Lecture 4. Equality and Non-Discrimination at Workplace

LECTURE COURSE

Principle of equal treatment was first developed in Aristotle's best known work on ethics which is called the Nicomachean Ethics. In this work Aristotle proclaims principle “equal shares for equals”.

Historically, constitutional and legislative texts established the principle of equality before the law as a means of abolishing the immunities and privileges accorded to some people or classes by the former monarchies. States were asked by international organizations to respect a simple obligation of abstention: not to give preferential treatment to certain citizens. To discriminate implies to focus on one or more characteristics of the person concerned, while forgetting the others, to separate him or her from the group, and treat him or her less well.

ILO Convention No. 111 defines discrimination as “any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”, and allows additional criteria to be included after consultation by the governments concerned with employers’ and workers’ organizations.

In a growing number of countries the list of allows additional criteria of discrimination has expanded in recent years to include disability, age, state of health (including actual or perceived HIV/AIDS status), trade union membership and family status, among other grounds.

Discrimination may occur when looking for a job, while on the job or upon leaving. Discrimination is a differential and less favorable treatment of certain individuals because of any of the abovementioned characteristics, regardless of their ability to fulfill the requirements of the job.

Discrimination is not an exceptional or aberrant occurrence, but a systemic phenomenon, frequently embedded in the way in which workplaces operate and rooted in prevalent cultural and social values and norms. Discrimination does not distinguish between formal and informal workplaces, although in the latter it may acquire more overt forms, as they fall outside the scope or outreach of labour laws and enforcement mechanisms.

Discrimination can be direct or indirect. It is direct when rules, practices and policies exclude or give preference to certain individuals just because they belong to a particular group. Forms of direct discrimination include job advertisements stating that persons above a certain age need not apply, or human resource practices that require regular pregnancy tests of female employees with a view to refusing to hire or even dismissing those who happen to be pregnant. Discrimination based on pregnancy appears to be on the increase, even in countries that have long combated it and are facing plummeting fertility rates. In the United Kingdom, for example, a recent report by the Equal Opportunities Commission states that 30,000 women each year lose their jobs because of their pregnancy, and only 3 per cent of those who experience a problem lodge a claim at an employment tribunal. Discrimination also occurs when enterprises recruiting female workers require them to work for a certain period in the enterprise before being allowed to become pregnant.

Discrimination is indirect when apparently neutral norms and practices have a disproportionate effect on one or more identifi able groups, without justification. Organizing training courses outside working hours, for instance, over the weekends or late in the day may exclude workers who may be interested in attending them but cannot do so because of their family responsibilities, thus compromising their career prospects.

The differential treatment of particular categories of workers, in the form of inferior social benefits or pay, may also amount to indirect discrimination. The lower legal protection granted everywhere to domestic workers, most of whom are low-income women belonging to racial or ethnic minorities, and who are often foreigners, has been recognized as a form of indirect discrimination based on class, sex, race or migrant status.

All discrimination produces unequal effects that place the victims of discrimination in a situation of disadvantage, impairing their access to opportunities for employment, let alone equality of treatment at the workplace. It also translates into lower motivation for work and performance, leading to lower labour productivity and tensions at the workplace, with negative results for the enterprise’s overall performance and welfare. Human resource management practices and policies that prevent discrimination at work and promote equal treatment and opportunities without arbitrary distinctions are not only beneficial to the individual but also good for business.

Not all differences in treatment, however, are unlawful. For instance, those that are based on the actual exigencies of a job are not. Being male or female may be a legitimate requirement for jobs involving close physical contact or for the performing arts. Distinctions based on skills or effort are just and legitimate: disparities in remuneration that reflect differences in years of education or the number of hours worked are in order.

Similarly, special measures that entail non-identical treatment of individuals with particular needs, owing to reasons such as their sex, mental, sensory or physical impairment or social origin, do not constitute discrimination. Giving effect to the principle of equal treatment and opportunities means more than treating persons in the same way; it also requires special measures and the accommodation of differences. For example, building ramps in the workplace for workers with physical impairments is one such measure; guaranteeing pregnancy and maternity protection to women workers is essential to ensure genuine equality with men in the world of work. Such unequal treatment in labour relations is called differentiation.

Equality at work therefore is not just about prohibiting discrimination; it is about changing the status quo and transforming the workplace to make it more inclusive. How much change is desirable, in what respects and by when, must be determined at the national level according to each country’s possibilities and bearing in mind cultural and social sensitivities.

Western European and American legal doctrines usually distinguishes two basic approaches to equality at work: achieving the so-called formal or substantive equality. Formal equality is a traditional concept, which implies equal treatment for equal citizens. The concept of real equality is aimed at achieving equality in opportunities, not just the rights available to employees and applicants for employment jobs. It is obvious that in order to achieve the "real equality" certain categories of workers should be granted certain advantages over other workers on various issues.

In the middle of XX century fundamental changes in the attitude of the public to ensure the equality of people, including at work, happened. New legal acts, which established the principle of equality of citizens, were adopted. The Universal Declaration of Human Rights of 1948 (Article 2) states that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

Principle of equality also enshrined in the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.

Among regional instruments relating to the prohibition of discrimination on the level of the Council of Europe it is possible to enumerate the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the European Social Charter (revised in 1996).

ILO enshrined the principle of equal pay for equal work in the preamble to its Constitution in 1919, but a more detailed formulation of this principle is contained in the Declaration of Philadelphia in and in the ILO Declaration on Fundamental Principles and Rights at Work. In the Declaration, the principle of non-discrimination was included in the four fundamental principles at work.

Main ILO’s instrument on equality at work is Discrimination (Employment and Occupation) Convention No. 111. ILO Convention 111 is a fundamental ILO convention. It was adopted in 1958 and has since been ratified by 165 countries, including several in Asia. The goal is to promote equality of opportunity and treatment in employment and occupation, with a view to eliminating discrimination.

ILO Convention No.111 provides definition of discrimination and addresses discrimination based on race, colour and national extraction, including ethnicity/indigenous and tribal peoples, sex, religion, political opinion and social origin.

Discrimination (Employment and Occupation) Convention sets the principle, that distinctions based on inherent job requirements are not discrimination. Special measures of protection and assistance also referred to as positive or affirmative action.

ILO also adopted such acts, which guarantee principle of equality and non-discrimination at work as:

Equal Remuneration Convention, 1951 (No. 100); Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117); Workers with Family Responsibilities Convention, 1981 (No. 156); Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159); Indigenous and Tribal Peoples Convention, 1989 (No. 169); Equal Remuneration Recommendation, 1951 (No. 90); Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111); Older Workers Recommendation, 1980 (No. 162); Workers with Family Responsibilities Recommendation, 1981 (No. 165).

Discrimination at work is a moving target: while long-recognized patterns of discrimination based on sex, race and religion persist, often acquiring new expressions, newer forms are emerging such as discrimination on account of actual or perceived HIV/AIDS status or against workers at both ends of the age spectrum. At the same time, other practices, such as those that penalize individuals with habits regarded as unhealthy, have begun to surface in several countries.

All the criteria of discrimination based on the content of the Convention No.111 are divided into four major groups: a) race, color, national or social origin, b) sex and related grounds (gender discrimination), c) the ideological beliefs, and d) other reasons that are not directly specified in the Convention. These criteria are also called grounds or types of discrimination.

Gender discrimination is most widespread type of discrimination. This type of discrimination is given the most attention. Gender discrimination address fundamental ILO Equal Remuneration Convention (No.100), and the related Recommendation No. 90.Women continue to suffer discrimination in almost all aspects of employment, including the jobs they can obtain, their remuneration, benefits and working conditions, and their access to decision-making positions. Research has shown that gender pay gaps, occupational and vertical segregation, difficulties in balancing work and family life, the disproportionate concentration of women in part-time, informal and precarious work, sexual harassment, and discrimination based on maternity or marital status, all persist despite legislative and policy initiatives. In many cases, women’s access to certain jobs is restricted on the basis of their reproductive role or the fact that women continue to bear the main responsibility for childcare and the care of other dependants. That does not mean that progress has not been made, but rather serves to underscore the fact that women are still a long way from achieving gender equality in the labour market.

In today's anti-discrimination law there is prevalent view that the sex is also closely related with discrimination based on the marital status and the personal live of employee, such as the presence or absence of family, children, pregnancy, sexual harassment, sexual orientation. In this situation there is so-called "sex-plus "discrimination term is used, ie discrimination which is directly related with any additional circumstances, but originally based on the employee.

Discrimination between men and women has deep social roots which cannot be removed simply by legislation or any one specific measure.

To study another criteria of discrimination it is important to analyze provisions of two ILO Reports: “Equality at work: Tackling the challenges”(2007) and “Equality at work: The continuing challenge”(2011). Links to the texts of these reports are given in the additional sources.

There are some cases referred to the ILO Convention number 111, where the employer shall not be obliged of equal treatment of workers, or even have the duty of differential treatment of workers:

1. Exceptions or preference in respect of a particular job based on the inherent requirements;

2. Measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the state.

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