gender and tiple discrimination facing women and girls with ethnic origin, such as “Thousand and One Strengths: disabilities and the special needs of children with dis- Women and Voluntary Participation”, which encour- abilities, particularly in terms of access to education. ages emancipation, participation and integration.66 Furthermore, the 2007 United Nations Declaration In Zambia, the Citizens Economic Empowerment on the Rights of Indigenous Peoples, in Article 21(2), Commission (CEEC) 67 aims to promote the eco- calls on States to pay particular attention “to the nomic empowerment of citizens whose access to eco- rights and special needs of indigenous elders, women, nomic resources and development capacity has been youth, children and persons with disabilities”. constrained as a result of various factors including 73. The positive trend of placing responsibility age, sex, HIV status and disability. Other initiatives for dealing with several grounds of discrimination include campaigns and training to raise awareness of with one body makes it possible to deal with dis- the existence of multiple discrimination in Austria, crimination on combined grounds. This also creates Czech Republic and Sweden. 63. See S. Allegretto, A. Amerikaner and S. Pitts: Data brief: Black employment and unemployment in June 2010 (UC Berkeley Labor Center, 2 July 2010). 64. See S. Hannett: “Equality at the intersections: The legislative and judicial failure to tackle multiple discrimination”, in Oxford Journal of Legal Studies (2003, Vol. 23, No. 1), pp. 65–86. On the limitations in legal protections, the author cites equal pay protections, which are often limited to gender-based inequities. See also k. Abrams: “Title VII and the complex female subject”, in Michigan Law Review (1994, Vol. 92, No. 8), pp. 2479–2540. 65. European Commission: Multiple Discrimination, op. cit., p. 7. 66. ibid., p. 9. 67. Further details of these activities are available at the CEEC website, www.ceec.org.zm/. 17
- 35. Part II From principles to practice 76. This section highlights recent trends and de- pay gaps, occupational and vertical segregation, dif- velopments with regard to different grounds of dis- ficulties in balancing work and family life, the dis- crimination. Some grounds are specifically addressed proportionate concentration of women in part-time, by Convention No. 111, and some are covered by informal and precarious work, sexual harassment, other ILO instruments. A few remain outside the and discrimination based on maternity or marital scope of any ILO Convention. The key role of gov- status, all persist despite legislative and policy initia- ernments in demonstrating political commitment tives. In many cases, women’s access to certain jobs and providing an enabling environment, and the is restricted on the basis of their reproductive role action taken by employers’ and workers’ organiza- or the fact that women continue to bear the main tions and other stakeholders, are reviewed. Legal responsibility for childcare and the care of other frameworks and policies against discriminatory dependants. That does not mean that progress has practices and the challenges faced in the light of the not been made, but rather serves to underscore the recent global economic crisis are also examined. fact that women are still a long way from achieving gender equality in the labour market. Discrimination based on sex Promoting gender equality 77. Women continue to suffer discrimination in through gender mainstreaming almost all aspects of employment, including the jobs they can obtain, their remuneration, benefits 78. Discrimination between men and women and working conditions, and their access to decision- has deep social roots which cannot be removed making positions. Research has shown that gender simply by legislation or any one specific measure. Box 2.1 Discrimination starts in childhood The failure to address educational inequalities fuels a social system of uneven relationships in which dis- crimination is possible. Being born in a certain place or belonging to a disadvantaged group can restrict the basic human right of children to education on the basis of equal opportunity. In many regions, disadvan- taged groups continue to be systematically excluded from, or disadvantaged in their access to, education. They include girls, children who belong to an ethnic or linguistic minority, children affected by HIV/AIDS, AIDS orphans, children of migrant families, child labourers, children living in rural areas and urban slums, and children affected by armed conflict. Inclusive and targeted education policies that provide access to high-quality learning environments for those disadvantaged groups are powerful means of building inclusive societies free from the scourge of discrimination. Education systems also play a role in educating against discrimination. Teaching social values of respect, acceptance, tolerance and peace must be at the core of a comprehensive strategy to tackle discrimination early in the life of individuals. 19
- 36. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.2 Female Future Following the 2003 law requiring boards of all public limited companies in Norway to have at least 40 per cent female membership by July 2005, the Confederation of Norwegian Enterprises (NHO) surveyed Norwegian companies and found that whilst 84 per cent were positively in favour of increasing women’s representation at management and at board levels, the same companies considered that there was a lack of female candidates for the leading positions. Despite its earlier scepticism, the NHO established the internationally acclaimed Female Future, a unique 18-month training and networking programme to identify and fast-track talented women in the Norwegian workforce into leadership positions. Female Future followed a strategy of “pearl diving”, where NHO member companies would nominate a minimum of three women candidates for further training and support to reach the NHO’s network of boards. Of the 600 women who have successfully completed the programme, 60 per cent have gone on to receive invitations to join Norwegian boards. Source: R. Lewis and K. Rake: “Breaking the Mould for Women Leaders: Could boardroom quotas hold the key?”, a Faw- cett Society think piece for the Gender Equality Forum, Oct. 2008, p. 7. Mainstreaming gender and non-discrimination European Union over the last decade, periodic re- across a whole range of national policies and pro- ports on progress made indicate that much remains grammes may prove to be more efficient. to be done in terms of translating this idea into prac- 79. Gender mainstreaming has been defined as tice.4 According to one analysis, successful main- the process of assessing the implications for women streaming requires “the establishment of a clear and and men of any planned action, including legis- transparent organisational infrastructure with a clear lation, policies or programmes, in any area and at all focus on gender equality”, whether (as in Denmark, levels. It is a strategy for making the concerns and Germany and the United kingdom) by means experiences of women as well as of men an integral of legislative initiatives or (as in France, Iceland, part of the design, implementation, monitoring and Netherlands and Sweden) by the adoption of main- evaluation of policies and programmes in all pol- streaming as a “general policy principle”.5 Crucial itical, economic and social spheres, so that women to the success of gender mainstreaming is the avail- and men benefit equally and inequality is not per- ability of adequate gender-disaggregated statistics petuated. The ultimate goal of mainstreaming is to which “enable the description of the actual situation achieve gender equality.1 in order to assess actual gender (in)equality and to 80. Several policy initiatives implemented over prioritise areas for attention.” 6 the past few years have advocated gender main- streaming as an effective way to promote gender equality. Examples can be found in the Solomon Affirmative action Islands’ National Policy on Gender Equality and Women’s Development (2010–15) 2 and Albania’s 82. Since 2007, a number of affirmative action National Strategy for Development and Integration programmes have been established. Spain, for ex- (2007–13),3 which recognize that in order to redress ample, has put in place requirements that companies gender inequalities, it is necessary to mainstream gender must meet gender quotas of between 40 and 60 per perspectives into national development strategies. cent for boards and executive-level positions by 81. Gender mainstreaming has been much dis- 2015, while Germany, where the Government had cussed throughout the world. Nevertheless, in the encouraged the use of voluntary company codes, has 1. Based on the definition given by the United Nations Economic and Social Council (ECOSOC), July 1997. See ILO: Gender Equality Tool, available at the website of the ILO’s Bureau for Gender Equality. 2. Japan International Cooperation Agency: Country Gender Profile: Solomon Islands, 2010, p. 11. 3. Japan International Cooperation Agency: Albania: Country Gender Profile, 2010, p. 17. 4. See in particular J. Plantenga, C. Remery and J. Rubery: Gender mainstreaming of employment policies: A comparative review of 30 European countries (Luxembourg, European Commission, July 2007); P. Villa and M. Smith: National Reform Programmes 2008 and the gender aspects of the European Employment Strategy, coordinators’ synthesis report prepared for the Equality Unit of the European Commission, 2009. 5. J. Plantenga, C. Remery and J. Rubery, op. cit., pp. 5–6. 6. ibid., p. 6. 20
- 37. FROM PRINCIPLES TO PR ACTICE Box 2.3 EU Strategy for equality between women and men (2010–15) In September 2010, the European Commission adopted the European Union Strategy for equality between women and men (2010–15). The Strategy describes actions to be undertaken in five priority areas identi- fied in the Women’s Charter issued in early 2010 by the EC and one area addressing cross-cutting issues. The actions proposed follow the dual approach of gender mainstreaming and specific measures. The six priority areas are: (1) equal economic independence; (2) equal pay for equal work and work of equal value; (3) equality in decision-making; (4) dignity, integrity and an end to gender-based violence; (5) gender equality in external actions; (6) horizontal issues. The actions to be taken include the promotion of female entrepreneurship and self-employment; the assessment of remaining gaps in entitlement to family-related leave; the promotion of gender equality in all initiatives on immigration and integration of migrants; the exploration of possible ways to improve the transparency of pay, to understand the impact on equal pay arrangements such as part-time work and fixed-term contracts, and to support equal pay initiatives at the workplace such as equality labels as well as the development of tools to enable employers to correct unjustified gender pay gaps. Actions will be also undertaken to improve the gender balance in decision-making. Source: European Commission: Communication from the Commission to the European Parliament, the Council, the Euro- pean Economic and Social Committee and the Committee of the Regions “Strategy for equality between women and men 2010–15”, Brussels, 21 Sep. 2010. instituted voluntary quotas for gender equality.7 The Persistence in gender pay gaps EU Commission has promoted self-regulation of companies to achieve gender balances on company 84. A report submitted to the International Labour boards, but has reserved the option of developing Conference in 2009 noted: “In most countries, quota regulations in the future if self-regulation does women’s wages for work of equal value represent on not improve current outcomes whereby women rep- average between 70 and 90 per cent of men’s, but it resent only 11 per cent of board members.8 is not uncommon to find much wider differences.”11 83. In pursuing its quota system, Norway has seen A 2009 International Trade Union Confederation an increase in female company board members from (ITUC) report for 20 countries 12 detected an average 7 per cent in 2003 to 39 per cent in 2008.9 Since gender pay gap of 22.4 per cent and a median gap of 2008, the Norwegian quota system has required 20.4 per cent. Another study by the ITUC in 2010, that the boards of public companies be composed which included an additional 23 countries, showed of at least 40 per cent of people from each gender. an overall median gender gap of 26 per cent in favour Companies failing to meet these requirements can of men. According to the report, the gap is narrower be dissolved by national courts.10 Elsewhere alter- for those without children (20 per cent) and wider native mechanisms of affirmative action have been for those with children (32 per cent). The gap is also chosen. more pronounced among respondents who work full time (24 per cent) than among those who do not (20 per cent).13 7. ITUC: Gender in(equality) in the labour market: An overview of global trends and developments (Brussels, Mar. 2009), p. 38. 8. EurActiv: “EU mulls gender quotas on company boards”, published on EurActiv site, 15 July 2010. 9. A. Hole, Director-General, Ministry of Children and Equality, Norway: “Government action to bring about gender balance”, avail- able at www.20-first.com/406-0-a-personal-account-of-the-quota-legislation-in-norway.html, accessed 21 Jan. 2010. 10. Mission of Norway to the EU: “Norway’s mixed-gender boardrooms”, 23 July 2010. 11. ILO: Gender equality at the heart of decent work, Report VI, International Labour Conference, 98th Session, Geneva, 2009, para. 294. 12. ITUC: Gender (in)equality in the labour market, op. cit.; the countries concerned were: Argentina, Brazil, Chile, Denmark, Finland, Germany, Hungary, India, Italy, Republic of korea, Mexico, Netherlands, Paraguay, Poland, Russian Federation, South Africa, Spain, Sweden, United kingdom and United States. 13. ITUC: Decisions for work: An examination of the factors influencing women’s decisions for work (Brussels, 2010), pp. 21, 31. 21
- 38. EqUALITy AT WORk: THE CONTINUING CHALLENGE Figure 2.1. Gender gap in median earnings of full-time employees, 2006 or latest year available (per cent) 40 35 30 25 20 15 10 5 0 Rep. of Korea Japan Germany Canada United Kingdom Switzerland United States Finland Portugal Czech Republic Spain Australia France Netherlands Sweden Ireland Hungary Greece Denmark Poland New Zealand Belgium Adapted from OECD: Gender Brief, OECD Social Policy Division, Mar. 2010, p. 13. Source: OECD Family Database >LMF5 and OECD Earnings database. The OECD average in 2006 was 17.6 per cent. 85. In 2010, the OECD reported a gender wage gap Estimates reported to the 2009 session of the in median full-time earnings of 17.6 per cent across International Labour Conference suggest that the its membership.14 In those countries whose details value of unpaid care work (also called “unpaid house- were reported, the gap ranged from almost 40 per hold work”) can be equivalent to half of a country’s cent in the Republic of korea and over 30 per cent in GDP.15 Japan, through 20–25 per cent in Canada, Germany 87. A significant portion of the gender pay gap can and United kingdom, between 15 and 20 per cent be explained by occupational and sectoral segrega- in Australia, Czech Republic, Finland, Netherlands, tion.16 In the United kingdom, for example, data Portugal, Spain, Sweden, Switzerland and United contained in the 2008 Labour Force Survey (LFS) States, 10–15 per cent in Denmark, France, Greece, revealed that women occupied two-thirds of jobs Hungary and Ireland, down to 10 per cent or less in in low-paid occupations compared to two-fifths in Belgium, New Zealand and Poland. The OECD’s other occupations. Furthermore, the LFS showed findings are reproduced at figure 2.1. that women accounted for 76 per cent of all workers 86. Statistics on gender pay gaps often do not in- in part-time employment in the United kingdom, clude the vast numbers of women worldwide (almost which is of particular concern since part-time 25 per cent of the total workforce) who receive no workers are twice as likely to be paid a minimum direct pay for their involvement in family work. If wage.17 these women, and the many others engaged in other forms of informal work, were included in the stat- istics, women’s relative disadvantage in the labour Means to narrow the gender pay gap market would be much starker, and their inability to benefit from labour market regulation including 88. Legislation based on the concept of equal anti-discrimination and equal pay provisions clearer. pay for work of equal value is not as widespread as 14. OECD, op. cit., p. 13 (figures from 2006 or latest available). 15. ILO: Gender equality at the heart of decent work, op. cit., para. 298. 16. European Foundation for the Improvement of Living and Working Conditions (Eurofound): Addressing the gender pay gap: Govern- ment and social partner actions (2010), p. 24. 17. Low Pay Commission: National Minimum Wage. Low Pay Commission Report 2009, p. 98. 22
- 39. FROM PRINCIPLES TO PR ACTICE general non-discrimination legislation. Nevertheless, the National Minimum Wage in 1999, salaries at there has been progress. Across the EU, legislation lower pay rates have become more equal between on equal pay is mandatory and must be adopted by men and women, while the gender pay gap for high countries seeking accession. Comprehensive anti- earners has remained unaffected by the minimum discrimination legislation also exists in other coun- wage.20 tries, for example Canada and South Africa. In April 92. Countries such as Belgium and the Netherlands 2009, legislation in Cyprus on equal pay for work of have recently introduced different systems of job equal value was amended in a manner expected to classification with the aim of reviewing the gender reduce the gender pay gap. In 2007, Ecuador adopted pay gap. In Belgium, the Institute for the Equality a new Constitution which includes the concept of of Women and Men was established under a federal equal pay for work of equal value. project to reform the job classification system. In 89. Clear legislative provisions against discrimin- the Netherlands, the tripartite Labour Foundation ation and for entitlements to equal pay for work of (Stichting van de Arbeid, STAR) introduced a “check- equal value, although necessary and welcome, are list on equal pay for payment systems”, as an instru- only a first step. In November 2008 a European ment for the social partners. While these initiatives Parliament resolution made recommendations to the have resulted in the availability of practical guides and Commission on the application of the principle of tools for enterprises, implementation of the various equal pay for men and women. These recommen- methodologies is at different stages and information dations highlighted a set of integrated initiatives to on progress and impact has yet to be developed. tackle the gender pay gap, including analyses and 93. The social partners have the potential to play calls for transparency, work evaluation and job clas- a powerful role in narrowing pay gaps through sification, the role of equality bodies, the prevention their role in wage negotiations.21 In Sweden, for ex- of discrimination, gender mainstreaming, the use of ample, upon observing that sectors with the lowest sanctions and streamlining of EU regulations and minimum wage had the largest proportion of female policies. employees, the social partners agreed to a raise in 90. Many governments are including reduction of the minimum wage through collective bargaining.22 the gender pay gap among priorities in action plans, There are also provisions which require affirmative including through initiatives aimed at combating oc- action by employers towards equality as in the case of cupational segregation, as in the case of Finland (2008– Ontario’s Pay Equity Act 23 or the South African 24 or 11) and The former yugoslav Republic of Macedonia Namibian Affirmative Action legislation.25 (2007–12). Similarly, a recent tripartite meeting in 94. In general, trade unions address the gender pay the United kingdom to tackle the problem of the gap through social dialogue, inclusion of the issue gender pay gap resulted in a Government Action Plan in collective bargaining, general awareness-raising to increase the availability of quality part-time work, campaigns, and creation of gender focal points or to introduce a “public sector gender duty”, and to units within their structures. Where initiatives and ensure career guidance free from gender stereotyping. events are developed, it is often in collaboration with 91. One means of reducing the gender pay gap is national equality bodies and with governments, with through the introduction of minimum wages, which the aim of drawing public and media attention to can have the effect of reducing pay differences by in- pay differentials. Examples of such initiatives include creasing salaries in primarily female-dominated sec- regular “Equal Pay Days”, as reported in Austria, tors, as studies in Bulgaria and the United kingdom Belgium, Czech Republic, Denmark, Estonia, have shown.18 In the United kingdom, a minimum Hungary and Netherlands. The adoption of indirect wage increase in 2008 impacted jobs held mostly by measures applies equally to employers, who some- women, according to a Low Pay Commission study, times implement a quota system to support women’s affecting in total 5.6 per cent of women compared access to managerial positions, as is the case in com- to 3.0 per cent of men.19 Since the introduction of panies such as Daimler in Germany. 18. Eurofound, op. cit., pp. 12, 24. 19. Low Pay Commission, op. cit., p. 98. 20. ibid., p. 100. 21. Eurofound, op. cit., p. 29. 22. ibid., p. 24. 23. Pay Equity Act, R. S. O. 1990, Ch. P.7. 24. Employment Equity Act, No. 55 of 1998. 25. Affirmative Action (Employment) Act, 1998. 23
- 40. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.4 Addressing equal pay through collective bargaining in Denmark The Danish Confederation of Trade Unions decided in 2007 to set equal pay as a main priority for the next four years. The Confederation has developed a two-pronged equal pay strategy comprising 12 components. Seven of these are specifically identified as initiatives to be addressed through collective bargaining: c greater transparency in wage determination; c increased paternity rights; c explicit inclusion of the principle of equality in all collective agreements; c equal pay schemes; c further development of the fund for parental leave; c public sector employers firmly adhere to their obligation under Article 1b of the Danish Equal Remunera- tion Act; c paid time off to care for sick children. Source: The Danish Confederation of Trade Unions Equal Pay Strategy. Maternity and paternity status reason of pregnancy, marital status, family respon- sibilities or maternity leave. As a measure to protect 95. According to a 2010 ILO review on maternity pregnant women from the H1N1 pandemic, the legislation,26 many countries worldwide provide in- Government of Costa Rica issued a decree 27 intro- sufficient benefits for pregnant women. In Africa, ducing teleworking depending on the nature of the only 39 per cent of countries reviewed provided job performed. In Europe, some companies are im- benefits in accordance with ILO standards, while plementing policies which, for example, grant women in Asia, only two of the 23 countries reviewed met additional weeks of maternity leave with wages fully the same requirements. Some countries, including paid by the company, 28 reduce working time for Lesotho, Papua New Guinea, Swaziland, and United pregnant women who become sick without reducing States, provided no cash benef its for pregnant their pay, and offer the option of teleworking.29 Some women. Among developed economies, including countries include provisions in their maternity and the European Union, 78 per cent of countries met paternity legislation for abnormal events. Nicaragua ILO standards. It is vital that benefits are provided and Panama provide women with paid leave if they to ensure that women can maintain an adequate experience a miscarriage, stillbirth or other abnormal standard of living and health for themselves and condition.30 France gives fathers up to ten weeks of their children, according to the Maternity Protection leave after the birth of a child if the mother dies Convention, 2000 (No. 183). This will ensure that during maternity leave.31 they are not being structurally disadvantaged in the 97. There have also been improvements with pa- labour market as a consequence of pregnancy. ternal leave legislation. In Finland, for example, 96. New legal provisions continue to be intro- since January 2010, fathers have been entitled to duced. For example, Mauritius included in its an additional 24 days of paternity leave.32 Similarly, Employment Rights Act 2008 a special provision re- Japan revised its Law for Childcare and Family Care lated to protection from discriminatory dismissal by Leave of 2010 to allow for a father to take leave on 26. ILO: Maternity at work: A review of national legislation. Findings from the ILO’s Conditions of Work and Employment Database, second edition (Geneva, 2010), pp. 20, 21, 22, 36. 27. Decree No. 35434-S-MTSS, issued as a measure to protect pregnant women from the H1N1 pandemic. 28. European Alliance for families: Good practice – L’Oréal (France), available at http://ec.europa.eu/employment_social/emplweb/fami- lies/index.cfm?langId=en&id=5&pr_i_id=299 visited: 8 Oct. 2010. 29. European Alliance for families: Good practice – Hewitt Associates (Poland), available at http://ec.europa.eu/employment_social/ emplweb/families/index.cfm?langId=en&id=5&pr_i_id=249, accessed 8 Oct. 2010; European Alliance for families: Good practice – Commerz Bank, Germany, available at http://ec.europa.eu/employment_social/emplweb/families/index. cfm?langId=en&id=5&pr_i_id=294. 30. ILO: Maternity at work, op. cit., p. 16. 31. ibid., footnote 24, p. 16. 32. ibid., footnote 75, p. 44. 24
- 41. FROM PRINCIPLES TO PR ACTICE two separate occasions after his child’s birth.33 In Balancing work and family responsibilities Slovenia fathers are granted 90 days of paternity leave, while in kenya fathers get two weeks’ paid 100. The ILO Workers with Family Responsibilities paternity leave.34 In October 2010, the European Convention, 1981 (No. 156), and its accompanying Parliament recommended that men should be en- Recommendation (No. 165), provide considerable titled to paid paternity leave on an equivalent basis guidance in the formulation of policies that enable to maternity leave except for duration, and that it men and women workers with family responsibili- should also be applicable to unmarried couples.35 ties to engage and advance in employment without 98. Meanwhile, some groups remain excluded discrimination. Such policies include more f lex- under these provisions. For example, in Japan, em- ible arrangements as regards working schedules ployers do not have to pay health insurance pre- from which, as research shows, a variety of benefits miums for non-regular workers, who typically work can be gained, including reduced absenteeism, in- less than 35 hours per week and are not eligible for creased ability to attract and retain skilled staff, and maternity leave.36 In Ecuador, part-time workers, improvements in productivity and time manage- workers in the export processing zones (EPZs) and ment.42 Nevertheless, flexible arrangements are still public sector employees do not receive cash maternity uncommon. According to the US Bureau of Labor benefits from the Social Security Institute.37 Statistics,43 only 5 per cent of workers in the United 99. In spite of important and long-standing legis- States are given the option of flexible workplace ar- lation, discrimination against women on grounds rangements by private employers. of maternity continues to exist and is on the in- 101. On the other hand, alternative working time crease, as witnessed by several equality commis- arrangements, such as job sharing and teleworking, sions worldwide. In 2009, the United States Equal are gradually being introduced as part of more fam- Employment Opportunity Commission (EEOC) ily-friendly policies at the enterprise level, with the received 6,196 cases, compared to 3,977 cases in effect of reducing structural disadvantages in the 1997.38 In the Dominican Republic, the number of labour market faced by workers with family respon- cases received by the Secretariat of State for Labour sibilities. The revised Law for Child and Family (SET) increased from 91 in 2005 to 128 in 2009.39 Care Leave 2010 in Japan, for example, allows em- In Costa Rica, the Labour Inspectorate received ployers to shorten a worker’s working hours upon 635 cases in 2009, almost three times the figure request, if the worker is responsible for the care of a for 2008 (230 cases).40 In Guatemala, the Labour child below 3 years of age but does not take child- Inspectorate of the Metropolitan Area received care leave.44 15 per cent more complaints in 2009 compared to 102. Some European companies have teamed up 2005. Most of the cases were related to dismissals for with outside childcare services where employees can pregnancy, dismissal while nursing, failure to grant leave their children while they are at work, or have time for nursing, or non-payment of pre- and post- established free hotlines to help employees find child- natal benefits.41 Denial of promotion during preg- minders or emergency childcare services. In Chile, nancy and refusal to allow a woman to return to the the number of free public nursery places for children post she held before becoming pregnant have also aged 3 months to 2 years living in the poorest areas emerged as issues in need of attention. in the country has increased from 14,400 in 2005 33. Ministry of Health, Labour and Welfare: Introduction to the revised Child Care and Family Care Leave Law, p. 36. 34. ILO: Maternity at work, op. cit., pp. 46–47. 35. European Parliament: Amendment 21 Proposal for a directive – amending act Recital 13 c (new). 36. ILO: Maternity at work, op. cit., p. 37. 37. ILO: CEACR, individual observation published in 2009 concerning the application by Ecuador (ratification: 1962) of the Maternity Protection Convention (Revised), 1952 (No. 103). 38. EEOC: Pregnancy Discrimination Charges EEOC & FEPAs Combined: FY 1997 – FY 2009, available at www.eeoc.gov/eeoc/statistics/ enforcement/pregnancy.cfm, accessed 21 Jan. 2010. 39. ILO: Informe de verificación de la implementación de las recomendaciones del libro blanco: Periodo: agosto 2009 – enero 2010, Domin- ican Republic, San José, p. 47. Available at http://verificacion.oit.or.cr/images/pdf/inf_rd_ago09ene10.pdf, accessed 6 Oct. 2010. 40. ibid., p. 32. 41. ibid., p. 57. 42. See, for example, queensland Government: Benefits of working flexibly, 2010. 43. Department of Labor: Testimony of Deputy Secretary of Labor Seth Harris before the Senate Subcommittee on Children and Fami- lies Committee on Health, Education, Labor and Pensions, 2009. 44. Ministry of Health, Labour and Welfare, op. cit. 25
- 42. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.5 European case law: Towards gender equality in family responsibilities The European Court of Justice (ECJ) ruling of September 2010 in the case Alvarez v. Sesa Start España can have broad implications on work and family balance in Europe. The Court found that a Spanish law designed to provide parents with an hour off work each day to feed a baby less than 9 months of age was inconsistent with equal protection laws and an example of unjustified discrimination on grounds of sex, since fathers could only utilize the time off if the mother was also employed, while mothers were free to take time off regardless of the work status of the father. The Court noted that the Spanish law, which was earlier modified to include bottle feeding in addition to breastfeeding, was aimed at ensuring the proper nu- trition and bonding time of children with their parents regardless of gender since the law no longer attached a biological role to the feeding. The Court broadly found that employment policies meant to reconcile work and family life for workers with children, such as the Spanish feeding law, must be provided equally to both parents in accordance with the European Council Directive on Equal Treatment. As a consequence, men will be free to share the baby feeding role with women more regularly, thereby increasing the ability of women and men to secure a healthy work and family balance. The ruling may also have an impact on ensuring that other work and life balance policies in the EU are shaped in a gender-neutral form. Source: Court of Justice of the European Union: Press Release No. 94/10, 30 Sep. 2010. to 64,000 in 2008.45 The introduction of affordable, progress. According to the 2010 World Development high-quality childcare can reduce structural barriers Indicators published by the World Bank, 64 devel- for many, particularly those who are low-paid and oping countries have achieved gender parity in enrol- may be unable to afford alternative childcare op- ment at primary level, and another 20 are on track to tions. In Hungary, the “Start Plusz” Programme, in- do so by 2015. However, 22 countries are seriously off troduced in 2007, provides employers who employ track, the majority of them in sub-Saharan Africa.48 women after a childcare break with a subsidy for In secondary education, 73 countries, mainly in Latin social security contributions.46 America and the Caribbean, Europe and Central 103. The lack of adequate paid leave in some coun- Asia, have achieved gender parity, and another 14 are tries can make sectors of the labour market inaccessible on track. Twenty-nine countries, more than two- or unattractive for workers with family responsibili- thirds of them in sub-Saharan Africa, are seriously off ties. It forces workers to choose between employment track and unlikely to achieve parity if current trends and looking after their children or others under their continue. Data for tertiary education are not widely care. Eligibility for paid leave is also correlated with reported. Most countries with data have made pro- income. While 54 per cent of the highest paid workers gress toward gender parity, but countries in South had access to paid leave for personal reasons in the Asia and sub-Saharan Africa lag behind. United States, for example, only 17 per cent of the lowest paid workers had the same access, according to a 2008 Bureau of Labor Statistics survey.47 Legislation on marital status 105. Several countries have been expanding the Girls’ access to education scope of their provisions related to discrimin- ation in employment based on marital status.49 104. One factor significantly affecting the nature In 2007, Namibia expanded the scope of its legis- and quality of women’s labour market participation is lation to prohibit dismissal on grounds of marital their access to education. In many developing coun- status. Rwanda included marital status as a pro- tries girls are at a disadvantage as regards access to tected ground in a 2009 Act expanding protec- education. There has, however, been considerable tion against discrimination.50 In 2008 and 2009, 45. ILO: Work and Family: The way to care is to share!, online brochure, p. 7. 46. C. Hein and N. Cassirer: Workplace solutions for childcare (ILO, Geneva, 2010), p. 248. 47. Department of Labor, op. cit. 48. Information in this paragraph is based on World Bank: 2010 World Development Indicators, p. 10. 49. Labour Act, 2007. 50. Law No. 13/2009 of 27 May 2009 regulating labour in Rwanda. 26
- 43. FROM PRINCIPLES TO PR ACTICE Box 2.6 Bangladesh High Court issues guidelines on sexual harassment In 2008, the Bangladesh National Women Lawyers Association (BNWLA) initiated proceedings before the High Court against the Government of Bangladesh. The BNWLA complained about the absence of legislative provisions to address sexual harassment of women and girls demanding effective legislation and/ or alternative mechanisms to tackle the problem. In 2009, the High Court issued directives in the form of guidelines to be followed and observed at all workplaces and educational institutions until adequate and effective legislation is adopted in this field. The objective of these guidelines is to raise awareness about sexual harassment and its consequences. They highlight the duties of employers and authorities con- cerning the maintenance of mechanisms for preventing or deterring sexual harassment, providing effective measures for prosecution of the offences of sexual harassment and initiating appropriate disciplinary action when it is needed. The creation of complaint committees in all work places and educational institutions in both public and private sectors is contemplated in the guidelines; these committees will receive complaints, conduct investigations and make recommendations. Source: Bangladesh National Women Lawyers Association (BNWLA) v. Government of Bangladesh and others. W.P.5916.08 jt.14.5.09. the 1977 Anti-Discrimination Act of New South higher proportions of women in employed popula- Wales in Australia was amended to increase the tions. As more women enter precarious employment maximum compensation for acts of discrimination as a result of the effects of the economic crisis, they to 100,000 Australian dollars and altered the term may encounter higher incidences of harassment. “marital status” to “marital or domestic status” in 107. More complaints are also being received from order to include and protect individuals in same-sex men.54 The US Equal Employment Opportunities relationships.51 Commission reported that 16 per cent of sexual har- assment complaints were reported by men in 2009, compared to only 12.1 per cent in 1999.55 A 2007 Complaints of sexual harassment survey conducted in Hong kong, China, found that 25 per cent of workers interviewed had encountered 106. Surveys have shown significant rates of sexual sexual harassment, one third being men, of which harassment in the workplace, with between 40 and only 6.6 per cent reported their experience.56 The 50 per cent of women in the European Union re- persistence of sexual harassment at work may be due porting some form of sexual harassment or unwanted to a lack not only of legislation but also of substantial sexual behaviour in the workplace. Small surveys in preventative programmes. Asia–Pacific countries indicate that 30 to 40 per cent of women workers report some form of verbal, phys- ical or sexual harassment.52 In New South Wales, Discrimination based on race and ethnicity Australia, it was the largest single category of work- related complaints for 2009.53 It is unclear whether Alarming trends worldwide this is a result of increasing sexual harassment, better use and knowledge of specialized bodies dealing with 108. The fight against racism is as relevant today non-discrimination and equality, or because of the as it has ever been in the past.57 In 2009, the Durban 51. Anti-Discrimination Board of New South Wales: Annual Report 2008–09, 26 Oct. 2009, pp. 2, 12. 52. UN General Assembly: In-depth study on violence against women, Report of the Secretary-General, prepared for the 61st Session of the General Assembly, 6 July 2006, A/61/122/Add.1. 53. Anti-Discrimination Board of New South Wales, op. cit., p. 16. 54. D. McCann: Sexual harassment at work: National and international responses, Conditions of Work and Employment Series No. 2 (Geneva, ILO, 2005), p. 5. 55. EEOC: Sexual Harassment Charges EEOC & FEPAs Combined FY 1997 – FY 2009. 56. ILO: Sexual harassment at work, fact sheet, 2007, available at www.ilo.org/wcmsp5/groups/public /---ed_norm/---declaration/documents/publication/wcms_decl_fs_96_en.pdf, accessed 25 Jan. 2011. 57. Speech by Mr Githu Muigai, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance at the occasion of the High-Level Panel to celebrate the International Day for the Elimination of Racial Discrimination, 19 Mar. 2009, available at www.un.org/durbanreview2009/stmt19-03-09.shtml. 27
- 44. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.7 European Court of Justice ruling In July 2008, the European Court of Justice ruled against a Belgian employer who had declared that he did not want to hire workers from foreign origins because his customers would only want to deal with workers from Belgian origins. The court specified that an employer who publicly indicates his intention not to hire workers from foreign origins is guilty of discrimination. This ruling has further contributed to European jurisprudence on the topic. Source: Centre pour l’égalité des chances et la lutte contre le racisme: Discrimination / Diversité: Rapport annuel 2009. Review Conference, which was held as a follow-up with the variable of ethnicity through the random to the 2001 UN World Conference against Racism, assignment of names widely associated with ethnic Racial Discrimination, Xenophobia and Related groups, also highlights the extent of race discrimin- Intolerance, expressed concern that “challenges and ation in access to employment. One such study,62 car- obstacles identified in the Durban Declaration and ried out in 2009 in the United kingdom, concluded Programme of Action remain to be addressed and that net discrimination 63 in favour of “British- overcome in order to effectively prevent, combat and sounding” names over equivalent applications from eradicate racism, racial discrimination, xenophobia ethnic minority candidates was 29 per cent. The re- and related intolerance and that there are still many sults of a similar study in Sweden suggest that there areas where achievements have not been gained or is a large difference in call-backs between applicants further improvements have to be attained.”58 with Swedish names and names that are Arabic- or 109. In 2009, 45 per cent of all employment dis- African-sounding. For the 3,552 jobs included in the crimination complaints received by the Centre for sample, the net discrimination rate was 40.3 per cent. Equal Opportunities and Opposition to Racism in Expressed in terms of a real job-seeking situation, Belgium were race-related; of these, 36.5 per cent this means that if a person with a Swedish-sounding concerned access to employment and 56.1 per name had to apply for ten jobs before being con- cent concerned conditions of work.59 Similarly, the tacted by an employer, a person with the same quali- Australian Human Rights Commission reported fications but with an Arabic- or African-sounding that 44 per cent of its race-related complaints con- name would have to apply 21 times to be contacted.64 cerned employment.60 New Zealand’s Race Relations Commission also reported that 40 per cent of com- plaints received concerned securing or retaining Little progress for people of African descent employment. A common type of complaint is bul- lying in the workplace because of a person’s race. In 111. In an information note on people of African France, the main body responsible for combating dis- descent, the Durban Review meeting recalled that crimination and promoting equality, the HALDE, “for centuries, people of African descent living in the reported that race discrimination remained the main African Diaspora, were marginalized as part of the reason for discrimination complaints, which included legacy of slavery and colonialism”. It recognized “that both direct discrimination cases, such as openly dis- racism and racial discrimination have caused people criminatory job advertisements, and indirect cases of African descent to be relegated in many aspects of involving the refusal to recognize foreign diplomas.61 public life” and that, as a result, “they have suffered 110. Correspondence testing, that is, the sending of exclusion and poverty”. It also emphasized that al- multiple matched applications for real job vacancies though progress has been made, the situation persists 58. Outcome document of the Durban Review Conference, Geneva, 20–24 Apr. 2009. 59. Centre pour l’égalité des chances et la lutte contre le racisme, op. cit., pp. 80, 81. 60. Australian Human Rights Commission: Annual report 2009–10, p. 77. 61. Haute Autorité de Lutte contre les Discriminations et pour l’Egalité (HALDE): Rapport annuel 2009, p. 39. 62. M. Woods et al.: A test for racial discrimination in recruitment practice in British cities, Department for Work and Pensions, Research Report No. 607, 2009, p. 3. 63. Net discrimination in this case means the number of instances of discrimination against a particular ethnic group that exceeds the number of instances of discrimination in its favour. 64. Stockholm University Linnaeus Center for Integration Studies (SULCIS): What’s in a name? A field experiment test for the existence of ethnic discrimination in the hiring process, Working Paper 2007, p. 7. 28
- 45. FROM PRINCIPLES TO PR ACTICE Figure 2.2. United States: Unemployment trends 2000–10 (per cent) 18 White 15 Black Asian 12 Hispanics/Latino 9 6 3 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 Source: United States Department of Labor. Unemployment rates (percentages by race and ethnic group). Retrieved 10 May 2010 from http://data.bls. gov/PDQ/servlet/SurveyOutputServlet. in many parts of the world. It recognized that “fac- 114. In Brazil, a country where race categories are tors that lead to poverty among people of African self-reported, data showed (see figure 2.3) that the descent are mainly structural”.65 unemployment rate among “black” and “brown” 112. Figure 2.2 shows a sharp increase in un- workers, at 10.1 per cent, was higher than among employment in the United States since the economic white workers (8.2 per cent). Although “black” or crisis of 2008. A close look at the figures shows that “brown” people account for 45.3 per cent of the active since 2008, unemployment has increased among the age population in the six metropolitan areas, they white population by 4.7 percentage points (from made up 50.5 per cent of the unemployed population. 4.9 to 9.6 per cent), among the African American 115. In South Africa also, the unemployment rate population by 7.9 percentage points (from 9.4 to differs among population groups. In the second 17.3 per cent), and among the Asian population by quarter of 2010, the unemployment rate among black 5.2 percentage points (from 3.2 to 8.4 per cent). Africans stood at 29.5 per cent; for people of mixed The unemployment rate among the black population race defined as “coloured” 22.5 per cent; for people remains almost twice as high as among the white of Indian and Asian origin 10.1 per cent; and for population, and the gap has widened since the begin- the white population 6.4 per cent. The national un- ning of the crisis. employment rate stood at 25.3 per cent.67 This may 113. A si m i la r u nemploy ment g ap e x i st s indicate the importance of historical and social fac- in Europe. A recent analysis from the British tors even in a context of legal non-discrimination Institute for Public Policy Research showed that and affirmative action. almost half (48 per cent) of black people aged 116. South African enterprises with more than 16–24 were unemployed at the time of the survey 50 employees are required to ensure that previously (in 2009), compared to the rate of unemployment disadvantaged groups legally defined as “blacks” among young white people which stood at 20 per occupy adequate positions at all levels. Nonetheless, cent. Mixed ethnic groups have seen the biggest blacks remained under-represented, according to the overall increase in unemployment, from 21 per cent 2008–09 Employment Equity Analysis. The small in March 2008 to 35 per cent in November 2009.66 number of African men and women, and coloured women in top management positions compared to 65. Office of the High Commissioner for Human Rights: People of African descent: Progress and challenges, information note for the Durban Review Conference, 20–24 Apr. 2009, Geneva. 66. Institute for Public Policy Research: “Recession leaves almost half young black people unemployed, finds ippr”, published on ippr home page, 20 Jan. 2010. 67. Statistics South Africa: Quarterly Labour Force Survey, Quarter 2, 2010, Statistical release P0211, p. 13. 29
- 46. EqUALITy AT WORk: THE CONTINUING CHALLENGE Figure 2.3. Brazil: Unemployment rates (per cent), six metropolitan areas 18 15 12 9 6 White 3 Black /Brown 0 2002 2003 2004 2005 2006 2007 2008 2009 Source: Instituto Brasileiro de Geografia e Estatistica; retrieved 7 May 2010 from: http://www.ibge.gov.br/english/presidencia/noticias/noticia_visualiza.php?id_noticia=1370&id_pagina=1 Figure 2.4. Top management workforce profile in South Africa, by sector and ethnic group African Coloured Government Private Indian Economically active White 0 10 20 30 40 50 60 70 80 Percentage Source: Based on analysis of South Africa Labour Force Surveys 2001 – First quarter 2010. their share in the economically active population, 117. The impact of affirmative action programmes is an example of vertical job segregation. Blacks are in achieving their objectives is still being debated, also disproportionately employed in low-skilled jobs, but much evidence points to their utility. A 2009 many of them informally. In private employment, Oxford University study revealed that voluntary whites are over-represented in top management com- agreements were more effective in ensuring fair em- pared to other ethnic groups. In government em- ployment outcomes, including at high levels of man- ployment, black African and coloured employees do agement, than legally enforceable agreements.69 The much better (figure 2.4).68 study also found that the tone and policies set by 68. Commission for Employment Equity (Department of Labour, Chief Directorate of Communication): Annual Report 2008–09, p. 26. 69. C. McCrudden et al.: “Affirmative Action without quotas in Northern Ireland”, in The Equal Rights Review (2009), Vol. 4, p. 11. 30
- 47. FROM PRINCIPLES TO PR ACTICE Box 2.8 Recognizing the rights of people of African descent The protection of the rights of people of African descent has been included in national and international agendas over the past few years. At the international level, the UN General Assembly proclaimed the year 2011 as the International Year for People of African Descent, with a view to strengthening national actions and regional and international cooperation for the benefit of people of African descent in relation to the full enjoyment of their rights and their participation and integration in all aspects of society. At the national level, in Ecuador, for example, people of African descent participated in the elaboration of the new 2008 Constitution, which, for the first time, recognizes Afro-Ecuadorians as a part of the multiracial State. Their collective rights are also recognized under the new Constitution. In Colombia, following recommendations of the Inter-sectoral Commission for the Advancement of the Afro-Colombian, Palenquero and Raizal Population in 2009, the Colombian Government has undertaken different measures to guarantee access for people of African descent to the labour market, including the implementation of vocational training programmes and the creation of an observatory to prevent racial discrimination in the labour market. Source: UN General Assembly, Report A/HRC/14/18 (Geneva, 2010); J. Antón et al.: Afrodescendientes en América Latina y el Caribe: Del reconocimiento estadístico a la realización de derechos, UN Economic Commission for Latin America and the Caribbean (Santiago, 2009); UN Economic and Social Council, Report E/C.12/COL/Q/5/Add.1 (Geneva, 2009). top leaderships and organizations can serve a critical Indigenous peoples: The case of Latin America role in determining diversity outcomes, with lower level employees following the lead of management.70 119. The ILO estimates at around 370 million the Making the job advertisement effectively available number of indigenous persons living in the world to under-represented groups and assigning a staff today. They represent more than 5,000 distinct member to ensure compliance with diversity obliga- peoples in more than 70 countries.74 Although rep- tions particularly increased the likelihood of organ- resenting only 5 per cent of the world’s population, izations meeting legal requirements.71 indigenous peoples make up 15 per cent of the world’s 118. The effect of affirmative action in reducing poorest people.75 long-term racial inequalities may even be more 120. Statistics of the L atin A merica n a nd gradual. In 2010 the South African Commission for Caribbean Demographic Centre (CELADE)76 show Employment Equity underlined the very slow pro- relatively little difference in unemployment rates gress on transformation and the potential to erode between indigenous and non-indigenous people. the insignificant achievement made to date.72 It also However, the lack of significant differences in em- noted that the demand for the “sunset clause” (which ployment rates does not tell us much about the types would decide on a specific date to put an end to af- of jobs or income levels. Indigenous workers and firmative action policies) was “premature”. Slow pro- those of African descent make up a smaller propor- gress has also been registered in the United States. tion of wage and salaried employees compared to According to the Equal Employment Opportunity other workers in six of the countries in the region Commission (EEOC), although some progress has concerned, ref lecting the relative reliance of in- been made in the composition of the federal work- digenous peoples on precarious, informal types of force over the last ten years, there has been little work. As a consequence of the inability to acquire overall change.73 jobs in formal activities, indigenous people are more likely than non-indigenous people to hold jobs in which workers may be denied ordinary workplace 70. C. McCrudden et al., op. cit., p. 13. 71. ibid., p. 14. 72. Department of Labour: 10th CEE Annual Report, 2009–10, p. iv. 73. EEOC: Annual Report on the federal work force, fiscal year 2009. 74. ILO: Eliminating discrimination against indigenous and tribal peoples in employment and occupation: A guide to ILO Convention No. 111 (Geneva, 2008), p. 3. 75. Office of the High Commissioner for Human Rights: Combating discrimination against indigenous peoples, information note, Durban Review Conference, Geneva, 20–24 Apr. 2009. 76. See ILO: 2007 Labour Overview: Latin America and the Caribbean, Regional Office for Latin America and the Caribbean (2007), pp. 39–46. 31
- 48. EqUALITy AT WORk: THE CONTINUING CHALLENGE Figure 2.5. Unemployment rates in Latin America (per cent) Plurinational State of Bolivia Brazil Chile Costa Rica Ecuador Indigenous Guatemala Non-indigenous Honduras Mexico Panama Paraguay Bolivarian Rep. of Venezuela 0 2 4 6 8 10 12 14 16 18 20 Source: CELADE. Retrieved 12 May 2010 from http://celade.cepal.org/redatam/PRYESP/SISPPI/ benefits, stable sources of decent income, appropriate Policies and measures targeting time off, and decent working conditions. In total, indigenous peoples independent work arrangements, including domestic and family work, represent up to 46.3 per cent of em- 122. Discrimination faced by indigenous peoples ployment for indigenous and African-origin workers is not only related to access to formal employment in Bolivia and 45.2 per cent in Peru. but also to access to the resources such as land re- 121. In contra st to the similarities in un- quired to carry out their traditional occupations. A employment rates, the remuneration gap between variety of policies and measures have been adopted in indigenous and non-indigenous people is substan- some countries to address both issues. In Chile, for tial. In Bolivia, for example, the average hourly example, a programme has been designed to promote earnings of indigenous workers amount to only better living conditions for the Aymara, Atacaman 34 per cent of those of non-indigenous workers. and Mapuche communities, thereby aiding in the Indigenous workers also enjoy significantly lower elimination of structural barriers to decent work for levels of health and pension coverage in Bolivia, indigenous peoples.77 El Salvador has also imple- Ecuador, Guatemala and Peru. While structural mented initiatives such as the promotion of family discrimination in the form of geographic residency micro-enterprises in rural areas in the country’s and educational differences may explain part of the north-east to benefit indigenous peoples and to facili- employment segregation and salary gap faced by tate access to the labour market and entrepreneurial indigenous peoples in Latin America, the differ- activities.78 Similarly, the Salvadorian Institute of ences are also likely to be explained by some degree Agrarian Reform has initiated land transfer pro- of social discrimination, particularly since wage in- grammes with equal access provided to indigenous equality remained even when education levels or communities and other populations.79 geographic residency were similar. 123. The lack of effective implementation pro- cedures may explain persistent discrimination in many countries despite the existence of anti-discrim- ination laws. In Brazil, the UN High Commissioner for Human Rights pointed to the country’s “im- pressive” array of laws and policies designed to pro- mote human rights and improve the socio-economic 77. ILO: 2007 Labour Overview, op. cit., p. 49. 78. ILO: CEACR individual observation published 2009 concerning the application by El Salvador (ratification: 1995) of the Discrimin- ation (Employment and Occupation) Convention, 1958 (No. 111). 79. ibid. 32
- 49. FROM PRINCIPLES TO PR ACTICE Box 2.9 Some progress for indigenous peoples in Latin America Governments of several Latin American countries have taken steps to enhance the economic and social participation of indigenous peoples. El Salvador hosted the first National Indigenous Congress in October 2010, during which different aspects of indigenous peoples’ rights were discussed and six representatives of indigenous peoples were selected to form a National Commission to facilitate permanent dialogue with the Government. Similarly, in Chile, the 2008–2010 Action Plan “Re-Conocer” is focusing on three main areas: rights, development, and diversity of indigenous populations. In Panama, a 2008 Act on Communal Lands makes provision for land ownership by indigenous communities who do not live in an indigenous region. Sources: Presidency of El Salvador: Finaliza Primer Congreso Nacional Indígena con la elección de representantes a Co- misión Nacional de pueblos indígenas, 2009; Government of Chile: Re-conocer: Pacto social por la multiculturalidad, 2008; UN General Assembly, Report A/65/18 (2010). Box 2.10 An employer’s initiative for Roma workers In Slovakia, U.S. Steel Kosice, s.r.o., a subsidiary of United States Steel, has developed a project focused on employment support for citizens of the village Velka Ida, where 40 per cent of the population is Romani. In cooperation with the village authorities, 150 jobs have been created since 2002 for Romani people and marginal group members. The project also involves the schooling of the workers’ children, from kinder- garten to high school and vocational training, after which the company is also offering employment. Source: U.S. Steel Kosice, s.r.o. website: www.usske.sk/citizenship/rom-e.htm, accessed 15 Oct. 2010. situation of indigenous peoples, but also to the need Actual literacy and numeric skills are also low. Only for their proper implementation, in order to tackle 12 per cent of working-age Roma can be considered discrimination, injustice and violence.80 functionally literate, that is, able to answer most of the relatively simple questions that require primary school-level knowledge.82 Europe and the Roma people 126. The report points out that although system- atic discrimination probably plays a role in explaining 124. The European Roma Rights Centre (ERRC) the low labour market participation of Roma, avail- has noted that “racial discrimination against Roma able data suggest that absence of skills and prior work is still a common and persistent problem all around experience are an even bigger barrier. Employers in- Europe. Roma may face discrimination in all areas terviewed for the report highlighted lack of skills as of life, which contributes to exclusion and poverty. the main reason for not hiring Roma. Many Roma remain uneducated and unemployed, 127. An array of labour market measures has been living in segregated, substandard housing, and adopted in an effort to improve the inclusion of facing much lower life expectancy than that of Roma people. The Council of Europe Committee of non-Roma.” 81 Experts on Roma and Travellers presented, in June 125. According to a World Bank Survey, low 2009, examples of best practices of labour market pol- labour market participation by the Roma in the icies for Roma in Europe.83 Among those presented Czech Republic can be attributed to low educa- were incentives for promoting generic skills and eco- tional attainment. Only two Roma in ten have some nomic activity in Bulgaria and Ireland, microcredit formal vocational training or secondary education. schemes in Spain, vocational training programmes 80. Office of the High Commissioner for Human Rights: “Brazil’s indigenous and Afro-Brazilian populations face serious discrimin- ation: UN Human Rights Chief”, published online 13 Nov. 2009. 81. ERRC: Statement on the occasion of Human Rights Day, 10 Dec. 2009. 82. World Bank: Czech Republic: Improving Employment Chances of the Roma, 21 Oct. 2008, Human Development Sector Unit Europe and Central Asia, pp. 7, 42. 83. Council of Europe: Employment Policies for Roma in Europe, PowerPoint presentation made at the Employment Workshop, Zagreb, 15–16 June 2009. 33
- 50. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.11 Finland’s national policy on Roma In December 2009, the Finnish Government launched a National Policy on Roma, which was drafted by a working group appointed by the Ministry of Social Affairs and Health. The objective of the policy is to main- stream the inclusion and equal treatment of the Roma in different spheres of life. The policy promotes the participation of Roma in vocational education and training and supports their access to the labour market. The vision of the Government is that by 2017, Finland will be a front-runner in Europe in promoting the equal treatment and inclusion of the Roma population. Source: Ministry of Social Affairs and Health: The Proposal of the Working Group for a National Policy on Roma: Working Group Report, Reports of the Ministry of Social Affairs and Health (2009), p. 57. Available at www.stm.fi/c/document_li- brary/get_file?folderId=39503&name=DLFE-11164.pdf. such as the Gypsy Development Programme in 130. International and regional human rights in- Spain, the START programme in Hungary, or the struments contain open-ended non-discrimination Traveller Internship Programme in Ireland. clauses, which may be extended to outlaw unjustifiable 128. In Serbia, 140 Roma participated in pro- distinctions between persons based on nationality.84 grammes to acquire elementary education and vo- For example, Article 14 of the European Convention cational skills, while some 300 Roma participated in on Human Rights (ECHR), 1950,85 while not expli- public works. Subsidized employment and training citly referring to nationality as grounds for discrimin- for the Roma has been offered under the Programme ation, has been interpreted by the European Court of for the Roma Community in Poland. The number Human Rights as prohibiting discrimination based of Roma who have benefited from subsidized em- on nationality. The Court has ruled that denial of ployment decreased from 74 in 2006 to 63 in 2007, social security benefits to migrants solely because of whereas 35 received vocational training in 2007. their foreign nationality is unlawful, and added that Despite these measures at the national level, recent “very weighty reasons would have to be put forward developments in the EU show that addressing dis- before the Court could regard a difference in treat- crimination and the vulnerability of Roma would ment based exclusively on the ground of nationality benefit from stronger coherence and cooperation as compatible with the Convention”.86 between the different national initiatives. 131. The Human Rights Committee monitoring the application of the International Covenant on Civil and Political Rights (ICCPR), 1966, has expressed Discrimination based on nationality the view that precluding the election of a lawfully and the case of migrant workers employed foreign national to a private company’s work-council on the grounds that he or she was not 129. Discrimination based on nationality is one a national of the country concerned or of another aspect of the multiple discrimination often suffered European Economic Area (EEA) State constituted un- by migrant workers. It is indeed difficult in many lawful discrimination on the basis of nationality be- circumstances to determine whether discriminatory cause there was nothing in the function of a member treatment faced by a migrant worker is exclusively of a work-council (namely, to promote staff interests based on his or her nationality or perceived nation- and to supervise compliance with work conditions) ality status, on racial, ethnic, religious or other visible that could reasonably justify a distinction between per- grounds, or a combination of these factors. sons solely on the basis of their different nationalities.87 84. See, for example, the Universal Declaration of Human Rights, 1948, Article 2; and the International Covenant on Civil and Political Rights, Articles 2(1) and 26. See also American Convention on Human Rights, 1969, Articles 1 and 24; and African Charter on Human and Peoples’ Rights, 1981, Article 2. 85. Article 14 has no independent status as such and has to be read in conjunction with other provisions in the European Convention on Human Rights (ECHR). However, a stand-alone non-discrimination clause has also been introduced in Protocol No. 12 to the ECHR, 2000 (Article 1), which, as at 15 October 2010, has been ratified by 18 Council of Europe Member States. 86. Gaygusuz v. Austria, European Court of Human Rights, judgment of 16 September 1996, para. 42; Koua Poirrez v. France, judgment of 30 September 2003, para. 46. In both of these judgments, Article 1 of the First Protocol to the ECHR, 1952, concerned with the protection of property, was interpreted as encompassing access to social security benefits for the non-nationals concerned. 87. Human Rights Committee: Communication No. 965/2000 concerning the case Karakurt v. Austria, 4 Apr. 2002, UN Doc. CCPR/C/74/D/965/2000, para. 8.4. 34
- 51. FROM PRINCIPLES TO PR ACTICE 132. Within the EU free movement regime, dis- Manifestations of discrimination in employment crimination based on nationality between nationals of EU Member States is explicitly prohibited under 134. Discriminatory practices may arise from Article 18 of the Treaty on the Functioning of the legislation, policies or practical measures. In Italy, European Union.88 Moreover, this provision should for example, lawfully resident non-EU migrants have in principle be applicable so as to outlaw unjustifiable been prevented from holding public sector jobs, in- differences in treatment based on nationality applied cluding in the nursing field.92 A 2008 law on EPZs in between different groups of non-EU nationals, given Madagascar includes provisions for lower wages and that it also covers the part of the Treaty addressing inferior social security coverage for migrant workers.93 the “Area of Freedom, Security and Justice”, which A 2009 UNDP report concluded that in Thailand, is concerned with the formulation and development policies towards migrant workers had widened the of the EU’s immigration and asylum policy. The gap between them and Thai citizens. The report Charter of Fundamental Rights of the EU, which points to the Provincial Decree on Migrant Workers, became legally binding on 1 December 2009, con- adopted in 2006 by Phuket and some other prov- tains an open-ended anti-discrimination clause and inces, which inhibits the free movement and basic reiterates the prohibition on discrimination based on rights of migrant workers from Myanmar, Cambodia nationality: “Within the scope of application of the and Lao People’s Democratic Republic.94 Treaties and without prejudice to any of their specific 135. Discriminatory job advertisements were noted provisions, any discrimination on grounds of nation- in countries such as Austria, Germany and Spain. ality shall be prohibited.”89 In Germany, for example, a job advertisement expli- 133. Migration today is largely linked to labour citly requested that only national citizens or German and employment. According to ILO 2010 estimates, mother tongue speakers need apply.95 there are about 105.4 million economically active 136. Once in employment, migrant workers may migrants (including refugees) globally, among the face everyday discriminatory attitudes. In Flanders, total estimated population of 214 million people Belgium, for example, an internal rule of an auto- living outside their country of birth or citizenship.90 mobile components company in which 70 per cent This represents most working-age adults in this of the employees are of foreign origin, stated that population and, together with their dependants, per- workers using languages other than Dutch on three haps 90 per cent of the global “migrant” population. consecutive occasions were liable to be dismissed. Challenges imposed by economic, demographic and The justifications of this rule were “security reasons” technological changes make the presence of foreign and “respect for other workers”.96 workers indispensable in industrialized countries. The increasing number of jobs that cannot be filled by national workers, and factors such as the ageing Working conditions of national workforces, create the need for hiring migrant workers.91 Nevertheless, migrant workers 137. Unfair conditions of work faced by migrants encounter a variety of barriers to fair employment, are found in developed as well as in developing which may be manifested throughout the employ- countries. In the European Union, reported cases of ment life cycle. exploitation of migrant workers have included harass- ment, long working hours under unhealthy condi- tions, sick leave denial, and low wages.97 In Israel, in 88. Consolidated Version of the Treaty on the Functioning of the European Union, Official Journal of the European Union, 2010, C 115/56, Article 18. 89. Charter of Fundamental Rights of the European Union, Official Journal of the European Communities, 2000, C 364/13, Article 21(1) and (2). 90. ILO: International labour migration: A rights-based approach (Geneva, 2010), p. 18. 91. See P. Taran: Increasing Equality in Employment, presentation at the panel discussion on “The workplace: Addressing racial discrimin- ation and promoting diversity”, Durban Review Conference, Geneva, 20–24 Apr. 2009, p. 2. 92. European Union Agency for Fundamental Rights: Annual Report 2010, Conference Edition (Vienna, 2010), p. 55. 93. ITUC: Internationally recognized core labour standards in Madagascar, p. 5. 94. J. Crush and S. Ramachandran: Xenophobia, international migration and human development, Human Development, Research Paper 2009/47 (UNDP, 2009), p. 31. 95. European Union Agency for Fundamental Rights: Annual Report 2010, op. cit., p. 50. 96. European Union Agency for Fundamental Rights: Annual Report 2008, Vienna, 2008, p. 46. Available at www.fra.europa.eu/ fraWebsite/attachments/ar08p2_en.pdf, accessed 10 June 2010. 97. European Union Agency for Fundamental Rights: Annual Report 2010, op. cit., p. 56. 35
- 52. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.12 ILO Committee of Experts calls for greater protection of migrant workers For a number of countries, the Committee of Experts on the Application of Conventions and Recommenda- tions has expressed concern that legislation that does not allow migrant workers to change employers may raise their vulnerability to discrimination and abuse. Moreover, fear of retaliation and deportation may make them reluctant to lodge complaints. In the Republic of Korea, for example, the Act on Foreign Workers’ Employment grants migrants a work transfer only in the case of cancellation of the employer’s permit to engage foreign workers. The law states that authorities may cancel such a permit if employers breach labour contracts or violate labour legislation. The Committee has called on the Government to adopt meas- ures to provide migrant workers with greater flexibility to change workplaces in order to avoid situations of discrimination and abuse, as well as ensuring effective labour inspections. In Qatar, the sponsorship system requires a sponsor for every migrant who wishes to be admitted or to reside in the country to work, making migrant workers legally dependent on their sponsor to remain in the country. According to the National Human Rights Committee of Qatar, the system has led to arbitrary practices by sponsors, including the non-payment of wages, withholding workers’ passports, lack of ad- equate accommodation, involuntary long hours of work, and sexual harassment. The Committee of Experts expressed concern regarding the possibility for employers under the sponsorship system to exert dispropor- tionate power on migrant workers, leading to discrimination against them on the basis of race, sex, religion and national extraction with respect to their conditions of work, and has called for information concerning actions taken to address reform of the sponsorship system and for an investigation on the extent of the discriminatory impact on migrant workers resulting from the sponsorship system. Source: CEACR: individual observation 2009 concerning the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Republic of Korea (ratification: 1998); and individual observation 2009 concerning the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Qatar (ratification: 1976). 2007, the average monthly wage of a foreign worker Measures aimed at limiting migration in the caregiving sector was 2,200 new Israeli shekels and expelling migrant workers (NIS) for six days of work, which was NIS 1,200 less than the minimum wage, with no payment for 139. Measures and practices that “push out” mi- overtime.98 grant workers, perhaps selectively, have been adopted 138. Migrant workers may also face barriers in in some countries against the backdrop of the crisis. obtaining social security benefits equal to those The Governments of Malaysia 100 and Singapore, provided to nationals. Some countries completely ex- for example, have initiated policies that encouraged clude participation of migrants in social insurance companies to dismiss foreign workers before ter- programmes. For example, many Gulf Cooperation minating employment contracts for nationals. The Council countries only allow access for migrants to Government of the Republic of korea took steps to short-term benefits such as health-care programmes, reduce the employment of foreign workers by dra- and deny access to long-term portable benefits such matically cutting the quota of foreign workers from as old-age pensions. Other countries may allow 100,000 in 2008 to 34,000 in 2009. The policy access to long-term benefits but disallow portability change came about against a background of slightly of the benefits between countries, thereby discour- rising unemployment and an increase in the number aging return migration.99 of immigrants in the workforce in recent years.101 140. Attitudes are of crucial importance. In cir- cumstances of significant distress on labour markets and heightened social tensions, it is important that 98. Information cited in A. kemp: Reforming policies on foreign workers in Israel, OECD Social, Employment and Migration Working Papers No. 103, 2010, p. 25. 99. See R. Holzmann, J. koettl and T. Chernetsky: Portability regimes of pension and health care benefits for international migrants: An analysis of issues and good practices, paper prepared for the Policy Analysis and Research Programme of the Global Commission on International Migration, September 2005. 100. M. Abella and G. Ducanes: The effect of the global economic crisis on Asian migrant workers and governments’ responses, technical note presented during the High-Level Regional Forum on Responding to the Economic Crisis – Coherent Policies for Growth, Employ- ment and Decent Work in Asia, Manila, 18–20 Feb. 2009, p. 9. 101. M. Fix et al.: Migration and the global recession: A report commissioned by the BBC World Service, Migration Policy Institute (2009), p. 55. 36
- 53. FROM PRINCIPLES TO PR ACTICE Box 2.13 Ireland’s “Migration Nation” Policy In April 2008, the Irish Government launched a new policy entitled “Migration Nation”, a statement on integration strategy and diversity management. This policy establishes rights and duties for migrants who reside, work and aspire to become Irish citizens. The policy emphasizes the important role of the Govern- ment, public bodies and society in achieving integration of migrant workers. Different actions including the establishment of specific government funding to support diversity management in local authorities, as well as the enhancement of institutional and legislative measures to combat exploitation or discrimination against migrants workers are envisaged. Moreover, the policy establishes new integration structures such as the Commission on Integration responsible for reviewing progress on integration. Source: T. Dobbins: Ireland: The occupational promotion of migrant workers, European Working Conditions Observatory, 2009, available at www.eurofound.europa.eu/ewco/studies/tn0807038s/ie0807039q.htm. policies and statements do not stereotype or scape- the Institute for Race Relations based in the United goat migrant workers. Policies to meet labour market kingdom describes the drift away from traditional challenges should not impinge upon the principle of indicators of integration, such as participation in the non-discrimination or detract from efforts to achieve labour market, income levels, inequality and pov- equality. Moreover, the long-term contribution of erty, educational achievement, and home ownership, migrant workers to growth and development in the towards new and less well-defined indicators that countries in which they work needs to be kept con- relate to values and identity.102 Such measures can in- stantly in mind. directly or inadvertently discriminate against certain minority groups. Integration versus assimilation Xenophobia and violence 141. In recent years, progress has been made by governments regarding the integration of migrants 143. Violence against migrant workers is not in labour markets and in society in general. Some new, but it appears to be occurring more widely European countries, such as Austria, Ireland, the and visibly in a greater number of countries. Abuses Netherlands, Norway and Portugal, have adopted may occur within the employment cycle and out- different policies and measures in the form of na- side it, as has been seen with a number of violent tional integration plans, legislation and integration attacks targeting foreigners and their homes and and diversity strategies. businesses. Such incidents have continued in spite 142. At the same time, a debate is taking place of government policies to prevent and stop them. in a number of countries with significant migrant The UN Committee on the Elimination of Racial populations about their experience of multicultur- Discrimination has, for example, expressed concern alism and the policies that have been implemented about the alarming increase in the incidence and in respect of it. The complexities of these debates, severity of racially motivated violence in the Russian touching as they do on fundamental questions of Federation.103 In South Africa, in 2008, more than identity and values, may lead to a shift in emphasis 60 foreign migrants were killed and more than from approaches which focus on labour market in- 10,000 were left homeless in violent anti-foreigner tegration to others which stress assimilation and riots in a number of cities. One of the reasons given cultural conformity. It is, however, essential that fun- by perpetrators of violence was that foreigners had damental principles of non-discrimination at work be taken their jobs.104 In Italy, two days of unrest led to respected and that no one suffer discrimination be- 53 migrant workers being injured and 1,000 sent to cause of his or her identity. In one of its publications, deportation centres.105 102. L. Fekete: Integration, Islamophobia and civil rights in Europe, Institute of Race Relations (London, 2008), p. 57. 103. Committee on the Elimination of Racial Discrimination (CERD): Concluding observations of the Committee on the Elimination of Racial Discrimination, CERD/C/RUS/CO/19, 20 Aug. 2008, pp. 5–6I. 104. I. Awad: The global economic crisis and migrant workers: Impact and response (Geneva, ILO, 2009), p. 37. 105. Office of the High Commissioner for Human Rights: “UN experts urge Italian authorities to curb xenophobic attitude towards migrant workers”, media statement, 12 Jan. 2010. 37
- 54. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.14 A model trade union agreement on migrant workers’ rights In May 2009, three separate bilateral cooperation agreements on the protection of the rights of migrant workers were signed in Colombo (Sri Lanka). The signatories were the leaders of three national trade union centres in Sri Lanka and their counterparts in Bahrain, Jordan, and Kuwait. These agreements were based on a “model trade union agreement on migrant workers’ rights” developed by the ILO’s Bureau for Workers’ Activities and the international trade union movement. Signatories to the agreement committed themselves to promote the ratification and respect of the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), and to actively campaign against racism and xenophobia in society and combat discrimination and misleading propaganda in both the coun- tries of origin and countries of destination of migrant workers. The agreement stresses that the situation of migrant workers should be addressed through the principles of international trade union solidarity, social justice, equal treatment, equal opportunity, and gender equity. The model has since been used in bilateral and multilateral agreements in Asia and Africa and was promoted at a meeting of the ITUC Americas regional organization (TUCA) in December 2009. Box 2.15 New Zealand helping migrant workers to integrate into the job market The School of Linguistics and Applied Language Studies in New Zealand is helping migrants to develop appropriate communication skills in professional workplaces and to gain workplace experience. The Work- place Communications for Skilled Migrants Course benefits the New Zealand community and workplaces by ensuring a speedy and positive entry of migrants into productive work. A cost–benefit analysis has shown that the programme returns NZ$98 to the country’s economy for every dollar spent. Conservative estimates indicate a productivity improvement of $30,000 per graduate per year of employment in 2009. The programme has also been positively received by the New Zealand Rights Commission. Source: New Zealand Human Rights Commission: Race Relations Report 2009. Box 2.16 The new Swedish labour migration policy In December 2008, Sweden introduced reforms to its labour migration policy which significantly opened possibilities to recruit from abroad. The main change is in the process for authorization of employer re- quests. Swedish employers – as before – can request authorization to bring in a foreign worker. As before, they must have advertised the job in Sweden and on EURES, the EEA public employment service clearing- house, prior to approval of the application. The difference in the new policy is that Swedish trade unions no longer have veto power over the application and the Swedish Labour Market Board does not have to find a “shortage”. This has opened recruitment possibilities for low-skilled jobs. The relevant union is given the opportunity to review the offer and provide an opinion as to whether wages, insurance protection and other terms of employment are equivalent to the collective agreement or what is customary for the occupa- tion or the industry. The trade unions, however, cannot reject the application. Verification of job listings is now done by the Swedish Immigration Board rather than the public employment service, accelerating the process. Sweden has also created a shortage list of critical occupations for which foreign workers visiting Sweden on a visa can receive a work permit without having to return home first. This list is meant to make it more practical for foreign workers to come for job interviews and, if a job is offered, to start work as soon as possible and without additional expense. Migrants admitted to Sweden are given equal rights and full access to social benefits. Family reunification is permitted immediately (family members may accompany the worker and, if the work permit is for at least six months, are also granted labour market access). Unemployed immigrants with a work permit have three months (from the date on which they become unemployed) to find a new job. International students are also allowed to change status and obtain a work permit. Source: OECD: International Migration Outlook 2009 (Paris). 38
- 55. FROM PRINCIPLES TO PR ACTICE Limited awareness of rights workers to change employment without their em- ployer’s consent and in the absence of allegations of 144. Migrants’ lack of knowledge of rights and non-payment of wages or abuse. The reform allows legal channels of redress in the event of discrimin- migrant workers to change employment after meeting ation can impede efforts to eliminate discrimination. certain notice requirements and provides a 30-day Research conducted by the European Union Agency grace period to remain in the country legally while for Fundamental Rights (EU-FRA) has revealed dif- they seek new employment. These positive changes ferences between groups of migrants regarding their do not, however, apply to domestic workers.108 rights awareness. In Ireland, for example, 34 per 149. In France, the railway company SNCF an- cent of Central and East European and 57 per cent nounced that it was seeking applications from low- of sub-Saharan African respondents were not aware income neighbourhoods principally inhabited by of anti-discrimination legislation when applying for immigrants, and the Defence Minister unveiled an a job.106 Another study on Filipino migrants found action plan to give priority to the entry of working- that they were unwilling to file cases out of fear of class young people, including young people of im- retaliation, lack of trust in judicial systems and lack migrant descent, into the military academies. In of knowledge regarding judicial possibilities.107 Germany, the North-Rhine Westphalia (NRW) 145. The “right to accurate information” for State Ministry of Education developed a policy con- migrant workers exists at the international level sisting of a range of awareness-raising and encour- under the Migration for Employment Convention agement measures aiming to increase the number of (Revised), 1949 (No. 97), and the 1990 U N teachers with a migration background.109 International Convention on the Protection of the 150. The employers’ group Business in the Rights of All Migrant Workers and Members of Community (BITC) in Northern Ireland has devel- Their Families. An obligation to provide effective, oped the Voluntary Code of Practice on Employing accurate and timely information needs to be an inte- Migrant Worker/Overseas Staff, which is sustained gral part of implementation and enforcement of anti- by consultation with companies. Forty companies discrimination legislation. have signed the code of practice, including those which employ the great majority of migrant workers in Northern Ireland. Their commitment stems from Legal developments and proactive measures a belief that they have a social responsibility to treat people well. While not legally binding, the code is 146. There have been several ratifications of the intended to reinforce best practices as well as pro- ILO Conventions on migrant workers since 2006: viding a guide for employing migrant workers.110 Albania, Armenia, kyrgyzstan, Republic of Moldova, Montenegro, Philippines and Tajikistan have rati- fied the Migration for Employment Convention Diversity policies (Revised), 1949 (No. 97), and Albania, Armenia, Montenegro, Philippines and Tajikistan have ratified 151. At the workplace level, “diversity policies” the Migrant Workers (Supplementary Provisions) provide a promising perspective for the fight against Convention, 1975 (No. 143). discrimination. Many companies have recently come 147. Several countries have adopted explicit and to see diversification of their workforce as providing comprehensive national plans of action addressing a competitive advantage and business opportunity. A racism and xenophobia. Finland and Ireland pro- visibly diverse workforce allows companies to tap into vide examples of such plans which are based on wide new and diverse customer markets. In addition, cor- consultations among government, social partner and porate social responsibility (CSR) plays an important civil society stakeholders. role within an increasing number of enterprises and 148. In 2009, Bahrain adopted the strongest spon- in the allocation of projects by governments, inter- sorship reform in the region by permitting migrant national institutions and multinational enterprises 106. European Union Agency for Fundamental Rights: Rights awareness and equality bodies: Strengthening the fundamental rights architec- ture in the EU III, EU-MIDIS Data in Focus Report 03 (Vienna, 2010), p. 5. 107. United Nations: Report of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, Ninth and Tenth Sessions, General Assembly, 2009, A/64/48, p. 37. 108. Decision No. (79) for 2009, Regarding the mobility of foreign employee from one employer to another. 109. European Union Agency for Fundamental Rights: Annual Report 2008, op. cit., p. 54. 110. Based on information available at the BITC website, www.bitc.org.uk/. 39
- 56. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.17 Diversity charters In 2009, Spain joined countries such as Belgium, France, Germany, Italy and Sweden in implementing a “Diversity Charter”. Diversity charters are among the latest in a series of initiatives aimed at encouraging a diverse workforce. By voluntarily signing the Charter, companies commit themselves to promoting and ad- hering to the fundamental principles of equality and to respect the right to inclusion of all people within the workplace, by implementing specific policies to promote inclusive working environments free of prejudice and discrimination against minority groups. Source: European Commission Employment, Social Affairs and Equal Opportunities, Diversity Charters. Available at http:// ec.europa.eu/social/main.jsp?catId=915&langId=en; and European Institute for Managing Diversity, Diversity Charter, avail- able at www.iegd.org/englishok/charter.html, accessed 9 Nov. 2010. down the supply chain. Benefits can also be gained employment combined with anxieties over labour at the national level. Diversity in workplaces would migration, occurring within a context of economic mean more social cohesion, gains in welfare and and social insecurity. Little has been done to tackle productivity, and would prevent marginalization and those fears and discriminatory attitudes. exclusion of any category of the population. 154. Another trend is the general rise in the 152. Another potential benefit of diversification is number of cases of religious discrimination reported increased innovation. Companies need to adapt to in- to equality commissions. In the United States, the creasingly dynamic environments, not least as a result Equal Employment and Opportunity Commission of economic globalization. A diverse workforce comes (EEOC) registered an increase in the number of re- with a broader vision and set of ideas and can enhance ligious discrimination claims from 2,880 in 2007 to flexibility and adaptation. A study by the European 3,386 in 2009.112 The number of religious discrimin- Business Test Panel (EBTP) notes that companies ation claims made to the French authority respon- today increasingly recognize the link between diversity sible for combating discrimination and promoting and innovation. Sixty-three per cent of the companies equality, the HALDE, increased from 79 in 2007 to surveyed in 2008 recognized the link between diver- 303 in 2009.113 A recent study by the Department for sity and innovation compared to 26 per cent in 2005.111 Work and Pensions in the United kingdom shows that Muslim groups are in a disadvantaged em- ployment position irrespective of the ethnic group Discrimination based on religion to which they belong.114 A 2009 European Union Minorities and Discrimination survey of 14 Member Increasing visibility of religious discrimination States also depicts a high incidence of discrimination for the same population group.115 153. Over the last four years, the number of women and men suffering religious discrimination appears to have grown. Systemic religious discrimin- Manifestation of religion in the workplace ation, where it exists, usually concerns all aspects of life and is not limited to employment and oc- 155. Many countries have specific legislation pro- cupation. This section does not cover such situ- tecting religious beliefs at work. In some countries, ations, where relatively little change has taken place. such as Canada,116 New Zealand,117 Peru,118 and What can be reported as a trend over the last four United States,119 employers have a duty to accom- years is an increase in religious discrimination in modate employees’ religious beliefs and practices. 111. European Commission: Diversity Management in 2008: Research with the European Business Test Panel (Brussels, 2008), p. 4. 112. EEOC information available at www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm, last accessed 21 Jan. 2011. 113. HALDE, op. cit., p. 15. 114. R. Berthoud and M. Blekesaune: Persistent employment disadvantage, Department for Work and Pensions and the Equalities Review, 2007. 115. European Union Agency for Fundamental Rights: European Union Minorities and Discrimination Survey: Data in Focus Report: Muslims, 2009. 116. Canadian Human Rights Act and Employment Equity Act. 117. New Zealand Human Rights Act, section 28(3). 118. A. Bronstein: International and comparative labour law: Current challenges (Geneva, ILO and Palgrave Macmillan, 2009), p. 154. 119. Civil Rights Act of 1964, Title VII (see EEOC Compliance Manual). 40
- 57. FROM PRINCIPLES TO PR ACTICE Box 2.18 Discriminatory practice in Lao People’s Democratic Republic in access to political parties and public service According to the Special Rapporteur on Freedom of Religion and Belief of the Office of the UN High Com- missioner for Human Rights, religious minorities in the Lao People’s Democratic Republic are discouraged from joining the State’s only political party. Christians who wished to join this political party were asked to sign a declaration renouncing their faith. According to the Rapporteur, such a practice places “a glass ceiling on access to, and promotion in, public service for religious minorities and their effective participation in decision-making”. Source: Special Rapporteur on Freedom of Religion and Belief, A/HRC/13/40/Add.4, 2010. In several European countries, including Belgium, Managing a religiously diverse workplace Denmark, Germany and Italy, manifestation of re- ligious beliefs is protected through provisions that 157. While the right to non-disclosure should be prohibit discrimination. In other countries, however, respected, there are many situations in which workers such as Mexico and Turkey, employers are not obliged wish to exercise their faith-related rights. Some to accommodate workers’ religious beliefs, leaving equality bodies provide guidance in this regard. decisions regarding time off work for prayer or per- In the United States, the Equal Employment and mission to wear religious clothing to the individual Opportunity Commission in 2009 published section employer.120 12 of its Compliance Manual which consolidates na- tional case law and the Commission’s own position on the issue.122 In addition, the EEOC has published Freedom not to disclose one’s religion a “best practices” guide which provides advice for both employers and employees on the issue of reli- 156. The right to freedom from discrimination on gion in the workplace. the basis of religious faith includes the right not to 158. The guide advises that it is essential to clearly disclose one’s religious faith to employers or to the define, and consistently apply, policies on time off authorities. Access to employment may be impeded for religious observances. It also advises employees if job applicants are obliged to disclose their religion. to state their religious practices at the beginning of If religious considerations weigh on decisions con- the employment relationship so that advance notice cerning promotion, pay, retention, and other employ- is given of any time needed for religious observance. ment decisions, certain workers can be disadvantaged It emphasizes that constant dialogue can go a long and even stigmatized. Recent legal developments in way towards minimizing any difficulties that might Europe protect the right of non-disclosure of reli- arise. gious faith. For example, in the case Alexandridis v. 159. Similarly, the Equality and Human Rights Greece, the European Court of Human Rights ruled Commission in the United kingdom has published a that Greece was violating the principle of religious series of guides for employers and workers explaining freedom by requiring new lawyers to disclose their the 2010 Equality Act.123 These guidelines address religion as part of the accreditation process. In 2010, the issue of dress codes, underlining the need for the same Court declared that it was a violation of an objective justification of their application.124 The Article 9 of the European Convention on Human guidelines explain that the Equality Act does not re- Rights for Turkey to include a box for religion on quire reasonable accommodation for religious ob- identification cards, even if their holders were al- servance, but if an employer decides to arrange the lowed to petition to leave the space blank.121 working time of some employees for the purposes of 120. Information contained in Ius Laboris: Religious Discrimination in the Workplace, Jan. 2010. 121. European Court of Human Rights: Alexandridis v. Greece, Application No. 19516/06, press release 21 Feb. 2008; and Sinan Isik v. Turkey, Application No. 21924/05, press release 2 Feb. 2010. 122. EEOC: Directives Transmittal No. 915.003, 22 July 2008, concerning section 12 of the new Compliance Manual on “Religious Discrimination”. 123. Equality and Human Rights Commission: Equality Act guidance downloads, available at http://equalityhumanrights.com/advice- and-guidance/new-equality-act-guidance/equality-act-2010-guidance, last accessed 21 Jan. 2011. 124. Equality and Human Rights Commission: “What equality law means for you as an employer: Managing workers”, Vol. 5 of 7, July 2010, p. 22. 41
- 58. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.19 Multiple discrimination: Discrimination based on political belief and religious discrimination Complaints of political discrimination are often filed together with religious discrimination and thus amount to a form of multiple discrimination. In the case of Andrews and others v. WA McDonald (Local Government Auditor), the only case of the three cases from Northern Ireland that were reviewed for which an appeal was granted, the judge stated during his final remarks: “For the reasons set out below, I find as a fact that the decision to appoint Mr Connor as Chief Ex- ecutive was influenced by an irrelevant consideration, i.e. actual or perceived religious belief or political opinion. There is clear evidence of party voting. As recorded above, no member with a perceived Protestant religious belief and/or Unionist political affiliation voted for Mr McSorley in the final round of voting on 3 February 2000. All members with a perceived Protestant religious affiliation and/or Unionist political affili- ation voted for Mr Connor in the third (final) round of voting.” religious observance, that must then be applied in an in the case of hiring or discontinuing employment. equal manner to employees of all religions.125 It may occur in individual cases or in a more sys- 160. In 2009, the French employer organization tematic manner. Individual cases related to access IMS Entreprendre pour la Cité published a guide to or termination of employment are sometimes dif- for managing religious diversity in the workplace. ficult to prove. Some laws, however, such as the 1991 The guide begins by explaining the French legal Screening Act in the Czech Republic, which was still framework on religious discrimination in the work- in force in 2009, require job applicants to satisfy cer- place, and goes on to explain the dietary restrictions tain political prerequisites in order to attain certain of various religions, provides a calendar of religious jobs and occupations in the public service.128 holidays, as well as descriptions of various forms of 163. In some political parties, support and mem- religious dress. This quick reference guide is a useful bership are closely linked to ethnic, linguistic or re- tool for employers to assist them in understanding ligious identity. In such instances, discrimination certain religious practices and restrictions and man- based on political opinion may also coincide with aging effectively a diverse workplace.126 those other grounds. One example of this is a case brought before an appeals court in Northern Ireland (see box 2.19). Discrimination based on political opinion 164. Discrimination on grounds of political opinion may also be combined with anti-union 161. Protection against discrimination based on discrimination. In such cases, trade unionists are political opinion generally covers people in respect typically accused of engaging in unacceptable pol- of their activities opposing established political prin- itical activities. The ILO Committee on Freedom ciples, or simply demonstrating a different opinion.127 of Association (CFA) has dealt with several cases in This right is inextricably linked to the protection of which governments have argued that workers and freedom of expression which is considered to cover their representatives were undertaking illegal pol- the expression of political views so as to enable indi- itical action, when in reality they were exercising viduals and groups to influence decisions on political their legitimate trade union rights. economic and social issues. 162. The Gallup International Millennium Survey suggests that political discrimination persists world- Legislative measures wide, in addition to increasing levels of gender and racial discrimination. Most formal complaints appear 165. Many countries have legislation prohibiting to concern political allegiance, including patronage, discrimination based on political opinion. Most of 125. Equality and Human Rights Commission: “What equality law means for you as an employer: Working hours, flexible working and time off”, Vol. 2 of 7, July 2010, p. 30. 126. IMS Entreprendre pour la Cité: Gérer la diversité religieuse, Guide pratique, Mar. 2009. 127. ILO: Equality in employment and occupation, General Survey by the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 75th Session, Geneva, 1988, para. 57. 128. Act of 4 October 1991 determining some further prerequisites for certain positions in state bodies and organizations of the Czech and Slovak Federative Republic, the Czech Republic and the Slovak Republic. 42
- 59. FROM PRINCIPLES TO PR ACTICE Box 2.20 Political and anti-union discrimination in Fiji In 2010, the Committee on Freedom of Association (CFA) addressed a case regarding the government dis- missal in 2008 of a school principal who was also the President of the Fijian Teachers’ Association (FTA). In response to a speech in support of the launch of the Movement for Democracy, given at FTA headquar- ters by the principal in his capacity as FTA President, the Government terminated his employment contract and charged him with three offences for violating Fiji’s Public Service Code of Conduct under the Public Service Act. The Government argued that the dismissal was necessary as the Code of Conduct stipulates that political participation is not allowed unless the Secretary for the Public Service gives approval. How- ever, in its decision, the CFA noted that workers and trade union officials enjoy the right to protection from acts of anti-union discrimination, including dismissal, demotion, transfer, and other prejudicial measures. Furthermore, the Committee noted that trade union officials should be protected from dismissal in order to protect the right of workers’ organizations to elect their representatives in full freedom. The Committee broadly concluded that trade union organizations may not be banned from political activities, since there is an intersection between the interests of trade unions and government policies, while the right to freedom of expression should be guaranteed in order for workers’ and employers’ organizations to be able to exercise freedom of association. As it is the duty of the Government to prevent acts of anti-union discrimination, and the school principal was expressing views that fall within protected speech outside the employment relationship, the Committee called on the Government to reinstate the school principal. Source: ILO: 358th Report of the Committee on Freedom of Association, Governing Body, 309th Session, Nov. 2010, GB.309/8, paras 523–558. these provisions make reference to political opinion Discrimination based on social origin or beliefs, while others refer to political affiliation. In Canada, for example, political belief is defined as 167. The problem of discrimination on the basis belief in the tenets of a registered political party as of social origin arises when an individual’s member- demonstrated by membership, contribution, or open ship of a class, socio-occupational category or caste and active participation in that party.129 In Croatia, the determines or influences his or her occupational situ- Anti-Discrimination Act of May 2009 provides for the ation either by denying access to certain jobs or activ- protection and promotion of equality as the highest ities or, on the contrary, by assigning that person to value of the constitutional order of the Republic of certain jobs. Although nowadays such situations are Croatia, and regulates protection against discrimin- less frequently encountered in a pronounced form, ation on the grounds of political or other belief, inter prejudices and preferences based on social origin alia.130 may persist even where rigid stratification has disap- 166. In Mauritius, the Equal Opportunities Act peared. Even in open societies, where social mobility 2008 prohibits discrimination on grounds of political is common, a number of phenomena continue to opinion, although it recognizes the validity of pol- impede complete equality of opportunity for various itical considerations when appointing ministerial ad- social categories, despite measures adopted to in- visers or staff members of a political party. In Serbia, crease mobility and opportunities.132 article 25 of the 2009 law on the Prohibition of Discrimination prohibits discrimination against an individual or a group of individuals on the grounds Caste-based discrimination of political beliefs or of membership or non-member- ship of a political party or trade union.131 168. Caste-based discrimination remains most widespread in the case of the Dalit population in South Asia. This includes limited access to certain 129. Human Rights Act, Ch. H-12. 130. Anti-Discrimination Act, 2009. 131. See Ministry of Labour and Social Policy of the Republic of Serbia/UNDP: Law on the Prohibition of Discrimination, unofficial translation solicited by UNDP Serbia in the framework of the project “Support to the Implementation of Anti-discrimination Legislation and Mediation in Serbia”, available at ILO NATLEX database. 132. ILO: Equality in employment and occupation, op. cit., Ch. I: Scope of the Convention as regards individuals, definition and grounds of discrimination. 43
- 60. EqUALITy AT WORk: THE CONTINUING CHALLENGE types of jobs, and wage gaps in comparison with castes. A new Five-year Plan (2007–12) includes the other population groups.133 There are also consid- aim of further elimination of discrimination based erable differences between castes in terms of educa- on social origin. Furthermore, the plan recognizes tional attainment.134 the role of comprehensive legislation protecting 169. In 2008, the Ministry of Finance of Nepal rights to education and employment and the pos- acknowledged the cultural and economic discrimin- sibility of affirmative action in the private sector. ation experienced by Dalits and Madeshi.135 While at The country also has a quota system for individuals work, at least in rural areas, Dalits must maintain a in scheduled castes in the public sector as a further physical distance from upper-caste co-workers, and means to eliminate discrimination. In addition, the the two groups may not eat or drink water from the Self-Employment Scheme for the Rehabilitation of same pitcher to prevent “contamination”.136 Social Manual Scavengers was developed to eliminate caste perceptions about certain castes limit employment confinement to menial jobs.140 opportunities and subject members of those castes to 173. Another example of differential treatment humiliation in their everyday lives and at work. based on social origin relates to people coming from 170. A f ield study conducted by the Indian rural communities. In China, new laws have been Institute of Dalit Studies demonstrated discrimin- implemented over the past four years to improve ation against low-caste individuals in hiring practices the situation of internal rural migrant workers. The in the Indian private sector. The chances of a qual- law on employment promotion was introduced in ified applicant with a Dalit name being invited for January 2008 to end discrimination against internal an interview was about two-thirds of that of a high- migrant workers. For the first time, the law states caste Hindu applicant. The chances of an equally that rural migrant workers should have the same qualified Muslim applicant being invited for an in- rights to employment as urban workers, and that terview were found to be about one third of that of a workers who have been in the city for more than six high-caste Hindu applicant.137 months will be entitled to unemployment benefits 171. Although a formal caste system does not exist and services from the local government.141 in Bangladesh, individuals who are confined to cer- tain occupations and typically live in extreme pov- erty in isolated areas experience treatment similar to Discrimination based on HIV status those in untouchable castes.138 Examples of specific groups include the Mymal, who work as fishermen, 174. The Joint United Nations Programme on the kulies, who work in tea gardens, and the Bede, HIV/AIDS (UNAIDS) estimates that in 2009 about who are engaged in snake charming.139 33.3 million people around the world were living with HIV and AIDS, with an average of 2.6 million new infections annually.142 The majority of working- Legislative and policy developments age people living with HIV (90 per cent) are engaged in some sort of employment.143 172. India has various schemes such as education grants, subsidies and loans, with the goal of improving the education and economic situation of scheduled 133. ILO: Discrimination at Work in Asia, DECLARATION fact sheet, 2007. 134. T. Ito: “Caste discrimination and transaction costs in the labour market: Evidence from rural North India”, in Journal of Develop- ment Economics 88 (2009), pp. 292–300. 135. Ministry of Finance: Budget Speech of fiscal year 2008–09, delivered to the Legislature-Parliament, 19 Sep. 2008, p. 5. 136. ILO: Dalits and labour in Nepal: Discrimination and forced labour (ILO Nepal, 2005), p. 41. 137. S. Thorat, P. Attewell and F. F. Rizvi: Urban labour market discrimination, Indian Institute of Dalit Studies, Working Paper Series Vol. III, No. 1 (2009), p. 1. 138. Government of People’s Republic of Bangladesh, General Economics Division: Bangladesh: Unlocking the potential – National Strategy for Accelerated Poverty Re-education, 16 Oct. 2005, p. 160. 139. ibid. 140. ILO: Information cited in CEACR individual observation published 2010 concerning the application by India (ratification: 1960) of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). 141. ITUC: Internationally recognised core labour standards in the People’s Republic of China, Report for the WTO General Council Review of the trade policies of the People’s Republic of China, Executive Summary, Geneva, 21 and 23 May 2008, p. 12. 142. Joint United Nations Programme on HIV and AIDS (UNAIDS): UNAIDS report on the global AIDS epidemic (Geneva, 2010), pp. 16, 23. 143. ILO: Saving lives, protecting jobs: International HIV and AIDS Workplace Education Programme, SHARE ( Strategic HIV and AIDS Responses in Enterprises) (Geneva, 2008), p. 3. 44
- 61. FROM PRINCIPLES TO PR ACTICE Box 2.21 Why should I employ someone with HIV? A 2008 UNDP study from Estonia, Georgia, the Russian Federation, Ukraine and Uzbekistan found that participants with HIV and AIDS showed a high level of sensitivity to the potential for discrimination in the workplace. Almost all participants said that obtaining a job would be impossible if they disclosed their status during the application process. Many participants lacked the motivation to seek work owing to fear of rejection, and resigned themselves to unemployment or to participation in the informal sector. One well- educated woman living with HIV said that her status would either prevent her from being hired altogether or would relegate her to low-level, manual labour. Participating employers disclosed that, when choosing between an applicant with HIV and one without, their inclination would be to hire the non-infected person. A Georgian employer asked, “Why should I employ someone with HIV and spend more on an infected person when I can employ someone else?” As a result of this discrimination, many PLHIV revealed that they would conceal their status, provide falsified documents attesting to their health when required by an employer, or pay bribes to keep their status secret. Source: ILO AIDS and UNDP [Bratislava Regional Centre]: Living with HIV in Eastern Europe and the CIS: The Human Cost of Social Exclusion (Bratislava, 2008). Marginalization of persons HIV testing and screening living with HIV and AIDS 177. Discrimination against PLHIV in the work- 175. Stigma and discrimination against persons place often takes the form of mandatory HIV living with HIV (PLHIV) are key human rights and testing, which is carried out to determine the HIV development issues that have a direct impact on the status of job applicants and workers. Other forms of workplace. Discrimination on the basis of real or per- discriminatory testing would include testing under ceived HIV status can result in workers being unable conditions which are not genuinely voluntary and are to access employment and may lead to those in em- therefore not based on informed consent, or which ployment losing their livelihoods. Discrimination do not guarantee the confidentiality of test results. also deters individuals from accessing prevention Discriminatory screening may also be used, often measures such as voluntary HIV testing, as well taking the form of questions aimed at determining as treatment, care and the support services needed the propensity of workers to engage in high-risk be- to halt the spread of the pandemic and mitigate its haviours or lifestyle choices that could lead to an impact.144 HIV infection. Such screening can result in HIV- 176. In India, for example, employment is often related discrimination based on stereotyping. An denied at the time of recruitment if the applicant is ILO-commissioned study in East Asia revealed that HIV-positive, and employment may be terminated some employers conducted “voluntary” testing yet at if the applicant’s status is discovered after hiring. the same time did not hire those individuals who re- Discrimination is also common in less explicit forms fused to participate “willingly”. such as gradual demotions, ostracism or physical 178. The HIV and AIDS Recommendation, 2010 separation, and/or employers asking HIV-positive (No. 200), provides that HIV testing should always workers not to report to work despite being kept on be voluntary, with pre- and post-test counselling, and the payroll.145 Changes in job requirements may be that testing or screening should never be carried out made to impose additional burdens on PLHIV and for employment purposes. All HIV-related informa- force them into leaving their jobs.146 HIV-positive tion should be kept confidential. Moreover, all HIV workers may be denied both compassionate employ- testing programmes should respect international ment (flexible working arrangements) and benefits guidelines on confidentiality, counselling and con- granted to individuals suffering from other illnesses, sent, and HIV testing should not endanger access such as payments to surviving spouses. to jobs, tenure, job security, or opportunities for ad- vancement. Where a medical examination is carried out, its purpose should be to assess an individual’s 144. OHCHR and UNAIDS: Handbook on HIV and Human Rights for National Human Rights Institutions (Geneva, 2007), p. 10. 145. See N. Maske and S.M. khare: HIV and AIDS and human rights: An Indian perspective, Social Science Research Network eLibrary (2009), p. 9. 146. OHCHR and UNAIDS, op. cit., p. 10. 45
- 62. EqUALITy AT WORk: THE CONTINUING CHALLENGE medical fitness to carry out the tasks associated with 182. Workers’ organizations are also empha- the position in question. sizing the important role of the workplace in the struggle against HIV and AIDS. The ITUC has coordinated the Global Unions AIDS Program, Recent legal developments which has strengthened global advocacy efforts and and remaining gaps local affiliate initiatives for dealing with HIV and AIDS. A delegation of trade unionists, supported 179. The Namibian Parliament included HIV by the ITUC, encouraged the 2008 International status as a prohibited reason for discrimination in A IDS Conference to address workplace a nd amendments to its Labour Code in 2007. Laws in the labour market dimensions of the pandemic.148 Bahamas, Malawi, South Africa and Zimbabwe pro- The ITUC 2nd World Congress in Vancouver hibit the use of mandatory HIV testing of job appli- (21–25 June) also adopted a resolution on fighting cants by employers.147 The Government of Fiji adopted HIV/AIDS. the Employment Relations Promulgation (No. 36) on 183. Initiatives by social partners include the 2 October 2007. This expressly prohibits discrimin- ITUC–AFRO/IOE joint capacity-building meeting ation in the workplace on the basis of real or perceived on HIV/AIDS for employers’ and workers’ organiza- HIV status and makes it an offence either directly or tions, hosted by the Ugandan employers’ and workers’ indirectly to screen for HIV or require HIV testing, organizations. In Ghana, the social partner organiza- testing for sexually transmitted infections (STIs), tions jointly implemented an HIV/AIDS project. In and/or screening for risky behaviours as a condition cooperation with the Canadian Labour Congress, the for employment. Despite these encouraging legal de- ITUC’s regional organization in Asia and the Pacific, velopments, 33 per cent of countries that reported to ITUC–AP, carried out a survey among its affiliates UNAIDS in 2008 said that they had no legal protec- on trade union responses to HIV/AIDS and held a tion in place against HIV-related discrimination. conference to agree on a regional strategy that in- 180. Before the adoption of Recommendation cludes promotion of the ILO code of practice. No. 200, significant advances were made on the protection of the rights of PLHIV in the workplace through the 2001 ILO code of practice on HIV/ Discrimination based on disability AIDS and the world of work, which establishes ten key principles, including non-discrimination, the Pervasive inequalities in employment right to continuation of the employment relationship, and a ban on mandatory HIV testing and screening 184. Approximately 650 million people worldwide, for employment purposes. Since 2007, countries such or about 10 per cent of the world’s population, have as India and Sri Lanka have adopted national policies physical, sensory, intellectual or mental impairments incorporating these principles. of one form or another. Over 470 million of them are of working age.149 In the United States, a monthly survey by the Department of Labor found that per- Role of the social partners sons with disabilities had an unemployment rate of 16.2 per cent, compared to a 9.2 per cent rate for 181. Employers’ associations, supported by the persons without disabilities.150 In Sweden, in 2008, International Organisation of Employers (IOE), pro- 62 per cent of persons with disabilities were em- vide leadership and advocacy in addressing HIV and ployed compared to 75 per cent of non-disabled per- AIDS-related issues as well as offering guidance and sons.151 Because of national differences in definitions practical support for their members. For example, the and statistical methods, it is difficult to draw com- Barbados Employers’ Confederation has helped the parisons, but the employment gap appears consist- Ministry of Labour to draft a national code for the ently across countries. workplace, and has provided training materials and 185. Persons with disabilities are also more likely guidance for its members. to earn lower wages. Figures from the United States 147. UNAIDS, op. cit., p. 77. 148. ITUC: Report on activities of the Confederation for the period 2006 to 2009, 2nd World Congress, Vancouver, 21–25 June 2010, p. 88. 149. Based on the World Health Organization’s estimate and the United Nations World Population Prospects: The 2006 Revision. 150. European Commission: Report of the EU–US Seminar on Employment of Persons with Disabilities, Brussels, 5–6 Nov. 2009. 151. Based on B. Danermark: Report on the employment of disabled people in European countries: Sweden, Academic Network of European Disability experts (ANED) VT/2007/005, 2009, p. 4. 46
- 63. FROM PRINCIPLES TO PR ACTICE Box 2.22 Reasonable accommodation under the Americans with Disabilities Act The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Sears, Roebuck & Co. which was resolved in September 2009 and resulted in the largest Americans with Disabilities Act (ADA) settlement in a single lawsuit in EEOC history. The EEOC had alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. Under the terms of the ruling, the EEOC provided claim forms to certain Sears employees who had been terminated under Sears workers’ compensation leave policy. The claimants were asked to report to the EEOC, among other things, the extent of their impairments, their ability to return to work at Sears, and whether Sears had made any attempt to return them to work. Based on these criteria, the EEOC found that 235 individuals were eligible to share in the settlement. The average award was approximately $26,300. Source: EEOC: “Court Approves $6.2 Million Distribution in EEOC v. Sears Disability Settlement”, press release, 5 Feb. 2010. show that, in 2007, the median earnings of working- and around four in every five children with disabil- age persons with disabilities who worked full time ities are in developing countries.156 Since education all year round were US$34,200, as compared to is a key determinant of future job prospects, limited $40,700 for persons without disabilities.152 In the education may lead directly to future difficulties in Republic of korea, persons with disabilities earn an the labour market. average of $18,888 per year, compared to $28,800 188. Furthermore, even if many persons with for people without disabilities.153 disabilities have the potential to earn decent liveli- 186. Generally, persons with disabilities are more hoods, they frequently do not have equal access to prone to poverty. According to the World Bank, vocational training opportunities.157 In Viet Nam, around 20 per cent of the world’s poor have a disa- for example, there are approximately 1 million per- bility 154 and the United Nations estimates that 80 per sons with disabilities who could benefit from voca- cent of persons with disabilities in developing coun- tional training, but providers are scarce and most are tries live in poverty, many of them in rural areas.155 located in urban areas. As a result, each year only 5,000–6,000 persons with disabilities are able to re- ceive appropriate skills development.158 Additionally, Limited access to education in many countries, workers who acquire disabilities and vocational training do not always have access to vocational rehabilitation and return-to-work programmes. 187. Persons who are born with disabilities may face exclusion from an early age. According to the United Nations Educational Scientific and Cultural Failure to provide reasonable accommodation Organization (UNESCO), children with disabilities face many challenges in education, including institu- 189. Failure to make reasonable adjustments at tionalized discrimination, stigmatization and neglect, work and the workplace, also known as “reasonable in the classroom, the local community and their own accommodation”, is increasingly considered to be an homes. Available figures suggest that approximately unacceptable form of employment discrimination.159 150 million children worldwide live with disabilities Reasonable accommodation includes adjustment and 152. W. Erickson and C. Lee: 2007 Disability Status Report: United States (Ithaca, Ny, Cornell University Rehabilitation Research and Training Center on Disability Demographics and Statistics, 2008), p. 30. 153. Ministry of Labour: Statistics on employment for persons with disabilities, 2007, p. 75. 154. ILO: Facts on disability and decent work (Geneva, 2009). 155. ibid. 156. UNESCO: Reaching the marginalized (UNESCO and Oxford University Press, Paris/United kingdom, 2010), p. 182. 157. Based on ILO: Strategies for skills acquisition and work for people with disabilities in Southern Africa, Synthesis Report (Geneva, 2007), p. 1. 158. Based on ILO–OHCHR: Report of the Sub-regional Meeting on Disability Legislation: Decent Work for Persons with Disabilities in Asia, Bangkok, 23–24 June 2008, p. 25. 159. ILO: Achieving equal employment opportunities for people with disabilities through legislation: Guidelines (Geneva, 2007), p. 30. 47
- 64. EqUALITy AT WORk: THE CONTINUING CHALLENGE modification of machinery and equipment, modi- persons with disabilities. Existing disability legis- fication of job content, working time and work or- lation in countries such as Cyprus (2007) and China ganization, and adaptation of the work environment was amended and improved. In the case of Cyprus, to provide access to the place of work, in order the Law on Persons with Disabilities was amended to to facilitate the employment of individuals with harmonize it with European Directive 2000/78/EC. disabilities.160 The burden of proof and the employer’s obligation 190. Many discrimination complaints filed by to provide reasonable accommodation in the work- persons with disabilities arise when employers fail place are the main changes in this amended law.164 In to provide reasonable accommodation for em- China, the amendment to the Law on the Protection ployees. During 2008–09, the Australian Human of Disabled Persons added details about stable finan- Rights Commission received 980 complaints re- cial support, better medical care and rehabilitation lated to disabilities, representing 43 per cent of for persons with disabilities, along with favourable all complaints received; 40 per cent of these were jobs and tax policies.165 employment-related.161 The New Zealand Human Rights Commission indicated that 26.8 per cent of all complaints received in 2008 were related to Enhancing the employability disability, with over 27.7 per cent of these being of persons with disabilities employment-related.162 Between 2007 and 2009, 102 out of a total of 206 cases of discrimination 192. Numerous initiatives have been adopted by in employment presented to the Canadian Human governments in this area. In Jamaica, for example, Rights Commission (CHRC), almost 50 per cent, during 2008 and 2009, the Government allocated were related to disabilities.163 20 million Jamaican dollars to a project intended to provide small loans for persons with disabilities wishing to start up their own businesses.166 In the Recent efforts to provide United kingdom, the Government guaranteed places adequate legal protection on the Access to Work programme for 2,000 people with learning disabilities and 1,500 people with 191. An important advancement in terms of dis- mental health conditions in 2008.167 In Slovenia, in ability legislation has been the entry into force in 2007, 27 per cent more people were included in voca- 2008 of the United Nations Convention on the tional rehabilitation programmes than in 2006.168 In Rights of Persons with Disabilities. In recent years, China, the Government operated 3,713 vocational countries such as Mozambique and kazakhstan have education and training schools in 2008, providing also adopted or amended their labour legislation training and job-placement services for 774,000 per- to include measures addressed to persons with dis- sons with disabilities.169 abilities. In 2007, Chile and the Republic of korea 193. Social partners have also been active in pro- adopted disability legislation prohibiting discrimin- ducing guidelines or implementing good practices ation. Other countries, such as Thailand (2007), regarding accommodation for employees with disabil- Jordan (2007), Spain (2007), Ethiopia (2008), ities. In 2010, the Public Service Alliance of Canada Malaysia (2008), Cambodia (2009) and Viet Nam (PSAC) produced a guide to help union represen- (2010), have adopted specific laws on the rights of tatives better understand the issue of accommodation 160. See ILO: Code of practice on managing disability in the workplace (Geneva, 2002). 161. Australian Human Rights Commission: Annual Report 2008–09, pp. 53–67. 162. New Zealand Human Rights Commission: 2008 Annual Report of the Human Rights Commission and the Office of Human Rights Proceedings for the year ended 30 June 2008. 163. Based on Canadian Human Rights Commission: “Resolving Disputes: Settlement Examples”, available from www.chrc-ccdp.ca/ disputeresolution_reglementdifferends/se_ee-en.asp, last accessed 21 Jan. 2011. 164. European Network of Legal Experts in the Non-Discrimination Field: “Cyprus: Legislative developments”, in European Anti- discrimination Law Review, No. 6/7 (2008), p. 81. 165. ILO: Inclusion of people with disabilities in China, fact sheet (Geneva, 2009). 166. Economic Commission for Latin America and the Caribbean (subregional headquarters for the Caribbean): A further study on dis- ability in the Caribbean: Rights, commitment, statistical analysis and monitoring (2009), p. 11. 167. Based on “Measures to help people with mental health conditions into work”, in Equal Opportunities Review, Issue No. 199 (2009). 168. ILO: CEACR direct request submitted in 2010 concerning the application by Slovenia (ratification: 1992) of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). 169. ITUC: Internationally recognised core labour standards in the People’s Republic of China, Report for the WTO General Council Review of the Trade Policies of the People’s Republic of China, Geneva, 10 and 12 May 2010, p. 11. 48
- 65. FROM PRINCIPLES TO PR ACTICE and to understand the respective roles and respon- 599 claims related to age discrimination in 2009, sibilities of the employer, the individual worker and compared to only 78 in 2005.175 In the United States, the union in the accommodation process.170 the figures for the same years for charges under the 194. Denmark’s Creativ Company A/S has been Age Discrimination in Employment Act were 22,778 offering flexible working hours, adapting tasks de- against 16,585 respectively.176 In Australia during the pending on ability and running a training centre for period 2009–10, 174 age-related complaints were re- persons with disabilities.171 Similarly, McDonald’s ceived by the Human Rights Commission, compared Latvia, in cooperation with one non-governmental to 106 during the period 2005–06.177 In Belgium, organization, seeks the integration of persons with the Centre for Equality of Opportunities and Fight intellectual disabilities and mental illness into the against Racism received 40 cases in 2009 compared labour market. Shorter working periods and the as- to 27 in 2006.178 sistance of a social worker have proven useful for this 196. In a November 2009 survey conducted by initiative.172 the European Commission, 58 per cent of Europeans consider age discrimination to be widespread in their country, compared to 42 per cent in 2008. There is a Discrimination based on age clear link with the current economic situation, with 64 per cent of people expecting the financial crisis to An increase in age-related complaints lead to more age discrimination in the labour market. 195. Against a background of widespread labour market measures seeking to increase the partici- Measures to achieve equality for older workers pation of workers at higher ages, for example, by re- vising retirement age provisions, there is evidence 197. Increasingly, countries are making efforts of increased awareness and reporting of age-related to enact legislation on age discrimination. Some discrimination. Within the first 13 months of imple- 29 countries 179 have legislation explicitly prohibiting menting the Age Regulations in Northern Ireland, direct and indirect age discrimination.180 Although the Equality Commission received 277 inquiries re- Canada has no federal legislation regulating age dis- garding age discrimination, making up 9 per cent of crimination at the national level, almost all the prov- total inquiries during that period.173 In the United inces address age discrimination in employment. kingdom, statistics from the Employment Tribunal 198. One advantage of having age-specific legis- Service show a considerable increase in age discrimin- lation is that its provisions can be clearly identified ation claims, from 972 in 2006–07 to 2,949 in by employers and workers alike.181 In some countries, 2007–08 and 3,801 in 2008–09. This increase may the law does not distinguish between direct and in- suggest greater awareness of age discrimination and direct discrimination. Such laws can, however, still workers’ rights.174 In France, the HALDE received be effective as long as the different manifestations 170. PSAC–AFPC: Duty to accommodate: A PSAC guide for local representatives, 25 May 2010, available online at http://psac.com/what/ humanrights/Duty_to_accommodate-e.shtml. 171. E. Heckl and I. Pecher: Providing reasonable accommodation for persons with disabilities in the workplace in the EU – good practices and financing schemes – Contract VC/2007/0315 (Vienna, Austrian Institute for SME Research, 2008), p. 92. 172. ibid., p. 11.2. 173. Equality Commission for Northern Ireland: Awareness of the age regulations and attitudes of the general public in Northern Ireland towards age-related issues, June 2008, p. 51. 174. Tribunals Service: Employment Tribunal and EAT Statistics (GB) 1 April 2008 to 31 March 2009, p. 6. 175. HALDE, op. cit., p. 15. 176. According to information published by the Equal Employment Opportunity Commission. 177. Australian Human Rights Commission: Annual report 2009–10, p. 77. 178. Centre pour l’égalité des chances et la lutte contre le racisme: Rapport annuel 2006, p. 20, and Rapport annuel 2009, p. 81. 179. Australia, Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Guyana, Hungary, Ireland, Italy, Latvia, Lithu- ania, Luxembourg, Malta, Netherlands, New Zealand, Norway, Poland, Portugal, Saint Lucia, Slovakia, Slovenia, South Africa, Spain, United kingdom and United States. 180. In order for age anti-discrimination legislation to be fully effective, it is important to distinguish between direct and indirect age discrimination. Direct discrimination based on age is defined as less favourable treatment of one person than another which would not occur if two people of the same age were compared. Age-limited employment advertisements are an example of the forms that direct discrimination can take. Indirect age discrimination goes beyond what is directly observable and covers potentially discrim- inatory practices such as job advertisements that over-emphasize physical qualities that are not actually required by the job. 181. N. Ghosheh: Age discrimination and older workers: Theory and legislation in comparative context, Conditions of Work and employ- ment Series, No. 20 (Geneva, ILO, 2008), p. 19. 49
- 66. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.23 British Telecom and older workers British telecom (BT) in the United Kingdom has introduced several policies to help its older employees, in- cluding flexible working arrangements, encouraging people of all ages to improve their mental and physical well-being, and the career-life planning tool, which helps employees to develop their careers at every stage of their life. BT’s own research shows that employees who take advantage of flexible work arrangements (14,000 of them working from home) have increased their productivity by, on average, around 20 per cent and are 7 per cent happier at work. Workers aged over 50 make up 5 per cent of BT’s new recruits. Source: Human Resources Management International Digest, Vol. 17, No. 2 (2009). of direct and indirect discrimination are addressed: The situation of younger workers in the same legislation, in other laws, or in judicial decisions.182 202. According to the European Commission,186 199. Policies at the national and enterprise level young people (people aged from 15 to 24 years) have can complement legislation and play a major role in been proportionally worst affected by the current addressing myths and overcoming stereotypes con- downturn, experiencing a decline in employment of cerning older workers. A number of countries, such 7.3 per cent between 2008 and 2009. In both indus- as Australia, Finland, Netherlands, Norway and the trialized and developing economies, young people are United kingdom, have conducted large-scale gov- more likely to find themselves working longer hours ernment-sponsored information campaigns aimed at in informal employment, intermittent work and in- overcoming employer reluctance to hire and retain secure arrangements, which tend to be characterized older workers. For instance, the United kingdom’s by low productivity, low wages and limited labour Age Positive campaign seeks to promote and raise protection.187 awareness of the benefits of an age-diverse workforce 203. Difficulties faced by young people in the through research and publications, the press, special labour market cannot all be attributed to discrimin- events, awards and its own website.183 ation. Economies struggle to absorb the growing 200. In recent years, bipartite and tripartite agree- number of highly educated, highly skilled graduates ments on lifelong learning have been on the in- emerging in increasing numbers from education sys- crease. Collective bargaining and social dialogue tems each year. This situation is generally worse still with governments have led in many countries, such for those who enter the labour market with no or low as Malaysia and Singapore,184 to the establishment qualifications. Another factor is the relatively lower of training funds that finance lifelong learning pro- level of generic and job-specific work experience grammes. Similarly, the European social partners compared to older applicants. have identified lifelong learning as a priority in their 204. The European Union has undertaken the work programmes. “new start” initiative for young people, which pro- 201. The Republic of korea has enacted affirma- vides a tailor-made programme for every young tive action legislation under which businesses are person who has been unemployed for six months, required to ensure that at least 3 per cent of their offering training, retraining, work practice or a job, workers are aged 55 years or older. Furthermore, its combined – where appropriate – with ongoing job Aged Employment Promotion Law identifies types search assistance. Initiatives in the United kingdom of jobs, such as parking lot attendant and bus ticket include the New Futures Fund (NFF), which pro- seller, for which hiring priority should be given to vides intensive support and help for young un- older workers.185 employed people aged between 16 and 34 years. 182. N. Ghosheh, op. cit., p. 23. 183. www.dwp.gov.uk/age-positive/, last accessed 21 Jan. 2011. 184. ILO: Lifelong learning in Asia and the Pacific, report for the ILO Regional Tripartite Meeting, Bangkok, 8–10 Dec. 2003, p. 14. 185. United Nations: World economic and social survey 2007: Development in an ageing world, Department of Economic and Social Affairs (New york, 2007), p. 62. 186. European Commission: Employment in Europe 2009 (Luxembourg, Office for Official Publications of the European Communities, 2009). 187. ILO: Employment and social protection in the new demographic context (Geneva, 2010), p. 65. 50
- 67. FROM PRINCIPLES TO PR ACTICE Discrimination based on sexual orientation Progress on anti-discrimination measures 205. Human rights violations against lesbian, gay, 208. In 2009, the Charter of Fundamental bisexual, and transgender (LGBT) persons include Rights of the European Union came into force with violence, harassment, discrimination, exclusion, the ratification of the Lisbon Treaty. The Charter, stigmatization and prejudice. This is particularly which strengthens and widens the non-discrim- true in countries where homosexuality is criminal- ination provisions of the Employment Equality ized. Meanwhile, this group in most countries faces Directive of 2000, is the first international human barriers to employment or at the workplace. Some rights instrument to completely prohibit discrimin- studies have identified discrimination as being re- ation based on sexual orientation (Article 21.1). A sponsible for a salary gap of 3 to 30 per cent between number of EU countries are amending their legis- gay and non-gay employees. A study in the United lation in order to bring it into compliance with the kingdom based on data from the Labour Force EC directives. Survey found that gay men were paid around 5 per 209. In 2009, Argentina, the Philippines and cent less on average than non-gay counterparts.188 Uruguay ended their bans on gays serving in the 206. LGBT workers with partners do not always armed forces, while in 2010 a district court in the acquire the same benefits as married couples, par- United States declared the country’s “don’t ask, don’t ticularly since gay marriages are not recognized in tell” policy unconstitutional and ordered the military much of the world. Often LGBT workers lack the to put an end to its implementation. A study released right to include partners in company health insur- in late 2010 revealed a widespread attitude among ance plans, medical leave guarantees, and other service members that the repeal of “don’t ask, don’t benefits shared by non-LGBT workers.189 As a conse- tell” would not negatively impact their ability to con- quence, they may be financially penalized indirectly duct military missions.190 The policy was repealed by in the workplace or society on the grounds of their the President in December 2010. sexual orientation. 210. Meanwhile, some more countries are now al- 207. The health and well-being of LGBT workers lowing partnership rights, civil unions or same-sex who remain closeted owing to fear of discrimination marriages and, as a consequence, extending related may also be adversely affected, reducing workplace employment benefits to same-sex partners.191 productivity of LGBT staff. Workplaces that dismiss employees because of their perceived or actual sexual orientation may also lose skills and waste resources Trade unions taking action on recruiting and training replacements. LGBT workers are more likely to perceive their workplace as 211. Trade union confederations and their af- inclusive if management prioritizes equal treatment filiates in Europe have become increasingly active and diversity policies in the workplace. According to in combating discrimination on grounds of sexual some available evidence, effective employment legis- orientation. A 2008 Europea n Trade Union lation with protection against discrimination has the Confederation (ETUC) survey revealed that several potential to empower LGBT workers to complain European trade union affiliates are making the issue formally about discrimination or mistreatment at a priority, while the four-year action programme the workplace. adopted by the ETUC in 2007 includes a specific commitment to addressing LGBT workers’ rights.192 188. N. Drydakis: “Sexual orientation discrimination in the labour market”, in Labour Economics, Vol. 16 (2009), p. 366. 189. This and the following paragraphs are based on European Union Agency for Fundamental Rights: Homophobia and discrimination on grounds of sexual orientation and gender identity in the EU Member States: Part II – The Social Situation (Vienna, 2009), pp. 3–4. 190. Department of Defense: Report of the comprehensive review of the issues associated with a repeal of “Don’t Ask, Don’t Tell”, 30 Nov. 2010, p. 3. 191. See, for example, PewResearchCenter: Gay Marriage Around the World, report published online on the Pew Forum on Religion and Public Life, 9 July 2009. 192. European Trade Union Confederation: ETUC actions and activities on promoting equal rights, respect and dignity for workers regardless of their sexual orientation or gender identity, adopted 4 Dec. 2008. 51
- 68. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 2.24 Greek study reveals discrimination in low-skill jobs Despite the adoption of new legislation (Greek Law 3304/2005) banning sexual orientation discrimination at the workplace, in response to EU Directive 2000/78, a 2009 Greek study indicated that discrimination is still occurring in lower skill jobs. The study compared job response rates for two equally productive fictitious job applicants for 1,714 low-skill job openings in Athens, the only significant difference being a mention of volunteering for a homosexual community in one of the CVs to indicate sexual orientation, and found that gay orientation had a largely negative effect on chances of being hired. The study revealed that heterosexual applicants were invited for interview in 40.08 per cent of cases, while gay applicants were invited in only 13.94 per cent of cases. Source: N. Drydakis, op. cit., p. 369. Discrimination based on genetics employment on grounds that extend beyond those specified in Convention No. 111. Both genetic char- 212. Scientific advances in genetic screening and acteristics and disability were expressly included in mapping have resulted in a growing potential for dis- the Law.194 Armenia expressly included genetic char- criminatory workplace practices based on genetic in- acteristics as a prohibited reason for discrimination in formation acquired through mandatory screening its Constitution of 1995. or as a result of access to confidential genetic infor- 215. Other countries have adopted separate and mation. However, genetic testing and family history more comprehensive legislation prohibiting this reveal only the potential to develop a medical condi- reason for discrimination. In the United States, for tion and are not indicative of present or future cap- example, the Genetic Information Nondiscrimination acities and merits. Act (GINA) was passed by Congress in May 2008.195 213. The fear of genetic discrimination has work- GINA is the first federal law to prohibit employers related implications and real human costs. It has been and health insurers from denying employment or shown that individuals with high levels of concern insurance coverage to healthy individuals based on are less likely to consider meeting with health-care a genetic predisposition to a particular disorder or professionals to discuss or undergo testing. This in disease. With a few narrowly defined exceptions, turn means that they may not have access to disease- employers in particular are barred from using, pur- prevention methods, such as preventative surgeries chasing or requesting genetic information for the or dietary and lifestyle choices. Moreover, shielding purposes of making personnel decisions regarding genetic information from both employers and insur- hiring, firing or promotion. Violations are punishable ance companies may distort medical records and un- with severe financial penalties of up to US$300,000, dermine treatment, and can result in late detection of with reinstatement of the employee concerned. terminal illnesses.193 216. In Canada, a bill similar to GINA was intro- duced in Parliament in April 2010. The bill proposes to prohibit discrimination on the grounds of genetic Legislative developments characteristics, and will update the Canada Human Rights Act. As science develops, legislation will also 214. Some countries have amended or enacted have to evolve in order to protect people from dis- legislation to prevent and punish genetic discrimin- crimination that is based purely on speculation. ation. In 2009, for example, Serbia adopted a Law on the prohibition of discrimination which protects against both direct and indirect discrimination in 193. National Partnership for Women & Families and the Coalition for Genetic Fairness (CGF): Faces of genetic discrimination: How genetic discrimination affects real people (Washington, DC, July 2004). 194. An unofficial translation solicited by UNDP Serbia in the framework of the project “Support to the Implementation of Anti- discrimination Legislation and Mediation in Serbia” is available at www.ilo.org/dyn/natlex/docs/ELECTRONIC/82285/89990/ F632707265/SRB82285.pdf, accessed 15 Nov. 2010. 195. W.J. McDevitt: “I dream of GINA: Understanding the employment provisions of the Genetic Information Nondiscrimination Act of 2008”, in Villanova Law Review, Vol. 54, Rev. 91 (2009). 52
- 69. FROM PRINCIPLES TO PR ACTICE Box 2.25 Workplace Health Promotion programmes Employers in the United States elect to provide Workplace Health Promotion (WHP) programmes to im- prove the well-being and health of their employees, and occasionally their dependants, as a result of the correlation between good employee health and well-being and optimal employee performance. Another important factor is the increasing cost of health care for employees. Studies have found that over a six-year period, employees in both the public and private sector with risk factors such as smoking, high stress and low physical activity, among others, cost employers almost 228 per cent more in health-care costs com- pared to employees with none of those factors. A 2007 study to assess the effectiveness of WHP programmes found that they were highly effective in reducing tobacco use (median of 1.5 percentage points), high blood pressure (median reduction of 4.5 percentage points), total serum cholesterol levels (median prevalence reduction of 6.6 percentage points), and decreasing the number of days off work due to illness or disability (median reduction of 1.2 days per year). In spite of these findings, more comprehensive information and accurate, complete data are required to determine the actual return on investment from WHP programmes. Source: R. Goetzel and R. Oxminkowski: “The Health and Cost Benefits of Work Site Health Programs Promotion”, in Annual Review of Public Health, Vol. 29 (2008). Discrimination based on lifestyle on an individual’s weight.196 In some cases, the lack of specific legislation has meant that overweight in- 217. Discrimination based on lifestyle is a topical dividuals have depended on the American Disability issue in some regions and relates to employment and Act (ADA) for legal protection. A study in Sweden occupation, especially in the cases of smoking and based on fictitious applications with portrait pho- obesity. The limited data available are concentrated tographs found that obese applicants receive 20 per around a few countries. Further monitoring and re- cent fewer callbacks for an interview than appli- search will undoubtedly shed more light on emerging cants of normal weight, about the same level as the patterns and provide a basis for considering appro- minority of Middle Eastern origin in Sweden.197 priate policies by governments and social partners. 219. In Europe, although the EU Equal Treatment In the meantime, there is already a basis for discus- Directive covers only gender, race and ethnicity, age, sion on how to balance public health strategies and sexual orientation, religion or belief, and disability, the right to non-discrimination. Although the term as grounds of unlawful discrimination, some coun- “lifestyle discrimination” can refer to a wide range of tries, such as Belgium and France, have adopted issues, this Report will only address discrimination legislation which covers physical appearance. The based on body weight and on smoking. Republic of korea has also included “appearance” in its anti-discrimination legislation.198 The Equal Opportunity Act of the State of Victoria, Australia, Discrimination based on body weight revised in April 2010, includes physical attributes among the grounds for unlawful discrimination, 218. A 2008 self-report study published in the making it illegal to treat someone unfairly because International Journal of Obesity found that in the of physical appearance, including height, weight, United States, perceived weight/height discrimin- body shape, disfigurement, skin condition, scar or ation has prevalence rates among women close to birthmark. the prevalence of race discrimination and in some cases occurs even more frequently than age or sex discrimination. Currently in the United States, only one state (Michigan) prohibits discrimination based 196. See R.M. Puhl, T. Andreyeva and k.D. Brownell: “Perceptions of weight discrimination: Prevalence and comparison to race and gender discrimination in America”, in International Journal of Obesity (2008, No. 32), pp. 992–1000. 197. D-O. Rooth: Evidence of unequal treatment in hiring against obese applicants: A field experiment, IZA discussion paper No. 2775 (Institute for the Study of Labor, May 2007). 198. The National Human Rights Commission Act of 24 May 2001. 53
- 70. EqUALITy AT WORk: THE CONTINUING CHALLENGE Discrimination based on smoking to other workplaces, or worse, to unemployment, which in turn could have further adverse effects on 220. If obesity is recognized as dangerous for their health. They also point out that these policies one’s own health, the evidence that smoking is also treat smokers differently from fellow employees who potentially harmful to fellow workers is well docu- may engage in other high-risk behaviours such as mented and smoking is therefore prohibited in the drinking or drug abuse. workplace in many countries. Some researchers, 221. There are many examples of companies bar- however, have drawn attention to what they call ring employment to smokers. Policies range from the a shift from “smoke-free workplaces” to “smoker- non-recruitment of smokers to firing workers who do free workplaces”, emphasizing the risk of discrimin- not stop smoking within a given period. Some com- ation against smokers. The debate around this panies make their policies clear by stating “tobacco- issue is ongoing. Opponents of such policies have free candidates only” in their job advertisements. In pointed out that nicotine addiction is not a choice, one extreme case, a company went further by making that evidence has shown that only a small propor- smoking off premises and outside working hours a tion of smokers actually manage to stop smoking,199 ground for dismissal and expanded the no-smoking and that these policies may simply push smokers policy to spouses of employees.200 199. B. Houle and M. Siegel: “Smoker-free workplace policies: Developing a model of public health consequences of workplace policies barring employment to smokers”, issued as NIH Public Access Author Manuscript, p. 4; published in final edited form Feb. 2010. 200. ibid., p. 2. 54
- 73. Part III The ILO’s response Decent work for all gender equality: these include mainstreaming gender equality, promoting female entrepreneurship, im- 222. Recognizing that discrimination represents a proving working conditions for women, and ad- significant barrier to the attainment of decent work vancing equal employment and equal remuneration. for all, the ILO is implementing a wide range of ac- Twelve countries 3 have identified the need to address tivities and developing a variety of tools aimed at discrimination against people living with HIV and promoting non-discrimination in employment and AIDS as a priority. Fourteen countries and territo- occupation. In order to address new challenges, in- ries 4 as well as the subregion of Central and Eastern cluding those arising from the global crisis, the ILO Europe are focusing on general non-discrimination response has sought to strengthen efforts to combat issues through policy improvements and strength- all grounds of discrimination. ened application of international labour standards. 223. The ILO Strategic Policy Framework, which Three countries 5 have included the promotion of the is an application of results-based management, has rights of indigenous and tribal peoples, while two 6 identified a number of overall outcomes to guide the have identified the elimination of discrimination work of the Office over the coming years. The elim- against persons living with disabilities as a priority. ination of discrimination in employment and occu- 225. The Action Plan on non-discrimination pation has been adopted as one of those outcomes. adopted by the Governing Body in 2007 advocated The ILO programme and budget documents for better enforcement of legislation and non-regulatory the current and coming biennia therefore include a initiatives by governments and enterprises. It also strategy and a separate indicator to measure attain- pointed to the need to improve the capacity of gov- ment of the objectives of this outcome. ernments and social partners to effectively promote 224. Dec ent Work C ou nt r y Prog r a m me s and implement the principles of equality at work. (DWCPs) have become a main vehicle for the de- Two priority areas were identified: better enforce- livery of ILO support to member States.1 A number ment of legislation and equal remuneration for men of DWCPs have included outcomes related to non- and women.7 discrimination. In the current biennium, a total of 226. Non-discrimination has been identified as a 44 countries 2 have implemented activities to promote cross-cutting issue in the ILO Declaration on Social 1. ILO Decent Work Country Programmes website: www.ilo.org/public/english/bureau/program/dwcp/index.htm, accessed 3 Feb. 2011. 2. Afghanistan, Argentina, Armenia, Azerbaijan, Bahrain, Bolivia, Burundi, Chile, China, Colombia, El Salvador, Eritrea, Ethiopia, Fiji, Guatemala, Jordan, kazakhstan, kiribati, kuwait, Lesotho, Malawi, Malaysia, Mali, Marshall Islands, Mauritania, Oman, Panama, Peru, Philippines, Samoa, Solomon Islands, Sri Lanka, Swaziland, Syria, United Republic of Tanzania, Timor-Leste, Togo, Tunisia, Tuvalu, Ukraine, Vanuatu, Viet Nam, yemen, Zimbabwe. 3. Botswana, Egypt, kenya, Lesotho, Madagascar, Malawi, Moldova, Samoa, Sudan, United Republic of Tanzania, Uganda, Zambia. 4. Benin, Brazil, France, Lebanon, Mauritius, Nepal, Occupied Palestinian Territories, Papua New Guinea, Peru, Seychelles, South Africa, Tajikistan, Timor-Leste, Uruguay. 5. Cambodia, Cameroon, Mexico. 6. Eritrea, Mauritius. 7. ILO: Report of the Committee on Technical Cooperation, Governing Body, 300th Session, Geneva, Nov. 2007, GB.300/TC/4. 57
- 74. EqUALITy AT WORk: THE CONTINUING CHALLENGE Figure 3.1. DWCPs worldwide: Country outcomes under the elimination of discrimination Results foreseen in current biennium Results foreseen in coming biennia Discrimination identified as a priority in DWCP Source: ILO Programme for the Promotion of the ILO Declaration on Fundamental Principles and Rights at Work. Justice for a Fair Globalization.8 Programmes have assist constituents in effectively implementing the been designed and implemented in close cooper- equality Conventions, and a series of national tri- ation with the Bureaux for Employers’ and Workers’ partite workshops on more general themes including Activities, and have benefited from inputs provided the “Realization of the Fundamental Principles and by relevant headquarters and field units, including Rights at Work” were organized in several countries. the ILO’s International Training Centre in Turin. 228. Training workshops and online distance Technical cooperation projects have included a range learning packages were delivered by the ILO’s of components such as awareness raising, capacity International Training Centre. Courses have been building, information gathering and sharing, re- offered to promote the application of Convention search, technical advice, and training. At the na- No. 111, focusing on how to define, detect and tackle tional level, this has led to significant results such as discrimination in employment and occupation. The the adoption of new policies, modification of existing curriculum has a practical orientation: exposing par- legislation, and implementation of national action ticipants to national and international good practices plans. and encouraging exchanges of experiences from dif- ferent regions. 229. The following paragraphs review ILO as- Promoting action on non-discrimination sistance to constituents since the adoption by the Governing Body of the action plan regarding the 227. In spite of the high rate of ratification of the elimination of discrimination in employment and two core Conventions on equality, concerns linger occupation in 2007.9 They highlight programmes about the general level of their implementation. and activities undertaken by field offices and head- Among activities designed to address this challenge, quarters units at the national, regional and global technical cooperation projects were developed to levels. 8. ILO: ILO Declaration on Social Justice for a Fair Globalization, adopted by the International Labour Conference at its 97th Session, Geneva, 10 June 2008. 9. ILO: Report of the Committee on Technical Cooperation, op. cit. 58
- 75. THE ILO’S RESPONSE Box 3.1 Implementation of Convention No. 111 in China Since the ratification of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in 2005, China has promulgated three laws that came into effect on 1 January 2008. These laws – the Em- ployment Promotion Law, the Regulations on Employment Service and Employment Management Law, and the Labour Contract Law – have expanded the protection against discrimination for workers, especially in recruitment, and have prohibited additional grounds of discrimination, for example against rural workers in urban areas. To assist in the development of strategies to effectively implement the Convention, with financial assistance from the Government of Norway, the ILO implemented the “Equality at Work in China” project. With awareness raising as one of the primary channels through which this project operated, materials were published and a website was established (www.equalityatworkinchina.org). The project published quarterly issues of the Equality at Work in China newsletter, highlighting recent events with regard to discrimination, and paying particular attention to legislative developments, discrimination cases, and new publications. The project culminated with the development of a complete training guide on different forms of discrimination including gender, migrant workers and people living with disabilities. Better design and enforcement of legislation received training through a US Government-funded project on “Promoting Fundamental Principles and 230. In order to help with the drafting of effective Rights at Work and Social Dialogue”. The pro- legislation, the Office provides advice to governments ject focused on building the capacity and skills to and the social partners in the form of technical com- better enforce national legislation, inspection tech- ments on proposed labour legislation. It also pro- niques and dispute resolution. One of its objectives motes good practice through its labour legislation was to reduce workplace discrimination against mi- guidelines.10 Together with the ILO’s International grant workers through routine labour inspection. Training Centre, the Office delivers annual training 232. National and subregional training workshops on participatory labour law design and process, with for judges, lawyers, labour law professors and labour particular attention to discrimination. In support inspectors were organized in a number of countries in- of these practical services, the Office maintains an cluding Chile, the Democratic Republic of the Congo, active research programme. Rwanda, and Trinidad and Tobago. These workshops 231. In order to create strong institutions and provided participants with the tools needed to apply effective mechanisms to ensure enforcement, the ILO, international labour law in their daily work. in close collaboration with its International Training 233. A joint ILO/Inter-American Development Centre, has developed training tools on labour inspec- Bank (IDB) programme on “Fostering a culture of tion, gender equality and non discrimination in the compliance in relation to labour laws” included a workplace through two technical cooperation pro- specific module on equal opportunities at the work- jects funded by the Government of Norway. These place. Within the framework of this programme, are: “Enhancing labour inspection effectiveness in four training activities were organized in cooperation selected countries in Europe and Central Asia” and with local universities in Costa Rica, the Dominican “Strengthening labour inspection services in Angola, Republic, Guatemala and Nicaragua. A total of 156 Brazil, China, India and South Africa”. These tools are people from the Ministry of Labour, Supreme Court, being used for training activities at the national level, judiciary, employers’ and workers’ organizations and not only in countries currently covered by the two law faculties received training. projects, but also in others such as Albania, Lebanon, Oman, The former yugoslav Republic of Macedonia, and yemen. In addition, guidelines concerning the role Gender equality of labour inspection and the gender dimension in the workplace are being developed. Within the framework 234. Phase III of the Women’s Entrepreneurship of these two projects, some 100 labour inspectors have Development and Gender Equality project (WEDGE) so far received training on discrimination issues. In in Cambodia, Ethiopia, kenya, Lao People’s Oman and Bahrain, a total of 200 labour inspectors Democratic Republic, United Republic of Tanzania, 10. See ILO: Labour Legislation Guidelines, last updated 10 Dec. 2001, available at www.ilo.org/public/english/dialogue/ifpdial/llg/ index.htm , accessed 3 Feb. 2011. 59
- 76. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 3.2 PAMODEC (Support Programme for the Implementation of the Declaration on Fundamental Principles and Rights at Work) Within the framework of the French-funded technical cooperation project PAMODEC, national studies were undertaken in Benin, Burkina Faso, Cameroon, Côte d’Ivoire, Madagascar, Mauritania, Niger and Senegal. Upon completion of the studies, national tripartite validation workshops were organized to review the find- ings, recommendations and conclusions of the studies and to develop national plans of action to combat discrimination and promote equality at work. Countries Challenges Action plan Benin Lack of enforcement of legislation; inadequate Reinforcement of the legal framework; capacity sanctions; inadequate resources for the labour building for labour administrators, labour inspectors, inspectorate. social partners, judges and magistrates; creation of a coordination framework for all actions regarding equality in the public and private sectors. Burkina Faso Limited awareness of rights among workers; Elaboration of a national policy to combat discrimin- statistics unavailable; inadequate resources for ation in work and employment; creation of a national the labour inspectorate. institute to monitor discrimination; compilation of data and studies; implementation of pilot projects to promote equality; revision of the labour code; aware- ness raising; capacity building for social partners. Cameroon National legislation only partially in conformity Reinforcement of the legal framework; revitalization with Conventions Nos 100 and 111; limited of the institutional framework; support of the social grounds of discrimination covered by the partners through social dialogue; and creation of Labour Code. a national institute to monitor the evolution of the labour market in the context of globalization. Côte d’Ivoire The Labour Code provides for a medical check Review of national legislation, including the Labour on recruitment, which might lead to discrimin- Code; capacity building for magistrates, lawyers, ation against workers with HIV and AIDS and labour inspectors, trade unions, workers’ represen- other chronic diseases; limited awareness of tatives and employers’ organizations on the enforce- rights among workers; lack of interest on the part ment of international labour standards; awareness of labour inspectors; lack of knowledge of inter- raising. national labour standards among magistrates. Madagascar No institution in place to control the application Further research on the various forms of discrimin- of provisions; contribution of women’s work not ation in the world of work, including the public sector; fully recognized. regular evaluation of the situation regarding dis- crimination; creation of a national policy document promoting equality at work; and promotion of social dialogue on the issue of discrimination. Mauritania Limited awareness of human resources man- Improvement of the legal framework; reinforce- agers in private sector of obligations related ment of the role of the labour inspectors in the fight to non-discrimination; lack of awareness of against discrimination, through awareness-raising workers’ rights; women are still largely discrim- seminars; creation of a national advisory body in inated against; women, day labourers, migrant charge of the fight against discrimination and the and domestic workers need special protective promotion of equality; awareness-raising campaigns measures; general lack of knowledge of the aimed at company managers. principle of equal pay for work of equal value. Niger Inadequate knowledge of laws; insufficient Increasing the knowledge base, awareness raising, labour inspection; lack of resources for the su- and reinforcement of the legal and institutional pervisory bodies. frameworks. Senegal Lack of financial and material support for labour Creation of a national body responsible for the fight inspection and the collection of data; lack of or against all forms of discriminations at work; revision insufficient sanctions; lack of workers’ know- of national legislation in conformity with international ledge of their rights regarding discrimination. labour standards; awareness-raising campaigns; in- tegration of discrimination issues into the strategies of unions and employers’ organizations. 60
- 77. THE ILO’S RESPONSE Box 3.3 Court rulings based on Convention No. 111 Following training workshops for judges organized by PAMODEC, a court in Burkina Faso and another in Benin in 2009 invoked the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in conjunction with domestic legislation to rule in favour of two employees who had been dismissed as a result of discriminatory behaviour by their employers. In the first case, a primary school teacher working at a Protestant church-run orphanage claimed that his contract had not been renewed because he was not a member of the Protestant Church. The Labour Appeal Court of Koudougou found the employer guilty of having unjustifiably dismissed the employee on religious grounds. The Court stated that even though, according to Convention No. 111, religion could be considered as an inherent requirement for a particular job, the teacher’s position did not require any particular religious affiliation. Moreover, the Court argued that the employer’s preference to hire Protestant Christian members of the Church goes against the principle of equality of opportunities reflected in the Labour Code of 2008 and Convention No. 111.1 In the second case, the Court of First Instance (Social Chamber) of Cotonou ruled that a company was guilty of discrimination for unfair treatment of a female employee once she became pregnant. According to the plaintiff, her weak health did not allow her to return to work during her pregnancy. Despite this, the company did not pay her for six months – including her maternity leave period – and she was dismissed. The Court argued that Benin has ratified Convention No. 111 and that both the Labour Code and the General Collective Convention of Labour reflect the principles of Convention No. 111. On the basis of these instruments, the Court held that the employer’s attitude was an act of discrimination based on sex, which also covers pregnancy, marital status and family situation.2 1 Case No. 05/2005 Alice Segbo v. Etablissement Royal Photo. 2 Judgment No. 003 of 5 February 2009, Jean Baptiste K. Sankara v. Orphelinat Pègd Wendé. Uganda, Viet Nam and Zambia, continues to foster semi-public sector workplaces in the tourism, phar- women’s entrepreneurship, support female entrepre- maceutical and agro-food sectors being invited to neurs in creating decent employment, and promote participate in a baseline survey aimed at comparing women’s empowerment, gender equality and poverty the effects of employment policies and practices on reduction. The WEDGE programme aims to remove women and men. To complement training activities socio-cultural, legal and political barriers, and to advo- undertaken, a “good practices” guide on promoting cate for an enabling environment for business develop- equal employment rights and opportunities at the ment and gender equality, which recognizes that gender workplace was produced and launched in Arabic and equality is not only a key goal in itself, but also a busi- French in 2008. ness opportunity that is essential for economic growth 237. The ILO has conducted 11 national studies on and the well-being of families and communities. gender equality in social dialogue and collective bar- 235. In partnership with the International Finance gaining for Armenia, China, India, Indonesia, Jordan, Corporation, the Better Work Programme operates Nigeria, Rwanda, South Africa, The former yugoslav at both the global and national levels to promote eco- Republic of Macedonia, Ukraine, and Uruguay. A nomic development through compliance with labour comparison of good practices on gender equality in standards, with operations in the first instance in tripartite social dialogue and collective bargaining is Haiti, Jordan, Lesotho and Viet Nam. Each Better being prepared on the basis of these studies. Work project document includes a gender equality 238. Activities and outputs under the BASIC 11 and non-discrimination plan setting out policies, Gender Equality in the World of Work project, now processes and targets concerning staff recruitment, being implemented in Angola, Brazil, China, India, training, information resources, compliance assess- and South Africa, include the adoption of gender- ments, and monitoring and evaluation to ensure sensitive workplace policies; training for constitu- equality and non-discrimination. ents on non-discrimination; organizing participatory 236. With funding from the US Government, a gender audits; building capacity of labour statisti- pilot programme which aims to promote equality in cians to provide sex-disaggregated data; and map- the workplace was developed in Morocco. This was ping policy options for the organization of women based on a bottom-up approach, with six private and workers in the informal economy. 11. The title “BASIC” is derived from the first letter of each of the countries in which the project is being implemented. 61
- 78. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 3.4 Promoting Decent Work and Gender Equality in Yemen The ILO Regional Office for the Arab States and the Directorate General of Women Workers (DGWW) of the Ministry of Social Affairs and Labour (MOSAL) joined forces to implement a technical cooperation project entitled “Promoting Decent Work and Gender Equality in Yemen”, funded by the Government of the Netherlands. Important stepping stones of the project included: c Policy Advocacy Networks for Women Workers in the Health, Education and Agriculture sectors to advo- cate for policy and legislative changes reaching 3,000 workers, both women and men, through sharing of information and knowledge and policy dialogue. c An information management and knowledge-sharing desk to address negative stereotypes and attitudes towards women workers and to encourage positive public and media perceptions. c Training of 18,000 women and men workers in the public and private sectors on their right to decent terms and conditions of work. c Conducting participatory gender audits in two ministries for gender mainstreaming in national policies and programs. Today, the DGWW plays a central role in shaping the national agenda on gender equality in the world of work in Yemen. Its work under the ILO/MOSAL project on “Promoting Decent Work and Gender Equality” has contributed to compliance with international labour standards, achievement of gender equality and strengthening tripartism and dialogue. 239. In 2009, a tripartite seminar in Indonesia and has been disseminated and used in training on the prevention of all forms of harassment in the workshops. workplace was co-organized in 2009 by the ILO and 242. Within the framework of a technical cooper- the Ministry of Manpower and Transmigration. The ation project on “Combating inequalities and dis- goal of the seminar was to create an open dialogue crimination in the world of work”, funded by the on harassment and to discuss an acceptable defin- Government of Norway, a workshop was held in Chile ition of the term and the role of social partners. in 2008 for members of national tripartite equality 24 0. In Ma rch 2010, t he ILO Governing commissions from Argentina, Brazil, Chile, Paraguay Body adopted a Gender Equality Action Plan and Uruguay. Another workshop, held at the ILO (2010–15). The plan reflects the cross-cutting nature Training Centre in Turin, on national mechanisms of gender equality and is based on six main elements for the promotion of equal opportunities, targeted of the UN strategy on gender mainstreaming for tripartite constituents, managers and HRD specialists achieving equality and the empowerment of women.12 in multinational enterprises (MNEs), university pro- In this context, institutions in 15 countries and ter- fessors and training experts from 25 countries. ritories 13 and three international workers’ organiza- 243. The ILO and the Egyptian Ministry of tions 14 have undergone participatory gender audits. Manpower and Migration held a round-table discus- sion on pay equity in July 2007. The round table, attended by representatives of the relevant ministries Equal remuneration for men and women and social partners, addressed the comments made by the Committee of Experts on the Application of 241. In 2008, the ILO published its Gender-neutral Conventions and Recommendations (CEACR) con- job evaluation for equal pay: A step-by-step guide. This cerning the application of the Equal Remuneration has been translated into Albanian, Arabic, Chinese, Convention, 1951 (No. 100), and discussed the issue English, French, Portuguese, Spanish and Ukrainian, of “equal remuneration for work of equal value”. 12. United Nations Chief Executives Board (CEB) for Coordination: United Nations system-wide policy on gender equality and the em- powerment of women: Focusing on results and impact, CEB/2006/2, 15 Dec. 2006, available at www.un.org/womenwatch/ianwge/gm/ UN_system_wide_P_S_CEB_Statement_2006.pdf , accessed 7 Feb. 2011. 13. Albania, Angola, Cape Verde, Ethiopia, kyrgyzstan, Liberia, Malawi, Mozambique, Nigeria, Occupied Palestinian Territories, Rwanda, Sri Lanka, United Republic of Tanzania, yemen, Zimbabwe. 14. International Confederation of Free Trade Unions (ICFTU), Education International, and Public Services International. 62
- 79. THE ILO’S RESPONSE Box 3.5 Increased maternity benefits for workers Maternity benefits scheme for informal workers in India The Government is set to provide women with maternity benefits during pregnancy and for six months after childbirth while they are breastfeeding. The benefits scheme extends to women not currently entitled to maternity leave benefits, who register at their local Anganwadi centre during pregnancy. The scheme is intended to promote health and partly offset the wage loss women may incur while caring for themselves and their children, and is part of a larger effort to reduce maternal and infant mortality. Development of a maternity insurance scheme in Jordan The ILO assisted in the development of a maternity insurance scheme in Jordan, currently under discussion in Parliament, beginning with a feasibility study on the implementation of a maternity cash benefits scheme. The full cost of maternity leave, which was being borne by employers, had given rise to discrimination against women workers, because of the perception that they cost more than men. The study pointed to the need for a fair and affordable maternity protection scheme for Jordan that would benefit women workers, labour markets and society as a whole. The findings showed that such a scheme in Jordan appeared to be feasible and financially sustainable. 244. A Decent Work and Gender Equity project in Mozambique and the United Republic of Tanzania Jordan produced a national policy brief on pay equity in 2009. These were developed within the frame- following consultations with the Government and work of an ILO/DANIDA project on “Improving social partners. This was presented and discussed at job qua lit y in A frica t hrough concerted ef- a national round table in 2010. Recommendations forts by government, employers and workers”. A from the round table form the building blocks of a training package containing a wide range of in- national action plan on pay equity. formation, activities, examples of good prac- tices and other resources to guide action and initiatives on work and family was also published. Reconciling work and family responsibilities 245. A new ILO book, Workplace solutions for Equality with respect to race and ethnicity childcare, was published recently.15 It reviews the key childcare concerns and challenges facing working 248. Within the framework of a technical cooper- parents and employers, ways in which those con- ation project on “Combating inequalities and dis- cerns are addressed in different national policy ap- crimination in the world of work”, funded by the proaches, the reasons for different actors to step in to Government of Norway, the ILO organized an inter- develop childcare solutions at the workplace and the regional meeting for 24 countries entitled “Towards forms those interventions take. Another promotional a strategy for trade unions in the fight against racial booklet, on combining work and family responsi- discrimination and xenophobia”. Subsequently, the bilities, was published in 2008, as well as a series of ILO worked with trade unions in Brazil, Nepal, country-specific fact sheets for Armenia, Georgia, Romania and South Africa on the implementation kyrgyzstan and the Russian Federation.16 of Action Plans to combat racial discrimination and 246. Research led to an ILO–UNDP report on xenophobia (see box 3.6). work and family in Latin America and the Caribbean, 249. A partnership agreement was signed in 2008 Towards new forms of reconciliation with social respon- between the ILO and the French authority respon- sibility. It shows that the work–family balance agenda sible for combating discrimination and promoting is also likely to have positive results in terms of eco- equality (HALDE), with a view to developing re- nomic performance and productivity. search, studies and exchanges to evaluate and com- 247. “Work Improvement in Small Enterprises” pare the practices of French companies in the field of (WISE) training modules covering work–family non-discrimination and the promotion of equality. In and maternity protection issues were pilot-tested in order to assess the level of awareness and knowledge 15. C. Hein and N. Cassirer: Workplace solutions for childcare (Geneva, ILO, 2010). 16. These are available at www.ilo.org/public/english/region/eurpro/moscow/info/publ/index.htm, accessed 4 Feb. 2011. 63
- 80. EqUALITy AT WORk: THE CONTINUING CHALLENGE Box 3.6 Elements included in Trade Union Action Plans to combat racial discrimination and xenophobia c Nepal Trade Union Congress: the design, publication and dissemination of awareness-raising materials, for distribution and display at the main departure points for migrant and potential migrant labour. c National Trade Union Congress Cartel Alfa of Romania: a national study on the situation of the Roma population with the aim of developing a database to monitor the situation; and research regarding the inclusion of Romanian emigrants in the Italian and Spanish labour markets. c Confederation of South African Workers’ Unions: two national workshops, in two different provinces, for affiliates of CONSAWU and their members who serve on employment equity forums and committees at the workplace, with special emphasis on national and international instruments that promote equality of treatment and opportunity, using ILO and UN standards as an entry point. Participants received training on the interpretation and implementation of employment equity and skills development law. c Single Central Organization of Workers (CUT) of Brazil: a national three-day residential awareness-raising workshop organized jointly with the National Commission against Racial Discrimination. in this field, an extensive opinion survey, the third casebook, Application of Convention No. 169 by do- in a series, was carried out in December 2009 and mestic and international courts in Latin America, were published in 2010. A major media campaign against produced and disseminated in several languages. racial discrimination in the workplace was launched 252. The Office made substantial contributions with posters in the metro and commuter trains in to the UN Durban Review Conference in 2009, in- Paris and six other major cities and on ferries to the cluding holding a side event on “Combating racism United kingdom and Ireland. in the world of work” with the participation of trade 250. On indigenous peoples, a wide range of activ- union representatives from a number of countries. ities have been carried out at the national level particu- larly in Bangladesh, Cambodia, Cameroon, Indonesia, kenya, Namibia and Nepal. In Cameroon, particular Protecting migrant workers attention has been directed towards the inclusion of indigenous peoples’ rights in the national poverty re- 253. In 2008, the ILO published the results of na- duction strategy, as well as training, capacity building tionwide situation testing in the area of employment and dialogue with government officials and key social discrimination in France 17 and Sweden.18 The report actors. In Cambodia, continued efforts were made to for France was widely covered in national and inter- promote the implementation of legislation on indi- national news media and some business groups in the genous communities’ land rights and the elaboration country, notably Casino Supermarkets Group and of local development plans. In Nepal, a large-scale Adecco, the world’s largest temporary employment national programme is in place to assist the imple- agency, subsequently conducted internal discrimin- mentation of the principles set out in the Indigenous ation testing using the ILO methodology. and Tribal Peoples Convention, 1989 (No. 169). 254. Over the last four years, policy advice and 251. The conclusions of an ILO study on the technical assistance on the treatment of migrant situation of indigenous peoples in 24 African coun- workers have been provided for constituents in tries were adopted by the African Commission on 36 member States. Among other outcomes, this work Human and Peoples’ Rights at its 45th Session in contributed to 12 ratifications of the relevant ILO 2009. A database containing background informa- Conventions and the drafting or adoption of com- tion, legislation, judicial decisions and other relevant prehensive national labour migration policy frame- materials underlying the study was created. A major works or laws in 11 countries. publication, Indigenous and Tribal Peoples’ Rights in 255. A training module was developed on mi- Practice – A guide to ILO Convention No. 169, and a grant integration in workplaces for executives of 17. E. Cediey and F. Foroni: Discrimination in access to employment on grounds of foreign origin in France: A national survey of discrimin- ation based on the testing methodology of the ILO, ILO International Migration Paper No. 85E (Geneva, ILO, 2008), available at www.ilo.org/public/english/protection/migrant/download/imp/imp85e.pdf , accessed 4 Feb. 2011. 18. k. Attström: Discrimination against native Swedes of immigrant origin in access to employment: A research study on Stockholm, Malmö and Gothenburg, utilizing the ILO discrimination practice testing approach, ILO International Migration Paper No. 86E, Geneva, ILO, 2007, available at www.ilo.org/public/english/protection/migrant/download/imp/imp86e.pdf, accessed 4 Feb. 2011. 64
- 81. THE ILO’S RESPONSE international and local companies, in cooperation Sweden, a workshop was held in 2008 for 30 magis- with the Irish Management Institute, and compre- trates, legal advisers and lawyers from Benin, Burkina hensive guidebooks for employers and trade unions Faso and Togo on the use of international labour were produced on working with migrant workers. law and international labour standards on HIV and An online “practice profiles” database of 160 anti- AIDS. The project was designed to strengthen the discrimination and integration measures by govern- political and legal frameworks of these countries to ments, employers, trade unions, and civil society in respond to HIV and AIDS, the primary objective 24 countries has also been developed and maintained. being to strengthen the capacity of the social part- 256. The ILO has conducted research on non- ners and other stakeholders. discrimination and migrant integration together with the Organization for Security and Co-operation in Europe (OSCE) and co-published a policy guidance Equal opportunities for persons with disabilities book, Strengthening Migration Governance.19 It has co-produced, with the OSCE and the International 260. A technical cooperation project in selected Organization for Migration (IOM), two regional countries of East and Southern Africa, Asia and the editions of a Handbook on establishing effective labour Pacific, entitled “Promoting the Employability and migration policies.20 Employment of People with Disabilities through 257. The ILO also provided expert advice on mat- Effective Legislation” (PEPDEL), supported the ters of discrimination and equality of treatment review of national legislation and policies and for migrant workers to the UN Working Group of their effective implementation. Another project, Experts on People of African Descent, the Durban “Promoting Decent Work for People with Disabilities Review process, the UN Committee on Migrant through a Disability Inclusion Support Service Workers, the UN Committee on Economic, Social (INCLUDE)”, which is funded by Ireland, is being and Cultural Rights, and the UN Committee on implemented in Cambodia, Ethiopia, kenya, Lao the Elimination of Racial Discrimination (CERD), People’s Democratic Republic, United Republic of as well as the EU Agency for Fundamental Rights Tanzania, Uganda, Viet Nam and Zambia. It plays and the Council of Europe’s European Commission an important role in sensitizing policy-makers and against Racism and Intolerance. service providers from a human rights perspective, and provides technical advice regarding the inclusion of persons with disabilities. Protecting workers infected or affected by HIV 258. In June 2010, the International Labour Age discrimination Conference adopted t he HI V a nd A IDS Recommendation, 2010 (No. 200), the first inter- 261. Discrimination based on age was discussed national labour standard on HIV and AIDS. It during the ILO Symposium on Business Responses provides for protection against discrimination in re- to the Demographic Challenge, which was held on cruitment and terms and conditions of employment, 28 and 29 April 2009. The symposium brought prohibits termination of employment on the basis of together researchers and leading thinkers from the real or perceived HIV status, and stipulates that HIV business community and major companies. 22 A testing or screening should not be undertaken for recent training package on ageing is designed to employment purposes.21 assist employers’ organizations and enterprises in the 259. Technical cooperation projects were imple- development of programmes and policies that create mented by the ILO in a number of countries and re- decent and productive conditions of work and em- gions with the aim of building capacity to deal with ployment for older workers. It aims to demonstrate discrimination and other HIV- and AIDS-related how the retention and recruitment of such workers issues. For example, in the context of a project in can be an integral and compatible part of competi- sub-Saharan Africa, financed by the Government of tive and productive enterprise management. 19. OSCE and ILO: Strengthening migration governance (Geneva, ILO, 2009). 20. OSCE, IOM and ILO: Handbook on establishing effective labour migration policies, Mediterranean Edition, available at www.ilo.org/ public/english/protection/migrant/download/osce_iom_ilo_medhandbook_en.pdf. The 2006 edition, adapted for Eastern Europe and Central Asia, is available at www.ilo.org/public/english/protection/migrant/download/osce_handbook_06.pdf, accessed 4 Feb. 2011. 21. Paras 16, 24 and 25. 22. ILO: Report on the ILO Symposium on Business Responses to the Demographic Challenge (Geneva, 2009), pp. 11, 18. 65
- 83. Part IV Towards an action plan 262. An assessment of activities and their impact achievements and support its constituents by: over the last four years shows clearly that more (a) promoting the relevant ILO instruments, in- equality policies and action plans have been adopted cluding universal ratif ication of the two core and implemented at both the national and enterprise Conventions on equality (Conventions Nos 100 and levels. A number of governments have recognized 111); (b) developing and sharing knowledge on the the need to harmonize their national legislation with elimination of discrimination in employment and ILO Conventions; judges have made more references occupation; (c) further developing the institutional to ILO Conventions in their case reviews; constitu- capacity of ILO constituents to support more effect- ents are more aware and knowledgeable of their role ively the implementation of the fundamental right of in addressing the issues; and ILO tools and guides non-discrimination at work; and (d) strengthening are being consulted more regularly. It is also clear, international partnerships with major international however, that the implementation of the principle of actors on equality. non-discrimination remains a challenge. The long- 265. Within these proposed priority areas of term impact and sustainability of what has been action, particular attention will continue to be paid achieved to date will require continued commitment to equal remuneration between men and women, and investment of resources. racial and ethnic discrimination, and equitable treat- 263. In the light of the crucial place occupied by ment of migrant workers. To promote progress and the fight against discrimination in the ILO mandate, sustainability most effectively, the Office should con- the lessons learned from past work, and the contin- tinue to focus its efforts on specific themes and not uing challenges identified in this Report, this sec- risk spreading its already scarce resources too thinly. tion points the way to a framework for future action The discussion of these elements by the Conference by the ILO and its constituents. A combination of will also guide the preparation of the non-discrim- measures will be required. The ILO should assist in ination component of the recurrent discussion on the improvement and enforcement of laws, the estab- fundamental principles and rights at work by the lishment of advisory and monitoring institutions, the Conference in 2012. adoption of appropriate national policies and admin- istrative measures, and in capacity building to under- take situation analysis. Better communications and Promoting the relevant ILO instruments advocacy, research, collection of sex-disaggregated data and assistance to workers’ and employers’ or- 266. The ILO is close to attaining the goal of uni- ganizations in the promotion of non-discrimination, versal ratification of the two core Conventions on should also be an integral part of ILO action. equality, Conventions Nos 100 and 111. Their ratifi- 264. In line with the ILO Declaration on Social cation levels are at over 90 per cent of ILO member- Justice for a Fair Globalization, and relying on all ship. This impressive figure demonstrates the positive means of action at the Organization’s disposal, results of work undertaken to extend protections pro- including standard-setting, technical cooper- vided in the Conventions to all women and men. ation, research and dissemination of information, 267. However, as discussed earlier in the Report, it is proposed that the ILO should consolidate its challenges remain for the universal ratification of 67
- 84. EqUALITy AT WORk: THE CONTINUING CHALLENGE these core Conventions on equality and still more the effectiveness of national, regional, and inter- in respect of their full application. In order to ad- national action on equality at work. An increased dress these challenges, the ILO should continue supply of accurate information will contribute sig- to promote social dialogue at the national and re- nificantly to a better understanding of the persis- gional levels and respond to the requests made by tent gap between laws on non-discrimination and non-ratifying countries for ILO technical assis- their effective implementation. It will also help us tance. Given the links between poverty and dis- to monitor and evaluate the results of policies and crimination, efforts deployed on equality should be programmes on equality, and maximize the impact aligned with international poverty reduction objec- of the human and financial resources allocated for tives. Accordingly, the ILO should continue to aim the elimination of discrimination at work. In this for universal ratification of these core Conventions regard, the development of additional decent work by 2015, thereby contributing to the realization of indicators related to non-discrimination will also be Millennium Development Goal No. 1 (eradication explored. of poverty and hunger). 271. To this end, ILO action should focus on 26 8. In add it ion to promot ing t he se t wo further developing the capacities and methodolo- Conventions, the Office will also engage in the gies needed to enable national statistical offices, re- active promotion of the recently adopted HIV and search institutes and equality bodies to collect and AIDS Recommendation, 2010 (No. 200), which analyse relevant information. Building the capacity addresses specific forms of discrimination. The of labour statisticians and improving labour market ILO will continue to implement the conclusions on information systems to systematically collect and gender equality at the heart of decent work adopted present better sex-disaggregated data on the main by the International Labour Conference in 2009,1 grounds of discrimination should be a focus. At the and will promote wider ratification of the Indigenous global level, the ILO should aim to better integrate and Tribal Peoples Convention, 1989 (No. 169). its unique and specialized expertise on the different It will also continue supporting implementation grounds of discrimination in employment and occu- of the Migration for Employment Convention pation in its research work and to provide practical (Revised), 1949 (No. 97), and the Migrant Workers guidance on the legal and institutional challenges. (Supplementary Provisions) Convention, 1975 272. If data are lacking with respect to specific (No. 143), which contain strong equal treatment grounds of discrimination, they are even scarcer and non-discrimination provisions. with respect to multiple discrimination.2 The Office will pay particular attention to ensuring that anti- discrimination data collection is attentive to the Developing and sharing knowledge complex and multi-dimensional identities of those on the elimination of discrimination most vulnerable to discrimination, with a view to in employment and occupation developing more appropriate policies to tackle dis- crimination, especially among the poorest and most 269. One of the most persistent barriers to the marginalized members of society. elimination of discrimination at work is the lack of 273. Promoting a knowledge-sharing component updated information and statistical data on the dif- in South–South and North–South cooperation, and ferent grounds of discrimination and their intersec- networks between ILO constituents, and specialized tions. While progress has been made on this issue, institutions dealing with non-discrimination and the quantity and quality of the information available equality, should be an area of focus for future activ- varies dramatically from one country or region to ities. An online knowledge-sharing platform could another. be explored to collect and disseminate research and 270. Producing qualitative and quantitative data data on different grounds of discrimination at the on discrimination requires sound expertise, as well workplace. as economic and human resources, and in some 274. Another focus could be the development of countries, it requires political blockages to be over- ILO capacity to undertake, together with constitu- come. Failure to collect accurate data compromises ents, an analysis of the challenges at the national level 1. ILO: Report of the Committee on Gender Equality, resolution concerning gender equality at the heart of decent work, Provisional Record No. 13, International Labour Conference, 98th Session, Geneva, 2009. 2. S. Fredman: “Positive rights and duties: Addressing intersectionality”, in D. Schiek and V. Chege (eds): European Union non-discrim- ination law: Comparative perspectives on multidimensional equality law (London, Routledge-Cavendish, 2008), p. 84. 68
- 85. TOWARDS AN ACTION PLAN regarding the elimination of discrimination, and to Strengthening international partnerships provide advice on how these may be addressed. The with major international actors on equality ILO should support constituents by compiling and sharing operational guidance, through manuals, 277. The ILO has a major responsibility in steering handbooks, and toolkits, for employers and trade and contributing to international action on the elim- unions in particular, as well as maintaining and ex- ination of discrimination and inequality in the work- panding user-friendly databases. place. This role is even more crucial at times when market uncertainty, high unemployment levels and endemic poverty, may erode or slow down national Developing the institutional capacity and regional efforts to guarantee equal opportunities of ILO constituents to effectively and treatment in employment and occupation for implement non-discrimination at work all. By invigorating international action on equality, the ILO will support its constituents in upholding 275. Over the previous four years, many member their national commitments on this issue, while po- States have dedicated considerable effort and re- tentially catalysing more substantial progress at the sources to the establishment of institutions dealing national, regional, and international levels. with the implementation and enforcement of the 278. The inherent complexities related to the elim- fundamental right to non-discrimination in em- ination of discrimination in employment and occu- ployment and occupation. Employers’ and workers’ pation need to be reflected in the work of the UN organizations have also pursued their efforts to elim- system. Efforts should be oriented towards building inate discrimination and to manage diversity at the or improving partnerships and collaboration with workplace in a more consistent and coherent manner. other UN agencies with a view to “delivering as one” In many cases, however, in spite of demonstrated in the area of research and global advocacy. Those ef- commitment, many of them are faced with capacity forts contribute to a better interconnection of action constraints. Experience has shown that the chal- on the elimination of discrimination at work with lenges they confront range from a scarcity of staff international goals on the reduction of poverty and and financial resources to inadequate mechanisms social exclusion. for coordinating their work at the national and local 279. Working together in the interests of delivering levels and a lack of cooperation and consultation as one represents an opportunity to project the voice with target groups. The elimination of discrimin- of tripartism in UN action on equality and non-dis- ation will be elusive if the responsible institutions crimination. The ILO should strive for better cooper- cannot operate effectively and complaints procedures ation with other UN agencies active in the field of and dispute mechanisms are inadequate. equality and non-discrimination, including the Anti- 276. In addition to providing continuous direct Discrimination Unit in the Office of the UN High policy advice, it is crucial to increase ILO technical Commissioner for Human Rights, the UN Entity for cooperation on capacity building for its constitu- Gender Equality and the Empowerment of Women ents. In collaboration with the ILO’s International and the relevant UN treaty supervisory bodies and Training Centre, training programmes on non-dis- special mechanisms; continue to ensure that Decent crimination and equality should continue to be avail- Work Country Programmes (DWCPs) are re- able to national authorities, employers’ and workers’ flected in United Nations Development Assistance organizations and other national actors dealing Frameworks (UNDAFs); and, wherever possible, with issues of equality at work. The use of the mainstream the principles of non-discrimination and Participatory Gender Audit (PGA) as a self-assess- gender equality. The Office should also continue to ment tool to promote individual and organizational exchange and cooperate with relevant regional bodies learning on gender mainstreaming and equality will such as the European Commission against Racism continue to be promoted. Following the launch of and Intolerance of the Council of Europe and the the first issue of “promoting equity” on gender-neu- European Union Agency for Fundamental Rights. tral job evaluations, similar user-friendly tools on 280. Finally, the ILO needs to have a coherent and other grounds of discrimination will be produced. integrated approach to address non-discrimination and equality. A number of countries have already in- cluded these issues as a priority in their DWCPs to provide a platform for the ILO to support national action. It is important that others also consider in- cluding non-discrimination in their DWCPs. 69
- 86. EqUALITy AT WORk: THE CONTINUING CHALLENGE 281. To quote the Declaration of Philadelphia, “all the current context of crisis and of post-crisis policies, human beings, irrespective of race, creed or sex, have discrimination and exclusion combined with growing the right to pursue both their material well-being and poverty and social inequalities call for reinvigorated their spiritual development in conditions of freedom action. The ILO must, on the basis of the collective and dignity, of economic security and equal oppor- commitment and will of its constituents, join forces tunity”. Over a long history of almost a century, the with governments, social partners and international ILO has shown itself to be a leading force in com- bodies to respond to the challenges and to ensure bating non-discrimination and promoting equality; that the universal right to non-discrimination in em- it must remain a recognized leader in that area. In ployment and occupation is upheld. 70