Q&As on business, discrimination and equality

Document | 01 February 2012

Discrimination in employment and occupation: general description and bases for discrimination

Question: What does the term “discrimination in employment and occupation” mean?

Answer: "Discrimination in employment and occupation" refers to practices that have the effect of placing certain individuals in a position of subordination or disadvantage in the labour market or the workplace because of their race, colour, religion, sex, political opinion, national extraction, social origin or any other attribute which bears no relation to the job to be performed.

Discriminatory practices can be direct or indirect. Direct discrimination arises when an explicit distinction, preference or exclusion is made on one or more grounds. For example, a job advertisement for “men only” would constitute direct discrimination.

Indirect discrimination refers to situations, measures or practices that are apparently neutral but which in fact have a negative impact on persons from a certain group. The latter type of discrimination, because of its more hidden nature, is the most difficult to tackle.

Equality of opportunity and treatment allows all individuals to fully develop their talents and skills according to their aspirations and preferences, and to enjoy equal access to employment as well as equal working conditions.

To achieve full freedom from discrimination in employment and occupation, the mere removal of discriminatory practices does not suffice. It is also necessary to promote equality of opportunity and treatment in the workplace at all stages of the employment relationship, including recruitment, retention, promotion and termination practices, remuneration, access to vocational training and skills development.

Question: What are the prohibited bases of discrimination in employment?

Answer: Bases of discrimination identified and prohibited in various international labour standards[1] include:

Distinctions based on race and/or colour are largely rooted in social and economic factors that do not have any objective basis. They commonly involve discrimination against an ethnic group or indigenous or tribal population.

Sex discrimination includes distinctions made on the basis of biological characteristics and functions that distinguish men and women; and on the basis of social differences between men and women. Physical distinctions include any job specifications which are not essential to carrying out the prescribed duties, e.g., minimum height or weight requirements which do not impact job performance. Social distinctions include civil status, marital status, family situation and maternity[2]. Women are most commonly affected by discrimination based on sex, especially in the case of indirect discrimination.

Religious discrimination includes distinctions made on the basis of expression of religious beliefs or membership in a religious group. This also includes discrimination against people who do not ascribe to a particular religious belief or are atheists. Although discrimination on the basis of religious beliefs should not be permitted, there may be legitimate bases for imposing requirements in the workplace which restrict the worker’s freedom to practice a particular religion. For instance, a religion may prohibit work on a day different from the day of rest established by law or custom; a religion may require a special type of clothing which may not be compatible with safety equipment; a religion may prescribe dietary restrictions or daily routines during work hours which may be difficult for the establishment to fully accommodate; or an employment position may require an oath incompatible with a religious belief or practice. In these cases the worker's right to practice fully his or her faith or belief at the workplace needs to be weighed against the need to meet genuine requirements inherent in the job or operational requirements.

Discrimination based on political opinion includes membership in a political party; expressed political, socio-political, or moral attitudes; or civic commitment. Workers should be protected against discrimination in employment based on activities expressing their political views; but this protection does not extend to politically motivated acts of violence.

National extraction includes distinctions made on the basis of a person’s place of birth, ancestry or foreign origin; for instance, national or linguistic minorities, nationals who have acquired their citizenship by naturalization, and/or descendants of foreign immigrants.

Social origin includes social class, socio-occupational category and caste. Social origin may be used to deny certain groups of people access to various categories of jobs or limit them to certain types of activities. Discrimination based on social origin denies the victim the possibility to move from one class or social category to another. For instance, in some parts of the world, certain "castes" are considered to be inferior and therefore confined to the most menial jobs.

Age is also a prohibited basis of discrimination. Older workers are often liable to encounter difficulties in employment and occupation because of prejudices about their capacities and willingness to learn; a tendency to discount their experiences; and market pressures to hire younger workers who are often cheaper to employ[3].

Younger workers under the age of 25 may also face discrimination. Biased treatment against younger workers can take many forms, including overrepresentation in casual jobs with lower benefits, training opportunities and career prospects; payment of lower entry wages even in low skilled jobs where such a wage differential is difficult to justify on grounds of lower productivity; and longer probation periods and much greater reliance on flexible forms of contract[4].

HIV/AIDS status: Persons living with HIV/AIDS often suffer discrimination in the workplace and the community. There should be no discrimination or stigmatization of workers on the basis of real or perceived HIV status. HIV/AIDS screening should not be required of job applicants or persons in employment. HIV infection is not a valid ground for termination of employment. Persons with HIV-related illnesses should be able to work for as long as medically fit in appropriate conditions[5].

Disability: Worldwide, approximately 470 million people of working age have a disability. While many are successfully employed and fully integrated into society, as a group, persons with disabilities often face disproportionate poverty and unemployment. In this context, non-discrimination also includes taking positive steps where feasible to accommodate particular workplace needs that workers with disabilities may have[6].

Sexual orientation: Men and women workers may suffer from discrimination if they are known or believed to be lesbian, gay, bisexual or transgender; and may be subjected to verbal, psychological and physical intimidation or violence from the employer, supervisor or other workers[7].

Workers with family responsibilities: Current trends in working time in industrialized, developing and transition economies alike are putting increased pressure on workers with family responsibilities. “Family responsibilities” includes care of children and any other dependents[8]. The definition of persons constituting "family" may be broad and could be formulated after consultation with the workers concerned or their representatives. Workers who have family responsibilities are often discriminated against in hiring, job assignment, access to training and promotion. Enterprises should avoid discriminating against workers with family responsibilities. While having regard to operational needs, enterprises are encouraged to avoid excessively long hours, unpredictable overtime that makes it difficult to plan for care of family members and scheduling work on traditional days of rest.

Trade union membership or activities: All workers have the right to form and join trade unions, and to participate as members or leaders in trade union activities[9] and should not be discriminated against for lawfully exercising this right.

Other bases: More generally, discrimination at work includes any “distinction, exclusion or preference … which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”[10]

Workers should be selected only on the basis of their ability to do the job. Enterprises are encouraged to review their hiring and other employment practices for potential bases of discrimination which may result in treating some jobseekers or workers less favorably than others because of characteristics that are not related to the person’s competencies or the inherent requirements of the job.

[1] Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Article 1(a).
[2] For further details see Maternity Protection Convention, 2000 (No. 183) and Recommendation (No. 191); and Workers with Family Responsibilities Convention, 1981 (No. 156) and Recommendation (No. 165).
[3] Older Workers Recommendation, 1980 (No. 162).
[4] Equality at work: tackling the challenges. Global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, ILO, Geneva, 2007. See, page 38.
[5] ILO Code of Practice on HIV/AIDS and the World of Work
[6] Vocational Rehabilitation and Employment (Disabled Persons) Convention (No. 159) and Recommendation (No. 168); United Nations Convention on the Rights of Persons with Disabilities
[7] Equality at work: Tackling the challenges, pages 42-43.
[8] Equality at work: Tackling the challenges, page 77.
[9] Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Article 2; Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Article 1
[10] Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Article 1(b).

Question: Is there any distinction which is not considered discriminatory?

Answer: Distinctions based on skills or efforts are legitimate.

Disparities in remuneration that reflect differences in years of education or the number of hours worked are acceptable.

Enterprise compliance with government policies designed to correct historical patterns of discrimination and thereby to extend equality of opportunity and treatment in employment does not constitute discrimination.

Special measures of protection or assistance provided by national law, such as the ones concerning health and maternity, are also important provisions which do not constitute discrimination.

Giving effect to the principle of equal treatment may require special measures and the accommodation of differences, for instance concerning people with disabilities.

Question: A company wants to recruit a worker for a job that requires physical strength. This job cannot be adapted, so as a consequence the company does not want to receive applications from older people, persons of smaller builds, women or disabled persons. To what extent can this recruitment practice be considered a breach of ILO conventions related to discrimination? How can a company respect ILO principles related to discrimination without putting at risk the health and safety of its workers?

Answer: Any distinction, exclusion or preference in respect of a particular job based on inherent requirements is not considered to be discrimination”[1] However, this exception should be interpreted restrictively.

The ILO Committee of Experts on the Application of Conventions and Recommendations explains: “When qualifications are required for a particular job, it may not be simple to distinguish between what does and what does not constitute discrimination. It is often difficult to draw the line between bona fide requirements for a job and the use of certain criteria to exclude certain categories of workers.”[2]

Any distinctions should be determined on an objective basis and should take account of individual capacities, not perceptions of the capacity of particular groups. Technological advances have made many jobs perfectly accessible to people of smaller builds, including women. Power steering has made it possible for women to drive trucks; automated platforms, forklifts, etc. have made it possible to employ both women and men of smaller stature.

So in many cases the issue is more persistent biases than requirements of the job; and all workers, regardless of size or sex, need safety provisions. This is reflected, for instance, in the new draft Code on Safety and Health in Agriculture that makes no distinction based on sex or physical stature of the worker.

[1] Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Article 1.2.
[2] General Survey on Equality in Employment and Occupation, 1996, ILO Geneva, para 118.

Question: Is the use of polygraphs by companies for recruitment purposes considered a violation of international labour standards and international human rights standards?

Answer: The ILO Code on Protection of Workers' Personal Data states that “polygraphs, truth verification equipment or any other similar testing procedure should not be used.”[1]

[1] ILO Code on Protection of Workers' Personal Data
 
Question: Does giving preferential treatment in hiring indigenous populations in a community in which the company is operating constitute discrimination?

Answer: Discrimination at work includes any “distinction, exclusion or preference … which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”[1] Discrimination occurs when a person is treated less favorably than others because of characteristics that are not related to the person’s competencies or the inherent requirements of the job.

Enterprises should respect the principle of non-discrimination throughout their operations. Enterprises should make qualifications, skill and experience the basis for the recruitment, placement, training and advancement of their staff at all levels [2], and encourage and support suppliers to do likewise.

Enterprise compliance with government policies designed to extend equality of opportunity and treatment in employment does not constitute discrimination.

The Indigenous and Tribal Peoples Convention, 1989 (No. 169) encourages governments to ensure that indigenous peoples benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population and assist them to eliminate socio-economic gaps that may exist between indigenous and other members of the national community. (Article 2.2)

[1] Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Article 1(b).
[2] ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (revised 2006), paragraph 22
 

Question: Where can discrimination occur in the workplace?

Answer: Discrimination may occur before hiring, on the job or upon leaving. At the enterprise level, it can occur in the following areas:

  • recruitment
  • remuneration
  • entitlements
  • hours of work and rest
  • paid holidays
  • maternity protection
  • security of tenure
  • job assignments
  • performance assessment and promotion
  • training opportunities
  • job prospects
  • occupational safety and health
  • termination of employment. [1]

Discrimination does not have to be intentional and often managers and workers in a company are surprised at discriminatory practices they uncover when they start to look for them.

Discrimination can be direct or indirect. Indirect discrimination refers to apparently neutral practices that in fact result in unequal treatment of people with certain characteristics[2]. For instance, organizing training courses after work late in the day may exclude workers who may be interested in attending them but cannot do so because of their family responsibilities. Workers who receive less training are likely to be disadvantaged in subsequent job assignments and promotion prospect.

[1] Recommendation No.111 Discrimination (Employment and Occupation) Recommendation, 1958
[2] ILO, ABC of Women worker’s rights and gender equality, 2nd Edition. Geneva 2007


Advantages of a diverse workforce

Question: What are the advantages of a diverse workplace?

Answer: In increasingly competitive environments, many companies need to find new methods to improve efficiency and take advantage of all available resources.

In an age of globalized production, enterprises are now likely to have staff with diverse backgrounds, often from different countries, coming into contact with one another. Companies with a culture of equality of opportunity will have an easier time managing diverse work teams.

Globalization of markets means that companies with workers from different backgrounds in terms of gender, race, ethnicity, religion, national origin, age, disabilities, HIV/AIDS status, etc. will be in a better position to anticipate customers’ diverse expectations and needs.

Changing workforce demographics also are forcing organizations to review and revise long-held beliefs and policies concerning the people who work in these organizations.

Non-discriminatory practices are increasingly recognized as an important managerial tool to increase efficiency and productivity.

Most importantly, treating workers fairly is a human right which all companies are expected to respect.

Company policies and programmes should recognize and value the different backgrounds of employees and seek to attract and retain the best qualified workers and place equality of opportunity at the heart of their human resources management.

Question: Has a positive link been demonstrated between equality in the workplace and good business performance?

Answer: It is generally accepted that there is a positive link between equality at the workplace and good business performance. The specific effects of non-discriminatory employment practices on productivity and performance which have been identified[1] support the propositions that:

  • equal opportunity practices improve productivity;
  • equal opportunity practices have a greater positive impact on productivity in those enterprises where discriminated groups form a higher proportion of the workforce;
  • more active equal opportunity policies have a greater positive effect on productivity as:
    • labour is more efficiently allocated, increasing the quality of human capital and motivation, which improves organizational efficiency;
    • there is a better match between individuals and jobs when more objective and systematic criteria are used for selection;
    • members of the discriminated groups are more highly motivated due to: 1) better career prospects, 2) increased sense of fairness, 3) more rewarding assignments and opportunities for creativity, 4) staff turnover is lower (particularly among discriminated groups) and 5) a less stressful work environment leads to better health, morale and dignity.

There is evidence of a higher impact on productivity when equal employment opportunity practices are complemented by employee participation.

[1] See, Corporate Success through People, Rogovsky and Sims, 2002


Development of a corporate non-discrimination and equality policy

Question: How do you incorporate the principle of non-discrimination in policies at the workplace, especially in Human Resources measures?

Answer: Companies are encouraged to eliminate discrimination in the employment through the

following measures:

  • Make a strong commitment from the top. When the most senior management assumes responsibility for equal employment issues and demonstrate a commitment to diversity, they send a strong signal to other managers, supervisors and workers.
  • Conduct an assessment to determine if discrimination is taking place within the enterprise, for example using a self-assessment questionnaire.
  • Set up an enterprise policy establishing clear procedures on non-discrimination and equal opportunities; and communicate it both internally and externally.
  • Provide training at all levels of the organisation, in particular for those involved in recruitment and selection, as well as supervisors and managers, to help raise awareness and encourage people to take action against discrimination.
  • Support on-going sensitization campaigns to combat stereotypes.
  • Set measurable goals and specific time frames to achieve objectives.
  • Monitor and quantify progress to identify exactly what improvements have been made.
  • Modify work organization and distribution of tasks as necessary to avoid negative effects on the treatment and advancement of particular groups of workers. This includes measures to allow workers to balance work and family responsibilities.
  • Ensure equal opportunity for skills development, including scheduling to allow maximum participation;
  • Address complaints, handle appeals and provide recourse to employees in cases where discrimination is identified;
  • Encourage efforts in the community to build a climate of equal access to opportunities (e.g. adult education programs and the support of health and childcare services).

Question: What is the role of workers in non-discrimination at the workplace?

Answer: Workers, through their representatives, can be management’s strongest ally in combating discrimination. Enterprises should consider setting up bipartite bodies involving workers’ freely chosen representatives, to determine priority areas and strategies, and to counter bias in the workplace. Involvement of workers’ representatives in tackling discrimination at work will ensure that they are committed to the goals.

Question: How does the national non-discrimination law relate to the international labour standards on non-discrimination?

Answer: The above guidance is provided based on international labour standards. When developing a non-discrimination and equality policy, it is advisable to consult the national law on non-discrimination. National employers and workers organizations may be a good source of information on national law, regulation and collective bargaining agreements pertaining to non-discrimination law and practice.


Sexual harassment in the workplace

Question: How does sexual harassment relate to discrimination?

Answer: Discrimination based on sex also includes sexual harassment. Sexual harassment in employment involves untoward actions that:

  • are justly perceived as a condition of employment or precondition for employment;
  • influence decisions affecting job assignment, opportunities for promotion, etc.; or
  • affect job performance.

Actions which may constitute sexual harassment include:

  • any insults or inappropriate remarks, jokes, insinuations or comments on a person's dress, physique, age, family situation, etc;
  • a condescending or paternalistic attitude with sexual implications undermining dignity;
  • any unwelcome invitation or request, implicit or explicit, whether or not accompanied by threats;
  • any lascivious look or other gesture associated with sexuality; or
  • any unnecessary physical contact such as touching, caresses, pinching or assault.

Sexual harassment is a particularly pernicious form of discrimination requiring a zero tolerance approach.


Discrimination in remuneration

Question: We hear a lot about pay differences between women and men. What does equal pay for work of equal value mean? What measures can the employer put in place to improve this imbalance?

Answer: The principle of non-discrimination in respect of employment and occupation includes the principle of equal remuneration for men and women who produce work of equal value[1].

The principle of equal pay for work of equal value means that rates and types of remuneration should be based not on an employee’s sex but on an objective evaluation of the work performed.

Equal remuneration is a fundamental right of women and men workers.

Nonetheless, pay differential between the sexes persists; on average worldwide, women’s income per hour is about 75 per cent of that of men. There are several reasons for this gender pay gap. Women are under-represented within higher paying sectors and larger enterprises which tend to pay more. They are under-represented in higher-paid jobs within companies; jobs where women workers are dominant often are classified at lower levels, resulting in lower pay. Women also are under-represented in enterprises with trade unions. Women are highly concentrated in “flexible” work such as part-time, piece-rate or temporary work, which are poorly paid; and they work fewer overtime hours than men. Discrimination with respect to promotion in employment also is an important factor.

The principle of equality pertains to all the elements of remuneration, including salary or ordinary wage and other basic fees and benefits, directly or indirectly paid, in money or in kind.

This principle can be implemented by some practical measures:[2]

  • Job classification systems and pay structures should be based on objective criteria (education, skills and experience required) irrespective of the sex of the workers concerned.
  • Any reference to a particular sex should be eliminated in all remuneration criteria, and in collective agreements, pay and bonus systems, salary schedules, benefit schemes, medical coverage and other fringe benefits.
  • Any remuneration system or structure which has the effect of grouping members of a particular sex in a specific job classification and salary level should be reviewed and adjusted to ensure that other workers are not performing work of equal value in a different job classification and salary level.
  • Corrective measures should be taken whenever a situation of unequal remuneration is discovered.
  • Special training programmes could be organized to inform staff, particularly supervisors and managers, of the need to pay employees on the basis of the value of the work and not on who is performing the work.
  • Separate negotiations on equal remuneration should be conducted between management, employees’ representatives and the women workers affected by the existing unequal job classification or pay structure of a particular workplace.
  • Part-time and hourly employees should be compensated in all types of remuneration on an equal basis with full-time employees, proportional to the number of hours they work.
  • The value of work should be based only on the work components, responsibilities, skills, efforts, working conditions and main results.

[1] ILO Equal Remuneration Convention (No. 100).
[2] For detailed guidance, see Promoting equity. Gender-neutral job evaluation for equal pay: a step by-step guide. ILO, Geneva. 2008.