CHAPTER VII
Substantive provisions of labour legislation:
The Eliminiation of Discrimination in Respect of Employment and Occupation

The importance of equality in the world of work

Equality of opportunity and treatment in employment and occupation is a very important aspect of the overall principle of equality, which is now almost universally endorsed. It is one of the most fundamental principles underlying any democratic society and is set forth in many international instruments, national constitutions and laws. However, despite the substantial progress made, great inequality still persists in almost all parts of the world, between women and men, between races and on such grounds as religion, political opinion, national extraction and social origin.

The elimination of discrimination in respect of employment and occupation is one of the central and most important concerns of the ILO.1 It features prominently in the Declaration of Philadelphia, annexed to the Constitution of the ILO, which states that:

all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity; [..]

Several international labour standards adopted in the 1950s, 1960s and 1970s gave specificity to this basic principle. The ILO Declaration on Fundamental Principles and Rights at Work of 1998 also lists the elimination of discrimination in respect of employment and occupation as one of the fundamental principles which member States, by the very fact of membership in the ILO, must respect, promote and realize in good faith.

At the international level, there are a number of United Nations and other multilateral instruments that concern the elimination of discrimination in general, and particularly the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenants of 1966 on Economic, Social and Cultural Rights, and on Civil and Political Rights, and the 1979 Convention on the Elimination of All Forms of Discrimination against Women. While these instruments contain provisions relevant to equality in the world of work, they are of more general scope.

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ILO instruments

The elimination of discrimination and the promotion of equality in employment and occupation are recognized as two sides of the same coin. They are promoted in several ILO Conventions and Recommendations, the most important of which are:

and their associated Recommendations.2 These two Conventions have been named by the ILO's Governing Body among the eight fundamental or core Conventions which all member States should ratify. Various other ILO instruments are also directly relevant to this topic.3

Another international instrument is of particular relevance to this chapter, namely the 1966 ILO/UNESCO Recommendation concerning the status of teachers. It provides that All aspects of the preparation and employment of teachers should be free from any form of discrimination on grounds of race, colour, sex, religion, political opinion, national or social origin, or economic condition (Chapter II, article 2.7).

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The role of member States and labour legislation in relation to equality in employment and occupation

Under the ILO Declaration of 1998, all member States have an obligation to respect, promote and realize the principle of the elimination of discrimination in respect of employment and occupation. This principle is elaborated in Conventions Nos. 100 and 111, which require ratifying member States to:

The role of labour legislation in achieving the overall objective is made clear in the specific wording of Article 3(b) and (c) of Convention No. 111, whereas Article 2, paragraph 2, of Convention No. 100 lists the role of national laws and regulations as one of a number of means by which its principle may be implemented, the others including wage determination machinery, collective agreements negotiated by the social partners or a variety of such measures.

In many countries, implementation of the principle of equality or non-discrimination is guaranteed first and foremost by national constitutions, which frequently contain a general equality provision that all citizens shall be treated equally. Increasingly, modern constitutions include provisions on equality at work. Moreover, many new comprehensive labour laws include an initial chapter on fundamental principles, containing a general statement regarding equality of treatment and opportunity in employment and occupation, as well as more specific provisions regarding such principles as equal pay. At the same time, possibly as a reflection of the seriousness given to gender equality following the Beijing United Nations Fourth Conference on Women and its follow-up (Beijing +5 Conference, New York, June 2000), many States are adopting a mosaic of regulations in addition to basic equality laws with a view to ensuring gender equality and the elimination of discrimination on the basis of gender in all social and economic areas.

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The basic principle of non-discrimination in national law

An example of a national constitution that has taken a detailed approach to enunciating the equality principle is the following:

> Example

Some labour codes cover the full breadth of the principle simply by mirroring the standards of Conventions Nos. 100 and 111 almost identically:

> Example

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Definition of discrimination

Discrimination is defined in Convention No. 111 as any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

The use of the expression has the effect of nullifying or impairing is a drafting technique that addresses the issue of direct and indirect discrimination. At the national level, drafters should also be alert to the importance of preparing texts that cover both types of discrimination. Direct discrimination exists when unequal treatment stems directly from laws, rules or practices making an explicit difference on one particular ground, such as laws which do not allow women to sign contracts, which amount to direct sex discrimination. Indirect discrimination refers to situations, rules and practices which appear neutral, but which in practice lead to disadvantages primarily suffered by a specific category of persons. For example, requirements which are irrelevant for the job in question and which typically can only or disproportionately be met by men, such as certain height and weight levels, constitute indirect discrimination on the basis of sex.

In short, the intention to discriminate is not required. Indirect discrimination against women, through reference to criteria which appear non-discriminatory, but which in practice affect a disproportionately large number of women, is particularly common, especially in the field of equal pay (see below). An example might be where certain groups of employees, such as part-time workers, who because of their predominant pattern of role distribution in society contain far greater numbers of women than men, are excluded without any reason from payments granted by the employer to the remainder of an establishment's workforce. Such a form of differentiation is not on the surface applied because the workers are women, but because they are part-time workers.

The care taken to qualify discrimination as direct or indirect has been spurred in a number of countries by the attention given to this aspect of the question in multilateral instruments. For those countries belonging to the European Union, for example, a number of laws, both general equality texts and specific labour laws, include references to direct and indirect discrimination following the adoption of the European communities Council Directive on the implemention of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.4 Article 2.1 of the Directive states that For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.

There are however exceptions to what might be considered discriminatory treatment. Convention No. 111 lists four:

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Inherent requirements of the job

With regard to the exception relating to the inherent requirements of the job, legislators have to be careful to ensure that this exception covers genuine or bona fide needs in relation to a specific job, post or position. Some laws on this point make a general statement concerning the exemption of inherent requirements of the job. Others make a general statement and then detail a number of specific situations where a genuine occupational qualification would be permissible, despite the general legislative ban on discrimination in employment, as illustrated in the following example:

> Example

From the above example it is clear that texts may go into quite a lot of detail on a specific and definable job, function or task. In addition, the environment in which the task is carried out also may play a role in clarifying the exception relating to inherent requirements. This is an area where cultural sensitivity may also come into play (see below). The above example also demonstrates the importance of the second element in clarifying this exemption, namely the proportionality of the requirement in relation to the overall importance of prohibiting discrimination in employment. Those interpreting the legislative text may, of course, prefer to assess whether particular jobs fit the legislative exemption on a case-by-case basis. What is clear, however, is that general exclusions of broadly defined occupational groups or jobs from the scope of measures designed to promote equality in employment, by means of excessive use of the inherent requirements exemption, are not in harmony with the ILO Declaration of 1998 as regards the elimination of discrimination.

The above example addresses discrimination on the grounds of sex, and it is true that many laws dealing specifically with gender equality make such distinctions. Quite common examples concern the performing arts or, as seen above, tasks involving particular physical intimacy. A general word of warning for drafters working in the area of gender equality is that it is necessary to ensure that the text makes it clear that the determination of whether an exclusion is based on an inherent requirement of the job or is arbitrarily discriminatory should be made on an objective basis and should take account of individual capacities.

Inherent requirements of the job are often seen as well in the area of religion and political opinion. Political opinions may in certain limited circumstances constitute a bona fide qualification for certain senior and particularly sensitive posts, for example those involving special responsibilities for the development of government policy. It is essential, however, that this exception should not be carried beyond certain limits, evaluated on a case-by-case basis, and that it should not amount to a systematic screening based on political grounds. The ILO's Commission of Inquiry created to examine alleged political discrimination by the then Federal Republic of Germany pointed out that:

[..] the acceptance of the contention that the category "official" in a given country could correspond to the concept of "a particular job" in Convention No. 111 would, however, result in permitting entirely different exceptions from one country to another, determined not by the nature of work or functions involved, but according to where the 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 [..] this situation also undergoes changes over time, as particular activities are nationalized or privatized [..] To make inherent job requirements vary according to such vagaries would be destruction of any international standard.5
A common example of an exemption based on religion occurs in employment in religious educational establishments:

> Example

One of the major difficulties in applying such provisions concerns 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 (or bona fide or legitimate) requirement for the work involved. The issue of burden of proof is dealt with in greater detail below.

Regarding the issue of the working environment as justification for the inherent requirement exception, it is interesting that, pursuant to the terms of certain laws, considerations of decency and privacy may constitute a valid criterion for such an exemption.

> Example

Similarly, certain laws make it clear that the defining criterion is not so much the activities and tasks being done, but the nature of the establishment in which the work is to be performed:

> Example

In certain jurisdictions the legislation permits an inherent requirement exception, but leaves the detail to be established by an implementing law:

> Example

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Measures relating to state security

With regard to the exception concerning measures taken in relation to suspected acts prejudicial to the State (Article 4 of Convention No. 111), it is important to note that, in the international context, provisions covering such situations have been applied strictly in order to avoid any undue limitations being placed on the very guarantee of equality and non-discrimination that the various international texts, including Convention No. 111, seek to guarantee.

Legislative texts using the security of the State as a basis for an exception to the non-discrimination principle should be drafted in a sufficiently narrow way to avoid the risk of coming into conflict with the broader principle. The ILO supervisory bodies responsible for verifying the application of Convention No. 111 in law and in practice by ratifying States have made comments under Article 4 in relation to certain anti-terrorism statutes. For example, the Committee of Experts on the Application of Conventions and Recommendations has criticized a law which defines terrorism as including all acts instigated by one or more persons belonging to an organization aiming to change the characteristics and political, legal, social, secular or economic order of the country. In the view of the Committee of Expert, the wide powers given under that legislation go beyond the Article 4 exception to the equality rule when activities prejudicial to the State are justifiably suspected.6

In addition to these substantive issues linked to the exception relating to the security of the State, texts seeking to incorporate this exception into the national framework should be careful to respect the necessary procedural guarantees. Under Article 4 of Convention No. 111, there should be an appeal available to a competent body established in accordance with national practice. Moreover, the mere existence of the possibility of the right of appeal, while important for this exception, may not be sufficient in itself: there must be a body, which must be competent in accordance with the rules and procedures pertaining in national practice. A variety of appeals systems could be used to permit the exercise of this right of appeal. For example, appeals on this point could follow the normal procedural rules of the judiciary or administrative courts. In certain cases, the special procedures that are often established under emergency legislation could be appropriate. The competency criterion implies not only the correct application of the power to hear the reasons why measures have been taken against the person in question, but also that the body concerned affords the guarantees of natural justice, including timeliness, the opportunity to know and rebut specific charges, representation procedures and reasoned decisions.

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Special protective measures

Most ILO instruments containing special provisions affording protection against discrimination apply to women, particularly with the aim of protecting the female reproductive function. The ILO Conventions and Recommendations in this category include:

Maternity protection

Maternity Protection Convention, 1919 (No. 3).

Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation No. 95.

Maternity Protection Convention, 2000 (No. 183) and Recommendation No. 191.

Occupational safety and health

Lead Poisoning (Women and Children) Recommendation, 1919 (No. 4).

White Lead (Painting) Convention, 1921 (No. 13).

Radiation Protection Recommendation, 1960 (No. 114).

Maximum Weight Convention, 1967 (No. 127) and Recommendation No. 128.

Benzene Convention, 1971 (No. 136) and Recommendation No. 144.

Chemicals Convention, 1990 (No. 170) and Recommendation No. 177.

Night work

Night Work (Women) Convention (Revised), 1948 (No. 89), and the Protocol of 1990.

Night Work Convention, 1990 (No. 171) and Recommendation No. 178.

Conditions of work

Underground Work (Women) Convention, 1935 (No. 45).

Welfare Facilities Recommendation, 1956 (No. 102).

Reduction of Hours of Work Recommendation, 1962 (No. 116).

Paid Educational Leave Convention, 1974 (No. 140).

While it is not the objective of this chapter to provide assistance in the drafting of protective provisions of this type in national labour laws, it is important to draw attention to the international debate surrounding such provisions. The debate centres not so much on whether giving women workers this special treatment leaves men at a disadvantage on the grounds that men should enjoy such favours too (maternity leave is one point here, since men do not physically carry the child and give birth), but rather on whether the protections accorded have amounted to an obstacle to achieving women's equality in the labour force, since employers may be reluctant to hire and retain workers who enjoy additional benefits (such as the transfer of women workers away from work involving chemical substances dangerous to fertility). It has led the ILO's member States in recent years to adopt instruments that are more adapted to the modern approach to equality, for example containing principles applicable to both men and women, as illustrated by Convention No. 171. Where a prohibition on women's access to certain occupations and jobs is genuinely linked to the need to protect their reproductive health, norms such as those contained in the above standards are advisable. However, health protection against specific hazards should be available to all workers irrespective of their sex. Special measures for the benefit of women should only be taken for work that has been proven to be potentially prejudicial to reproduction, and they should be reviewed periodically in the light of advances in scientific knowledge.

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Affirmative action measures

The ILO has published a large amount of research which can help guide policy-makers and drafters in relation to the exception from the prohibition of discrimation allowed for affirmative action measures that are taken to promote the equality of opportunity of certain groups which may have suffered discrimination in employment in the past (Article 5, paragraph 2, of Convention No. 111).7

Many countries have adopted special measures allowing affirmative action on behalf of persons belonging to various groups that have suffered disadvantage. These provisions flow from the observation that merely prohibiting discrimination in law is often insufficient to eliminate de facto discriminatory practices. Positive measures may therefore be seen as steps designed to eliminate and make good past inequalities. They are necessarily limited in time, since their justification falls once the unfairness has been redressed. However, this may take many decades, as demonstrated by the affirmative action executive orders for race equality in the United States.

A large number of countries have recently either adopted specific laws on this subject for private and/or public employment or have included such provisions in amendments to the labour legislation. Legislating for affirmative action is a policy decision that requires thorough debate, as certain employers may perceive it to be an unnecessary interference in the labour market.

Some national constitutions contain affirmative action clauses which either require or permit positive measures to be taken in all areas of social and economic action, as is the case in Argentina, Fiji, India, Malaysia, Namibia and South Africa. Given the controversial nature of the concept of affirmative action itself, its inclusion in the basic law of the land could be wise for many countries. While this approach may not guarantee unanimous acceptance of the concept, it undoubtedly enhances the legitimacy of such measures. Indeed, for certain countries that are emerging from institutionalized discriminatory practices in all walks of life, including employment (such as apartheid), constitutional affirmation of the need to redress past wrongs may be seen as the very foundation of the new democratic dispensation of the country. This is the thinking behind the Namibian Constitution:

> Example

Laws on affirmative action in employment usually target specific groups, which commonly include women, minorities (linguistic, ethnic, etc.) and persons with disabilities. The Canadian federal jurisdiction was one of the first to adopt an employment equity law, aimed at correcting the disadvantage in employment experienced by four specified groups: women, aboriginal people, persons with disabilities and persons who are in a visible minority in Canada because of their race or colour. In a relatively brief text, the legislator laid down the obligation of employers to consult with representatives of their employees on ways to implement employment equity. The following excerpt from the Canadian legislation is a good example of clarity in the formulation of the purpose of affirmative action and the measures for putting that purpose into effect, through consultation with the social partners.

> Example

A number of European Union countries have also specifically legislated for affirmative action in relation to employment, in particular with regard to women. As noted above, this tendency is in line with European directives on equality between men and women in a number of domains, including the world of work. The following example from Italy shows that the legislative process is clearly intended to attain substantive equality between men and women at work, but at the same time the text specifies that affirmative action is also aimed at promoting a balance between family and work responsibilities, thus demonstrating a wider policy objective by also promoting the equality of workers with family responsibilities. The following excerpt is also a good example of specific measures to help implement affirmative action in employment, such as permitting requests to the competent ministry for reimbursement of any expenses incurred and allowing access to European Community funds for affirmative action projects.

> Example

Developing countries have also taken policy decisions to eliminate discrimination in employment by adopting specific positive action laws. The Namibian Affirmative Action (Employment) Act, in its preamble, states that its aim is

To achieve equal opportunity in employment in accordance with article 10 and article 23 of the Namibian Constitution; to provide for the establishment of the Employment Equity Commission; to redress through appropriate affirmative action plans the conditions of disadvantage in employment experienced by persons in designated groups arising from past discriminatory laws and practices; to institute procedures to contribute towards the elimination of discrimination in employment; and to provide for matters incidental thereto.

In a text longer than the Canadian and Italian examples cited above, the Namibian law defines affirmative action and gives a non-exhaustive list of measures that are covered by the concept. It designates the groups to be covered by the law and lays down a sophisticated procedure whereby relevant employers (specified in implementing regulations) must fulfil the requirements of the law.

> Example

The Namibian legislation is also an example of good practice in setting out details to help in the practical implementation of affirmative action in employment. It contains a number of provisions explaining how employers are to prepare and implement its affirmative action plan and emphasizes the need for senior commitment in the enterprise for the implemention of the plan. The law covers both the private and public sectors and the following extract shows that the legislator took care to specify how the public service modalities should apply. The law is also a good example of the importance of consulting workers' representatives.

> Example

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Concept of employment and occupation

Employment and occupation

Article 1, paragraph 3, of Convention No. 111 defines employment and occupation as including access to vocational training, access to employment and to particular occupations, and conditions of employment. The accompanying Recommendation No. 111, in Paragraph 2, states that a non-discrimination policy should be applied by means of legislation (or collective agreements or any other manner consistent with national conditions and practice) to cover the following:

A number of recently adopted equality laws contain very detailed provisions prohibiting discrimination either directly or indirectly in all aspects of employment. The following extracts from the South African Employment Equity Act show that the combination of an extensive definition of employment policy or practice, linked to a ban on discrimination based on a list of specified grounds can ensure that the text is clear for its intended users, namely employers and workers at the workplace.

> Example

In other jurisdictions, the various guarantees are laid down in different sections of the texts. In this respect, the importance of stating the principle in the chapter on access to employment can outweigh the inelegance of repetition. The Russian Labour Code, for example, lays down the fundamental principle in section 3 and adds it to the technical part on employment.

> Example

It is therefore clear that the principle of non-discrimination should be respected across the broad range of work-related issues: from hiring, training and advancement, to retaining a worker in employment, as well as in the fixing of terms and conditions of employment. Legislators attempting to incorporate the principle into all aspects of employment should take care to ensure that terms such as employment and work are clearly defined so as not to thwart that purpose.

With respect to the term occupation, it is often defined as including the trade, profession or type of work performed by an individual, irrespective of the branch of economic activity to which he or she belongs or his or her professional status. This category of the labour force ranges from farmers to lawyers via craftspeople. Its heterogeneity is reflected in a wide variety of practical conditions governing access to these activities and requirements in respect of non-discrimination.

Ensuring the principle of equality in such circumstances may mean going beyond labour codes. Statutes relating to inheritance, family law and property/commercial title may need reviewing. Where relevant, labour laws should also include provisions banning discrimination in access to the material goods and services required to carry on occupations (credit) and concerning the legal status of individuals (such as, for example, prohibiting requirements that a married woman must have her husband's consent in order to carry on a professional activity, travel for work-related reasons or obtain a passport). Care should also be taken to avoid legislative provisions that contain seemingly neutral requirements covering the possibility of joining a profession or carrying on an occupation, but which may involve indirect discrimination based on one of the prohibited grounds. Where the exercise of an independent activity or a liberal profession is conditional on possession of a licence or title issued by a national authority or by an autonomous professional body, the authority or body must be completely objective in examining the various professional qualifications of the different candidates and must apply neutral legal provisions in accordance with the principles of equality.

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Access to the public service

In relation to access to public employment, the State as an employer must abide by the same principle of non-discrimination as is expected of the private sector. Given the volume of state employment in most countries, even after the large-scale downsizing and privatizations of the 1990s, the public sector plays a key role as a model employer in the general implementation of any national policy to promote equality of opportunity and treatment in employment. The most common, and often the only prohibited ground of discrimination mentioned in civil service statutes is sex. However, following the democratization of restrictive regimes over the last two decades, political opinion is also often specified as a prescribed ground. Civil service statutes commonly provide that the right to enter and make a career in the public service is, for all or some of the posts, based on merit, qualifications or aptitude, which are tested by means of a procedure of competitive examination. The competitive examination procedure corresponds to the concern of governments to obtain the services of the most highly qualified individuals and, ultimately, to establish the grading system which is indispensable in any public administration. Where this has not already been done, it would therefore be desirable for statutory provisions relating in particular to such examinations and tests to state clearly that non-discrimination is an overarching principle in access to posts.

ILO research has revealed that not many modern civil service statutes contain specific non-discrimination provisions.8 The following extract from a recent civil service statute displays the language often used in such texts with regard to applications to join the civil service. It also is an example of the manner in which certain countries from the former communist bloc, following the democratic changes of the 1990s, attempt to filter in their civil service laws persons who had been in any way connected with the former regime. Such screening provisions pose a challenge for policy-makers: they should not amount to political discrimination (see the discussion of Article 4 of Convention No. 111 above), nor should they amount to a blanket exclusion from all posts (see the discussion of the genuinely inherent requirements of jobs above). Yet they should highlight the role of the courts in deciding which former links disqualify persons from holding positions in the civil service.

> Example

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Training and vocational guidance

Promoters of equality attach considerable importance to the existence of specific statutory requirements prohibiting discrimination in training, which ultimately determines an individual’s real possibilities of obtaining a job or gaining access to a particular occupation. Very frequently it is because of inequalities in vocational training that equality of opportunity and treatment is impaired or nullified in all other areas. The term vocational training in Convention No. 111 applies to all forms of employment and occupation. It should not therefore be used in laws in a narrow sense confined merely to apprenticeship or technical education. Legislative texts intended to ensure non-discrimination in this area should not overlook the fact that the completion of certain studies is often necessary to gain access to a particular employment or occupation, or to a specialized form of further vocational training. A more deep-rooted problem may emerge if it appears that part of the population cannot benefit from a general education because of discriminatory practices affecting them. A number of countries have therefore also included the principle of equality in education laws and statutes aimed at eliminating illiteracy. Indeed, most modern constitutions contain basic guarantees of free and equal access to basic education and the requirement of its universal availability to their citizens or to persons residing on their territory. As noted above, the choice of what type of statute to use to cover this principle is up to policy-makers. Some jurisdictions adopt specific laws concerning equality in training, others include specific non-discrimination provisions in general training or labour laws, which guarantee the same protection but in a different context. Occasionally, equality laws also specify that there should be no discrimination on listed grounds in the area of training and vocational guidance.

In practice, it is necessary to ensure that legislative texts on training make it clear that discrimination may not arise either at the time of a person's application to be admitted as a pupil, student or trainee (which could also include the setting of admission requirements that might lead indirectly to the exclusion of candidates on grounds that are prohibited) or during the training itself (in some cases provisions on paid study leave or those requiring courses at night or practical internships away from the home have a disproportionate impact on one category of students or trainees). An example of the latter arises where the courses offered conflict with the family responsibilities that invariably fall on the woman in the household. Research has shown that women with family responsibilities experience difficulties in attending night courses or weekend study trips unless they are supported by state-run or a broader informal network of support for their family members.9

The following extract from the South African Skills Development Act shows how specific texts, in addition to equality statutes or general labour laws, can address discrimination questions in the area of access to training and vocational guidance:

> Example

Particular care should also be taken in including non-discrimination principles into vocational guidance texts. This is due to the vital role of such services in opening a wide range of occupations, free from stereotypes and archaic attitudes, and particularly from bias based on myths about the work women can and want to do, or so-called women's jobs. Well-drafted legislation can establish a fairer playing field in this area. Mention has already been made of the ILO’s human resources development standards, which provide for the adoption and development of policies and programmes of vocational guidance and job placement of all persons on an equal basis and without any discrimination whatsoever.

While in many countries legislation has been quick to address non-discrimination in such areas on the basis of sex, it is also important for guarantees to exist to promote equality for ethnic groups, who may for historical, cultural and other reasons find themselves excluded either directly or indirectly from vocational guidance programmes. It is also necessary to adapt programmes to the needs of indigenous and tribal peoples by laying emphasis on traditional areas of activity and also by opening up opportunities to possible new areas of employment. Vocational guidance, in the form of appropriate tests of capacity and aptitude, including both physiological and psychological characteristics and other methods of assessing and guiding young persons, should not perpetuate discriminatory practices. They should, for example, be sensitive to social, cultural or linguistic characteristics and should place special emphasis on extracting the information that is genuinely required for a particular job.

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Terms and conditions of employment

With regard to non-discrimination in terms and conditions of employment, a large number of specific labour laws cover equality with regard to: (i) security of tenure and dismissal; and (ii) remuneration.

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Security of tenure

Those States which have ratified Convention No. 158 are obliged to eliminate discrimination in relation to the termination of employment, both in the case of individual dismissals and collective redundancies. Protection against termination of employment for discriminatory reasons has increased markedly over recent years, not only in respect of dismissals based on the sex of the worker, but also a number of other internationally banned grounds of discrimination, such as race and colour. Some jurisdictions regard discriminatory dismissals as being automatically unfair and they are often characterized as unfair labour practices. The following extract from the South African general labour law makes it clear that a number of grounds are considered to be unfair, thus vitiating the dismissal of an employee if it is based on any of them. It is interesting to note in this respect that there is a proviso relating to the inherent requirements of the job (see above).

> Example

Some jurisdictions treat dismissal under the chapters of the labour law concerning the employment relationship and then add specific provisions on unlawful termination of employment later in the text. The following example from the Vietnamese Labour Code does this:

> Example

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Equality of remuneration

The principle of equal remuneration for men and women workers is set out not only in the Constitution of the ILO, but also in Convention No. 100. Paying women at a lower rate than men either for the same work or for work of equal value is a typical feature of this sort of discrimination, even in the modern world of work. The principle underlying Convention No. 100 covers equality in an area of employment that is vital, namely compensation for the services and work rendered. The gap between the earnings of men and those of women with comparable qualifications often occurs because women are more likely to be employed in branches of activity and jobs that are the least well paid, even though the work is of equal value. In addition, differences between the careers of men and women usually reflect the difficulty of reconciling work and motherhood or other family responsibilities. Putting an end to occupational segregation, tackling the problem of undervalued women's jobs and ensuring equality for workers with family responsibilities are all areas that can be included in labour legislation so as to ensure the overall promotion of the principle of equality in employment.

A number of modern constitutions contain a specific reference to the concept of equal pay, although many do not specify equal pay between men and women for work of equal value. The Brazilian Constitution of 1998, for example, in Chapter II entitled "Social rights", section 7(XXX), prohibits any difference in pay, in the performance of duties and in hiring criteria by reason of sex, age, colour or marital status. Moreover, even in States which have not ratified the Equal Remuneration Convention, 1951 (No. 100), their constitutional principles may be interpreted as requiring respect for the principle. In Namibia, article 95 of the Constitution of 1990 requires in subsection (d) that the State

shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following: membership of the International Labour Organization and, where possible, adherence to action in accordance with the international Conventions and Recommendations of the ILO.

In some cases, where the constitutional provision ensures equality in general, a more specific statute lays down the concept of equal pay for equal work or work of equal value. For example, in Malta, article 15 of the 1978 Constitution provides that the State shall aim at ensuring that women workers enjoy equal rights and the same wages for the same work as males, whereas section 5 of the Minimum Weekly National Standard Order of 1976 specifies that in no case shall the wage payable to a female employee be less than that payable to a male employee in respect of equal work or work of equal value.

In some constitutions, however, the specificity of the wording makes it clear that the concept of equal remuneration applies only to the narrow situation of equal work. The Costa Rican Constitution of 1949, in article 57, provides that

every working person is entitled to a minimum wage, fixed periodically, for a normal working day, which will provide for their well-being and a decent living. Wages shall always be equal for equal work under identical conditions of efficiency.

The majority of countries have, in addition to constitutional equality provisions, adopted legal enactments for the general application of the principle of equal remuneration. As early as 1976, India adopted an Act to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination on the grounds of sex against women in the matter of employment. Some jurisdictions prefer to include the equal pay provision under a general unfair discrimination provision in their labour code, while others choose to place it in a law on wages.

Among the more recent statutes concerning wages, there are good examples of protection against discriminatory treatment in regard to wages. For example, the Estonian Wage Act of 26 January 1994, in section 5, provides that

any increase or reduction of wage based on an employee's sex, nationality, colour, race, mother tongue, social origin or status, former activity, religion, political or other beliefs and position with regard to compulsory military service, shall be prohibited.

A large number of modern labour codes that have general provisions on wages contain a specific provision concerning equal remuneration.

> Example

From the above examples, it can be seen that drafters are often at pains to encapsulate the breadth of Convention No. 100's requirement of equal remuneration for work of equal value. However, some national laws still use narrower terms, such as same work, equal work or work of like quality, nature or status, to compare the work of men and women. The Convention had foreseen that the broader concept of work of equal value might raise difficulties and, in Article 3, provides that where such action will assist in giving effect to this wider concept, measures shall be taken to promote objective appraisal of jobs which will evaluate the work to be performed and give it a value which can, in turn, permit those paying the remuneration to abide by the principle of equality. Legal definitions can also assist in covering this wider concept. A choice has to be made whether to be specific in the text, or to leave the annunciation of the principle in accordance with Article 1 of Convention No. 100.

Another area in which caution is required in translating this principle into national legislation is the definition of remuneration. Article 1 of Convention No. 100 states that the term remuneration includes the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment. The Venezuelan Labour Code defines wages and salary as:

> Example

As noted above in the section concerning the definition of discrimination in general, Member States of the European Union are obliged to adopt provisions in accordance with the equality provision of the Treaty (Article 141, formerly Article 119) and the relevant case law. The French Labour Code, as amended by Act No. 85-635 of 13 July 1983, is an example:

> Example

It is worth noting that a number of national laws add an extra element when prescribing equal remuneration by specifying that an employer shall not reduce wages or the wage rate in order to eliminate a discriminatory practice or to comply with the law, but should equalize upwards. The French Labour Code, for example, added such a provision to section L.140-4(2) following the adoption of the Act respecting equal remuneration for men and women (Act No. 72-1143 of 22 December 1972).

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Prohibited grounds of discrimination

The ILO's principal instrument concerning discrimination in respect of employment and occupation refers explicitly to the following seven prohibited grounds of discrimination: race, colour, sex, religion, political opinion, national extraction and social origin (Article 1, paragraph 1(a), of Convention No. 111). The Convention provides that each ratifying State may include in its legal proscriptions such other grounds of discrimination as it considers appropriate, after consultation with employers' and workers' organizations (Article 1, paragraph 1(b)). It is thus clear that, while it appeared desirable when the Convention was adopted back in 1958 to enumerate the most common and disturbing grounds of discrimination, the enumeration is not exhaustive. The possibility of declaring further grounds to be illegal echoes the realization that discrimination may result from any attempt to take into account factors that have nothing to do with job requirements or personal abilities. The ILO's supervisory and policy-making bodies have recently examined the desirability of expanding the seven grounds listed in Convention No. 111 to include others, such as age, disability, family responsibilities, language, sexual orientation and state of health.10 In the context of the Follow-up to the ILO Declaration of 1998, a number of Governments have referred to legislation prohibiting discrimination on a wide variety of grounds, ranging from those just mentioned to trade union membership and HIV status.

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Race, colour, national extraction and social origin

A common feature of some of these prohibited grounds of discrimination is that they are generally linked to the existence within a country of different ethnic groups or communities. It has been observed that there is little difference between the criterion of race and that of colour, unless it is that racial barriers may exist between persons of the same colour. The term race does not have a precise scientific definition, and the essential point is the way in which the persons concerned consider their differences, and the attitudes resulting therefrom, in their relations with others, particularly in the field of employment. Similar problems often arise in the case of groups defined on the basis of language or even regional origin or tribal association (or other ethnic or cultural groupings), which are specifically covered by the Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117). The United Nations Convention on the Elimination of All Forms of Racial Discrimination refers generally to race, colour, descent and national or ethnic origin. As for the criterion of social origin, it may also result in similar phenomena where there exists a more or less rigid division of society into classes or castes. In other cases, the problem arises from hierarchic traditions or distinctions resulting from the family setting or from the educational methods employed. The European Community Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin11 does not define racial or ethnic origin.

In addition to avowedly discriminatory policies such as apartheid and manifestations of individual prejudice, the problems that frequently arise stem from the fact that certain social, racial or ethnic groups do not, in practice, enjoy the same opportunities for training and for economic and occupational advancement as other groups, for example for geographical reasons. This problem can in part be overcome by drafting clear legal texts banning racism and other such manifestations of discrimination in the world of work.

A note of explanation is needed regarding the term national extraction used in Convention No. 111. It is commonly misunderstood to mean nationality. However, it is intended to cover possible distinctions among nationals of a given country (for example, with reference to persons of different foreign origin or between communities with ties to different national cultures), but not distinctions between nationals and foreigners as such. The position of foreign workers has also been considered to pose specific problems and is the subject of particular provisions in the Conventions and Recommendations concerning migrant workers (see below).

A good example of a specific law covering ethnic discrimination which includes references to work-related inequalities comes from Sweden:

> Example

Other laws can refer obliquely to the existence of racial or ethnic groups, which need and are legally entitled to special measures in gaining access to employment:

> Example

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Sex

Discrimination based on sex is probably the most widespread form of distinction, and is most often encountered as discrimination against women. This is why one of the first ILO instruments on equality of rights was the 1951 Convention (No. 100) concerning equal remuneration for men and women workers for work of equal value, and why it is naturally one of the seven grounds dealt with in Convention No. 111. Discrimination linked to the reproductory function of women is usually covered by laws protecting maternity. In the matter of access to and retention in employment, special questions have arisen with regard to the status of married women. In some jurisdictions, sex discrimination is therefore deemed to cover civil status as well. The supervisory bodies of the ILO have considered that the disqualification or exclusion of women on grounds of marriage constitutes discrimination based on sex (in so far as it affects women and not men). As will be seen later, marital status or family situation as such have been dealt with in later instruments.

In setting policy and drafting legislation, it is necessary to look carefully at the distinction between the terms sex and gender. The latter entered into common English parlance some decades ago following sociological research into societal values and the realization that the more scientific term sex did not adequately respond to its findings. For the ILO's work in this area, the distinction is explained as follows. Existing differences between men and women are of both a biological and a social nature. The term sex refers to biologically determined differences, while gender refers to differences in social roles and relations between men and women, including perceptions of sexuality. Gender roles are learned through socialization and vary widely within and between cultures. They can therefore be unlearned. Gender roles are affected by age, class, race, ethnicity and religion, and by the geographical, economic and political environment.

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Sexual harassment

A special word needs to be said about one particular form of sex discrimination, namely sexual harassment. Only one international labour Convention specifically prohibits sexual harassment, namely the Indigenous and Tribal Peoples Convention, 1989 (No. 169). It specifically prohibits sexual harassment of indigenous and tribal women. Nevertheless, there is growing awareness of the need to take action on this subject, as demonstrated by the consensus emerging in a number of international meetings and treaty monitoring bodies. In its 1996 Special Survey on equality in employment and occupation, when examining the application of Convention No. 111, the ILO Committee of Experts listed a number of examples of sexual harassment in employment applying to both men and women. These include: insults, inappropriate remarks, jokes, insinuations and comments on a person's dress, physique, age or family situation; a condescending or paternalistic attitude with sexual implications undermining dignity; unwelcome invitations or requests that are implicit or explicit, whether or not accompanied by threats; lascivious looks or other gestures associated with sexuality; and unnecessary physical contact, such as touching, caresses, pinching or assault.

Both the 1993 Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights and the Platform for Action adopted at the 1995 World Conference on Women (Beijing) emphasize the need to implement legal measures to protect women from sexual harassment. Different attempts to define the phenomenon contain many common elements. For instance, sexual harassment was recognized as violence against women in the General Recommendation No. 12 of 1989 of the committee overseeing the Convention for the Elimination of All Discrimination Against Women (CEDAW). It is defined in CEDAW's General Recommendation No. 19 of 1992 as including such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem.12

In drafting legislative protection against this form of discrimination, care should be taken to cover acts in two sets of circumstances. First, actions constitute sexual harassment when the victim has reasonable grounds to believe that an objection would disadvantage her/him in connection with her/his employment, including recruitment or promotion. Secondly, actions constitute sexual harassment when they create a hostile working environment. These two characterizations are known, respectively, as the quid pro quo theory and the hostile working environment theory. This development mirrors the evolution of the debate on what constitutes sexual harassment that has occurred in recent years at the national level in all regions of the world. The debate recognizes it as a workplace issue. This is because the victims suffer physical and psychological effects, such as serious forms of stress, anxiety, fatigue and depression, which directly affect productivity and quality. Employers suffer in terms of staff turnover, lost productivity and direct expenses, such as sick leave, health benefits, monetary damage awards to victims and legal expenses.

Turning to legislative developments at the national level, a limited number of countries, including Australia, Canada, New Zealand, Switzerland, United Kingdom and United States, have endorsed both the quid pro quo and hostile working environment theories of sexual harassment either by statute or court decision. France has adopted only the traditional quid pro quo definition, but this was the most important development in Europe as the legislation was adopted on the abuse of authority and sexual matters in employment relations and categorizes sexual harassment as a penal offence.

Sexual harassment has been dealt with either through equal employment opportunities and human rights legislation, labour codes, civil remedies such as torts and negligence and, in at least one country, criminal law. Latin American legislation either referring specifically to sexual harassment or to unwanted behaviour amounting to such harassment is framed in terms of unfair dismissal (Argentina, Chile, Costa Rica, Uruguay - Penal Code -, with the 1997 Peruvian Law covering both theories). Several countries, including Argentina, Austria, Belgium, Belize, Brazil, Chile, Costa Rica, Dominican Republic, Finland, Germany, Ireland, New Zealand, Peru, Philippines and Switzerland, have adopted legislation declaring sexual harassment to be a prohibited labour practice. In the Caribbean, the model legislation on violence against women prepared with the assistance of the Commonwealth Secretariat includes the prohibition of sexual harassment.

Equal opportunity laws which prohibit sex discrimination in employment and, in some cases specifically mention sexual harassment, offer the most substantive source of protection in a number of countries, including Australia, Canada, Denmark, Germany (Berlin), Ireland, New Zealand, Puerto Rico, Sweden, United Kingdom and United States. Equal opportunity laws normally protect both men and women from discrimination, including sexual harassment if it is construed as coming under the law. In the case of same-sex harassment, courts in the United States at the federal level and the United Kingdom have dealt with the issue as sex discrimination.

While labour law in many countries provides significant protection against sexual harassment (for example, in Belgium and the Dominican Republic), in practice its impact is often confined to quid pro quo cases. The following excerpt from Philippine legislation consists of a brief text which manages to include both definitions in its ban on harassment, to specify a wide range of work-related measures in which harassment is prohibited and to place responsibility for enforcement clearly on the employer.

> Example

Another example of a draft text prepared by the ILO for a member State is as follows:

> Example

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Political opinion and religion

These two prohibited grounds of discrimination may be regarded as comparable in so far as they both apply to intellectual choices and are connected with protection of the right to freedom of conscience as it relates to employment. However, they also sometimes involve quite separate phenomena. Relations between communities of different faiths may give rise to problems similar to those which exist between racial or ethnic communities (see above). In other cases, the problem is more one of intolerance either in private practices or on the part of the State, such as where there is a state religion or where the State is anti-religious, or again where activities of a public nature are overly subject to the dictates of a single or dominant political party.

As noted earlier, an exception to this principle is often made in relation to religious bodies for which religious faith is an inherent requirement of the job. Some equal opportunity laws go beyond the usual exception to the equality principle for employment-related matters in relation to religious bodies be extending it to employment in the private sector in cases where religious sensitivities require that persons of one particular faith deal with the public. The Trinidad and Tobago Equal Opportunity Act, No. 69 of 27 October 2000, is one example. The exemption for religious bodies is couched in the following terms:

> Example

The ILO’s supervisory bodies have pointed out that protection against discrimination based on political opinion must necessarily apply to the expression or demonstration of such opinion, since protection afforded for opinions alone, which are neither expressed nor demonstrated, would be pointless. The same argument can be applied to religion and the practice of religion. Difficult problems have nevertheless arisen in connection with requirements which may be justified by the demands of certain types of employment (in the civil service, for example, or in religious institutions) or of state security (in the case of political activities), as was seen above in connection with authorized exceptions to the equality principle for the inherent requirements of a job.

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Other grounds

Among other prohibited grounds of discrimination in employment, some of the most commonly encountered are trade union membership and trade union activities (see Chapter II particularly with regard to Article 1 of Convention No. 98).

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The situation of migrant workers

Because countries generally have special regulations governing the employment of foreign nationals, discrimination against migrant workers tends to be dealt with in the instruments on that subject. Equality of treatment in the application of labour and social security legislation is called for in a special provision of Convention No. 97 (Article 6). Broader provisions were adopted in 1975 in Convention No. 143 and Recommendation No. 151. As regards the promotion of equality of opportunity and treatment in general, these standards are based on the concepts of the 1958 instruments. They also include provisions intended to take into account the special characteristics and needs of foreign workers (relating to linguistic, cultural and other problems) so as to enable them to enjoy effective and not purely formal equality. They allow restrictions on certain aspects of the employment of foreign nationals (particularly employment in posts connected with the interests of the State), but they limit to two years, as a rule, any other restrictions on freedom of choice of employment (this rule is in advance of the legislation of a number of countries, including countries in Western Europe). Another important feature of these standards is the fact that they specify the minimum equality of rights which must be enjoyed even by migrant workers who are in an irregular situation (other provisions of the Convention deal with the repression of unlawful or clandestine practices involving migrant labour). Perhaps because its aims are set too high for the present, Convention No. 143 has not yet been widely ratified (18 countries as of mid-2003). However, together with Recommendation No. 151 it has clearly had a major impact on general trends in reflection, demands and practices in this field.

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Age

Discrimination based on age has become a matter of increasing concern in many countries in recent decades and the International Labour Conference dealt with this subject in a special part of the Older Workers Recommendation, 1980 (No. 162), which is designed to supplement the 1958 instruments on this point. The Recommendation applies to all workers who are liable to encounter difficulties in employment and occupation because of advancement in age. It defines, in terms comparable to those of the 1958 instruments, the measures to be taken to prevent any discrimination in employment against older workers, having regard to the special nature of their situation due to age, the need for the adjustment of working conditions and the problems of access to retirement.

Does the setting of a mandatory retirement age constitute discrimination based on age? It is interesting to note that Recommendation No. 162 addresses this question somewhat cautiously. It recommends adoption of the principle that retirement should be on a voluntary basis and that the age of entitlement to old-age benefits should be made more flexible. It also recommends that legislative and other provisions making mandatory the termination of employment at a specified age should be examined in the light of the principle of non-discrimination.

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Marital status, family situation and family responsibilities

These causes of discrimination, which are closely linked with the obstacles encountered by women in the area of employment, are addressed as such in the Workers with Family Responsibilities Convention, 1981 (No. 156) and Recommendation No. 165. The Conference had already adopted a Recommendation in 1965 concerning the employment of women with family responsibilities. This was made redundant by the new standards, which relate to workers of both sexes in accordance with the modern concept of the sharing of family responsibilities. Under these new standards, men and women workers must be enabled to exercise their right to obtain or engage in employment without being subject to discrimination because of their family responsibilities and, to the extent possible, without conflict between their employment and family responsibilities. Various measures are recommended with a view to avoiding direct or indirect discrimination based on marital status, family situation or family responsibilities in the areas of training and employment and to encourage appropriate adjustments of working conditions (e.g. flexible working hours, parental leave), social security, childcare services and family aid.

It should be noted that, in addition to those referred to in Convention No. 111, Convention No. 158 indicates as causes which do not constitute valid reasons for termination of employment marital status, family responsibilities, pregnancy and absence from work during maternity leave (Article 5, paragraphs (d) and (e)).

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Disability

Persons whose capacity is reduced by physical or mental handicap often encounter discrimination even in respect of jobs which their disability would not prevent them from performing adequately. They also need special help in order to enjoy equality of opportunity in employment that is adapted to their particular condition. The Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) and Recommendation No. 168 address inter alia these causes of direct and indirect discrimination and recommend various measures designed to ensure effective equality of opportunity and treatment for such persons, without distinction on grounds of sex. These standards deal in particular with the measures of assistance and the adjustments needed in the areas of training, employment and working conditions, as well as the encouragement to be given to employers. They do not refer expressly to the question of the obligation to employ workers with disabilities that has been introduced in certain countries (and which seems generally more acceptable than quotas based on sex or origin), but they specify that Special positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers.

In addition, the more recent European Community Directive establishing a general framework for equal treatment in employment and occupation 13 of 27 November 2000 recalls the 1976 equal treatment Directive and specifically refers, in particular in clause 4, to Convention No. 111. Recalling that certain instruments, such as Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, already cover employment equality on specific grounds, the November 2000 text states that Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons. In adding these four further grounds to the panoply of prohibited grounds of discrimination in the European Communities, the text specifically bans direct or indirect discrimination on these grounds. Direct discrimination is defined as where one person is treated less favourably than another person is, has been or would be treated in a comparable situation, on any of the four grounds. Indirect discrimination is defined as occurring where an apparently neutral provision, criterion or practice would put persons having a particular religion, disability, age or sexual orientation at a disadvantage compared to other persons unless justified by a legitimate aim or as part of reasonable accommodation or based on genuine occupational requirements (Article 2(2)(a) and (b)). The concept of positive action (see above) is covered in Article 7 of the Directive. Article 10 reflects the Community's approach to the burden of proof by making it clear that Member States have to take measures in accordance with their national judicial systems to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them, establish before a court or other competent authority facts from which it may be presumed there has been direct or indirect discrimination, it will then be for the respondent to prove that there has been no breach of the principle of equal treatment. Article 13 of the Directive is of particular interest to the present text. Entitled Social dialogue, it requires Member States to take adequate measures to promote dialogue between the social partners with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct and through research or exchange of experiences and good practices.

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Enforcement

Burden of proof

The burden of proof can be a significant hurdle to obtaining a just and fair result in a case of alleged discrimination, whether indirect or direct. An example might be a discrimination case in which the complainant applies for a position and is rejected, allegedly for a discriminatory reason. In such cases, information concerning the criteria for selection, the qualifications and assessment of the various candidates for the position usually lies mainly within the knowledge of the employer. This is particularly true in cases of indirect discrimination when the actual criteria of selection for a position may have been established over many years. In many countries, the burden of proof lies with the complainant, and the employer is not obliged to produce evidence to show that the rejection can be explained on the basis of non-discriminatory reasons. In these circumstances, the employer may be able to win the case simply by saying nothing and merely challenging the inferences drawn by the complainant. In practice, one of the most important procedural problems relating to allegations of discrimination in employment or occupation is that the burden of proving the discrimination lies with the complainant, which may represent an insurmountable obstacle to obtaining remedies for the harm suffered. While at times the evidence can be collected without undue difficulty (in the case, for example, of advertisements for job vacancies where the discrimination is obvious), more often the discrimination involves an action or activity that is suspected rather than established, and therefore difficult to prove. This is particularly true in the case of indirect or systematic discrimination, and more so when the information and records that might constitute evidence are generally held by the person who is accused of discrimination.

In view of the difficulties experienced by claimants in gaining access to data in equal pay cases in particular, many legislators and courts have decided that, if the claimant can establish facts from which discrimination may be presumed to exist, it is for the respondent to prove that the apparent discrimination is due to objective factors unrelated to the sex of the claimant. There has been a shift of this nature in the burden of the proof in a large number of countries with such different legal systems as Finland, France, Germany, Guatemala, Guyana, Italy, Netherlands, Norway, Sweden, United Kingdom and Zimbabwe.

> Example

Some countries have responded to this problem with specific legislative provisions. For example, in Switzerland the Federal Act respecting equality between men and women of 24 March 1995 provides (section 6) for the presumption of the alleged discrimination as long as the person invoking the procedure makes a plausible case. Countries such as France, Germany, Italy, Sweden and Luxembourg have opted for similar systems in respect of the burden of proof, again a reflection of recent European Union law-making on this subject.

Given the usefulness of the European Union example, it is worthwhile quoting its Directive on the subject:

The Council of the European Union, [..]

(2) Whereas the Community Charter of the Fundamental Social Rights of Workers recognizes the importance of combating every form of discrimination, including discrimination on grounds of sex, colour, race, opinions and beliefs;

(3) Whereas paragraph 16 of the Community Charter of the Fundamental Social Rights of Workers on equal treatment for men and women, provides, inter alia, that "action should be intensified to ensure the implementation of the principle of equality for men and women as regards, in particular, access to employment, remuneration, working conditions, social protection, education, vocational training and career development”;

[..]

(8) Whereas the principle of equal treatment was stated in Article 119 of the Treaty, in Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and in Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions;

[..]

(17) Whereas plaintiffs could be deprived of any effective means of enforcing the principle of equal treatment before the national courts if the effect of introducing evidence of an apparent discrimination were not to impose upon the respondent the burden of proving that his practice is not in fact discriminatory;

(18) Whereas the Court of Justice of the European Communities has therefore held that the rules on the burden of proof must be adapted when there is a prima facie case of discrimination and that, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought;

(19) Whereas it is all the more difficult to prove discrimination when it is indirect; whereas it is therefore important to define indirect discrimination;

[..]

Has adopted this Directive:

Article 1

Aim

The aim of this Directive shall be to ensure that the measures taken by the Member States to implement the principle of equal treatment are made more effective, in order to enable all persons who consider themselves wronged because the principle of equal treatment has not been applied to them to have their rights asserted by judicial process after possible recourse to other competent bodies.

Article 2

Definitions

1.  For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination whatsoever based on sex, either directly or indirectly.

2.  For purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.

Article 3

Scope

1.  This Directive shall apply to:

(a) the situations covered by Article 119 of the Treaty and by Directives 75/117/EEC, 76/207/EEC and, in so far as discrimination based on sex is concerned, 92/85/EEC and 96/34/EC;

(b) any civil or administrative procedure concerning the public or private sector which provides for means of redress under national law pursuant to the measures referred to in (a) with the exception of out-of-court procedures of a voluntary nature or provided for in national law.

2.  This Directive shall not apply to criminal procedures, unless otherwise provided by the Member States.

Article 4

Burden of proof

1.  Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2.  This Directive shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

3.  Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

[..]

[Council Directive No. 97/80/EC of 15 December 1997on the burden of proof in cases of discrimination based on sex]

Countries other than Member States of the European Union have also given prominence to addressing the imbalance between aggrieved employees and accused employers in discrimination cases. The following example places the responsibility of the employer to prove non-violation among the Fundamental rules for exercising rights and fulfilling responsibilities set out in the Labour Code:

> Example

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Penalties

With regard to the effectiveness of sanctions, the important principle is that the victims of discrimination should benefit from suitable remedies, which should also have a dissuasive effect upon those who may consider engaging in discriminatory practices. However, it should be kept in mind that by instituting complaint procedures a worker takes both material and moral risks. For example, legislation which includes protective provisions, but which allows the employer in practice to terminate the employment of a worker who has been the victim of discrimination simply through the payment of compensation, does not provide sufficient protection. Thought should be given to the use of penal sanctions, which may be useful for dissuasive purposes, but in some countries should only be applied as a last resort or safeguard. After all, preventive measures are also necessary to address the social situations which often trigger discrimination. It should also be noted that the nature of discrimination seems to be changing and is increasingly indirect, which makes it harder to address through the use of criminal penalties. Most jurisdictions appear to agree that it is most effective to have available a wide range of possible penalties and sanctions to apply in discrimination cases.

In Finland, the offence of discriminatory advertising (sex discrimination in recruitment or during employment) incurs a penal sanction (in the form of a fine). In Slovenia, it is a penal offence to violate the fundamental rights of workers (Penal Act No. 12/77-5/90, section 86). Section 60 of the same Act makes a violation of equality of rights a penal offence where the discrimination in question has been expressly prohibited. In Israel, failure to comply with the Employment (Equal Opportunities) Law of 1 April 1988 incurs penal liability, while the victim of the discrimination also has the right to seek civil remedies (which include punitive damages). Spanish law, under the 1991 version of the Penal Code, imposes penal sanctions on those who commit any kind of severe discrimination in employment on the basis of sex. The Social Infringements and Sanctions Act, 1988, classifies as a very severe infringement any measure adopted by an employer which imply sex discrimination.

It is just as important for the effectiveness of an appeals procedure in the case of discrimination that there should be no ceiling on the amount of compensation that may be awarded to a victim who wins the case.

A number of countries have gone further by also legislating for what in North America is known as contract compliance. This proactive element in the legislative response to promoting equality is normally found in laws setting up affirmative action and places the requirement on employers to either be in possession of a certificate that they are respecting the equality policy and/or to lose government contacts or loans if they are found to be in breach of it.

The two following examples demonstrate how developed and developing countries use their employment law to achieve equality objectives:

> Example

But many labour codes continue to include general provisions on penalties, allowing the executive to set the level of the penalties.

> Example

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Institutions to enforce non-discrimination and promote equality

Labour administration bodies

Labour codes rarely specifically list promoting equality as a function of the labour administration. Yet, in view of the fact that the labour administration is normally entrusted with overall responsibility for enforcing the contents of the law, in practice it plays an important role in this respect.14

In many cases, the terms of reference of social and economic councils and labour advisory boards are also broad enough to cover the function of promoting equality.

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Specialized equality institutions

Many jurisdictions have created specialist equality bodies under general equality laws, or even under their constitutions, not only with research and advocacy functions, but also investigative powers and conciliation/adjudication roles. The following example illustrates the functions of this type of quasi-jurisdictional institutional body.

Ontario's Employment Equity Act of 1 September 1994 established the Employment Equity Tribunal. It is responsible for settling disputes relating to the implementation of equity in the workplace. It aims to achieve conciliation between the parties or conducts hearings to find out whether, in the case in point, the Act has been respected. These hearings are not as formal as judicial proceedings, but the resulting decisions are nevertheless binding on the parties. The Tribunal must endeavour to settle disputes by mediation before proceeding with a hearing, and all claims are therefore referred to a mediator. If the mediation process fails, the dispute is then heard and, after examining the evidence and the related legislation, the Tribunal returns its decision on the claim.

The composition of such institutions is crucial to their credibility and effectiveness. Some recent laws highlight this. For example, the legislation in Trinidad and Tobago provides that its Equal Opportunity Commission is to be assisted by a panel:

> Example

A good example of constitutionally created equality bodies comes from South Africa.

> Example

An interesting example from Latin America demonstrates the breadth of powers and responsibilities that can be entrusted to a specialized equality body by the legislation:

> Example

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Ombuds

In the large number of countries that have established a special body to deal with discrimination, a common administrative measure is the creation of the Office of the Ombudsman. Finland, Hungary, Norway, Slovenia and Spain, all have ombuds who are empowered to deal with questions of discrimination. However, a distinction must be drawn between the authority (and possibly the effectiveness) of an order from an ombudsman and a judicial order.

In Norway, for example, the Equality Ombudsman has permanent administrative responsibility for the promotion of equal rights and opportunities, and for monitoring compliance with the Equal Status Act. The Office may receive complaints, issue recommendations (and exceptionally orders) and take a case to the Equal Rights Board, which has limited authority to make orders (although none at all in matters of hiring and firing). One clear advantage of this system is that an employee who makes use of it incurs no costs. In Finland there is a similar system, with the difference that, at the initiative of the Equality Ombudsman, the Equality Council may issue an injunction to stop discriminatory behaviour in violation of the Equality Act, No. 609 of 1986.

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Appeals to labour courts

The United Kingdom's Equal Opportunities Commission has three general duties: to work towards the elimination of discrimination; to promote equality of opportunity; and to keep the functioning of the 1970 Equality Act and 1975 Sex Discrimination Act under review. It has investigative functions, may issue non-discrimination notices and in cases of persistent discrimination it may ask for an injunction or request a declaration from an employment tribunal. The Commission may also provide individual claimants with legal assistance in proceedings before employment tribunals and thereafter in the Employment Appeals Tribunal.

In Israel, under the Employment (Equal Opportunities) Law of 1 April 1988, women's groups are permitted to present their position in the labour courts, although they may not themselves file claims (this can only be done by the individual and his or her union).

In Zambia, section 108(2) of the Industrial and Labour Relations Act of 1993 provides that any employee who has reasonable cause to believe that she has suffered any penalty or disadvantage on the grounds of sex may, within 30 days of its occurrence, lay a complaint before the Industrial Relations Court. If it finds in favour of the complainant, the Court may award damages or compensation to the complainant for loss of employment, or make an order for re-employment or reinstatement in accordance with the gravity of the circumstances of each case. If any person alleges that she has been discriminated against on the grounds of sex, without prejudice to any other available remedy, that person may apply for redress to the High Court. The High Court may make an order, issue such writs and give such directions as it considers appropriate for the purpose of enforcing or securing the enforcement of protection from discrimination on the ground of sex. A right of appeal lies from the High Court to the Supreme Court.

The following box gives examples of national machinery to enforce equality provisions (not including units or focal points in the Ministry of Labour):

Australia

Human Rights and Equal Opportunities Commission

Affirmative Action Agency

Office of the Status of Women (in the Office of the Prime Minister)

Austria

Federal Public Service Commission for Equal Treatment

Belgium

Commission for Women’s Employment

Brazil

National Commission on the Rights of Women (CNDM)

Cameroon

National Commission on Human Rights and Freedoms (NCHRF)

Canada

Federal (and provincial) Human Rights Commission

Provincial Employment Equity Boards

Czech Republic

Council for Human Rights Inter-ministerial Commission for Romany Affairs

Cyprus

National Committee for Women

Denmark

Equal Status Board

Finland

Council for Equality between Men and Women

Equality Ombudsman

France

National Council for Gender

Greece

Council for Equality between Men and Women

Iceland

Equal Status Council, Office of the Equal Opportunities Ombudsman

India

National Human Rights Commission

Ireland

Council for the Status of Women

Italy

Office of the Minister for Equal Opportunity

Commission for the Realization of Equality between Men and Women (in the Office of the Prime Minister)

Commission on Women Workers' Rights of the Labour Ministry

Liechtenstein

National Commission for Equality between Men and Women

Lithuania

Office of the Equal Opportunities Ombudsman

Luxembourg

Committee on Women's Employment

Malta

Secretariat for Equal Status of Women

Commission for Advancement of Women

Netherlands

Equal Treatment Commission

New Zealand

Equal Employment Opportunities Trust

Human Rights Commission

Norway

Equal Rights Board

Equality Ombudsman

Pakistan

Human Rights Commission

Portugal

Committee for Equality in Work and Employment (CITE)

High Commission for Equality and the Family

South Africa

Human Rights Commission

Commission for Gender Equity

Employment Equity Commission

Spain

Institute for Women's Affairs

Sweden

Equal Opportunities Commission

Equal Opportunities Ombudsman (Jämo)

Switzerland

Federal Commission for Matters Relating to Women

United Kingdom

Equal Opportunities Commission for Sex Discrimination

Commission for Racial Equality

Industrial tribunals/employment appeal tribunals/House of Lords

United States

Equal Eemployment Opportunity Commission

Federal district courts

Supreme Court


1. In addition to the information available in this Chapter, the reader is recommended to refer to the ILO database on Equal Employment Opportunity for Men and Women. This database is available on CD-ROM and online (http://www.ilo.org/public/english/employment/gems/intro/eeo/.

2. As at mid-2003, a total of 159 member States of the ILO had ratified Convention No. 111 and 161 had ratified Convention No. 100 (see Governing Body document GB.280/LILS/7, para. 19).

3. The following Conventions (apart from Convention No. 98) are accompanied by Recommendations which suggest ways in which the principles contained in the principal instruments can be implemented:

There are also two framework Conventions concerning aspects of training which prohibit discrimination:

To this list could be added a number of general Conventions which mention non-discrimination as part of overall policy aims, for example:

In the same vein, reference should be made to the 1977 Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Body of the International Labour Office which, while not having the same legal status as Conventions, nevertheless carries great moral weight among member States. In paragraphs 22 to 23, it specifies that the principle of equality of opportunity and treatment should guide multinational enterprises throughout their operations:

Equality of opportunity and treatment

All governments should pursue policies designed to promote equality of opportunity and treatment in employment, with a view to eliminating any discrimination based on race, colour, sex, religion, political opinion, national extraction or social origin.

Multinational enterprises should be guided by this general principle throughout their operations without prejudice to the measures envisaged in paragraph 18 or to government policies designed to correct historical patterns of discrimination and thereby to extend equality of opportunity and treatment in employment. Multinational enterprises should accordingly make qualifications, skill and experience the basis for the recruitment, placement, training and advancement of their staff at all levels.

Governments should never require or encourage multinational enterprises to discriminate on any of the grounds mentioned in paragraph 21, and continuing guidance from governments, where appropriate, on the avoidance of such discrimination in employment is encouraged.

4. Council Directive 76/207/EEC of 9 February 1976.

5. ILO: Official Bulletin, Supplement 1, Vol. LXX, 1987, Series B, para. 535.

6. See International Labour Conference, 89th Session (2001), Report III(1A), p. 500 (English version).

7. See J. Faundez: Affirmation action: International perspectives (Geneva, 1984); J.Hodges-Aeberhard and C. Raskin: Affirmative action in the employment of ethnic minorities and persons with disabilities (Geneva, 1994); J. Hodges-Aeberhard: Affirmative action in employment: Recent court approaches to a difficult concept (Geneva, 1997); International Labour Review, Vol. 138, No.3, p. 247 (1999); Equality in employment and occupation, Special Survey, International Labour Conference, 83rd Session (1996), Report III(4B), paras. 134-141. These texts use interchangeably the terms affirmative action and positive action, both of which are tools to achieve the wider goal of employment equity. Some countries also use the expression managing diversity in the workplace, which has a slightly different emphasis to the terms derived from Convention No.111, which are used here.

8. See GLLAD: Working Document Series, A comparative study of the contents of civil service statutes, by J. Hodges-Aeberhard

9. See International Labour Conference, 80th Session (1993), Report III (Part 4B), General Survey of the Reports on the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165), 1981, paras. 96-127.

10. See Special Survey, 1996, op. cit., para. 297; and GB.279/3, Nov. 2000, para. 15 and appendix; where the adoption of a protocol is discussed.

11. Council Directive 2000/43/EC of 29 June 2000.

12. Compilation of general comments and general recommendations adopted by human rights treaty bodies, UNHCR, HRI/GEN/Rev.2, 29 March 1996, p. 115.

13. Council Directive 2000/78/EC of 27 Nov. 2000.

14. See, for example, L. Hantrais, M. Sireau and B. Lust (eds.): Labour administration: A powerful agent of a policy of gender equality in employment and occupation, Labour Administration Document No. 55-1 (ILO, Geneva, 1999); and Labour administration, International Labour Conference, 85th Session (1997), Report III(Part IB), para. 181.

Updated by MB. Approved by AB. Last Updated 10 December 2001.