Chapter III. Inherent requirements of a particular job and measures not deemed
to be discrimination
Section 1. Inherent requirements of a particular job
125. In the terms of Article 1, paragraph 2, of the Convention, "any
distinction, exclusion or preference in respect of a particular job based on
the inherent requirements thereof shall not be deemed to be discrimination."
The promotion of equality of opportunity and treatment envisaged by the
Convention requires that access to training, employment and occupation be
based on objective criteria defined in the light of academic and occupational
qualifications required for the activity in question. (Endnote 2) Normally,
these requirements do not constitute discrimination under the terms of the
Convention; they fall beyond its scope. Problems regarding the distinction
between illegal discrimination and the inherent requirements of a particular
job may arise in one of two ways: either a required qualification does not
prove to be inherent to the job in question and constitutes discrimination
even though explicit reference is not made to one or more of the grounds laid
down in the Convention; or, a distinction based on one or more of these
grounds is explicitly required as a necessary qualification. Thus, the
exception allowed for in Article 1, paragraph 2, of the Convention, must be
interpreted strictly, so as not to result in undue limitation of the
protection which the Convention is intended to provide. Available information
highlights two points of interest: the scope of this exception, i.e. a
particular job, and the definition of "inherent requirements" of a particular
job.
126. It appears from the preparatory work and the text of the Convention as
ultimately adopted, that the 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 the characteristics of the
particular job, and be in proportion to its inherent requirements. Certain
criteria may be brought to bear as inherent requirements of a particular job,
but they may not be applied to all jobs in a given occupation or sector of
activity, and especially in the public service, without coming into conflict
with the principle of equality of opportunity and treatment in occupation and
employment. In this connection, the Committee recalls the indication in a
previous General Survey that although "it may be admissible, in the case of
certain higher posts which are directly concerned with implementing government
policy, for the responsible authorities generally to bear in mind the
political opinions of those concerned, the same is not true when conditions of
a political nature are laid down for all kinds of public employment in general
or for certain other professions: for example, when there is a provision that
those concerned must make a formal declaration of loyalty and remain loyal to
the political principles of the regime in power". (Endnote 3) Thus, systematic
application of requirements involving one or more of the grounds of
discrimination envisaged by the Convention, to a category of persons defined
by their status or their employment in an enterprise, irrespective of the
aptitude of these persons to carry out the tasks assigned to them, does not
correspond to the inherent requirements of a particular job. (Endnote 4)
127. Likewise, the general exclusion of certain jobs or occupations from the
scope of measures designed to promote the principle of equality of opportunity
and treatment is contrary to the Convention, for it applies to all jobs and
occupations. (Endnote 5) Certain laws on equality of opportunity and treatment
in employment and occupation leave certain categories of employment or jobs
performed in certain conditions outside their scope, e.g. domestic employment
or jobs in which the worker resides in the employer's home. (Endnote 6) In the
United Kingdom the provisions which excluded household employment and
employment in enterprises of five or fewer employees regardless of the nature
of their activity, from the scope of the 1975 Act on Sex Discrimination, have
been repealed. (Endnote 7) Noteworthy among provisions establishing an
absolute exemption are those which concern charitable or philanthropic
organisations, non-profit associations, church-run schools and organisations
whose primary activity is to promote the well-being of a religious or ethnic
group. (Endnote 8) Unless such provisions stipulate that this exception must
be based on an occupational requirement or qualification which is reasonable
and bona fide in the circumstances, (Endnote 9) the application of this
exception may lead to discrimination as defined by the Convention. In the case
of a religious, ethnic or political institution, the inherent requirements of
a particular job must also be evaluated in the light of the actual bearing of
the tasks performed on the institution's specific objectives. (Endnote 10) The
Committee has stated that criteria such as political opinion, national
extraction and religion may be taken into account in connection with the
inherent requirements of certain posts involving special responsibilities, but
that if carried beyond certain limits, this practice comes into conflict with
the provisions of the Convention. (Endnote 11)
128. Many labour laws do not provide explicitly for any exception to the
principle of equality of opportunity and treatment in employment. There are,
however, many provisions which introduce distinctions based on sex or age,
generally in the form of specific provisions applicable to women or young
workers; in general, these provisions come under the exception provided for in
Article 5 of the Convention. Legislation seeking to eliminate racial or sexual
discrimination often contains explicit conditional exemptions to the principle
of non-discrimination, in the form of either general provisions or lists of
jobs or types of jobs for which a criterion such as sex may be retained as an
inherent requirement; or they may combine both approaches, in which case a
number of jobs are listed by way of illustration.
129. Among general provisions, some refer to the concept of bona fide or
legitimate grounds to justify an exception to the principle of equality.
(Endnote 12) In other countries a general provision authorises a distinction
in treatment based on one of the criteria envisaged by the Convention, where
this criterion constitutes an essential requirement for the activity or a bona
fide occupational qualification. (Endnote 13) One of the difficulties
encountered in the application of such general provisions resides in the
burden of proof. As a general rule, the employer is required to prove that the
special treatment is justified by objective reasons unrelated to a
discriminatory criterion, or that this criterion constitutes an essential
requirement for the work involved. In the Federal Republic of Germany, as
regards disputes arising from distinctions based on sex, the worker is to
establish facts that afford grounds for assuming the existence of
discrimination, while it is for the employer to prove that differences in
treatment are justified on grounds unrelated to sex. (Endnote 14) Given the
general nature of such provisions, information concerning their application in
practice, and especially their interpretation by the courts, is required to
ensure that they fall within the scope of the exception established in Article
1, paragraph 2, of the Convention.
130. Sometimes it is activities and not jobs, strictly speaking, which are
presumed to qualify as exceptions when the worker's sex is held to be an
essential requirement for the service in question. In certain countries the
recruitment of one sex to the exclusion of the other for certain activities in
the fields of fashion, art or entertainment is not deemed discrimination when
this limitation is essential, inasmuch as the sex of the person concerned
leads to a qualitative difference in the nature of the service or work.
(Endnote 15) In several countries a person's sex is considered an occupational
requirement or a genuine occupational qualification for certain kinds of jobs.
This is generally the case when physiological factors (strength and physical
endurance generally being excluded), (Endnote 16) or reasons of authenticity,
aesthetics or tradition (as in the case of entertainment) inherent in the job,
require a person of one sex rather than the other. (Endnote 17) Pursuant to
the terms of certain national legislation, considerations of decency and
privacy may, in certain circumstances (physical contact, use of sanitary
facilities, etc.), constitute a valid criterion for defining qualifications.
(Endnote 18) The nature of the establishment in which the work is to be
performed is also mentioned as a valid criterion in determining
qualifications. (Endnote 19) In order to fall within the scope of the
exception provided for in Article 1, paragraph 2, of the Convention, these
criteria must in a concrete way correspond to the inherent requirements of a
given job. (Endnote 20) In the United Kingdom, the law specifies that
exceptions to equality between men and women, based on considerations of
privacy and decency, or the nature of the establishment, shall not apply to
the filling of vacancies when the employer already has employees of a
particular sex who are capable of carrying out the duties envisaged, who can
be reasonably assigned to these tasks, and who are sufficient in number to
meet the employer's likely requirements in respect of those duties withou
undue inconvenience. (Endnote 21)
131. Certain provisions permit the government, following consultation with
workers and employers, to identify jobs whose characteristics justify recourse
to requirements based on sex, race, colour, religion or political opinion. In
Spain, exceptions, reservations or preferences in recruitment which do not
come under the prohibition of discrimination on several specified grounds must
be laid down by legislation. (Endnote 22) In Australia, regulations issued by
the Governor-General may indicate sex as a valid criterion for a given job.
(Endnote 23) In Denmark, Ministers may determine which jobs shall be exempt
from the principle of equality, based on the importance of recruiting a person
of a particular sex for the performance of certain types of jobs. (Endnote 24)
In other cases, the legislature or the government may, after consulting with
employers' and workers' representative bodies, draw up a list of jobs for
which consideration of a criterion mentioned in the Convention shall not be
deemed discriminatory, owing to the nature of the job and the conditions in
which it is performed. In Luxembourg the Government may, after consultation
with the parties concerned, identify cases in which a particular sex may be
required for a particular employment, training or occupational activity, owing
to the nature or conditions of the activity in question. (Endnote 25)
132. In a certain number of cases, an exception to the principle of equality
is based on the fact that what is normally a criterion for illegal
discrimination, may constitute a bona fide occupational requirement or
qualification, or a reasonable occupational qualification, either for
specifically designated jobs or categories of jobs, or for all employment. In
general, where jobs are identified by name, there is a presumption that
preferences, distinctions or exclusions applying to a job or a limited
category of jobs, are a bona fide occupational requirement. Where however the
notion of bona fide occupational requirements applies to all employment, the
burden of proof lies with the employer. Certain national legislation defines
the scope of the concept of bona fide occupational requirement or
qualification: (Endnote 26) qualifications which make it necessary to hire
only persons of a given sex or age bracket, or persons possessing certain
physical capabilities which are required to ensure that the nature of the work
in question is not affected, or that the tasks involved are carried out
safely, or in connection with tasks whose performance is essential to the
primary objectives of the enterprise. It is not enough that the employer
believes sincerely that the candidate must meet certain conditions to be
eligible for the job: there are no bona fide occupational requirements other
than those which the employer is able to substantiate. These same provisions
also point to a number of unacceptable requirements: the evaluation of an
individual's competence for a given task based on stereotypes of the category
or group to which the person belongs, rather than on his or her merit and
personal competence; requirements based on the preferences of employees and
clients, except as regards purposes of authenticity; (Endnote 27) requirements
stipulating that tasks should be accomplished in a particular way, when there
are other reasonable ways of performing the same tasks; qualifications based
on a distinction between "heavy work" and "lightwork", which amount to a
veiled distinction between the sexes that may unfairly and unreasonably impede
the promotion of women to jobs to which they would otherwise have access, etc.
The various laws which make reference to the exception based on bona fide
occupational requirements do not apply to all grounds for discrimination, but
are generally limited to physical or mental disability, sex, religion and age.
Thus, there is no exception to the principle of equality of opportunity and
treatment in employment and occupation with regard to the grounds which are
not explicitly referred to in the legislation: such other grounds are in a
general and absolute way deemed discriminatory. (Endnote 28)
133. In Canada, the Canadian Human Rights Commission has published guide-lines
concerning the interpretation of the term "bona fide occupational
requirements", which are based on three main concepts: essential tasks,
individual competence and reasonable accommodations. (Endnote 29) In the first
place, the enterprise may base job requirements only on the job's essential
tasks. Secondly, the competence of each person who applies for the job must be
assessed fairly, and the employer may not refuse to examine the applications
of persons who belong to certain categories. Lastly, to the extent possible,
the enterprises must be prepared to make the necessary accommodations to
permit disabled persons and the adherents of certain religions to modify their
work schedules, or to exchange certain non-essential duties with other
employees. In order to demonstrate that the necessary adaptations are not
reasonable, the enterprise may cite undue hardship, whether related to
financial cost or business inconvenience. (Endnote 30) The concept of
reasonable accommodation is considered a fundamental principle of equality of
access to employment, for it takes account of limitations and special needs
which may lend themselves to unlawful distinctions, especially as regards
religion or disability. Indeed, the unjustified refusal to undertake such
adaptations may in itself constitute an act of discrimination.
Section 2. Measures affecting an individual who is suspected of activities
prejudicial to the security of the State
134. In accordance with Article 4 of the Convention, "any measures affecting
an individual who is justifiably suspected of, or engaged in, activities
prejudicial to the security of the State shall not be deemed to be
discrimination, provided that the individual concerned shall have the right to
appeal to a competent body established in accordance with national practice.
(Endnote 31) As an exceptional clause, Article 4 must be applied stricto jure
in order to avoid undue limitations on the protection which the Convention
seeks to guarantee. Very little information has been communicated by
governments as regards the conditions and criteria of application of Article 4
of the Convention. Given the impact which the application of this Article may
have on the practical implementation on the principle of equality of
opportunity and treatment in employment and occupation, the Committee
considers it necessary to recall certain observations it has formulated
previously.
135. Firstly, measures not to be deemed discriminatory under Article 4 must be
measures affecting an individual on account of activities he or she is
justifiably suspected or proven to have undertaken. The Committee has
previously noted that Article 4 of the Convention "excludes, first of all, any
measures taken not because of individual activities but by reason of
membership of a particular group or community; such measures could not be
other than discriminatory." (Endnote 32) Secondly, the exception provided for
in Article 4 refers to activities qualifiable as prejudicial to the security
of the State, whether such activities are proved or whether concurring and
precise presumptions justify suspecting such activities. (Endnote 33)
Therefore, the expression of opinions or religious, philosophical or political
beliefs is not a sufficient base for the application of the exception
justified by activities prejudicial to the security of the State. (Endnote 34)
It should be recalled that the protection afforded by the Convention is not
limited to differences of opinion within the framework of established
principles, and that if certain doctrines are aimed at fundamental changes in
the State's institutions, this does not constitute a reason for considering
their propagation beyond the protection of the Convention, provided those who
may advocate such doctrines do not resort to violent methods to bring about
such changes. (Endnote 35)
136. Thirdly, measures intended to safeguard the security of the State within
the meaning of Article 4 of the Convention must be sufficiently well defined
and delimited to ensure that they do not become discrimination based on
political opinions or religion, which would defeat the Convention's primary
objective, namely to promote equality of opportunity and treatment in
employment and occupation. (Endnote 36) The Committee has previously
emphasised that Article 4 of the Convention "rests on the protection of the
"security of the State", the definition of which should be sufficiently narrow
to avoid the risk of coming into conflict with any policy of
non-discrimination. (...) while some national provisions appear at first sight
to contain a sufficiently precise definition of what constitutes a threat to
the security of the State, others are couched in such broad terms (covering
for example lack of "loyalty", "the public interest", "anti-democratic"
behaviour, membership in or support of certain political movements, etc.) that
in the absence of detailed information as to their application in practice it
is not possible to be certain that use might not be made of them for reasons
related solely to political opinion." (Endnote 37) The application of measures
intended to protect the security of the State must be examined in the light of
the bearing which the activities concerned may have on the actual performance
of the job, tasks or occupation of the person concerned. Otherwise, there is a
danger, and even likelihood, that such measures entail distinctions and
exclusions based on political opinion or religion, which would be contrary to
the Convention. (Endnote 38)
137. In addition to these substantive conditions intended to guarantee that
measures adopted in practice are not discriminatory within the meaning of the
1958 instruments, there is also a procedural guarantee: the right of the
person affected by the measures described in Article 4 of the Convention, "to
appeal to a competent body established in accordance with national practice."
Existence of a right of appeal, while constituting a necessary condition for
the application of the exception to the principle of the Convention, (Endnote
39) is however not sufficient in itself. (Endnote 40) Bearing on the
observance of the substantive conditions mentioned in the preceding
paragraphs, the right of appeal cannot be considered as a guarantee in
accordance with the provisions of Article 4 of the Convention, unless those
substantive conditions have been met. In a previous Survey, the Committee
already stated that "enforcement through the courts will not suffice to
guarantee the application of the standards embodied in the 1958 instruments in
this respect if the provisions which the courts have to apply are themselves
incompatible with these standards." (Endnote 41) The reference to "a competent
body established in accordance with national practice" clearly implies that a
variety of systems may be used to permit the exercise of this right of appeal.
Appeals may follow the normal procedural rules of judiciary or administrative
courts. In certain cases, special procedures, often established under
emergency legislation, are provided for the examination of measures taken.
Compliance with Article 4 of the Convention must be examined on a case-by-case
basis so as to ascertain that certain minimum conditions are met. There must
be an appeals "body" which is separate from the administrative or governmental
authority, and which offers a guarantee of objectivity and independence. This
body must be "competent" to hear the reasons for the measures taken against
the person in question, and to afford him or her the opportunity to present
his or her case in full. (Endnote 42)
138. In certain cases, the fact that one is suspected of activities
prejudicial to the security of the State may entail the arrest and detention
of the person concerned; pursuant to the provisions of labour or other
legislation, this may lead to termination of the employment contract. In order
to avoid this termination of employment contracts, provisions have been
inserted into a collective agreement in Venezuela, with a view to protecting
workers who are being detained by the police or the courts, by safeguarding
their employment until their guilt has been established by a final judgement.
(Endnote 43) If suspicions concerning a person alleged to have engaged in
activities prejudicial to the security of the State are not confirmed during
the course of the required procedures, the restrictions to the principle of
equality of opportunity and treatment in employment and occupation must be
lifted as regards the person concerned. The Canadian Human Rights Commission
has proposed an amendment to the Canadian Human Rights Act which would
institute an appeal to ensure that persons who have come under indictment do
not incur discrimination because of a charge of a criminal offence regarding
which they have not been convicted. (Endnote 44)
Section 3. Special measures of protection or assistance
139. There are two kinds of special measures of protection or assistance
envisaged in Article 5 of the Convention: measures of protection and
assistance provided for in international labour Conventions and
Recommendations, and measures taken after consultation with employers' and
workers' organisations which are designed to meet the particular requirements
of persons or groups of persons who require special protection or assistance.
Subsection 1. Measures provided for in international labour standards
140. Ratification of Convention No. 111 is not to come into conflict with the
ratification or implementation of other instruments adopted by the
International Labour Conference providing for special measures of protection
or assistance. Under Article 5 of the Convention, distinctions or preferences
which may result from the application of such measures shall not be deemed to
be discrimination within the meaning of the Convention. This concerns, for
instance, special measures which may be taken on behalf of indigenous
populations or disabled or older persons, which are expressly recognised as
non-discriminatory. (Endnote 45) It concerns also provisions intended to
protect maternity or the health of women, which are contained in numerous
international instruments of the ILO. (Endnote 46)
141. In the light of available information, the question of the relationship
between the prohibition of night work for women and the principle of equality
and opportunity of treatment in employment and occupation has been examined.
The International Labour Conference has adopted three Conventions on night
work of women in industry, (Endnote 47) and many States have dealt with the
matter in statutory instruments. (Endnote 48) In most cases the rules
prohibiting the employment of women at night provide for exceptions which
permit the employment of women at night in the fields of health care
(hospitals), hotels, restaurants, entertainment and amusements, and in
commerce and offices. Moreover, these rules do not generally apply to women
holding responsible managerial or technical posts. Since its most recent
General Survey, the ILO has recorded nine denunciations of one or the other of
the instruments prohibiting night work for women, including four by States
which have ratified Convention No. 111: Chile, Hungary, Netherlands and New
Zealand. (Endnote 49) In support of their denunciations, the Governments
indicated that improvements in working conditions and changes in attitudes had
eliminated the objective reasons which had originally motivated this
protection, and that the ban on night work for women had come to be perceived
as an inadmissible form of discrimination. (Endnote 50) Certain governments
have also stated that these Conventions weaken the position of women on the
labour market by diminishing demand for their services. (Endnote 51) Several
countries have been debating in recent years the advisability of denouncing
these Conventions. (Endnote 52) It has been argued that repeal of the
prohibition would be considered as a means of enhancing productivity and of
removing obstacles to equality of opportunity and treatment. (Endnote 53) The
Governing Body of the ILO has decided to include the question of night work on
the agenda of the 76th Session of the International Labour Conference (1989).
(Endnote 54)
142. From the standpoint of Convention No. 111, eliminating the protection
afforded to women by the ban on night work in industrial enterprises cannot be
deemed the only measure necessary in order to promote equality of opportunity
and treatment in employment and occupation. Other measures, such as a
generalised prohibition of this form of work, considered intrinsically harmful
to the health and life of all workers, (Endnote 55) whether men or women,
accompanied by strict limitations established in consultation with employers'
and workers' organisations in respect of night work indispensable to ensure
essential services or imposed for technical reasons will satisfy the
requirements of the promotion of equality. Rules adopted in application of the
principles established in international Conventions concerning the night work
of women in industry come under the provisions contained in Article 5,
paragraph 1, of the Convention. The Committee is of the opinion that the
promotion of equality of opportunity and treatment in employment and
occupation, without discrimination based on sex, should not be sought at the
expense of a degradation of working conditions, and much less be based on such
a degradation. (Endnote 56) The International Labour Conference recalled that
the "protection of women at work shall be an integral part of the efforts
aimed at continuous promotion and improvement of living and working conditions
of all employees". (Endnote 57) Equality of opportunity and treatment has been
widely invoked with a view to legitimising efforts to eliminate the ban on
night work for women, to the point of losing sight of other economic and
social considerations which may exercise a certain influence in this area.
(Endnote 58) In examining this question, the Commission of the European
Communities considered that "discussion of the problem should no longer
concern whether a job should be done by men or women, but rather the
legitimacy and necessity of night work at all". (Endnote 59)
143. Maternity protection, in the form of leave before and after confinement
and protection against dismissal, (Endnote 60) is in certain countries a
standing and usual requirement offering varying degrees of protection,
depending upon the country in question. (Endnote 61) In practice, however,
maternity remains subject to discrimination when it is taken into account in
considering applications for employment or as grounds for termination.
(Endnote 62) It is also the source of indirect indiscrimination as regards
working conditions. In a number of countries measures for the protection of
maternity are considered as an exception or dispensation from the principle of
equality. Maternity, however, is a condition which requires differential
treatment to achieve genuine equality, and in this sense, it is more of a
premise of the principle of equality than a dispensation. Measures of
protection for maternity aim to protect the maternal function, rather than the
woman herself, even if the two go hand in hand for biological reasons.
(Endnote 63) The question of maternity protection goes beyond the sphere of
protective legislation, "being related to national social factors, since it
concern(s) a right and a function affecting the future of the entire
community. It (is) considered necessary that special measures should be taken
to enable women to fulfil their maternal role." (Endnote 64) Available
information shows that in many countries very special consideration is
accorded to maternity and pregnancy protection, and that often quite
comprehensive measures have been adopted which in some cases go beyond the
protection afforded by international Conventions. (Endnote 65)
144. A certain number of measures are undeniably related to what many
countries (Endnote 66) consider as a legitimate need to protect women against
the biological risks which they face as women. It will be necessary to
maintain this protection until manufacturing processes have been modified so
as to eliminate all biological risks which may affect women (or their unborn
children), or until protective equipment which assures the same results is
available, or until subsequent research has shown that initial fears were
unwarranted. (Endnote 67) Certain countries have stated that maternity
protection measures should be maintained and reinforced to comply fully with
Convention No. 111, and to conform with the spirit of the revision of
protective legislation. (Endnote 68) The Committee has had occasion to remind
States that the revision of protective legislation does not call into question
the provisions concerning maternity protection.
145. Certain advantages currently afforded to women to raise children or to
care for them should increasingly be granted to men as well, in accordance
with the spirit of the Workers with Family Responsibilities Convention, 1981
(No. 156). Certain reports state that measures which used to apply exclusively
to women have been extended to men, in keeping with protective measures
adopted in view of family responsibilities. (Endnote 69) Beyond the impact
which this may have on attitudes as regards stereotypes of the respective
roles of men and women as regards family responsibilities, the fact that these
advantages are no longer exclusive to women would tend to make women more
competitive on the labour market, for they would cease to be seen by employers
as more costly than men.
Subsection 2. Measures designed to meet the particular requirements of certain
categories of persons
146. Article 5, paragraph 2, of the Convention states that "any Member may,
after consultation with representative employers' and workers' organisations,
where such exist, determine that other special measures designed to meet the
particular requirements of persons who, for reasons such as sex, age,
disablement, family responsibilities or social or cultural status, are
generally recognised to require special protection or assistance, shall not be
deemed to be discrimination". Paragraph 6 of the Recommendation provides that
the application of the policy on non-discrimination should not adversely
affect the special measures concerned. These provisions arise, in the first
place, from the wish to avoid conflicts between special measures of protection
and other measures adopted with a view to eliminating discrimination within
the framework of general policy. In the second place, these special measures
tend to ensure equality of opportunity and treatment in practice, taking into
account the diversity of situations of certain categories of persons, so as to
halt the discrimination practised in their regard. These types of preferential
treatment are thus designed to re-establish a balance, and are part of a
broader effort to eliminate all inequalities. (Endnote 70) Available
information suggests that the difference between special measures of
protection and assistance, and affirmative measures of preferential treatment,
is often tenuous, and that whatever distinctions are established are in many
cases quite artificial. (Endnote 71)
149. Most States have enacted protective legislation applicable only to women,
concerning either the prohibition of their employment in certain fields, or
the establishment of special conditions of work. The first category includes
provisions prohibiting underground work, (Endnote 77) night work and certain
kinds of hazardous and unhealthy work. The second category includes provisions
which establish different conditions of work for women. (Endnote 78)
150. Certain protective measures aim at enhancing the prospects and conditions
of occupational re-entry of women whose employment has been interrupted owing
to maternity and child-rearing responsibilities. In the Federal Republic of
Germany, the maximum age set for admission to internships and training
programmes in the public service has, in some cases, been raised for women who
have had children. Women are also allowed to leave their employment for a
period of up to five years for the purpose of raising a child, without losing
their seniority and right to promotion. (Endnote 79) Other measures give women
priority as regards re-entry following dismissals due to the reorganisation of
the service or enterprise. In the Netherlands, women enjoy priority in
reassignments to other services, when the reorganisation of the public service
results in dismissals. (Endnote 80) According to available information,
systems which impose quotas as regards the recruitment of women do not seem to
be very widespread, even in countries that have developed extensive policies
to promote the employment of women. (Endnote 81)
151. The most common of protective measures for this category of persons seems
to be that of providing wage subsidies to enterprises with a view to promoting
the hiring of older workers. In Spain, a number of incentives are offered to
enterprises that recruit workers over the age of 45. For each such worker that
the enterprise hires, it receives a subsidy, a two-year 50 per cent reduction
of social security contributions in respect of that worker, and free
vocational training for that worker. (Endnote 82) In France, a special
one-time bonus was offered to enterprises in 1979 to promote the hiring of
managers over the age of 50. (Endnote 83) In the Federal Republic of Germany,
subsidies or loans may be made available to enterprises to help defray the
cost of wages of older workers in order to promote the hiring of workers over
the age of 45. (Endnote 84)
152. In certain countries a quota system imposes an obligation to recruit a
certain percentage of older workers among new hires. This is the case in
Japan, where since 1976 the Minister of Labour, in view of current needs, may
require public enterprises to raise the percentage of workers aged 55 to 65 to
6 per cent of their staff. (Endnote 85) In Colombia all enterprises employing
more than ten workers are required to employ Colombian citizens over the age
of 40 in a proportion which may not be less than 10 per cent of unskilled
workers, and 20 per cent of skilled workers. (Endnote 86)
153. Reference has already been made in this Survey to the close relationship
between the concept of protection and that of equality of opportunity.
(Endnote 87) Within the context of Article 5, paragraph 2, of Convention No.
111, and Article 4 of the Vocational Rehabilitation and Employment (Disabled
Persons) Convention, 1983 (No. 159), protective measures taken by the State
are intended to offer to disabled persons greater access to employment and
promote their social integration. Legislative provisions which expressly
prohibit discrimination based on physical or mental disability are often
contained in general legislation, (Endnote 88) occasionally in Constitutions,
(Endnote 89) and more rarely, in collective agreements. (Endnote 90) Certain
legislative provisions define a general policy of occupational integration as
regards disabled persons, and require regulations for their implementation.
(Endnote 91) The number of countries that have adopted specific legislation
concerning the employment of disabled persons continues to grow. (Endnote 92)
Whether these provisions are contained in general labour legislation or in
special legislation concerning the employment of disabled persons, virtually
all contain special protective measures in favour of these workers.
154. In certain cases these provisions expressly call for co-operation between
employers' and workers' organisations with a view to promoting the equality of
opportunity of disabled workers. (Endnote 93) In other cases this co-operation
focuses on the placement of disabled workers. (Endnote 94) In general, the
categories covered by these laws include workers whose disability is the
result of an occupational injury or disease, as well as persons whose physical
capacity has been impaired for reasons extraneous to work, and in certain
cases, disabled veterans of war. (Endnote 95) Certain types of preferential
treatment for disabled workers are aimed at protecting specifically those who
have lost a degree of their productive capacity owing to occupational injuries
or diseases. (Endnote 96)
155. The measures most frequently undertaken to promote the employment of
disabled workers take the form subsidies to enterprises that hire these
workers; they also include tax breaks and exemptions from contributions to
social security schemes. (Endnote 97) The most widespread measure for special
protection on behalf of disabled workers requires employers to hire a certain
percentage of disabled workers. In certain countries, the statutory percentage
is 2 per cent, calculated on the basis of all full-time workers in enterprises
with more than 50 employees. (Endnote 98) In Bahrain, the requirement of 2 per
cent applies to enterprises employing more than 100 workers, (Endnote 99)
while in Ghana, it is 0.5 per cent of the total labour force. (Endnote 100) In
Japan, the quota for (physically or mentally) disabled persons has been raised
to 2 per cent of the posts in the administration, 1.9 per cent of the posts in
public enterprises and 1.6 per cent of posts in private enterprises since the
legislative amendments of 1987. (Endnote 101) In India, the Government states
in its report that since November 1977, 3 per cent of central government
services' posts filled by direct recruitment are reserved to disabled workers.
In France, legislation on the employment of disabled persons in effect since 1
January 1988 requires that 6 per cent of workers in enterprises employing 20
or more wage earners be disabled workers; this obligation applies also in the
public sector. Employers may also comply with this obligation by paying annual
contributions to the Fund to Promote the Occupational Integration of Disabled
Workers, for each of the posts which they are required to fill. The amount of
this annual contribution, which is determined in accordance with the size of
the enterprise, is limited to 500 times the minimum hourly wage. (Endnote 102)
In the Federal Republic of Germany, public and private employers with 16 or
more posts are required to employ disabled workers in at least 6 per cent of
such posts, including employees engaged in vocational training; the mandatory
percentage for employers in the public sector may be set at a higher level
than that set for employers in the private sector without, however, exceeding
10 per cent. (Endnote 103)
156. Protective measures adopted on behalf of ethnic minorities and other
social groups assume a variety of forms; they are designed to guarantee to
indigenous and tribal populations an especially favourable treatment as
regards access to employment in the public or private sector, as well as
access to educational facilities, and often take the form of quotas. In other
cases, special training and employment programmes are provided for these
minorities, without fixed quotas, in order to enhance generally their
prospects on the labour market. Previous studies have shown that India
attaches a special importance to preferential policies on behalf of certain
castes and tribes and other "disadvantaged groups". (Endnote 104) Affirmative
action on behalf of disadvantaged minorities and tribal groups, in particular,
is provided for in the Constitution. Article 16(4) of the Indian Constitution
forbids discrimination in public employment, with the exception that state
Governments may adopt provisions which reserve a number of appointments or
posts to members of any "backward class" of citizens. Under article 46 of the
Constitution, states are required to attach particular importance to the
protection of the educational and economic interests of the more disadvantaged
categories of their population, especially as regards certain castes and
tribes. Such action may take the form of quotas, whether in the public sector
or in educational institutions, and especially in higher education and in
vocational training schools. The central Government, for its part, has since
1943 reserved a certain number of posts in official services to members of
specific castes, and since 1950, to members of specific tribes. Since 1970, 15
per cent of posts filled by national public competitions are reserved to
members of specific castes, and 7.5 per cent to members of specific tribes. As
regards posts in lower grades, which are generally filled through local
recruitment, the percentages are established as a function of the size of
these populations in thearea under consideration. The central Government's
example has been followed at the state level. In some states where the
percentage of the tribal population is relatively high, the percentage of
public service posts reserved to members of tribal populations may reach up to
80 per cent, (Endnote 105) but in states where these populations are smaller,
the percentage of reserved posts may be as low as 3 per cent. (Endnote 106) In
Pakistan, in the FATAs (Federally Administered Tribal Areas), 4 per cent of
posts in federal government services are reserved to tribal populations. The
North West Frontier Province and the PATAs (Provincially Administered Tribal
Areas) have been divided into five recruiting sectors, with each sector being
allocated four posts out of 21 vacancies of all types for members of a tribal
population. (Endnote 107) The Government has stated that employment in new
enterprises created in the FATAs is reserved exclusively to tribal members,
except where these persons do not have the necessary occupational skills; in
this case, the enterprises may be required to provide vocational training.
Descriptions of various measures on behalf of ethnic minorities are contained
in reports on the application of the Indigenous and Tribal Populations
Convention, 1957 (No. 107). (Endnote 108)
Endnote 1
Chapter 1, Section 3, para. 30.
Endnote 2
See Portugal s. 7(2) of the above-cited Legislative Decree No. 392/79 of 20
September 1979, which guarantees equality of opportunity and treatment for men
and women as regards work and employment: "Recruitment for any post shall be
exclusively based on objective criteria (...)".
Endnote 3
General Survey, 1963, para. 91. See also the report of the Commission of
Inquiry appointed under article 26 of the Constitution of the International
Labour Organisation to examine the observance of the Discrimination
(Employment and Occupation) Convention, 1958 (No. 111) by the Federal Republic
of Germany, in Official Bulletin, Supplement 1, Vol. LXX, 1987, Series B,
paras. 527-573; the Commission of Inquiry concluded that the measures taken in
application of the duty of faithfulness to the free democratic basic order of
all officials, without regard to their functions, did not remain within the
limits of the restrictions authorised by Article 1, paragraph 2, of the
Convention regarding the inherent requirements of particular jobs. See also
German Democratic Republic, RCE 1987, pp. 360-365: the Government alleged that
requirements of a political nature laid down in certain legislative provisions
concerning the conditions for access to and exercise of various jobs "relate
in fact to inherent requirements of the various jobs and not the ideological
outlook of the person, or allegiance to a political party. The Committee notes
that indeed, explanations provided by the Government relate to inherent
requirements of the job, e.g. the responsibility of a driving instructor for
accident-free driving of the students, the responsibility of pharmaceutical
workers for the welfare of people, the responsibility of lawyers for defending
the rule of law as well as the interests of their clients; however, the
ability to meet such a responsibility, by its very nature as an inherent
requirement of a particular job, is part of the professional qualifications
required of the persons concerned, and leaves the additional qualifications
sought by the political requirements mentioned in the legislation to be
determined". Czechoslovakia, RCE 1985, p. 286: "political opinions may be
taken into account in connection with the requirements of certain senior
administrative posts involving special responsibility in the implementation of
government policy, but (...) if carried beyond certain limits, this practice
comes into conflict with the provisions of the 1958 instruments which call for
the pursuance of a policy designed to eliminate discrimination on the basis
of, inter alia, political opinion".
Endnote 4
See the above-mentioned report of the Commission of Inquiry, para. 535: "The
acceptance of the contention that the category "official" in a given country
could correspond to the concept of "a particular job" in the Convention would,
however, result in permitting entirely different exceptions from one country
to another, determined not by the nature of the work or functions involved,
but according to whether particular activities lay in the public sector and
were entrusted to persons employed with the status of "officials". Great
variations exist even in market economy countries in the extent to which given
activities lie in the public or private sector, e.g. in transport,
telecommunications, generation and supply of energy, education, health
services, banking, etc. This situation also undergoes change in time, as
particular activities are nationalised or privatised. (...) To make "inherent
job requirements" vary according to all such vagaries would be destruction of
any common international standard".
Endnote 5
See Chapter II, Section 2, paras. 87 and 88.
Endnote 6
See, for example, Canada: Nova Scotia, section 8(4)(a) of the Human Rights
Act; Newfoundland, section 9(6)(b) of the Human Rights Code; Saskatchewan,
pursuant to the terms of section 2(e) of the Human Rights Code, persons
employed or living in the home of their employer are not covered by the Code;
federal legislation and the legislation of British Columbia, New Brunswick and
Quebec do not provide for these exceptions; New Zealand, section 15(3)(c) and
(d) of the 1977 Act on the Human Rights Commission.
Endnote 7
The 1986 Act on Sex Discrimination, s. 1(1).
Endnote 8
See, for example, United States, s. 702 of the above-cited 1964 Civil Rights
Act, as amended in 1972: "This title shall not apply to ... a corporation,
association, educational institution, or society with respect to the
employment of individuals of a particular religion to perform work connected
with the carrying on ... of its activities."; Norway, s. 2 of above-cited Act
No. 45 of 1978 on Equality between the Sexes: "This Act shall apply to all
spheres, with the exception of the internal affairs of religious communities."
Endnote 9
This safeguard is provided for, for example, in Canada: Manitoba, s. 6(7) of
the Human Rights Act; Nova Scotia, s. 6(4)(b) of the Human Rights Act;
Ontario, s. 23(a) of the Human Rights Code.
Endnote 10
See the report of the Committee appointed to examine the claim presented by
the Confederation of Trade Unions in Norway (LO), in accordance with article
24 of the Constitution, concerning non-observance by Norway of the
Discrimination (Employment and Occupation) Convention, 1958 (No. 111), GB.
222/18/23, para. 29: "... the Committee would suggest that in certain
organisations, a consideration of the "inherent requirements of the job" may
involve such questions as whether there would be a risk that the pursuit of
the institution's objectives would be frustrated, undermined or harmed by
employing someone in a particular post who did not share the ideological views
of the organisation. It is clear ... that distinctions made in these
circumstances could only be justified under the Convention where the job
itself carried special responsibilities". In this case, s. 55A of Act No. 4 of
4 February 1977 on Workers' Protection and Working Environment, as amended by
Act No. 22 of 1982, provides for an exception which gives the employer the
right to request information concerning the political, cultural or religious
opinions of applicants for jobs which, by their nature, do not entail a
special responsibility as regards the attainment of the institution's
objectives; see also RCE 1984, pp. 265-266, and RCE 1987, pp. 370-371. See
also Canada: decision of the Ontario Board of Inquiry in the matter of Gore v.
Ottawa Separate School Board (Ont., 1971) to the effect that adherence to the
Catholic faith did not constitute a reasonable occupational qualification for
secretaries in the offices of principals of Catholic schools.
Endnote 11
See General Survey, 1963, paras. 42 and 91.
Endnote 12
See, for example, Austria, s. 2 of Act No. 290 of 27 June 1985 on Equality of
Treatment.
Endnote 13
See, for example, Ireland, s. 17(1) of the above-mentioned Act of 1977 on
Employment Equality.
Endnote 14
S. 611a(1) of the Civil Code, as amended by the Act of 13 August 1980 on the
equality of treatment between men and women at the workplace (LS 1980-Ger.F.R.
3); see also Netherlands, section 1637ij of the Civil Code, as amended by the
above-cited Act on the equality of treatment between men and women.
Endnote 15
France, s. R.123-1 of the Labour Code (see also note 28 below: these
provisions were adopted by decree, following consultation with employers' and
workers' organisations); Italy, s. 1 of Act No. 903 of 9 December 1977 on
Employment Equality; Portugal, s. 7(3) of the above-cited Legislative Decree.
Endnote 16
See Chapter II, Section 2, para. 85, note 128.
Endnote 17
Australia, s. 30(2)(a) and (b) of the 1984 Act on Sex Discrimination; Ireland,
s. 17(2)(a) of the above-cited Act of 1977; United Kingdom, s. 7(2)(a) of the
1975 Act on Sex Discrimination.
Endnote 18
Australia, s. 30(2)(c), (d) and (e) of the above-cited Act; Ireland, s.
17(2)(b) and (d) of the above-cited Act: "... The sex of a person shall be
taken to be an occupational qualification for a post in the following cases:
(b) where the duties of a post involve personal services and it is necessary
to have persons of both sexes engaged in such duties; ... (d) where either the
nature of or the duties attached to a post justify on grounds of privacy or
decency the employment of persons of a particular sex;" United Kingdom, s.
7(2)(b) and (e) of the above-cited Act.
Endnote 19
Ireland, s. 17(2)(c) of the above-cited Act; United Kingdom, s. 7(2)(d) of the
above-cited Act: "(d) the nature of the establishment, or of the part of it
within which the work is done, requires the job to be held by a man because --
(i) it is, or is part of, a hospital, prison or other establishment for
persons requiring special care, supervision or attention, and (ii) those
persons are all men (disregarding any woman whose presence is exceptional),
and (iii) it is reasonable, having regard to the essential character of the
establishment or that part, that the job should not be held by a woman".
Endnote 20
Certain provisions go beyond the intent of the exception provided for in
Article 1, paragraph 2. This is true of provisions which stipulate that a
given job must be performed by a member of one sex, rather than the other,
because the job will probably entail work abroad where local customs and
legislation are such that the work cannot be carried out effectively by a
woman. See also below para. 132, note 27.
Endnote 21
S. 7(4) of the above-cited Act. Although it does not use the term, this
provision reflects the concept of reasonable adaptation; see below, para. 132,
note 27.
Endnote 22
S. 17(2) of the above-cited Workers' Charter; no guidance is given for the
identification of exceptions, which is left to the legislature.
Endnote 23
S. 30(2)(h) of the above-cited Act of 1984.
Endnote 24
S. 11(1) of Act No. 161 of 12 April 1978 concerning Equality between the
Sexes. The competent Minister may waive the provisions against discrimination,
subject to the approval of the Minister of Labour and the Equality Council.
See also Norway, s. 2 of the above-cited Act No. 45 of 1978.
Endnote 25
S. 3(2) of the above-cited Act of 8 December 1981 concerning equality of
treatment between the sexes. See also Belgium, s. 122 of the above-cited
Economic Reform Act of 4 August 1978: "The Crown may, by order made after
discussion in the Council of Ministers, prescribe the cases in which reference
may be made to the worker's sex in the conditions of admission to any form of
employment or occupational activity in which sex is an essential condition on
account of the nature of the employment or activity concerned or the
conditions in which it is carried on. For this purpose the Crown shall consult
the Committee on Women's Work. The Crown shall also consult the National
Labour Council in cases relating to the private sector and, in cases relating
to the public sector, the General Trade Union Advisory Committee or the
General Committee to be set up for all the public services ... The bodies
consulted shall express an opinion within two months of their being
approached." France, s. L. 123-1 of the Labour Code. S. 416-3 of the Criminal
Code, which penalises dismissing or refusing to hire a person owing to his or
her origin, customs, family status, ethnic background, national origin, race
or religion, does not provide for the exception of just cause laid down in s.
416-1 (supply of goods or services); just cause may no longer be invoked as
regards racial discrimination (s. 85 of Act No. 87-588 of 30 July 1987).
Endnote 26
See, for example, Canada: Guide-lines of the Canadian Human Rights Commission
concerning the limitations and modalities for the application of subsection
14(a) of the Canadian Human Rights Act to employment (Guide-lines on Bona Fide
Occupational Requirements) S1/82-3, filed on 13 January 1982; Saskatchewan, s.
1(b) of the Regulations concerning the Saskatchewan Human Rights Code; United
States: Texas, s. 2.01 of the Human Rights Commission Act. See also United
States, Guide-lines adopted in 1965 and subsequently amended by the Equal
Opportunity Commission concerning sex as a bona fide occupational
qualification, 29 CFR Part 1604.
Endnote 27
See the case of Imberto v. Vic and Tony Coiffure and Tony Ruscica (Ont., 2
C.H.R.R.D/392, 1981): the complainant alleged that he had not been hired in a
hairstyling salon because he was a man, the employer alleged the reason to be
the aversion shown by other employees and the possible objections of clients
to the presence of a male in the enterprise, and argued that sex constituted a
bona fide occupational requirement. The Ontario Board of Inquiry stated that
the aversion of other employees did not relieve the employer of his
obligations under the Human Rights Code, which sought to promote a working
environment in which members of both sexes could establish normal and
harmonious working relations. As regards the objections of clients, the Bureau
stated that it would be completely inappropriate to admit that the preferences
of clients might determine whether sexual discrimination was permissible. The
preferences of clients could be taken into account only when they are based on
the enterprise's inability to fulfil its principal objectives. Concerning the
requirements of foreign clients as regards race or religion, see also the
measures taken by the Government of the Netherlands: the 1981 amendment to s.
429 of the Criminal Code concerning cases in which workers are required o
state in writing that they are "non-Jewish", and the adoption in 1984 of an
Act on reporting foreign boycott measures imposed on Netherlands companies by
foreign groups or enterprises, by which the Government sought to measure the
extent and nature of the constraints imposed, RCE 1986, p. 273-274. See also
Chapter I, Section 3, para. 22, note 77.
Endnote 28
See note 25 above, France, concerning an approach which leads to a similar
result: legislation stipulates that racial discrimination may not constitute
just cause for refusing goods or services (s. 416-1 of the Criminal Code, as
amended by the Act of 30 July 1987).
Endnote 29
The above-mentioned Guide-lines on Bona Fide Occupational Requirements.
Interim policies were laid down in 1984 concerning all criteria for
discrimination, underscoring that employers should establish practices to
comply with the Act. Bona fide occupational requirements or just cause may
exist when the person concerned does not meet the requirements reasonably
necessary for the performance of the essential tasks of a given job. The
employee must be able to perform the essential tasks of a job safely, reliably
and efficiently. The Commission is expected to adopt new guide-lines in the
near future. See Canadian Human Rights Commission, "1985 Annual Report", p.
16.
Endnote 30
Concerning the concept of reasonable accommodation, see also United States:
Arizona, s. 41-1461(8) of the Civil Rights Act; Montana, s. 49-2-402 of the
Civil Rights Act.
Endnote 31
This exception to the general principle was not contained in the conclusions
initially proposed by the Office for the first discussion of the proposed
Convention in 1957. During this discussion the Conference Committee on
Discrimination adopted an amendment submitted by the Employers' members which
stipulated that the Convention's provisions would not apply "to any statutory
provisions or administrative regulations which relate to the national security
of a Member." (ILO: Discrimination in the field of employment and occupation,
ILC, 42nd Session, 1958, Report IV(1), p. 8.) However, objections were raised
within the Committee, the plenary session of the Conference, and in the
written replies of certain governments, to the effect that this text could
lead to abuses (ibid., pp. 18-25). At the second discussion in 1958, the text
was replaced by an amendment submitted by the Workers' members, which is
reflected in the present text of Article 4 (ILO: Record of Proceedings, ILC,
42nd Session, 1958, pp. 403 and 712).
Endnote 32
General Survey, 1963, para. 47. See also Islamic Republic of Iran: RCE 1987,
pp. 367-370: "The dismissals, discharges and exclusions are pronounced in
relation to membership of a group such as the "misguided Baha'i group",
freemasonry or atheistic organisations, without any mention of the exercise of
individual activities prejudicial to the security of the State (...). The
Committee recalls that in its observations over a number of years it has noted
that, in the texts available to it a distinction is made in the grounds for
dismissal, discharge or exclusion between persons belonging to the groups
referred to above and persons alleged to have committed acts of espionage or
acts prejudicial to the security of the State."
Endnote 33
See General Survey, 1963, para. 47.
Endnote 34
See Federal Republic of Germany, above-cited report of the Commission of
Inquiry, paras. 574 and 579; the Government considers that measures taken in
application of the duty of faithfulness to the free democratic basic order
fall within the exception provided for in Article 4. In considering cases of
exclusion from the public service of persons associated with the German
Communist Party (DKP), the Commission of Inquiry noted that the public
authorities "have referred ... for example, to criticism of the existing
economic order and its description as one of "capitalist exploitation", to the
campaign against so-called "Berufsverbote", and to the special emphasis on
negative manifestations in the life of the Federal Republic without mention of
its positive achievements. It would appear that what is involved here is
essentially the expression of political views, not activities prejudicial to
the security of the State within the meaning of Article 4 of the Convention"
(ibid., para. 579). See also Chile, RCE 1982, p. 192: "The Committee therefore
considers that the expression of political opinions cannot be removed from the
protection laid down in the Convention by defining it as the act of
propagating particular doctrines."
Endnote 35
See Chile, RCE 1982, p. 192; see also the report of the Committee appointed to
review the claim submitted by the ICFTU, under article 24 of the Constitution,
concerning Czechoslovakia's non-observance of the Discrimination (Employment
and Occupation) Convention, 1958 (No. 111), Official Bulletin, Supplement,
Vol. LXI, 1978, Series A, No. 3, para. 21 concerning notifications and
decisions affecting the employment of certain persons, owing to their
endorsement or support of the "Charter 77 Manifesto". The Committee noted that
"this Manifesto contains various criticisms concerning the policy of the
Government, and it is not for the Committee to assess whether these criticisms
are well-founded or inaccurate. ... It does not emerge from the information
available that the signing or adhering to such a document could in itself be
considered, in relation to the principle protection envisaged by the
Convention on matters of political opinion ..., as an activity against the
security of the State"; see also Czechoslovakia, RCE 1983, p. 211, and Turkey,
RCE 1983, p. 224-225.
Endnote 36
In this connection, see the principles of interpretation applicable to the
notion of "national security" in the International Covenant on Civil and
Political Rights, in United Nations, Commission on Human Rights, 41st Session,
E/CN.4/1985/4, Annex, p. 5: "29. National security may be invoked to justify
measures limiting certain rights only when they are taken to protect the
existence of the nation, its territorial integrity or political independence
against force or threat of force. 30. National security cannot be invoked as a
reason for imposing limitations to prevent merely local or relatively isolated
threats to law and order. 31. National security cannot be used as a pretext
for imposing vague or arbitrary limitations and may only be invoked when there
exist adequate safeguards and effective remedies against abuse. 32. The
systematic violation of human rights undermines national security and may
jeopardise international peace and security. A State responsible for such
violation shall not invoke national security as a justification for measures
aimed at suppressing opposition to such violation or at perpetrating
repressive practices against its population."
Endnote 37
General Survey, 1963, para. 47.
Endnote 38
See Chile, RCE 1982, p. 192: "The definition of "activities prejudicial to the
security of the State" must be sufficiently narrow to avoid conflict with the
main protection provided for in the Convention in respect of political
opinion. Article 8 of the Constitution of Chile, in providing for the
exclusion of persons from certain employments by reason of their propagation
of certain doctrines, appears not to observe the limits of Article 4 of the
Convention." See also Czechoslovakia, RCE 1982, pp. 197-199: "The
interpretation of the concept of "endangering the security of the State" which
the Employers' Section of the Czechoslovakian Chamber of Commerce and Industry
has invited its members to adopt in applying the provisions of the Labour Code
relating to dismissal on that ground corresponds to that stated by the court
in one of the judgements of 1977 ... in which the mere fact of signing the
"Charter 77" Manifesto was held to justify dismissal." See also Turkey, RCE
1985, p. 294: "Legislation does not require the Martial Law Commanders to take
account of the effect that the activities the civil servant is reproached with
may have on the performance of the duties inherent in his office when they
take decisions concerning transfer or dismissal. The Committee further notes
that the Martial Law Commanders can also take measures of transfer or
dismissal when "the work is not considered necessary", a criterion irrelevant
to the protection of the security of the State whose application should depend
directly on the decision and responsibility of the authorities employing the
civil servants."
Endnote 39
See, for example Islamic Republic of Iran, RCE 1987, p. 369: the Committee
noted that "the provisions of the Directive of the Ministry of Labour
published on 8 December 1981 stating that the courts are bound to withhold the
issuance of any judgement in favour of dismissed employees whose membership in
the "misguided Baha'i group" or in organisations whose constitutions imply
atheism has been ascertained and proved. A Government representative stated to
the Conference Committee in 1983 that this Directive is based on legislation
ratified by the Islamic Parliament." Consequently, the Committee determined
that the condition of procedural guarantees laid down in Article 4 of the
Convention has not been fulfilled.
Endnote 40
See, for example, Chile, RCE 1982, p. 192: "The fact that procedural
safeguards are laid down as regards application of the constitutional
provision (article 8 of the Constitution of 1980) does not suffice to ensure
observance of the Convention."
Endnote 41
General Survey, 1971, para. 38.
Endnote 42
See, for example, the report of the Commission of Inquiry appointed under
article 26 of the Constitution to examine the observance of the Hours of Work
(Industry) Convention, 1919 (No. 1), and the Discrimination (Employment and
Occupation) Convention, 1958 (No. 111) by Chile, GB.196/4/10, paras. 174 and
175: "... the special commissions and tribunals established for the
examination of appeals against dismissals did not correspond, in their
composition, with what might be considered "a competent body established in
accordance with national practice" ... The special commissions for the public
sector were not governed by clear provisions enabling them to examine the
substance of the case. They did not provide sufficient guarantees for the
adequate consideration of exonerating factors, nor did they facilitate the
presentation of evidence by the appellants. As a result, this procedure did
not provide the guarantees which should normally exist to prevent, or to
obtain the reversal of, dismissals based on political opinion rather than on
activities which were in fact prejudicial to the security of the State or on
other legitimate grounds for dismissal. ... The Commission has reached the
conclusion that the special forms of appeal instituted by the Government for
persons dismissed for reasons relating to the security of the State were not
in conformity with the requirements of Article 4 of the Convention as regards
individuals who were justifiably suspected of, or engaged in, activities
prejudicial to the security of the State." The special measures in question
were repealed by the Government after the complaint was filed.
Endnote 43
First collective agreement of workers in the teaching profession, dated 9
April 1984, para. 46 -- Detention pending trial.
Endnote 44
Canadian Human Rights Commission: 1985 Annual Report, p. 10.
Endnote 45
See, for example, the provisions of Article 3 of the Indigenous and Tribal
Populations Convention, 1957 (No. 107); those of Article 4 of the Vocational
Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159)
which envisage "special positive measures aimed at effective equality of
opportunity and treatment", and those of paragraph 10 of the Older Workers
Recommendation, 1980 (No. 162).
Endnote 46
Maternity protection: Maternity Protection Convention, 1919 (No. 3); Maternity
Protection Convention (Revised), 1952 (No. 103); Maternity Protection
Recommendation, 1952 (No. 95); Plantations Convention, 1958 (No. 110), Part
VII; dangerous or unhealthy work: Maximum Weight Convention, 1967 (No. 127);
Radiation Protection Recommendation, 1960 (No. 114); White Lead (Painting)
Convention, 1921 (No. 13); Benzene Recommendation, 1971 (No. 144); Underground
Work (Women) Convention, 1935 (No. 45); night work: Night Work (Women)
Convention, 1919 (No. 4); Night Work (Women) Convention (Revised), 1934 (No.
41); and Night Work (Women) Convention (Revised), 1948 (No. 89).
Endnote 47
Night Work (Women) Convention, 1919 (No. 4), revised in 1934 by Convention No.
41; and again in 1948 by Convention No. 89 which, as of 23 March 1988, had
been ratified by 62 States.
Endnote 48
See ILO, Women Workers -- Protection or Equality? Conditions of Work Digest,
Vol. 6, 2/87, pp. 13-54.
Endnote 49
Chile, Night Work (Women) Convention, 1919 (No. 4), Official Bulletin, Vol.
LIX, Series A, 1976, p. 149; Hungary, Night Work (Women) Convention (Revised),
1934 (No. 41), Official Bulletin, Vol. LXI, Series A, 1978, p. 29; Ireland,
Night Work (Women) Convention (Revised), 1948 (No. 89), Official Bulletin,
Vol. LXV, Series A, 1982, p. 32; Luxembourg, Night Work (Women) Convention,
1919 (No. 4) and Night Work (Women) Convention (Revised), 1948 (No. 89),
Official Bulletin, Vol. LXV, Series A, 1982, p. 32; New Zealand, Night Work
(Women) Convention (Revised), 1948 (No. 89), Official Bulletin, Vol. LXV,
Series A, 1982, p. 32; Netherlands, Night Work (Women) Convention (Revised),
1948 (No. 89), Official Bulletin, Vol. LV, No. 1, 1973, p. 19; Sri Lanka,
Night Work (Women) Convention (Revised), 1948 (No. 89), Official Bulletin,
Vol. LXV, Series A, 1982, p. 32; Uruguay, Night Work (Women) Convention
(Revised), 1948 (No. 89), Official Bulletin, Vol. LXV, Series A, 1982, p. 32.
Endnote 50
See, for example, Hungary: "A proportion of women consider their exclusion
from night work by reason only of their sex to be discriminatory", idem;
Ireland: "Changes have occurred in circumstances since the adoption of the
Convention which render the prohibition of the employment at night of women an
inadmissible discrimination against women workers", idem; Uruguay: "The
intention declared in the past of protecting women against arduous or
dangerous work today constitutes a factor of discrimination restricting the
opportunities of access to employment", idem.
Endnote 51
See Luxembourg: "These two Conventions in the industrial world of today (are)
an obstacle to the access of women to numerous occupations", idem; Sri Lanka:
"In view of the fact that a third shift for women workers has to be introduced
almost immediately if this country is to attract foreign investors for
electronic and allied industries into the Investment Promotion Zones ...",
idem.
Endnote 52
See ILO, Women Workers -- Protection or Equality? Conditions of Work Digest,
Vol. 6, 2/87, pp. 127-180.
Endnote 53
See, for example, France: "Act No. 87-423 of 19 June 1987 (LS 1987-Fr. 1), is
designed to promote the organisation of working time, and thereby to enhance
productivity and enable the enterprise to adapt to the constraints of its
environment. Current regulations on night work for women have discriminatory
side-effects (for instance, in plants in which the profitability of new
equipment is to benefit from the introduction of continuous shift work, the
exclusion of women from shift work diminishes their prospects for promotion).
This has prompted the adoption of legislation which would authorise
enterprises using shift work to employ women workers at night." Circular of 30
June 1987 on the application of the provisions of Act No. 87-423 of 19 June
1987 concerning the duration and arrangement of working hours.
Endnote 54
This agenda item includes: (a) the partial revision of Convention No. 89 by
means of a protocol; and (b) the formulation of new standards on night work in
general -- GB.238/2/1, para. 105.
Endnote 55
See J. Carpentier and P. Cazamian, Night work. Its effects on the health and
welfare of the worker, ILO, Geneva, 1978.
Endnote 56
For example, the laws in several countries prohibit the equalisation of wages
by reference to the lowest wage: Canada, s. 11.5 of the Canadian Human Rights
Act; United States, s. 206(d) of the 1963 Equal Pay Act, see LS 1966-USA 1
(Fair Labor Standards Act); India, s. 4(2) of the 1976 Equal Pay Act;
Swaziland, s. 96(4) of the 1980 Employment Act.
Endnote 57
ILC, 60th Session, 1975, Declaration on Equality of Opportunity and Treatment
for Women Workers, Art. 9, Official Bulletin, Vol. LVIII, 1975, Series A, pp.
96-100.
Endnote 58
See the statement made by the Workers' member of Switzerland to the Conference
Committee on the Application of Conventions and Recommendations: "Most
measures for the special protection of women were not discriminatory but often
represented the most advanced stage in the protection of workers in general
... the point at issue was not the campaign against discrimination against
women but the economic recovery of certain enterprises. The idea was to
transfer out of normal working hours relatively unskilled work for which
employers wished to take on poorly paid workers -- in other words, women. ...
(T)he revision of Convention No. 89 should aim to fill the gaps in that
instrument and to stop night work for both men and women", ILC, 72nd Session,
1986, Report of the Committee on the Application of Conventions and
Recommendations, Part 1, para. 65.
Endnote 59
Commission of the European Communities, Protective Legislation for Women in
the Member States of the European Community, COM(87) 105 final, Brussels,
1987, p. 12. The Commission submitted to members several observations by order
of priority: a ban on night work for all workers, coupled with equal
derogations for both sexes, with the exception of pregnant or nursing mothers;
if this is not possible, a lifting of the ban for women in the context of a
general improvement in working conditions; if this is impossible, "the result
should neither be a perpetuation of the ban nor a worsening of women's working
conditions".
Endnote 60
The Maternity Protection Convention, 1919 (No. 3), and the Maternity
Protection Convention (Revised), 1952 (No. 103) had received 28 and 25
ratifications, respectively, as of 23 March 1988.
Endnote 61
See ILO, Maternity Leaves and Cash Benefits, Conditions of Work: A Cumulative
Digest, 1982, pp. 1-58.
Endnote 62
See above, Chapter I, Section 3, para. 25.
Endnote 63
See Mexico, s. 165 of the Federal Labour Act. In its report, the Government
states that the provision concerning maternity protection is designed to
protect the mother, rather than the woman. Yugoslavia: the Government states
in its report that specific measures for the protection of women at work are
related to the biological reproductive function of women, and express
society's high regard for birth as an integral part of social renewal.
Endnote 64
ILO, Meeting of Experts on Equality of Remuneration, Geneva, 1974,
MEER/1/1974/3, paras. 14 and 44.
Endnote 65
See, for example, Mexico, s. 166 of the Federal Labour Act. Poland: in its
report, the Government states that equality between men and women is
guaranteed by a system which seeks to protect the health of mothers and
children, to provide pregnancy protection and paid leave before and after
confinement, and to develop a network of maternity clinics, nurseries and
day-care centres. In the USSR, women who must take leave of their jobs owing
to pregnancy continue receiving the average wages they had earned while
working (s. 164 of the Labour Code). Pursuant to s. 170 of the Labour Code,
employers may not refuse to hire women or reduce their wages owing to the fact
that they are pregnant or nursing a child. The dismissal of pregnant women, of
nursing mothers and of women who have children of under one year of age is
authorised only in the event of the total liquidation of the enterprise; in
such cases, the employer is required to find new employment for dismissed
mothers. These provisions were mentioned in Decision No. 6 of the plenary
session of the Supreme Court of the RSFSR concerning the application by the
courts of RSFSR labour standards concerning the work of women, adopted on 17
September 1975 (Bulletin of the Supreme Court of the RSFSR, Dec. 1975). This
decision was preceded by an examination of the practice of the courts, and has
helped to resolve certain problems arising in connection with the application
of this legislation. The plenary session of the Supreme Court of the RSFSR
also declared that a female employee's refusal to carry out an order which is
contrary to ss. 162 and 163 is justified and does not constitute a breach of
discipline at work. The Supreme Court further specified that these sections
apply to all women, whether wage earners or employees, regardless of the
nature of their work. Yugoslavia: pursuant to s. 189 of the Associated Labour
Act, "workers in basic organisations shall have the right and duty, in
conformity with the self-management agreement ... to ensure ... special
protection of pregnant women from heavy work, overtime and night work,
maternity leave, shorter working time after confinement ... and other rights
ensuring protection of maternity." Similar measures are provided for in the
laws of the various republics.
Endnote 66
See, for example, an analysis of the position of Nordic countries on this
question in R. Nielsen, Special protective legislation for women in the Nordic
countries, International Labour Review, Vol. 119, No. 1, pp. 39-49: "The
prevailing view in the Nordic countries is that neither men nor women workers
should be protected on the grounds of sex, except for strictly biological
reasons. The persistence of traditional sex roles/stereotypes is not regarded
as a justification for giving women special protection." ibid., p. 48.
Endnote 67
See International Labour Conference, Resolution on equal opportunities and
equal treatment for men and women in employment (Conclusions, points 7 and 8),
71st Session, 1985, Official Bulletin, Vol. LXVIII, 1985, Series A, pp. 85-95.
Endnote 68
Protective legislation for women should be revised in the light of current
conditions with a view to eliminating the discrimination which arises from
this legislation, while maintaining maternity protection and redefining this
protection within the context of the couple, by providing, for example, for
parental leave." Report on the Tripartite Latin American Seminar on
non-discriminatory practices in employment, Lima, 10-14 Oct. 1983.
Endnote 69
For example, Yugoslavia: The Government states in its report that the
legislation of the Socialist Republics of Bosnia- Herzegovina, Croatia,
Macedonia, Montenegro, Serbia, and Slovenia, and the Autonomous Socialist
Province of Vojvodina, allow parents to decide which of the two will exercise
the right to parental leave.
Endnote 70
In certain countries the terms "positive discrimination" or "reverse
discrimination" have been, and are still used, to describe preferential
treatment. It would seem, however, that they lend themselves to confusion, to
the extent that it is not really a question of granting to these categories of
persons more favourable treatment, but of providing them with conditions of
employment equal to those enjoyed by other workers. Concerning these
questions, see Chapter IV, Section 1, paras. 166-169.
Endnote 71
See, for example, the relevant legislation adopted by certain countries;
Greece: pursuant to s. 10(2) of Act No. 1414/84, measures taken in favour of
one sex, to the exclusion of the other, which are intended to correct
inequalities and re-establish equality of opportunity, are not considered
discrimination. These measures include vocational training programmes, the
promotion of employment in sectors in which workers of a given sex are
under-represented, and special measures on behalf of persons who have
exceptional family responsibilities; Iceland: pursuant to s. 3 of Act No. 65
of 1985 concerning equal status and equal rights between men and women,
specific interim measures adopted to promote the status of women and establish
equality of rights are not contrary to law.
Endnote 72
General Survey, 1963, para. 52.
Endnote 73
See the ILO memorandum sent to the Minister of External Affairs of the
Federation of Malaya, Official Bulletin, Vol. XLII, No. 7, 1959, p. 397. The
State's decision to adopt special measures to ensure protection and assistance
for specific categories of persons "would have to be made in good faith and
would have to be reasonable, having regard to conditions actually obtaining in
the country".
Endnote 74
See above, Chapter I, Section 3, para. 65.
Endnote 75
See, for example, Federal Republic of Germany, Netherlands, Sweden.
Endnote 76
See above, para. 146.
Endnote 77
Underground Work (Women) Convention, 1935 (No. 45), which had been ratified by
88 countries as of 23 March 1988.
Endnote 78
See, for example, the provisions establishing different hours of work for
women: in Peru, the hours of work are 45 hours for women and 48 hours for men;
in E1 Salvador, 40 and 44 hours, respectively. In its report, the Government
of Bolivia states that different hours of work for women and men, which are 40
and 48 hours respectively, may in certain cases be prejudicial to the
recruitment of women, especially in the manufacturing sector.
Endnote 79
Act of 26 April 1985.
Endnote 80
Decree of 30 June 1987 amending the public service regulations, as regards the
situation of women upon dismissal.
Endnote 81
In Canada, the federal Court of Appeals overturned an Ordinance of the Human
Rights Court which had ordered Canada's national railway company to set up a
special programme which would award one of every four blue-collar posts to a
woman, until such time as women accounted for 13 per cent of blue-collar
workers in the St. Lawrence region.
Endnote 82
Royal Decree No. 32-39 of 28 Dec. 1983.
Endnote 83
Decree No. 79-169 of 1979.
Endnote 84
Act of 25 June 1969 to promote employment, LS 1969-Ger.F.R. 1.
Endnote 85
Ordinance No. 24 of 8 Sept. 1976.
Endnote 86
Act No. 15 of 14 Nov. 1958, LS 1960-Col. 1.
Endnote 87
See above, paras. 146 and 147.
Endnote 88
Canada, s. 15 of the Canadian Charter of Rights and Freedoms.
Endnote 89
Brazil, Constitutional Amendment No. 12 of 19 Oct. 1978.
Endnote 90
Belgium, Collective Labour Agreement signed on 6 Dec. 1982.
Endnote 91
Algeria, s. 47 of the 1978 Act to make general provisions for workers'
conditions of employment. The above-mentioned Act No. 78-12 of 5 Aug. 1978
provides that handicapped persons who cannot be employed in normal working
conditions shall be entitled to sheltered work or, where necessary, places in
sheltered workshops, and to special training subject to such conditions as may
be prescribed by decree. Uruguay: Act No. 14312 of 10 Dec. 1974, which
established the National Employment Service, LS 1974-Ur. 1, provides that
specific regulations may supplement the protection available to disabled
persons who have received rehabilitation benefits.
Endnote 92
Angola, Australia (Victoria), Austria, France, Federal Republic of Germany,
Italy, Japan, Luxembourg, Spain, Tunisia, United States.
Endnote 93
Netherlands, Act of 16 May 1986 concerning the employment of disabled workers.
Endnote 94
Guatemala, Ministerial Decision No. 12 of 29 June 1983, which created a
placement division for disabled persons within the National Employment and
Vocational Training Office of the Ministry of Labour.
Endnote 95
Angola, Decree No. 21 of 22 Apr. 1982, LS 1982-Ang. 1, concerning the adoption
of measures for the protection of physically disabled persons. This Decree
establishes an order of priority for the placement of disabled persons,
beginning with disabled war veterans; Luxembourg, Act of 28 Apr. 1959
concerning the creation of the Placement and Occupational Rehabilitation
Office for Disabled Workers.
Endnote 96
Bulgaria: pursuant to s. 315 of the Labour Code, the enterprise is required to
reserve for these workers a number of suitable posts which varies between 3
and 10 per cent of the staff, depending on the sector of the economy; Spain:
Royal Decree No. 1451 of 11 May 1983 defines measures in application of Act
No. 13 of 7 Apr. 1982 concerning the social integration of disabled persons.
These measures define conditions for the re-entry of workers suffering from a
partial and permanent disability. Where the disability does not affect their
performance, these workers may be reinstated to their former posts. Where
performance is diminished, their wages may be reduced proportionately, but in
no event by more than 25 per cent. Workers who fully or partially regain their
capacity to work after a period of complete disability enjoy absolute priority
for hiring in the last enterprise in which they worked. Enterprises which
proceed to reinstate such workers are entitled to a 50 per cent reduction of
social security contributions in respect of these workers for a period of two
years; Tunisia: pursuant to s. 15 of Act No. 81-46 of 28 May 1981 (LS
1981-Tun. 2), concerning the promotion and protection of disabled persons, all
workers who become disabled for any reason must be reinstated by the employer
following rehabilitation, if any, if there is a vacancy that can be offered to
them.
Endnote 97
In Peru, enterprises or establishments in the public and private sectors that
hire disabled workers enjoy a tax deduction of 50 per cent with respect to
such workers (Act No. 23285 of 15 Oct. 1981). In Spain, pursuant to Royal
Decree No. 1451 of 11 May 1983, enterprises hiring disabled workers on a
permanent and full-time basis are granted a subsidy of 500,000 pesetas for
each such employment contract, as well as reductions in their contributions to
social security, as established in the Decree. In Sweden, wage subsidies are
granted to employers who engage jobseekers who would not otherwise be able to
find work on the normal employment market owing to their reduced capacity for
work (Ordinance of 29 May 1980 concerning employment for which wage subsidies
are payable, LS 1980-Swe. 1).
Endnote 98
Angola, s. 2 of Decree No. 21 of 22 Apr. 1982 concerning the adoption of
measures for the protection of physically disabled persons, LS 1982-Ang. 1;
Saudi Arabia, s. 54 of the Labour Code, LS 1969-Sau.Ar. 1; Spain, Royal Decree
No. 1451 of 11 May 1983 instituting measures in application of Act No. 13 of 7
Apr. 1982 concerning the social integration of disabled persons; Italy, Act
No. 1539 of 5 Oct. 1962, containing provisions in favour of injured and
disabled civilians, LS 1962-It. 2; Luxembourg, Act of 28 Apr. 1959 concerning
the creation of the Placement and Vocational Rehabilitation Office for
Disabled Workers.
Endnote 99
S. 21 of Royal Decree No. 23 of 16 June 1976 promulgating the Labour Act in
the private sector, LS 1976-Bah. 1.
Endnote 100
Act No. 632 of 15 Sept. 1969, LS 1969-Ghana 1C.
Endnote 101
Act No. 123 of 25 July 1960 to promote the employment of physically
handicapped persons, as amended by Act No. 41 of 1 June 1987; and Cabinet
Order No. 292 of 1 Dec. 1960, as amended by Cabinet Order No. 285, in force
since 1 April 1988.
Endnote 102
Act No. 87-517 of 10 July 1987 concerning the employment of disabled workers,
LS 1987-Fr. 2.
Endnote 103
Notification of 26 Aug. 1986 promulgating the consolidated text of the
Severely Handicapped Persons Act, LS 1986-Ger. F. R. 1.
Endnote 104
General Survey, 1963, paras. 50 et seq. and notes, and General Survey, 1971,
para. 56 and notes.
Endnote 105
India, Arunachal Pradesh; in other states or territories the percentage of
reserved posts are the following: 45 per cent in Mizoram, 31 per cent in
Manipur, 29 per cent in Tripura, etc.
Endnote 106
A detailed study of these preferential policies and their application in India
may be found in Marc Galanter, Competing equalities: Law and the backward
classes in India, University of California Press, 1984; see also Myron Weiner
and Mary Fainsod Katzenstein, India's preferential policies, University of
Chicago Press, 1981.
Endnote 107
CERD/D/149/Add. 12, 17 Aug. 1986.
Endnote 108
For example, in Bolivia, the Government has stated in its report on the
application of Convention No. 107 that the members of indigenous populations
are given preferential treatment as regards recruitment in the areas in which
they live, especially for occupations in which they are specialised, such as
hunting, fishing, weaving and housing construction.
Legislation
See related national legislation from Natlex
United Kingdom: 1975 Act on Sex Discrimination
India: Constitution
Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C107 Indigenous and Tribal Populations Convention, 1957
Conventions: C156 Workers with Family Responsibilities Convention, 1981
Conventions: C159 Vocational Rehabilitation and Employment (Disabled Persons)
Convention, 1983
