Equality of opportunity and treatment in employment and occupation Turin, 7 February 2007 Discrimination in Employment and Occupation

Why it is of interest to men to promote women worker’s rights? Discrimination in Employment and Occupation

Fundamental instruments on equality The Discrimination (Employment and Occupation) Convention, 1958 (No.111) and the Discrimination (Employment and Occupation) Recommendation, 1958 (No.111) The Equal Remuneration Convention, 1951 (No.100) and the Equal Remuneration Recommendation, 1951 (No. 90) Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Convention No.111 Objective Elimination of discrimination in employment and occupation and achieving equal opportunities for all To be realized progressively but steps have to be taken immediately and on a continuing basis Discrimination in Employment and Occupation

Definition of discrimination Any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national extraction and social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation The definition contains three basic elements: A factual element (the existence of a distinction, exclusion or preference that constitutes a difference) a criterion on which the difference is based (grounds or motive) An objective result of this difference in treatment, namely the nullyfication or impairment of equality. Direct (generally intentional or explict): A job advertisement specifying « men only » Intensional refusal to hire members of a certain ethnic minority groups, including linguistic minorities or racial minorities Legislation prohibiting those of a certain religion from holding a position with a public authority Legislation prohibiting women to enter the police force. Indirect (may not be intentional. It is an apparently neutral law or practice which has a disproportionate negative impact on a particular group protected by the Convention or by national legislation). Occupational segregation concentrating women in sectors that are traditionally female and that are less well paid. Provision of an employment benefit such as a « head of household » allowance, when legislation defines heads of households as men Language proficiency requirements that have a disproportionate negative impact on certain ethnic or linguistic minorities. Unequal access of minorities to certain training institutes Discrimination in Employment and Occupation

Eliminating discrimination: Who and Where? Principle of C.111 applies to all workers Equal access to vocational training Equal access to employment and occupation Equality in terms of conditions of work Applies to all workers, including self-employed, paid or unpaid Equal access to vocational training General education, career guidance and counselling services and vocational training Equal access to employment and occupation Recruitment and hiring process, placement services, access particular occupations, including non-traditional occupations Equality in terms of conditions of work Professional training, opportunities for advancement, termination of employment, benefits, work environment, equal remuneration, health and safety) The Convention covers both the public and the private sectors. It covers all persons meaning that it includes all categories of workers and applies to both nationals and non-nationals. It includes all situations and sectors in which persons are employed or work, as well as self-employment Employment and occupation covers both the formal and informal economy as well as those who are self-employed. Equal access to training: Equal access to career guidance and counselling services and vocational training, general education and on the job training, including for jobs that are non-traditional. Training is of paramount importance in determining actual opportunities for gaining access to employment and occupation. Vocational guidance for young persons plays an important role in opening up a broad range of occupations, free of considerations based on stereotypes or archaic conceptions that specific trades or occupations are supposedly reserved for persons of a particular sex, ethnic group or caste. Access to employment: Protection against discrimination in respect of recruitment and hiring process, placement services, access particular occupations, including non-traditional occupations Access to self-employment: this category covers the majority of the active population in certain developing countries, and principally in the rural sector. It also covers a large number of women. It therefore includes various occupations and is of a heterogeneous nature. Access to various material goods and services required to carry out these occupations (credit, land,..) therefore constitutes one of the objectives of the national policy. Terms and conditions of employment: includes protection of discrimination in respect of access to professional training, opportunities for advancement, termination of employment, remuneration in all its forms, access to benefits such as vacation time, social security, leave time,..,working environment, health and safety Discrimination in Employment and Occupation

Example: lack of protection from discrimination during recruitment In the Philippines, section 135 the Labour Code provides that „favouring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of sex is unlawful discrimination” Longstanding concern of CEACR that this provision does not prohibit discrimination in hiring Discrimination in Employment and Occupation

What is discrimination? Three elements: Factual element: any distinction, exclusion or preference Prohibited grounds: race, colour, sex, religion, political opinion, national extraction, social origin and any other ground identified at the national level Negative effect on equality of opportunity and treatment (whether or not intended) Any discrimination whether it is In law or in practice Direct or indirect Article 1: Any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national extraction and social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Direct (generally intentional or explict): A job advertisement excplcitly excluding applicants of a certain gender, age, or complexion Exlusion from certain public sector jobs due to political opinion ethnic minority groups, including linguistic minorities or racial minorities Legislation prohibiting those of a certain religion from holding a position with a public authority Legislation prohibiting women to enter the police force or fire brigades. Indirect (may not be intentional. It is an apparently neutral law or practice which has a disproportionate negative impact on a particular group protected by the Convention or by national legislation). Occupational segregation concentrating women in sectors that are traditionally female and that are less well paid. Provision of an employment benefit such as a « head of household » allowance, when legislation defines heads of households as men Language proficiency requirements that have a disproportionate negative impact on certain ethnic or linguistic minorities. Unequal access of minorities to certain training institutes Discrimination in Employment and Occupation

Examples: Direct Discrimination Job advertisement excluding applicants of a certain gender, age, or complexion Practice of hiring only persons of a certain ethnicity Exclusion from certain jobs of persons associated with a former political regime Exclusion of women to enter the police force or fire brigades. Restricting working time of women, e.g. overtime Restricting women’s access to certain occupation Discrimination in Employment and Occupation

Indirect Discrimination Apparently neutral law or practice which has a disproportionate negative impact on a particular group protected by the Convention or by national legislation, and which has no objective job-related justification Discrimination in Employment and Occupation

Examples: indirect discrimination Training is provided outside regular working time Language requirements unrelated to job-duties Exclusion from domestic worker from labour legislation Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Sex Refers to those distinctions which use the biological characteristics and functions that differentiate men from women It also includes those distinctions based on social differences between men and women that are learned, changeable over time and have wide variations within and between cultures It covers pregnancy, marital status, family responsibilities and sexual harassment Applies to either sex but usually against women Particular groups of women including indigenous, migrant and minority women are more vulnerable to discrimination It concerns often indirect discrimination Protection may be disguised discrimination: protective measures inhibiting women to have access to certain jobs (heavy weight, use of chemicals, hazardous in general). Sexual harassment; includes quid pro quo and hostile environment harassment. It can include physical, verbal or non verbal actions. It may inlude pornographic pictures, sexist jokes.. Examples: Mexico: pregnancy testing for maquiladoras, In 1975, the ILO adopted Convention No.156 on Workers with Family Responsibilities. The Convention responds to the need to combine work and family responsibilities and aims to strengthen the protection for all workers with family responsibilities. Member States are to encourage sharing of family responsibilities and to build workplaces where men as well as women have the choice and opportunity to respond to parental and family duties. Discrimination in Employment and Occupation

Sex/gender discrimination: Examples Mandatory pregnancy testing or questions regarding planned pregnancies during recruitment Women are forced to retire upon marriage or pregnancy or requiring women not to get pregnant or marry Excluding women from dangerous jobs without any justification related to pregnancy or maternity Working time arrangements that are not related to the requirements of the work that make it impossible for women to carry out the job Gender-biased allocation of benefits and allowances Discrimination in Employment and Occupation

Occupational segregation by gender Horizontal and vertical segregation Various causes Usually reflects a lack of equal opportunities May involve direct or indirect discrimination Gender segregated labour markets or workplaces are a breeding ground for discrimination against women Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Race and colour Ethnic group to which an individual belongs to by reason of heredity Difference in colour is one of the ethnic characteristics Includes: Racial/ethnic groups: e.g. Uigur in China, Hunter gatherers in Kenya etc Shading: preference for persons of lighter skin Tribal peoples: e.g Bangladesh, Pakistan, Cambodia, Nepal These grounds are generally examined together since difference of colour is only one, albeit the most apparent, of the ethnic characteristics that differentiate human beings. Colour differences may exist with people of the same race. Under the Convention, race is often considered in a wide sense to include linguistic communities or minorities who identity is based on religious or cultural characteristics, or even national extraction. There are very few instances where this would be an inherent requirement of the job. Eg. dramatic performances, chairperson of ethnic minority commission specially dealing with their concerns and interest. Discrimination in Employment and Occupation

Discrimination in Employment and Occupation National extraction Distinctions between the citizens of the same country on the basis of a person’s place of birth, ancestry or foreign origin Includes: National or linguistic minorities Foreigners who have been nationalized Descendents of foreign immigrants Does not include differences that may be made between citizens of one country and citizens of another The Committee of Experts has commented extensively on the situtation of the Roma in some Central and Eastern European Countries such as Lithuania, Hungary, Croatia and Czech Republic. It has also commented on discrimination of linguistic minorities in these countries. The Committee of Experts has stressed that the elimination of discrimination on the grounds of national extraction along with other grounds is critical to sustainable development, all the more so because of the re-emergence of signs of racism and intolerance. Steps should be taken to raise public awareness and promote tolerance, respect and udnerstanding between ethnic communities and thorughout society. Bosnia Herzegovina: dismissal of workers with Bosnian or Serbian origin and replaced by Croatian workers. New Zealand: over-representation of ethnic minorities in low status and low paid jobs. Mauritania: prejudices in employment of workers of Senegalese origin Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Political opinion Activities expressing or demonstrating opposition to the established political principles, or simply a different opinion protection Membership or non-membership in a political party or a political or socio-political attitude, civic commitment, moral qualities Example: CEACR has raised with the Government of Vietnam that no legal protection on the basis of political opinion is available Political opinion also includes: It may cover discrimination on political affilitation Freedom of expression corollary May be taken into account in connection with requirement of senior administrative posts Measures of security of the state are not considered discrimination but appeal procedures must be available. Examples: Non recruitment of members of former communist party in public service accross the board and not for certain posts. Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Social Origin When an individual's social origin determines his or her occupational future, either because he or she is denied certain jobs or activities, or because he or she is only assigned certain jobs. Example: class, socio-occupational category, or caste (Dalit’s in India or Nepal, the Buraku in Japan) The characteristic is that the person is born with this social origin. In India, for example, while its has been abolish by the Constitution of 1947, the caste system continues to exist and dives the population in different social groups, with the « dalits » at the lowest end of the social ladder. Dalits are denied access to land and are obliged to work in degrading conditions. Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Religion Distinctions based on whether a person is or is not of a certain faith or belongs to a certain sect. Includes expression or manifestation of belief Includes atheism A striking example is the persistent discrimination in employment and occupation of members of the Bahai community in Iran. In Ireland, the number of unemployed men of Catholic faith is 13%, while the number of unemployed prostestant men is 5 %. Case of Afganistan under the Taliban The manifestation or expression includes affiliation, clothing, ceremonies. Example: case of Turkey: ban on wearing headscarf by women (indirect discrimination) in public service and schools. The freedom to practice a religion can be hindered by the constraints of a trade or occupation, particularly in regard to the manifestation of discrimination. This may happen when a religion prohibits work on different days of rest established by law or custom, or in requirements of particular clothing. In these cases, the worker’s right to practice a religion needs to be weighed against the need to meet the requirements inherent in the job or the operational requirements. Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Other grounds Other grounds added in national legislations include: Age Disability State of health Family responsibilities Sexual orientation Nationality Trade union affiliation or lack thereof Convention no. 111 only refers to seven ground of discrimination, which represent a minimum standard, but a growing number of countries are including other grounds in their national constitutions, legislations, regulations intended to eliminate discrimination in employment and occupation. The Convention does not specify nationality as one of the prohibited grounds, which does not mean it does not apply to nationals and non-nationals. In other words, when any individual, whether he or she is a national of the country (which has ratified the Convention) he or she is working in, is a victim of discrimination in employment or occupation on the base of any of the ground covered, then it is under the scope of the Convention. It does not cover policies or un equal treatment of nationals and non-nationals based on criteria of nationality.There are two Conventions that refer directly to migrant workers (I.e. C.97 and 143). Discrimination in Employment and Occupation

What is not discrimination? Inherent requirements of the job Measures affecting an individual who is suspected of or engaged in activities prejudicial to the security of the State. Special measures of protection and assistance Convention No. 111 sets aside categories of measures which "shall not be deemed to be discrimination": Inherent requirements for the job:This exception must be interpreted restrictively. When qualifications are required for a particular job, it may not be simple to distinguish between what does and what does not constitute discrimination. The necessary qualifications may be defined as those required by the characteristics of the particular job, in proportion to its inherent requirements but in no circumstances may the same qualification be required for an entire sector of activity. Careful examination of each case is required. Similarly, exclusions of certain occupations or jobs based on one or more of the grounds listed is contrary to the Convention. For example: Language proficiency requirements for certain jobs that involve interaction with the public, or civil service positions, but may not be reasonable for a night janitor. … How about a requirement for an artistic performance? Requirement on the basis of sex may include performing arts, jobs involving particularly intimacy. Restrictions with respect to some jobs in particular religious institutions may be acceptable. Political opinion may be acceptable for senior administrative posts. Special measures of protection or assistance: There are two kinds of special measures of protection and assistance: measures of protection and assistance provided for in international labour Conventions and Recommendations, and measures taken after consultation with employers' and workers' organizations and designed to meet the particular requirements of persons who for reasons such as sex, age, disablement, family responsibilities or social or cultural status, require special protection or assistance. For instance, special measures which may be taken on behalf of indigenous or tribal peoples or disabled or older persons, as well as those designed to protect maternity or the health of women, and which are expressly recognized as non-discriminatory. … And prohibiting night work for women in industries? Measures affecting an individual who is suspected of or engaged in activities prejudicial to the security of the State: ". It must be applied strictly in order to avoid undue limitations on the protection which the Convention seeks to guarantee, and provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice. The body of appeal should be impartial and independent from administrative or governmental authorities. It covers activities of which an individual is justifiably suspected or convicted with the exclusion of mere membership of a particular group or community. It covers activities which may be qualified as prejudicial to the security of the state. The expression of opinions or religious, philosophical or political beliefs is not a sufficient base for the application of the exception. Discrimination in Employment and Occupation

Inherent requirements Concept of a particular job refers to a specific and definable job, function or task. Any limitation within the context of this exception must be required by characteristics of the particular job, and be in proportion to its inherent requirements. Certain criteria may be used but not applied to whole sectors, occupations Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Special measures Special measures of protection or assistance provided for in ILO Conventions or Recommendations are not discrimination. Special measures agreed by workers and employers designed to meet special requirements of workers i.e. based on sex, disability, age, family responsibilities, or social or cultural status are not discrimination. Art 5(1): indigenous, older workers, disabled workers, maternity protection Governments are encouraged to adopt special temporary measures that can focus not only on recruitment but also on issues related to training in employment. The Committee of Experts also encourages Governments to make all possible efforts to allocate adequate resources to institutions and structures responsible for promoting equality. Most affirmative action programmes implemented have been adopted to correct the effects of past discrimination against certain disadvantaged groups, such as ethnic minorities, women and disabled persons. The objectives of special temporary measures are: - Remedial: designed to compensate for imbalances caused by past discriminatory practices. - Temporary: intended to put members of groups suffering from past discrimination into a position to compete in the labour market on an equal basis. - Diversity: to ensure equitable representation of different minority groups in private or public organisations Components of an affirmative acion programme: Specific targets as to the actual number of persons represented Necessary measures to redress the effects of discrimination A timetable to attain the targets set A supervisory mechanisms to monitor progress, assess difficulties and determine changes Discrimination in Employment and Occupation

Special temporary measures Enactment of legislation is insufficient to eliminate discrimination in practice. States can take special temporary measures to remedy existing inequalities through affirmative action such as Preferential treatment Monitoring and evaluation Setting targets Governments are encouraged to adopt special temporary measures that can focus not only on recruitment but also on issues related to training in employment. The Committee of Experts also encourages Governments to make all possible efforts to allocate adequate resources to institutions and structures responsible for promoting equality. Most affirmative action programmes implemented have been adopted to correct the effects of past discrimination against certain disadvantaged groups, such as ethnic minorities, women and disabled persons. The objectives of special temporary measures are: - Remedial: designed to compensate for imbalances caused by past discriminatory practices. - Temporary: intended to put members of groups suffering from past discrimination into a position to compete in the labour market on an equal basis. - Diversity: to ensure equitable representation of different minority groups in private or public organisations Components of an affirmative acion programme: Specific targets as to the actual number of persons represented Necessary measures to redress the effects of discrimination A timetable to attain the targets set A supervisory mechanisms to monitor progress, assess difficulties and determine changes Discrimination in Employment and Occupation

Elements of a national policy R 111 All persons should enjoy equality of opportunity in respect of Access to vocational guidance and placement services Access to training and employment Promotion and advancement Security of tenure of employment Equal pay for work of equal value Conditions of work Discrimination in Employment and Occupation

Elements of a national policy Government should ensure non-discrimination in all employment-related activities Employers should not practice or tolerate discrimination in hiring or training The principle should be respected in CBAs Employers’ and workers’ organizations should not practice or tolerate discrimination Application of the policy should not adversely affect special measures under Article 5 - Private and public employment agencies should not discriminate in placing potential workers. - Every individual should have the right to apply for a post of his or her choice. Applications should be considered without discrimination - Workers and employers organizations should not discriminate in terms of admission, retention or membership. - Collective negotiations and industrial relations: Parties should respect the principle of equality and should ensure that collective agreements contain no provisions of of a discriminatory nature in respect of access to, training for, advancement in or retention of employment or in respect of the terms and conditions of work. Discrimination in Employment and Occupation

Means of promotion and enforcement Administrative structures (e.g. labour inspection) Representative bodies at the enterprise level Special bodies to promote, investigate, supervise equality and prevent discrimination (EEO commission) Special temporary measures Educational programmes Administrative structures: include the labour ministries and the labour inspectorate. Respresentive bodies at enterprise level composed of workers’ and employer’s representatives Special bodies: The Recommendation provides for the establishment of agencies assisted by advisory committees composed of representatives of worker’s and employers’ organizations and of other interested bodies, for the purpose of promoting the application of the policy in all fields of public and private emplyoment, and in particular: To take all practicable measures to foster public understanding and acceptance of the principles of non-discrimination To receive, examine and investigate complaints that the policy is not being observed and, if necessary by conciliation, to secure correction of any practices regarded as in conflict the the policy; To consider further any complaints which cannot be effectively settled by conciliation and to render opinions or issue decisions concerning the manner in which discriminatory practices revealed should be corrected. Discrimination in Employment and Occupation

Discrimination in Employment and Occupation Issues in application Indirect discrimination Affirmative action/positive action Lack of enforcement Administrative Judicial Informal economy Exclusion of certain job from coverage of labour legislation Equality in the broader context of society Discrimination in Employment and Occupation