by ILO SRO-Budapest and ILO ÉGALITÉ, 1997
Table of Contents
Preface
PART I: EMPLOYMENT AND LEGAL ISSUES
Chapter 1: Ethnic Minorities in Central and Eastern Europe
1.1 Introduction
1.2 Labour market situation of ethnic minorities prior to 1989
1.3 Changes since 1989
1.4 Concluding points
Chapter 2: International legal standards
2.1 ILO standards
2.2 Other instruments of the United Nations System
2.3 Standards of the Council of Europe
2.4 Conclusion
PART II: GUIDELINES AND RECOMMENDATIONS
Chapter 3: Access to Employment
3.1 Recruitment and selection
3.2 Discriminatory recruitment methods
3.3 Discriminatory selection
3.4 Selection interviews may be discriminatory
3.5 Fair and open recruitment practices
3.6 Reducing disadvantage
3.7 Affirmative action
Chapter 4: Terms and Conditions of Employment
4. 1 Fair employment policies.
Chapter 5: Access to Vocational Training and Guidance
Chapter 6: The Role of the National Authorities
6.1 Labour market data
6.2 Government employment policies
6.3 Legal provisions
6.4 Information campaigns
6.5 Non Governmental Organizations (NGOs)
Chapter 7: The Role of the Social Partners
7.1 The role of employers
7.2 The role of trade unions
Preface
The economic and social position of ethnic minorities in Central and Eastern Europe has undergone significant change since the transition to market economies started. It should be emphasized that in general the political changes have improved the legal and political position of ethnic minorities and their access to governmental support. The changes have opened for them new possibilities for education and culture in their own languages.
On the other hand, the labour market situation of ethnic minorities has deteriorated even further as compared with the majority population in a number of Central and Eastern European countries. In most instances the problems of unemployment, underemployment and remuneration for ethnic minorities are associated with the specific economic situation of regions where these minorities live.
However, discrimination in employment against some minorities does exist, sometimes in a hidden form, not only by employers, but also by labour market institutions and workers in enterprises.
it is clear that economic discrimination against ethnic minorities and their exclusion from the labour market or a disadvantaged position in it, can exacerbate political tensions in societies emerging from autocratic rule. This manual providing guidelines and recommendations for the promotion of employment of ethnic minorities situations free from discrimination in Central and Eastern Europe is intended to help reduce these tensions by reducing their causes and to contribute to greater social cohesion in the countries of the region.
in the first part of this publication, the labour market situation of ethnic minorities in Central and Eastern Europe prior to 1989, as well as the changes which have occurred since 1989, are reviewed. In the same section an overview is given of the relevant ILO standards, other instruments of the United Nations system, as well as the relevant standards adopted by the Council of Europe. These standards form the basis of the guidelines and recommendations for the promotion of employment of ethnic minorities in Central and Eastern Europe, which are developed in the second part of this publication.
These standards have assumed an even more prominent role with the ILO's current campaign for the ratification of the seven ILO's fundamental human rights Conventions, including those on discrimination which are at the heart of this manual. The ILO's member States in Central and Eastern Europe have responded to this campaign, and these standards are thus becoming even more fully integrated into their national laws and practice.
These guidelines and recommendations focus on the access to employment, the terms and conditions of employment, access to voctional training and guidance and the role of the national authorities and the social partners in promoting non-discrimination in employment of ethnic minorities. It is our hope that these guidelines and recommendations will assist the ILO tripartite constituents in the region in their efforts to ensure equal chances on the labour market for everyone.
The manual was prepared with the assistance of Mary Coussey, external collaborator from the United Kingdom, and Catherine Comtet-Simpson, who worked at the time of the preparation of this manual in the Equality and Human Rights Coordination Branch of the ILO. The senior specialists for workers' and employers' activities of the ILO Central and Eastern European Te~nn (CEET), Pekka Aro and Bjorn Grunewald, contributed to chapter 7. The overall coordination for the elaboration of the manual was carried out by Alena Nesporova, senior specialist for labour market policy of the ILO SRO-Budapest.
Ildikó Simon assisted in the typesetting of the manual.
Table of Contents
PART I: EMPLOYMENT AND LEGAL ISSUES
Chapter 1: Ethnic Minorities in Central and Eastern Europe
1.1 Introduction
1.2 Labour market situation of ethnic minorities prior to 1989
1.3 Changes since 1989
1.4 Concluding points
1.1 Introduction
In the past, Central and Eastern Europe as a multinational region went through many local wars for territories, invasions, moves or forced transfers of large groups of the population based on ethnic principles. Interethnic tensions still persist in some parts of the region, the most recent one having unfortunately grown into a bloody war after the split of Yugoslavia.
Multiple changes in state formations, state borders, massive assimilation efforts from the side of majority populations and the growing opposition of minorities, leading even to the resettlement of large ethnic groups in the last two centuries, have resulted in the creation of relatively homogenous national states in Central and South-East Europe where the share of all ethnic minorities does not exceed 10 %. The only exceptions are Slovakia, Bulgaria and Romania but even there the majority population achieves at least 85%.
Ethnic development in the former Russian empire was influenced by the immigration of Russian settlers to conquered territories during their Russian colonization. Russians were followed by some other national groups (Germans, Armenians, Jews, etc.) who wanted to start farming or business there. After creating the USSR the communist regime decided to strengthen its power over non-Russian territories and to avoid interethnic conflicts by mass resettlements of ethnic groups and intentional mixing of nations. As a result, all new independent countries on the territory of the former USSR now have large minorities of Russians (other minorities are more dispersed) and the Russian Federation has remained a multinational state, country of 82% of Russians along with 127 other national and ethnic groups.
Apart from large ethnic groups, a special position is held by the so-called small nations of Russia, i.e. small indigenous ethnic groups of less than 50,000 persons. There are 61 such groups with a total of slightly more than 440,000 persons (about 0.3% of the whole Russian population). Of these ethnic groups, six are located in the north European part of Russia, 22 in northern Caucassus and 33 in northern Russia, in Siberia and the Far East. These nations lived in a symbiosis with nature for centuries, making their living on hunting, fishing, reindeer-breeding and traditional simple handicrafts. They created rather closed societies resistent to outside cultural and technical influences, and their level of education was therefore much lower in comparison with more numerous nations of Russia. In the past, the USSR Government tried to integrate them by putting indigenous children on boarding schools in Russia. The result, however, was not encouraging: these children were mostly neither able to keep step with their peers of another ethnic origin for social reasons, nor able to reintegrate fully in their traditional societies after their return because they had lost the necessary skills for living there.
The situation of ethnic minorities is largely dependent on their settlement patterns. Some minorities are scattered (which was partly fog°ced in the past) throughout the country and - except for the Romanies have already been more or less assimilated by the majority population, while others create more compact ethnic `islands'. The latter group was able to retain certain national characteristics and oppose assimilation tendencies; however, it can be more exposed to problems associated with an insufficient knowledge of the majority language, lower mobility because of strong family ties, etc.
The communist ideology intentionally belittled ethnic problems by stressing common interests and solidarity of the working class regardless of ethnic origin. Any political organizations of minorities were forbidden. Cultural and educational institutions of most ethnic minorities were officially supported by the state but at the same time inilltrated by the secret police in order to ensure their loyalty to the state regime. However, some countries even exercised an openly hostile policy towards some ethnic minorities with the aim to enforce their assimilation with the majority population. Three examples from post-war period are well-known: Bulgaria towards her Turkish minority, Romania towards the Hungarian minority and Yugoslavia towards the Albanian minority. All of them led to serious interethnic clashes, persecution and emigration of members of these minority groups.
An exceptional position among different ethnic minorities inhabiting Central and Eastern Europe has been the Roma population. Their situation was quite similar to that of the `small nations of Russia'. The communist governments decided to change radically their life style and to assimilate them with the rest of the population without even acknowledging their status as an ethnic minority. The Roma were offered flats and jobs in accordance with the assimilation policy which was intended to scatter them and to settle them throughout the country. Although some progress was achieved in their education, health and social situation, an inappropriate interference into their way of life destroyed their culture, traditional family ties and feeling of security, while achievements appeared to be very limited.
As a result, ethnic problems were not solved under the communist regimes; rather they were artificially suppressed and therefore re-emerged immediately after the collapse of these regimes.
1.2 Labour market situation of ethnic minorities prior to 1989
The labour market situation of ethnic minorities corresponded directly to the political situation. As paid work was considered the only legal source of income for all able-bodied people of working age with the exception of students, housewives and mothers with small children, members of ethnic minorities were also integrated into the labour force. Labour departments of regional administrations were obliged to place all non-employed persons in a job even if such persons were not interested in working or were dismissed from their previous job because of disciplinary problems, or to provide them with some form of social benefits.
The question thus was not whether a member of an ethnic minority would get a job, but rather what type of job it would be. This was connected to this person's knowledge of the majority language, his/her formal education, profession, political activity, gender, age and residence, and to the ethnic origin. Some differences in the type of job held by members of the majority population and an ethnic minority resulted from their specific ethnic characteristics. It has been observed that some ethnic groups incline to certain professions, or have stronger family ties not allowing them to move outside their region. There were also rather significant differences in their demographic or educational profiles. Many minorities lived in economically backward regions such as border regions with little investment activity by the state, or in mountainous regions with natural obstacles for industrial development. Resettlement of some minorities (such as e.g. the Romanies) was stimulated by providing them with flats, usually in regions with labour shortages, which again contributed to a higher concentration of some minorities in certain occupations, industries and regions.
Besides these "objective" differences in the labour market position and the occupational status of ethnic minorities there existed direct discrimination against some of them in education and training, recruitment, employment or career promotion. For example, in Romania and Bulgaria all key jobs in the state administration or managerial positions in important industries or services (such as public transport) were occupied by members of the majority ethnic group, and only exceptionally by members of certain ethnic minorities (on the condition they were considered politically loyal). Also, many institutions in the USSR had an unofficial instruction not to accept Jewish persons for jobs in certain periods. Military schools and institutions in particular had secret restrictions on accepting members of "potentially dangerous" ethnic groups like Jews, Germans, Greeks, Turks-Osmans, Meshketian Turks, Ingerman Finns and Izhorians.
The unfavourable position of some ethnic minorities in the labour market could be associated with discrimination against them in education. Most ethnic minorities did not have school instruction in their mother tongue at all, and when children were not fluent in the official language they fell behind, and after completing school attendance they often took up manual professions. Even when schools with instruction in the minority language existed, they were often of much lower quality than schools for the majority population, disadvantaging their pupils in access to higher education and better jobs.
In the USSR, deported nations could not even receive higher education until 1956 and they could never occupy higher positions in the army, in the railway transport and communications and in some other `strategic' sectors. However, according to the ideologically motivated "integration strategy" aiming to bring all nations in the Soviet Union gradually to the same level of educational, economic and social development, special quotas for ethnic minorities were given to all higher educational institutions (all of them, however, teaching in Russian). The attendance of non-Russian students at Russian universities and vice versa was widely supported within the USSR.
Discrimination in education against the Roma population was very frequent in Central and Eastern Europe. Although Roma children often had insufficient language skills they got no special assistance in mainstream schools. Instead, they were placed in special schools for children with lower mental capacity, strongly constraining their future labour market opportunities. Roma families themselves considered education unimportant and often did not send children to school, or supported them when they dropped out early. Roma children who completed mainstream compulsory education faced problems in getting further education as they were unable to cope with demands of secondary schools or training facilities because of the lack of any support from their families, or the fact that they were confronted with direct discrimination. This is why only 1 a/o of the Roma population has received higher secondary education in the Czech Republic and less then one-quarter of Roma pupils complete their education in the last, ninth grade. In the Slovak Republic over 95% of the Roma population have only primary or lower education while the share of university-educated Roms is less than 0.1%
In the labour market, Roma workers frequently faced discrimination in recruitment to certain jobs, based on statistical evidence' of their inferior labour discipline and lower labour productivity, or the prejudices of enterprise managers and fellow workers, regardless of the personal characteristics of the job applicant. Labour departments were thus able to place Roma workers in jobs unattractive for other people due to bad working conditions, heavy physical labour or poor remuneration. In many cases, however, labour departments or Roma workers themselves opted for social benefits (mainly in the form of disability pension) rather than employment even if the workers were able to work. This preference was due more to social obstacles and the lack of appropriate assistance in job placement and employment than to real health problems, although the health ofathe Roma population was also poorer in comparison with the rest of the population. Open unemployment, however, did not exist even within this most difficult-to-place ethnic group as enterprises had incentives (and obligations) to recruit Roma workers because of the artificial labour shortage and the commitment of the state to full employment.
1.3 Changes since 1989
The period of transition of Central and Eastern European countries to a market system since 1989 has been characterized by rapid progress in democratization of their societies, but at the same time many hidden interethnic pressures have re-emerged or even exacerbated due to the deteriorating economic situation. Huge changes in the national labour markets, notably diminishing employment in the official economy and rapidly increasing open unemployment or economic inactivity of the population and its involvement in the informal or "black" economy, have had far reaching consequences.
From the political point of view, the position of ethnic minorities has largely improved in most countries. Amended national legislation, guaranteeing equal rights for all citizens regardless of their ethnic origin, as well as pressures from the ILO, the Council of Europe and other institutions, have contributed much to this improvement. The statures of `national' and `ethnic' minorities have been abolished and now all ethnic groups have the right to claim and be recognized as an ethnic minority with legally determined rights and freedoms. Most countries in the region have established national advisory bodies for ethnic issues attached to their governments. Ethnic minorities also have the right to associate in political and cultural organizations and to assert their interests through parliament or through other channels.
In spite of this, unresolved ethnic problems from the past have led to increasing political tensions and contributed to the emergence of new national states. This process has unfortunately been accompanied by ethnic violence, local wars and the exodus of large groups of people in some parts of the region. These new `national' states are again not fully homogenous from the ethnic point of view. In order to secure their stability and independence, they often commit the same type of discrimination against their new minorities as they were themselves exposed to in the past.
This is rather frequent in the ex-Soviet countries where the once-dominant Russian population has become an ethnic minority, and some countries such as Estonia or Latvia have even denied citizenship to their large Russian minorities for a while or restricted their right to vote. The Russian minority is now forced to learn the new majority language (often with some resistance), and on the basis of an insufficient language knowledge may be discriminated against in employment. There is evidence from some ex-Soviet republics that many highly qualified Russians are pushed out of their positions only because of their ethnic origin even though there are. no adequate substitutes for them among the native population. Moreover, with the establishment of new autonomous national territories within the Russian Federation, many so-called `title nations' enjoying some additional privileges in these national territories are in minority there (this is true in more than a half of the 38 currently existing national territorial formations in the Russian Federation) or are in minority in other territories.
This new political and economic situation has diversified the present labour market position of ethnic minorities. Unemployment affects particularly rural regions, regions with underdeveloped industry and monostructural regions where the leading economic sector was hard hit by economic recession. Many such regions are the homes of larger ethnic minorities which may thus suffer from higher unemployment than is the national average. This is, e.g., the case of southern districts of Slovakia heavily populated by the Hungarian minority where the unemployment rate was 5 percentage points above the national average, or the rural regions of north-east and southern Bulgaria populated by the Turkish minority. This is however not true for some other Bulgarian multiethnic regions, nor for most similar Romanian regions.
The disadvantages of such locally concentrated minorities are multiple: they have education and professions which are not in demand; they are less mobile inside the country because of insufficient knowledge of the majority language and strong attachment to their location; and quite often, they have worse demographic structure due to emigration of their working-age population. On the other hand, they may benefit from their bilingual skills, commuting for work to neighbouring countries which speak their language if these countries can offer higher wages, from economic tourism to neighbouring countries based on price differences, smuggling or other `informal' activities in border regions.
However, in most cases higher unemployment in these regions is associated with the precarious economic situation of regional employers rather than with the ethnic origin of local workers, and hits the local population rather equally no matter what their ethnic origin may be.
As expected, the `hidden' disadvantages of the Roma ethnic group were rapidly transformed into open Unemployment after 1989. According to the studies analysing their present labour market situation, their unemployment rate has reached a level three times higher than was the national average in Hungary (34% in autumn 1993 for people actively searching for their jobs, and 43°Io when including those who are no longer actively seeking employment), over 40% in Slovakia at the end of 1993 and 70-80% in many regions of the Czech Republic.
There are many persisting reasons for lower competitiveness of Roma workers in the labour market:
- demographic structure - due to
the much higher birth rate, the share of young workers, who generally
suffer from higher unemployment, is much larger in comparison with
other ethnic groups. Also, the share of mothers with many children
unable to take regular employment is very high;
- poor education - the level of
education as described above has deteriorated even further for
the Roma ethnic group. If in the past enterprise vocational training
centres in particular had a certain obligation to accept Roma trainees
and give them special assistance during their training, with the
closing down of many enterprise training centres this is no longer
the case and Roma trainees are now even scarcer than before;
- state of health - many Roma families
are living in hygienically substandard conditions which together
with their unhealthy nutrition and poor health care are leading
to their much poorer state of health as compared with the rest
of the population. Also, many Roma workers have been or still are
employed in jobs demanding hard manual work under bad occupational
health and safety conditions, which freqLtently leads to disabilities.
Once disabled, such workers are more often laid off and only very
rarely recruited in comparison with other disabled workers;
- former high concentration of
Roma workers in professions which are now hard hit by economic
recession, i.e. coalminers, steelworkers, low skilled professions
in construction, agriculture, etc. These workers can be retrained
only with difficulty. As they earned high wages in the past they
are unwilling to accept labour-intensive but low-paid jobs which
are the only ones on offer for them. Their move to another region
is restricted because of housing shortages.
Roma workers are frequently accused of bad working discipline and absenteism and that explains why many employers now use statistical discrimination against them in their hiring and firing practices. Discriminatory practices thus sharpen the serious unemployment problem of the Roma minority.
Similar problems now hit especially the small nations of the North and the Far East of Russia. As their traditional economic base is now being destroyed, their economic and social situation has rapidly deteriorated. Their economic activity has decreased by 20Q/o or even more and the rate of unemployment was estimated at 25-30% in 1993 (the all-Russia average was lalo at that time).s They are mostly unable to adapt to new conditions, their state of health is deteriorating and for many of them the prospect of even their survival as a nation is becoming bleak if no effective employment and social promotion programmes are implemented very soon.
In the transition period, however, a new problem of ethnic minorities has emerged in connection with high migration (more precisely immigration) while in the past all these countries struggled with emigration of well-educated and skilled people. Only a rather small number of these newcomers has entered the national labour markets on the basis of an intergovernmental agreement betweén sending and receiving countries. Such workers fill in existing niches in the national and regional labour market and do not seriously compete with the domestic population. Political refugees with official refugee status can also top in regular employment and face similar problems to those mentioned above. However, most immigrants are either refugees with temporary protection coming from regions and countries hit by war, or even illegal 'economic immigrants' from countries with lower economic levels. Most such people are of working age, often with dependants. As they are not allowed to work officially and have too little money to live on, they are forced to search for illegal forms of employment without any social security, and are poorly remunerated with detrimental effects on the whole labour market stability, which may lead them to turn to criminal activities.
The problem of immigration is particularly important in the Russian Federation after the dissolution of the USSR and breaking out of many local wars on its territory, caused by inter-ethnic clashes. Due to deep deterioration of living conditions and personal security for many Russians living in newly-independent countries or in war conflict regions, they return to Russia. As most of them are qualified or even highly qualified workers, their repatriation sharpens competition for high-skill vacancies which are now in real shortage in the regional labour markets. After living for a long time in a different cultural environment, they also bring other labour and economic habits which further increase social tensions in regions which accept them. Armed conflicts also result in a large influx of non-Russian refugees to Russia with perhaps even worse consequences for the regional labour markets - the only difference is that non-Russian refugees mainly apply for low-skilled jobs - and social stability in the regions.
According to expert estimates, about 2 million repatriate and refugees will legally reside in Russia by 1998.9 The number of illegal immigrants is expected to be even higher.
Although this publication is not intended to touch the problem of migration for work, the importance of this issue will increase in the future, and appropriate responses will have to be formulated both in legal rules and labour market policies.
1.4 Concluding points
Problems concerning unemployment, forced economic inactivity, unequal career opportunities and unequal remuneration of ethnic minorities in comparison with the majority population are mostly associated with the specific economic situation of regions where these minorities live, and with their demographic structure, educational structure, lower mobility, etc. Some disadvantages for ethnic minorities in the labour market may also occur as a result of political tensions or conflicts. However, discrimination against some minorities does exist, sometimes in a hidden form, not only by employers, but also by labour market institutions and workers in enterprises. Employers may prefer workers who do not belong to certain minorities on the basis of their bad experience from the past, or common prejudices.
Frequently also, workers refuse to cooperate mm minority members for similar reasons. Labour offices may not pay sufficient attention to the special needs of certain ethnic groups, and sometimes they even push them out of the labour force with the excuse that employers would not hire them anyway, and send them to social departments for further assistance. The issues of how to combat these forms of discrimination by designing appropriate legal rules and employment and labour market policies will be further discussed in this manual.
It will be clear from what follows that discrimination against ethnic minorities, and their exclusion from the labour market or disadvantaged position in it, can exacerbate situations which are already difficult. This manual is intended to help reduce these tensions by reducing their causes, and to contribute to greater social cohesion in these countries.
Table of Contents
Chapter 2: International legal standards
2.1 ILO standards
2.2 Other instruments of the United Nations System
2.3 Standards of the Council of Europe
2.4 Conclusion
2.1 ILO standards
The elimination of discrimination and the promotion of equality of opportunity in employment today occupy an important place in the standards and programmes of action of the ILO. They reflect a constant and growing concern for fundamental human rights in the field of labour, a concern which was initially directed towards protection against abusive working conditions, the elimination of forced labour and guaranteeing trade union rights and collective bargaining.
At the foundation of the Organization in 1919, provisions of the Constitution referred already to the need to ensure opportunities for development and equitable economic treatment for all. But it was with the Declaration of Philadelphia, adopted in 1944 and subsequently incorporated into its Constitution, that the ILO proclaimed, as a fundamental constitutional principle, 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".
These principles have been put into effect through a number of Conventions and Recommendations adopted by the International Labour Conference and through various action programmes.
The broadest of these standards are the Discrimination (Employment and Occupation) Convention (No.ll1) and Recommendation (No.lll), adopted in 1958, whose aim is to deal with the overall problem of discrimination based on the various grounds most commonly encountered. Before that date, a number of instruments had been concerned with equality of rights in respect of certain matters or for certain categories of persons: freedom of association and the right to organize, migrant workers, and equal remuneration for men and women. Since 1958, the normative action of the International Labour Conference has built on the basis laid down in Convention No.lll and Recommendation No.ll l, expanding their principles in Conventions concerning particular categories of workers such as, for example, workers with family responsibilities, disabled persons and indigenous and tribal peoples. Convention No. 111 is very widely ratified, with l 20 ratifications by 1996.
2.1.1 Definition of discrimination
Article 1, paragraph 1 (a), of Convention No.111 defines discrimination as "any distinction, exclusion or preference [made on the basis of certain criteria] which has the effect of nullifying or impairing equality of opporttmity or treatment in employment or occupation". This definition contains three elements:
- a factual element (the existence of a distinction, an exclusion or a preference, without specifying whether this arises from an act or an omission) which constitutes a difference in treatment;
- a ground on which the difference of treatment is based;
- the objective result of this difference in treatment (the nullification or impairment of equality of opportunity or treatment).
Through this broad definitions, the 1958 instruments cover all the situations which may affect equality of opportunity and treatment.
In the light of this definition, there may be said to be discrimination whenever a person does not have the full benefit of the same opportunities or treatment as are enjoyed by other persons in respect of employment or occupation. The definition given in the 1958 instruments takes account of the fact that equality of opportunity or treatment may be affected not only by negative attitudes, which are the most obvious ones, but also by "preferences" which are often more difficult to detect. It covers both situations in which the equality is "nullified" and those - more difficult to identify - where it is only "impaired".
Two aspects of the definition deserve particular emphasis. In the first place it applies to "any" distinction, exclusion or preference, which means both those which are the result of legislation and those which arise in practice, including private practices, where national policy must also aim to eliminate discrimination.
Secondly, the definition refers to the "effect" of these distinctions, exclusions or preferences on equality of opportunity or treatment, and it is therefore not restricted to discrimination specifically intended to nullify or impair this equality. It thus includes indirect discri~rtina.tion, which may be the result of measures or practices unrelated to any discriminatory intent but which, in the circumstances in which they apply, result in an inequality of opportunity or treatment based on race, sex or some other characteristic. This may be the case, for example, when requirements which cannot generally be met by persons of a particular sex or group are needlessly laid down, or when possible measures are not taken to enable such persons to cope with the requirements. Certain Conventions and Recommendations adopted subsequent to those of 195$ and dealing with particular causes of discrimination refer expressly to "direct or indirect discrimination".
Another element of the definition refers to the areas to which it applies: "in employment or occupation". Convention No.lll indicates that these terms include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment (Article l, paragraph 3), which - as the ILO's supervisory bodies have often pointed out - covers all matters relating to labour and employment. Recommendation No. I 11 expands the list to the following matters in respect of which all persons should, without discrimination, enjoy equality of opportunity and treatment (Paragraph 2):
(i) access to vocational guidance and placement services;
(ii) access to training and employment of their own choice on the basis of individual suitability for such training or employment;
(iii) advancement in accordance with their individual character, experience, ability and diligence;
(iv) security of tenure of employment;
(v) remuneration for work of equal value;
(vi) conditions of work including hours of work, rest periods, annual holidays with pay, occupational safety and health measures, as well as social security measures and welfare facilities and benefits provided in connection with employment.
2.1.2 Grounds of Discriminations
(a) Grounds referred to in Convention No.lll
The 1958 instrument concerning discrimination in respect of employment and occupation refers expressly to the following grounds of discrimination: race, colour,sex, religion, political opinion, national extraction and social origin (Article 1, paragraph 1 (a), of the Convention). It also provides that each country can include in its definition 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 to identify the most common and most disturbing grounds of discrimination by means of the enumeration given above, the enumeration is not exhaustive. It embodies, generally speaking, the problem of discrimination resulting from any attempt to take account of factors having nothing to do with job requirements or personal abilities. The present guidelines will focus on the grounds of race, colour, national extraction and social origin, which correspond to notions of ethnicity. Other grounds, such as religion, may also be relevant.
A common feature of these grounds of discrimination is the fact that they are generally linked to the existence within a country of different ethnic groups or communities. There is little difference between the criteria of race and of colour except to point out that ethnic or racial barriers may exist between persons of the same colour. The term "race" does not have a very precise scientific definition - indeed, many deny any scientific basis for it at all - the essential point being the way in which the persons concerned consider their differences, and the attitudes resulting therefrom, in their relations with one another, particularly in so far as this concerns employment. Similar problems often arise, moreover, in the case of groups defined on the basis of religion, language or even regional origin or tribal association, or other ethnic or cultural groupings. In general terms, discrimination against ethnic minorities is indistinguishable from racial discrimination. But distinctions can be drawn between the situation of ethnic minorities, in particular indigenous and tribal groups, and that of any other minorities disadvantaged on racial grounds.
In some countries, ethnic minorities are comprised largely of immigrant workers, or the descendants of immigrants, who have entered the country in order to start farming, trade or crafts, to escape religious persecution in their home country, or on the contrary to "colonize" a country. In any event, they include persons whose ancestors, or who themselves, have departed from their countries of origin and entered new societies, frequently in a situation of comparative disadvantage with regard to the citizens of the country where they now reside. These minorities should be distinguished, as concerns their origins, from the national minorities which are historically well established in Central and Eastern Europe, though Convention No.l 11 considers all such groups in the same light.
In many cases, the members of ethnic minorities are citizens of the country in which they live; discrimination affecting them could be classified as being on grounds of national extraction when distinctions are made on the basis of a person's place of birth, ancestry, different way of life or foreign origin. While certain ethnic minorities may have been able to overcome this initial disadvantage, this is very often not the case especially for the Roma people. Mary of the Roma people live in extreme poverty, often in ghettos, and possess few assets or competitive skills.
The reference to national extraction in Convention No.l 11 is designed to cover possible distinctions among nationals or residents of a given country (for example, with reference to naturalized persons of foreign origin or between communities with ties to different national cultures), but not distinctions directed towards foreigners as such. This covers the so-called `national minorities' found in Central and Eastern Europe. The position of foreign workers has also been considered to pose specific problems and is the subject of particr.~lar provisions in the Conventions and Recommendations concerning migrant workers (Convention No.97, adopted in 1949, and Convention No.143, adopted in 1975).
Distinctions, exclusions and preferences have in some cases been supplemented by reference to restrictions, as well as to segregation and separation. In this-sense, discrimination refers to the exclusion, in the general meaning of the term, of certain persons because they belong to a group that is defined by intrinsic characteristics.
(b) Measures which are not deemed to be discrimination
Instead of referring to "exceptions", Convention No.l l 1 and Recommendation No.l ll provide that certain measures "shall not be deemed to be discrimination". These explanations constitute more a definition of the features of the concept of discrimination than an indication of derogauons: if there is a valid justification for a distinction, there is no "discrimination". The distinctions, exclusions or preferences in employment or occupation considered to be unlawful are those based on one of the grounds expressly referred to in Article l, paragraph 1(a) of the Convention, or on a ground determined after consultation with representative employers' and workers' organizations, in accordance with Article l, paragraph I(b) of the Convention. The concept of equality of opportunity and treatment, without discrimination based on one or more grounds, implies that individuals or groups of individuals have identical rights and obligations as tar as distinctions based on this ground or these grounds are concerned.
However, the right to equality of opportunity and treatment cannot be envisaged as an absolute right. As mentioned above, not all distinctions, exclusions or preferences are deemed to be discrimination within the meaning of the Convention. The following measures are not deemed to be discrimination: measures based on the inherent requirements of a particular job (Article l, paragraph 2); measLires intended for the protection of the security of the State (Article 4); and lastly, measures designed for protection or assistance (Article 5), including measures of protection and assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference (paragraph 1 ), and special measures, defined as non-discriminatory after consultation with representative employers' and workers' organizations, which are designed to meet the particular needs of persons who are recognized to require special protection or assistance (paragraph 2). The last of these notions means that "affirmative action" is explicitly allowed under the Convention, and is not considered to be unacceptable discrimination.
( 1 ) Qualifications required for a particular job
The promotion of equality of opportunity and treatment envisaged by the Convention requires that access to training, employment and occupation be based on objective criteria defined in the light of academic and occupational qualifications required for the activity in question. Normally, these requirements do not constitute discrimination under the terms of the Convention; they fall outside its scope. Problems regarding the distinction between illegal discrimination and the inherent requirements of a particular job may arise in one of two ways: either a required qualification does not prove to be inherent to the job in question and constitutes discrimination even though explicit reference is not made to one or more of the grounds iaid down in the Convention; or, a distinction based on one or more of these grounds is explicitly required as a necessary qualification. Thus, the exception allowed for in Article l, paragraph 2, of the Convention, must be interpreted strictly, so as not to result in undue limitation of the protection which the Convention is intended to provide.
Any limitation within the context of this exception must be required by the characteristics of the particular job, and be in proportion to its inherent requirements. Certain criteria may be brought to bear as inherent requirements of a particular job, but they may not be applied to all jobs in a given occupation or sector of activity, and especially in the public service, without coming into conflict with the principle of equality of opportunity and treatment in occupation and employment.
Thus, systematic application of requirements involving one or more of the grounds of discrimination envisaged by the Convention, to a category of persons defined by their status or their employment in an enterprise irrespective of the aptitude of these persons to carry out the tasks assigned to them, does not correspond to the inherent requirements of particular job. For example, a requirement for a minimum height in a profession like the police service could result in indirect discr7mination against most women.
(2) Protection of the security of the State
In accordance with Article 4 of the Convention, "any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice". As an exceptional clause, Article 4 must be applied strictly in order to avoid undue limitations on the protection which the Convention seeks to guarantee.
It should be emphasized that in order not to be deemed discriminatory under Article 4, measures must affect an individual on account of activities he or she is justifiably suspected or proven to have undertaken. Secondly, the exception refers to activities qualífiable as prejudicial to the security of the State, whether such activities are proved, or whether concurring and precise presumptions justify suspecting such activities. Thirdly, these measures must be sufficiently well-defined and delimited to ensure that they do not become discrimination based on political opinion or religion, which would defeat the Convention's primary objective, namely to provide equality of opportunity and treatment in employment and occupation. Finally, the application of measures intended to protect the security of the State must be examined in the light of the bearing which the activities concerned may have on the actual performance of the job, tasks or occupation of the person.
In addition to these substantive conditions there is also a procedural guarantee: the right of the person affected by the measures described in Article 4 of the Convention, "to appeal to a competent body established in accordance with national practice". Existence of a right of appeal, while constituting a necessary condition for the application of the exception to the principle of the Convention, is however not sufficient in itself. The right of appeal cannot be considered as a guarantee in accordance with the provisions of Article 4 of the Convention, unless the substantive conditions mentioned in the preceding paragraphs have been met. The reference to "a competent body established in accordance with national practice" clearly implies that a variety of systems may be used to permit the exercise of this right of appeal. Appeals may follow the usual procedural rules of judiciary or administrative courts.
(3) Special measures of protection or assistance
There are two kinds of special measures of protection or assistance envisaged in Article 5 of the Convention: measures of protection and assistance provided for in other ILO Conventions and Recommendations, and measures taken after consultation with employers' and workers' organizations which are designed to meet the particular requirements of persons or groups of persons who require special protection or assistance.
Under Article 5 of the Convention, distinctions or preferences which may result from the application of such measures shall not be deemed to be discrimination within the meaning of the Convention. This concerns, for instance, special measures which may be taken on behalf of ethnic minority groups or disabled or older persons, which are expressly recognized as non-discriminatory.
Special measures of assistance based on grounds such as social OC Cultural level may also be taken to meet the particular needs of certain population groups. In some countries such measures have taken the form, inter alia, of the reservation of jobs for members of certain ~roups on the ground that in the absence of such measures these persons would have no likelihood of gaining employment. This is a particular aspect of the more general problem of the justification for affirmative action, sometimes known as reverse discrimination (see section (b) below), which is often advocated as an active means of promoting equality of opportunity.
2.1.3 Promotion of equality: positive action
(a) General principles
Under the 1958 Convention (Articles 2 and 3), each country has to "declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof'. To this end, it is required:
(a) to seek the cooperation of employers' and workers' organizations and other appropriate bodies in promoting the acceptance and observance of the policy;
(b) to enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy;
(c) to repeal any statutory provisions and modify administrative instructions or practices which are inconsistent with the policy;
(d) to pursue the policy in respect of employment under the direct control of a national authority;
(e) to ensure observance of the policy in the activities of vocational guidance, vocational training and placement services under the direction of a national authority.
Emphasis is thus placed on the positive aspect of the measures to be taken. Naturally, it is not sufficient for the State to refrain from practising discrimination itself in its laws and administrative practices. It must strive to eliminate it in relations between private individuals, and it must encourage development of the basic conditions which will enable all to benefit from equality of opportunity to obtain training and employment, so as to eliminate any source of direct or indirect discrimination.
Other ILO Conventions and Recommendations have applied the same ideas, adapting them to particular types of discrimination (e. g. migrant workers and older workers) or specifying how they are to be applied in certain areas (such as vocational training).
As regards legislative and educational action designed to end discriminatory practices, Recommendation No.l I 1 states in its Paragraph 4 that:
Appropriate agencies, to be assisted where practicable by advisory committees composed of representatives of employers' and workers' organizations, where such exist, and of other interested bodies, should be established for the purpose of promoting application of the policy in al) fields of public and private employment, and in particular:
(a) to take all practicable measures to foster public understandin; and acceptance of the principles of non-discrimination;
(b) to receive, examine and investigate complaints that the policy is not being observed and, if necessary by conciliation, to secure the correction of any practices regarded as in conflict with the policy; and
(c) to consider further any complaints which cannot be effectively settled by conciliation and to render opinions or issue decisions concerning the manner in which discriminatory practices revealed should be corrected.
The link established here between legislative
action and educational action is significant. Attention has been drawn
to the educational value of legal standards. Their importance lies in
their public character and the fact that they emanate from the highest
organs of the State or in the economy, that they are usually the work
of the sovereign representative body, and that they draw their strength
from an executive with wide powers over public and economic life, from
the authority and prestige of the judiciary or from the will of the
employers' and workers' organizations as expressed in their policies
and negotiations covering wide sectors of economic and social life.
This gives these standards, irrespective of their actual legal context,
an exceptionally great potential influence and ability to attract public
support and approval for a national policy of equality in respect of
employment.
Educational action can and must also take
up where legal standards leave off, and supplement them effectively:
codes of practice for the purpose of clarifying the scope of legislation
and explaining to employers, trade unions and governmental agencies
the measures they can take (voluntarily or under mutual supervision)
in routine activities connected with employment and the determination
of working conditions, in order to avoid direct or indirect discrimination
and to promote equality of opportunity.
(b) Affirmative action: the question of special measures designed to give preference or ensure equitable representation
To what degree are positive preferences acceptable as a means of promoting equality in respect of employment? Apart from their reference to special measures of assistance which may involve, inter alia, the reservation of certain forms of employment for specific underprivileged groups, Convention No.l 11 and Recommendation No.l I I do not expressly regulate this matter. Nor are there provisions on it in the other ILO instruments concerning equality of rights and opportunity in employment. However, these instruments allow for the concept of affirmative action.
For ethnic minority groups the essential aim of affirmative action programmes would be to provide preferential treatment in education and training programmes, or in systems of recruitment and promotion for salaried positions. These special measures would aim to overcome the disadvantages under which they compete in these areas, and to enable them eventually to compete on an equal footing with other members of the national society. Special training measures, for instance, would seek to train and help persons from disadvantaged minority groups to adapt to the available employment opportunities, rather than adapting employment and training opportunities to the particular characteristics of the persons concerned.
The nature of the measures involved in favour of disadvantaged groups (minorities, women and the disabled in particular) may vary considerably, covering a range from special efforts to develop resources and infrastructures which certain groups have previously lacked and thus to equalize certain basic conditions, to "target" or "quota" systems or systems of systematic preference in access to training or employment. The first type of measure is certainly the less debatable (it is implicit, moreover, in the idea of promoting equality of opportunity and eliminating indirect discrimination); the second is sometimes termed "reverse discrimination", which implies that it is often regarded somewhat unfavourably. This measure can be a very valuable tool, but it must be used prudently, in circumstances where it is justified and which make it generally acceptable to all groups, or otherwise it may have effects which are the reverse of those it aims at. The supervisory bodies of the ILO have examined the validity of such systems on a case-by-case basis, identifying those which aim to ensure a fair degree of proportional representation in employment and those which aim to promote the advancement of groups previously disadvantaged in certain activities.
National policies that will promote the means of establishing the practical requirements for equality of opportunity for different categories of persons are explained, inter alia, in the instruments on employment policy (Convention No.122 and Recommendation No.122) and in those on human resources development (Convention No.142 and Recommendation No.150). The Human Resources Development Recommendation, 1975 (No.150), contains several detailed sections on the measures to be taken in respect of population groups: persons lacking schooling: older workers: linguistic and other minority groups; handicapped and disabled persons; women; and migrants. As was noted earlier, instruments concerned with certain of these categories contain provisions on this subject and on the adaptations of training systems and working conditions that may be necessary in order to take account of the special needs of these persons and without which they could not enjoy genuine equality of opportunity.
In the framework of the present ILO Policy Guidelines it is worth mentioning the Indigenous and Tribal Peoples Convention, 1989 (No.169).l I The situation of these peoples can be fundamentally different from that of other ethnic minorities. The word "indigenous" refers to "peoples in independent countries who are regarded as indigenous on account of their descent from the populations which belonged, at the time of conquest or colonialization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions." The term "tribal" refers to "peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations." Self identification is a fundamental criterion. These groups are usually - but not always - minorities, though they are a distinct category from most other minorities. They are often characterized by a relative economic and social underdevelopment, an historical attachment to the land and a distinctive set of traditions and customs. This is not a phenomenon only of Latin America or Asia - there are a number of such groups in Europe. This instrument provides, among other things, for special measures for the people it covers, to promote their participation in the economic and social life of the countries in which they live, and non-discrimination at work.
2.2 Other instruments of the United Nations System
2.2.1 International Covenant on Civil and Political Rights
There is no specific reference to ethnic minorities in the UN Charter (1945) or in the Universal Declaration of Human Rights (1948). However, both of these instrLiments prohibit distinctions on the grounds of race, sex, language, or religion; and the Universal Declaration (Article 2) adds national or social origin. Up to 1950, the term `racial minorities' and not `ethnic minorities' was generally used in resolutions and documents of United Nations bodies concerning the protection of minorities. The word "ethnic" gradually replaced it, as it seemed to be more appropriate, referring to all biological, cultural and historical characteristics, whereas "racial" referred only to inherited physical characteristics.
Article 27 of the 1966 International Covenant on Civil and Political Rights ís the most important of the general global standards. It has been described as "the first internationally accepted rule for the protection of minorities".12 It stipulates that: "in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language". This provision complements Article 2, paragraph l , of the same Covenant which establishes the principle of equality and non-discrimination within the national society.
There are two separate concepts involved. The concept of equality and non-discrimination implies a guarantee of uniform treatment for all groups and individuals. The concept of protection of minorities, on the other hand, implies special measures in favour of members of a minority group in order to institute de facto equality between the members of that group and other individuals. The Human Rights Committee (which was established to supervise the application of the Covenant) has recently adopted a General Comment regarding Article 27 of the Covenant. This Comment helps to clarify several issues of significance for pluralism and participation by different groups. Firstly, it underlines that the enjoyment of the rights to which Article 27 refers does not prejudice the sovereignty and territorial integrity of a state party. At the same time, different aspects of the rights of individuals protected under that article for example, the right to enjoy a particular culture - may consist in a way of life which is closely associated with territory and use of its resources. This may be particularly true of members of indigenous communities constituting a minority (General Comment, paragraph 3.2).
It is observed in the General Comment that the persons protected under Article 27 as belonging to a minority, do not have to be citizens of the state party. The rights protected under the Covenant are applicable to all persons within its territory and subject to its jurisdiction. A State may therefore not restrict the rights under Article 27 to citizens (General Comment, paragraph 5.1 ).
It is also underlined that the State is obliged, under Article 27, to take positive measures of protection for members of minorities, not only protection against the acts of the State but also against the acts of other persons within the territory of the State (General Comment, paragraph 6.1 ).
It has also been observed that effective participation by minority groups, and effective enjoyment of their cultural rights (see also below), may sometimes require territorial decentralization or local autonomy arrangements. If decentralization is to serve a useful purpose, it must be territorial, not ethnic; it most be a contribution to democracy, not ethnocracy. Moves towards territorial subdivision on ethnic grounds raise the dangers of ethnic cleansing. There are, on the other hand, positive experiences of territorial subdivision which is peacefully negotiated between the parties concerned, which functions well and which is not accompanied by any form of ethnic cleansing. In its General Comment No.23, the Human Rights Committee has also underlined that culture can manifest itself in various ways, including a particular way of life associated with the use of land resources, especially in the case of fishing and hunting, and the right to live in reserves protected by law. In so far as cultural rather than territorial issues are involved, these can be better addressed by some form of non-territorial cultural autonomy, which can be combined with territorial but non-ethnic autonomy.
The protection of minorities has thus been defined by the UN as "the protection of non-dominant groups of individuals which while wishing in genéral for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they may possess and which distinguish them from the majority of the population".
2.2.2 International Covenant on Economic. Social and Cultural Rights IICESCR
This Covenant was adopted in 1966 at the same time as the International Covenant on Civil and Political Rights. Like that Covenant, it contains a general prohibition of discrimination in the application of its provisions, on the basis of "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" - several of which are factors in defining ethnicity.
The ICESCR is oriented especially towards the areas covered by the ILO, and which are the subject of the present publication. In its Article 6 it guarantees the right to work and to the free choice of work, and states that the steps to be taken "to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual". It goes on in Article 7 to guarantee just and favourable conditions of work, with a particular focus (subparagraph (c)) on the right of "Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence". Article 8 provides for the right to organize, Article 9 for social security, and Article 11 for the right of everyone "to an adequate standard of living".
This Covenant is thus, in most respects where it coincides with protections offered under II.O standards, a briefer statement of principles already laid down in ILO standards adopted up to that time. It is an important reinforcement of those principles, setting them in a general human rights context rather than in the more limited context of each ILO Convention on a given subject. The International Labour Office works closely with the Committee on Economic, Social and Cultural Rights established by the United Nations to supervise the application of this Covenant, to ensure that the supervisory bodies of each organization works in full knowledge of the information available to the other, and the positions the other has taken.
The guarantees laid down in this Covenant, which has been ratified by most countries of Central and Eastern Europe, can therefore be an important contribution to the protection of the rights of ethnic minorities in those countries. Each of the substantive rights reflected in the Covenant must, as indicated above, be applied in an atmosphere of non-discrimination and equality on the grounds of ethnic origin.
2.2.3 International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
The principle of non-discrimination is reaffirmed, strengthened and developed in the Convention on the Elimination of All Forms of Racial Discrimination, adopted by the United Nations General Assembly in 1965. Article 1 of the Convention defines "racial" to include ethnic discrimination. Under Article 5, the States Parties undertake to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equal treatment in the enjoyment of civil, political, economic, social and cultural rights. There is also a reference in Article 2, paragraph 2, of the Convention to the "special and concrete measures" which States Parties shall take in the social, economic, cultural and other fields for the purpose of guaranteeing certain racial groups, or individuals belonging to them, the full and equal enjoyment of human rights and fundamental freedoms.
2.2.4 UNESCO Convention against Discrimination in Education
A mention should be made of the UNESCO Convention against Discrimination in Education, adopted in 1960, under which it is essential that the States Parties recognize the right of members of `national minorities' to carry on their own educational activities provided that this right does not prevent them from understanding the culture and language of the community as a whole and from participating in its activities, or which prejudice national sovereignty.
2.2.5 The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
The Declaration is the only United Nations instrument specifically dedicated to minorities. Although it does not have the binding character of a Convention, it is still very important. It was adopted by the UN General Assembly on 18 December 1992. It is inspired by Article 27 of the International Covenant on Civil and Political Rights mentioned above and thus emphasizes the promotion and realization of the individual rights of persons belonging to minorities. In its preamble the Declaration acknowledges that the realization of the principles contained in the relevant UN instruments adopted after the Second World War - the most important of which are mentioned above - should be promoted.
Article 1 of the Declaration calls for the protection by States of the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories; it requests them to encourage conditions for the promotion of that identity. To achieve these ends, States should adopt appropriate legislative and other measures. Article 1 does not refer to rights of persons but to the identity of minorities, whose protection implies the recognition of the existence of a collective entity with its own rights, beyond the individual and collective rights of individuals. Like Article 2 of ILO Convention No.l 11 on discrimination (examined above), this provision, together with Article 5 of the Declaration, encourages affirmative action in favour of minorities. The rights granted to the persons belonging to minorities are enumerated in Article 2 of the Declaration, while Article 4 lists a number of measures to be taken by the States to promote equality of opportunity and treatment in favour of minorities. At the same time the protection of the identity of minorities involves the recognition of their right to preserve such identity.
2.3 Standards of the Council of Europe
The European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted in Rome on 4 November 1950, and its Protocols, mainly protect individual rights and fundamental freedoms. According to Article 14 the enjoyment of the rights and freedoms set forth in the Convention "shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
This provision is the only reference in the Convention to a concept related to the rights of minorities. More recently the situation of national minorities has been examined and discussed within the Council of Európe on many occasions, especially since the political changes in Central and Eastern Europe. In June 1992, the European Charter for Regional or Minority Languages was adopted by the Committee of Ministers. It deals with the use of minority languages in schools, in the media, before the courts, in public administration and for economic, cultural and social activities. The main purpose of the Charter is to encourage States to undertake measures to respect the status of minority languages.
In addition to these texts, the Parliamentary Assembly has on several occasions drawn attention to the rights of minorities, through a number of recommendations and orders. For example, Recommendation 1201 (1993) states that "all persons belonging to a national minority shall be equal before the law. Any discrimination based on membership of a national minority shall be prohibited".
Since the adoption in 1975 of Resolution (75) 13 on the social situation of nomadic populations in Europe by the Committee of Ministers, the Council of Europe has developed a number of activities oriented more specifically towards the Roma people in Europe. The special position among minorities of the Roma people in Europe has been recognized in Recommendation 1203 ( 1993), with a view to promoting their own culture, education, training, right to information, equality of rights and improving their social situation. In these matters the Council of Europe has been associated with meetings of the Conference (now Organization) on Security and Cooperation in Europe (OSCE) within the framework of the human dimension of the OSCE.
Extensive and far-reaching provisions on the rights of minorities' wére included in the "Concluding Document of the Vienna Meeting of 1986 of Representatives of the Párticipating States of the OSCE", held on the basis of the provisions of the Helsinki Final Act (1975), Principle VII of which provides the basic norms within the OSCE framework for the protection of persons belonging to national minorities. The Vienna Concluding Document was adopted in 1989 after lengthy negotiations. Its provisions go into more detail and are stronger than the Final Act, and go further than those set forth in Article 27 of the International Covenant on Civil and Political Rights, and other UN instruments. The obligations of the participating States are formulated in positive terms. By extending the scope of minority rights, namely legitimizing cross-border contacts between members of a minority, and recognizing the right of national minorities to receive instruction in their own languages and to preserve their cultural and historical monuments, the Vienna Concluding Document contributes to the protection of national minorities, to the development and strengthening of their rights and freedoms and to the protection of their identity.
It is worth mentioning that a position of High Commissioner for National Minorities was created at the July 1992 OSCE Summit (Helsinki), whose mandate is to investigate confidentially problems related to minorities which could escalate into "conflicts endangering international peace and security". This decision shows the importance recognized by the 53 participating States to the protection of minority rights and to the seriousness of inter-ethnic disputes and tensions, as well as to their consequences. It also underlines the need for cooperation between States in that matter and for human rights commitments. The High Commissioner has been very active, and is involved in a number of different situations.
2.4 Conclusion
The underlying principles contained in the above-mentioned instruments are universal and should be applied in a manner flexible enough to take into account the great diversity of economic and social conditions of a region and of a country. The elimination of discriminatory practices and the promotion of equality of opportunity and treatment towards ethnic minorities should be an objective of the national policy to which the social partners should be associated. This requires a permanent process so that policy may be adjusted to changes in society in order to eliminate the various forms of direct or indirect discrimination.
Table of Contents
Chapter 3: Access to Employment
3.1 Recruitment and selection
3.2 Discriminatory recruitment methods
3.3 Discriminatory selection
3.4 Selection interviews may be discriminatory
3.5 Fair and open recruitment practices
3.6 Reducing disadvantage
3.7 Affirmative action
3.1 Recruitment and selection
There have been many studies in Western Europe which have documented the barriers to members of ethnic minorities in recruitment and selection. These studies have shown that racial and ethnic discrimination is widespread. Although similar studies for Central and Eastern Europe are very rare so far, a research survey conducted under the ILO project on the situation of the Roma population in the Hungarian labour market was an example that revealed considerable discrimination against Roma in hiring and firing practices of employers. Similar employer attitudes were confirmed by national reports from other Central and Eastern European countries. In addition, ethnic minority people suffer disproportionately from disadvantages when compared to their competitors, arising from their relatively less favourable social, educational and economic circumstances. Also, traditional links to their communities and rather narrow range of professions, as well as insufficient command of the majority language, may put substantial restrictions on their territorial and occupational mobility. Ethnic minorities are doubly disadvantaged when competing for jobs, especially in times of high unemployment.
Ethnic minorities may face a double disadvantage in the labour market. They may lack recognised vocational or educational qualifications, have limited or otct-model skills, and lack fluency in the majority langciage. But the main disadvantages they suffer are because of systemic discrimination: recruitment practices which tend to exclude them. They also suffer ,from ,employers' discriminatory attitudes, prejudices and assumptions about their abilities and acceptability to other workers.
3.2 Discriminatory recruitment methods
The use of traditional sources ,for recrcciting labour care excleede ethnic minorities, who have more restricted access to these networks. Employers may use "code words" to .signify their ethniic preferences.
The first barrier faced in recruitment is in the search methods used by employers to attract applicants to vacancies. Informal methods such as word-of-mouth notification of vacancies to workers in the organisation or in the department, tends to restrict applications to those who are in the same social networks, and to exclude ethnic minorities. Recruitment through family networks has the same effect; for example, giving apprenticeships to the children of skilled workers. Employers who, for the recruitment of young people, form links with a school in an area predominantly inhabited by the majority population have been shown to exclude ethnic minority applicants, even if they are well represented in the locality. If an organisation is known to have few ethnic minority employees, this too will act as a deterrent. They will not apply even if jobs are advertised, if they see no other ethnic minority workers, as this leads them to believe that they will not be treated equally because of their origins. This is known as the "chill factor".
Exclusive use of internal promotion for filling vacancies at higher levels can make it very difficult for ethnic minority people to gain access to such jobs if they are not represented in the pool of internal candidates. For example, a survey of recruitment to 79 West Berlin firms found that most filled their skilled and higher level vacancies through internal promotion, and ethnic minorities were at a disadvantage, not only because they lacked recognised qualifications, but also because they did not hear about the vacancies as they were not part of the social networks in the company.
It is common for employers to give overtly discriminatory instructions to employment agencies, such as in the United Kingdom where `no foreigners' or `preferably British' is often used. Where this is unacceptable because of legislation against racial discrimination or ethics rules of behaviour, employers use codes such as `un B.B.R' ( bleu, blanc et rouge; the colours of the French flag) or `an English-rose type' ( meaning no-one who is black) or `a good speaking voice' ( no-one with a foreign accent) to indicate ethnic preferences. They may include specific requirements in the advertisement which exclude more ethnic.minority applicants; for example "must have a degree from a British university". In countries without anti-discrimination legislation, or legislation which does not cover this point, employers openly advertise job vacancies in newspapers or in recruitment and employment agencies with racially discriminatory specifications, for example `no black people', or `no gypsies'.
Employers may sometimes ask for unnecessary qualifications, deliberately to exclude ethnic minorities who are less likely to have the qualifications. Examples include requirements for applicants to speak the local language fluently for manual work where such a standard of communication is not required; or requirements for a formal technical or educational qualification not needed in the work. For example, a study by the National Consultative Commission on Human Rights in France found that the majority of discriminatory acts by employers were indirect in nature, often imposed by requiring a diploma from a French university, or a fluent command of French, when this was not relevant for performing the job concerned.
Another barrier for ethnic minority applicants is when employers apply selection standards inconsistently. This may be unintentional, and arise because of unconscious assumptions or unease at recruiting an ethnic minority. For example, an employer may be looking for a certain type of experience, and discount such experience in an ethnic minority candidate or interpret it negatively. In the Massey Ferguson report, a manager said that he recruited a white man with experience of running a small cycle repair shop, because this showed the person was independent minded. However, the same manager rejected an Asian candidate with experience of running his own shop because he claimed that the Asian would not settle as an employee.
3.3 Discriminatory selection
Employers may make negative assccmptions about the abilities of ethnic minority workers based on a stereotype, or on a previoces experience. They rnay also Lcse inappropriate selection criteria, such as requiring a higher standard of the majority lang~cage than is needed in the job.
Employers may use selection methods and criteria which are discriminatory against people from ethnic minority groups. They may make assumptions or hold stereotypes about the likely behaviour of a person from an ethnic minority background, for example that he or she will be lazy or unreliable. Often such stereotypes are based on common prejudices against certain minorities or on a bad experience with a previous employee from the same background. For example, in Central and Eastern European managers often turn down Roma applicants because of their alleged poor working discipline, without even seeing them. There can also be regional interethnic tensions behind the rejection to hire a person of ethnic origin different from that of the employer, arising from the fear that he/she would destabilize the collective of workers. The Berlin study found that immigrants were confronted with prejudices about their trainability, flexibility and motivation.
Employers also discriminate against members of ethnic minorities because they assume that they will be unacceptable to other workers. For example, in an Industrial Tribunal case in Great Britain, a Health Authority was found to have racially discriminated against Doctor Noone, who originated from Sri Lanka, when it rejected her for a post as a Consultant Microbiologist on the grounds that she would not "fit in". The Tribunal found that the reason for her unacceptability was her origins, as a less well qualified white candidate was appointed.2~ There have been many cases of ethnic minority workers being rejected because an employer fears that the workforce will be unwilling to work with them or train them.
It has also been found that selection tests often discriminate against ethnic minorities. Tests may use concepts or set problems in a context or language which are not required in the job, and which may be unfamiliar to ethnic minority candidates. This may thus unfairly exclude them, especially if their first language is different from that of the country of their residence. Low scores on verbal reasoning tests for ethnic minority candidates can also be misleading, as again they may be less familiar with the language or context of the problems being used to test reasoning.
3.4 Selection interviews may be discriminatory
Interviews cart be a barrier to members of ethnic minorities, as interviewers often select people like. themselves, because it may be easier fór them to establish rapport.
The selection interview can form a barrier to members of ethnic minorities, too. Those who do not speak the common language of the country fluently, or speak with an accent or dialect, may not respond in the same way as a native speaker to the nuances of interviewing and questioning. Research has shown that interviewers are more likely to select people like themselves as it is easier to establish rapport, and to understand non-verbal signs, and thus the interviewer is more likely to have a favourable impression of applicants from a similar background to him or herself.
In many Western countries, ethnic minorities, especially if they are also immigrants, are concentrated on areas with poor housing and are more likely to suffer from educational disadvantages such as high dropout rates, than does the population in general. They are more concentrated in lower status jobs, with poorer access to training, and their job mobility is low. They are more likely to be unemployed; young people from ethnic minorities are especially hard hit and in some countries, their unemployment rate is double that of the national rate, for some groups as high as 50%. They may also be disadvantaged by having overseas qualifications or inadequate command of the common language. Taking into account other forms of racial and ethnic discrimination, ethnic minorities in Western countries face a double disadvantage. Chapter 1 illustrates the fact that ethnic minorities in Central and Eastern Europe also suffer from economic and social disadvantages. They are concentrated in industries which are most affected by economic recession, and may have insufficient language knowledge, especially those in new nation states where the dominant language has changed.
It appears that in Central and Eastern Europe, Roma workers in particular suffer from educational disadvantages and higher unemployment rates as they are concentrated in unskilled work in hard-hit industrial sectors. They also suffer from many employers' stereotyped views of them as unreliable workers. Employment offices are sometimes not committed to promoting placement of disadvantaged ethnic minorities in jobs. They share prejudices against certain minorities with employers, and try to push them to accept disability pensions or social benefits in order to avoid additional work with their placement. Many minority members accept this "solution" either because they are discouraged from seeking jobs or because it ensures them at least some income support. This practice is discriminatory to those who want to work but are excluded from competition in this way.
Remedies
3.5 Fair and open recruitment practices
Job opportunities can be made open and selection made on tfze basis of fáir competition so that everyone has a chance to apply fór job opportunities.
In order to give all potential applicants a fair chance to apply for work, job vacancies should be advertised or notified widely to employment offices, specifying that ethnic and national minority applicants are welcome. Staff responsible for recruitment should be instructed neither to indicate nor apply directly or indirectly any ethnic or national preferences, and should be given training or guidance in how to apply the selection criteria consistently and fairly. Recruitment which relies on, or gives preference to applicants recommended by existing employees should be avoided.
Fair selection involves making objective decisions, related to thce inherent reqccirements of the particular job. This not only gives all applicants an equal chance, bc~t also improves the qccality of people recruited because they are more likely to fit requirements. Selection processes should be evalc~ated to make sure that they are effective, and,fáir to all.
To reduce the scope for bias and prejudice to affect recruitment decisions, it is necessary for the process he and the criteria of selection to be objective, and to be systematically applied. This requires the analysis of iat the components of the job to identify tasks (a job description) from which the skills and knowledge to needed to perform these can be identified (a person specification). This then gives a basis for identifying of selection criteria. Selection decisions should be based on observable facts, not on subjective attributes
that can be influenced by personal feelings or prejudice.
Recruitment staff should be trained to apply selection criteria consistently, and shown how to avoid the use of stereotyped assumptions about applicants from a different ethnic or national background. The use of statistical screening should be forbidden for clear discriminatory reasons and all applicants treated equally regardless of their ethnic origin. Comparable foreign qualifications should be accepted as equivalent to national ones, and applicants should not be excluded because of a foreign name, accent or because they do not speak the national language well, or on the assumption that they do not, unless the job requires a high level of fluency.
Selection tests should be checked to ensure that they do not require culturally specific knowledge which may be unfamiliar to ethnic or national minority applicants. The tests should be checked to ensure that the individual's score or markings measures their ability to do or be trained for the specific job; for example the use of tests of generalised ability should be avoided unless they can be shown to be valid measures for the work concerned.
Where possible, selection decisions should be checked for bias by someone more senior and recruitment should be monitored to ensure that applicants from all ethnic and national groups are fairly represented as applicants and among those selected. Recruitment conditions and practices should also be monitored by organisations of ethnic minorities to ensure that unfair procedures are not applied against members of their minority.
Employers should adopt and implement an Equal Opportunity Policy to ensure that they recruit and treat workers fairly, regardless of their ethnic or national origins. Details of such policies are contained in Chapter 7.
Employment agencies should also make sure that their staff do not practice discrimination against ethnic minorities. Staff should be trained not to assume that employers have racial or ethnic preferences, and not to accept any such preferences from employers. They should question any restrictions which seem discriminatory against a particular minority. Public employment agencies have a particular role and responsibility in ensuring that all people seeking work are treated equally according to their abilities. They should make periodic checks to ensure that all categories of job seekers are being sent for vacancies at a similar rate.
Employment agencies should ensure that any advertisements or notices about vacancies reach all sections of the community and that the wording does not discourage applicants from any particular ethnic or national group from applying.
3.6 Reducing disadvantage
In order to make full use of'the potential of atl sections of the population, it rnay be necessary to provide additional training and encouragement of ethnic minorities who have ,fallen -behind becaccse of discrimination and lack of training in the past.
Non-discriminatory practices and equal opportunity policies will have a limitéd effect if there is no parallel effort to reduce the educational and vocational disadvantages suffered by some groups. This has been the experience in Western Europe and in North America. It is necessary to invest in affirmative action and positive recruitment, and in community action programmes to improve the employment opportunities of disadvantaged minorities. The key element of such programmes is to train or retrain, and to develop the potential and skills of any disadvantaged minorities, so that they can compete on an equal basis with other job seekers.
The programmes should also include outreach to link with the communities, to involve them in the design and delivery of the training. This ensures that training meets their needs and is earned out as a partnership. In some countries, the training has been provided by state training agencies, and in others it has been done by the social partners and vocational training organisations. It is difficult to run an effective affirmative action training programme without the full involvement of employers, as this helps to ensure that it is work-related and gives participants real prospects of obtaining paid employment. Details and examples of some such training programmes are included in Chapter 5.
3.7 Affirmative action
Several Western European countries provide for positive, or affimative, action to be taken, to help ethnic minorities to compete on equal terms for jobs and promotion. In Great Britain, employers can offer particular training to ethnic minorities, and encourage them to apply for particular jobs, but only for jobs in which the minorities are under-represented. In the Netherlands, there are training facilities designated for ethnic minority people, but only where this is consistent with the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Similarly, local governments may give preference to recruiting people from ethnic minorities, but only where they are as well qualified as the white applicant, and are under-represented in the work concerned.
There are no examples in Europe of states reserving jobs for minorities, nor of quotas reserving jobs, though this is sometimes done in other countries. Such action would contravene the provisions of CERD.
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Chapter 4: Terms and Conditions of Employment
4.1 Fair employment policies
The double disadvantages which ethnic minorities face when they are seeki~zg employment are also found in the workplace. Minorities are more likely to be fócend in low skilled work, they find it difficult to gain access to training or to be promoted, and they suffér ,from emplpyers' .stereotypes about their abilities. They may also be harassed by other workers.
The disadvantages which ethnic and national minorities experience in the labour market also affect them when they do obtain work. They are more likely to work in poor conditions and to be doing jobs which the majority population do not want. As indicated above, they may lack educational or vocational training qualifications or have foreign qualifications which are no longer recognised. They are therefore more likely to be hired for short-term contracts or casual work, more likely to be dismissed during their probationary period, or to be allocated to low-skilled unattractive jobs with poor conditions, and to be laid off first in a recession. In addition, the social and eultt~ral factors which affect recruitment decisions (see Chapter 3) also affect performance assessments within the enterprise. Ethnic minority workers are more visible, and then their weaknesses are more likely to stand out. For example, a study in Germany found that ethnic minorities reported that their work performance was being more vigorously controlled than the performance of their German colleagues. These differences are likely to be exacerbated if ethnic minorities do not speak the majority language fluently, or speak it less idiomatically.
There is also a tendency for managers to be influenced by stereotyped assumptions about the behaviour of ethnic minority workers. Thus, for example, if a manager believes that Roma people have poor timekeeping and are unreliable, he or she will assume that all workers from this ethnic group will have poor work habits, and will not assess or evaluate them as individuals on their merits. If managers use language such as "these people" it suggests that they are thinking of them as a group, not as individuals, and distancing themselves from the minorities concerned.
Where ethnic minority workers have had lower levels of education and training, this will have a cumulative effect on their opportunities, on the type of work they do, and the assessments they receive. They suffer from double disadvantage, as they do in recruitment, and become trapped in a narrow range of jobs, regardless of the aptitude or potential of individuals among them.
As a result of the foregoing, ethnic minorities are not able to compete on the same basis for promotion as their colleagues from the majority. Managers tend to give more favourable ratings and evaluations to workers from the same background as themselves. They have a better understanding of, and rapport with, someone like themselves, and this influences assessments favourably. The German study cited by Zegers de Beijl showed also that ethnic minorities rarely gained advancement beyond semi-skilled levels. Many studies in Britain have shown that ethnic minorities are less likely to be promoted than their white colleagues, even when they have longer experience, for example, in the London Underground.
Assumptions can arise that certain jobs are especially indicated for ethnic minorities, especially when there are long-standing patterns of work, and when these affect a second and third generation. For example, in the textile industry in Great Britain, Asian men were allocated to the rüght shift and found it difficult to gain work elsewhere. In the hotel industry, which has relied on workers from the ethnic and national minorities for many years, few are found in managerial or skilled jobs. National data from most Western European countries shows that ethnic minorities are concentrated in unskilled and semiskilled sectors.
Partly as a result of this occupational concentration, ethnic minorities also receive on average lower wages than workers from the majority. There is evidence in addition that their pay levels are lower because of discrimination. A study in France for example, showed that although ethnic minority workers received the same basic wages as other workers, there was discrimination in the payment of premiums for overtime and for dangerous work.
Collective agreements may contain requirements which disproportionately exclude ethnic minorities from upgrading. For example, in Great Britain, an agreement on job allocation in the railway industry gave priority to qualified drivers who wished to transfer to the London area, where most vacancies arose. But this made it impossible for ethnic minority workers who were mostly located in London to become trainee drivers, as the transfer arrangements meant that vacancies for trainees were filled from outside the area.
There are numerous examples of ethnic minorities suffering racial harassment in the workplace. The Zegers de Beijl study found that ethnic minorities in every country reported social isolation from their colleagues from the majority, and insensitive and derogatory name-calling and the presence of racist graffiti.
The information in Chapter 1 shows that ethnic minorities in Central and Eastern Europe suffer from many of the disadvantages of those in Western Europe, especially the Roma. They are subject to employers' stereotypes concerning their work conduct, and workers refuse to cooperate with them for similar reasons. It is to be expected, although the evidence has not been obtained, that they also suffer from discrimination in access to promotion and job allocation. There is no evidence of direct discrimination against Roma workers in remuneration, even though the lack of their support by other workers and unfavourable situation of the Roma in the labour market may push them to accept lower wages for the same type of job and performance as other workers. Indirect discrimination, however, occurs very frequently because of their job segregation.
There are also documented cases of qualified Russian workers being forced to leave their managerial positions or jobs in the state administration or being demoted to lower positions for political reasons in newly independent non-Russian states even though their command of the new official language was sufficient to do their jobs properly, and these jobs were purely technical, not political.
Remedies
4.1 Fair employment policies.
A similar approach is needed to that proposed for recruitfnent. Job allocution and access to training and promotion is more efjféctive if' it is based on objective job criteria. Tlzi.s also reduces the possibilities of discrimination against ethnic minority workers. Employers gain because they maximise the skills arid abilities of their employees. Indications of how to operate a,fair employment policy are set out below.
Managers responsible for allocating workers to jobs and to different sections of the workplace should not assume that certain jobs are particularly appropriate, or even reserved, for ethnic minorities, and they should place workers according to their aptitude and abilities.
Collective agreements containing specifications which indirectly restrict transfers or training from areas where ethnic minorities are concentrated should be reviewed.
All workers should be offered equal terms and conditions, contracts and probationary periods, based on the nature of the work, regardless of their ethnic origin. This includes pay, overtime pay, holiday and síck pay.
Performance appraisal systems should be made objective, and promotion should be open to all who have relevant experience and not be influenced by a person's acceptability to the work group, nor by their ethnicity, nor by assumptions and stereotypes about the behaviour of any particular ethnic group.
There should be a clear written disciplinary procedure, which is well publicised in the workplace. Acts of racial harassment and pressure on managers to discriminate against people from an ethnic minority, or to accept the ethnic preferences of the workers in allocating new staff should be explicit disciplinary offences. Complaints of racial and ethnic discrimination and harassment should be dealt with swiftly, and racist abuse should not treated lightly on the assumption that it is banter. Criteria for dismissals, redundancies and layoffs should not disproportionately exclude ethnic minority workers, and should be based on fair and job relevant factors.
Where workers have particular cultural or religious needs, these should be met if reasonably practicable to do so. For example, shift or work times can be varied, and holiday rotas adapted, to accommodate prayer times or festivals. Dress codes and uniform requirements should be made flexible if necessary, and workplace catering should allow for specific dietary needs.
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PART II: GUIDELINES AND RECOMMENDATIONS
Chapter 5: Access to Vocational Training and Guidance
Ethnic minority workers need training opportccnities and guiclarcce wlziolz will help them develop their potential. Because they are more likely to have edeccutional disudvantuges than the majority, either due to langccage difficeclties or becucese they have been educated in another cocmtry, or because they have had limited access to schooling their training needs n2uy he diffénent. There i,s evidence that young people belongiczg to ethnic minorities often lack iyformutinn about vocational training opportunities, because they are not registered with relevant agencies, amd their hccrents are not part of wide social networks in the majority community. Adult workers,fi-om tl2ese groups also face disadvantages and tend to be offered training opportccnities in a limited number of fvelds thought to be suited particularly to them.
Access to vocational training and guidance are of paramount importance to ethnic minorities, because they determine the possibilities of gaining access to employment and occupation. Discriminatory practices in this regard are subsequently perpetuated and aggravated in employment. For these reasons, Convention No.l 11 specifically mentions that it covers access to these activities, and Recommendation No.l 1 l also pays special attention to the subject.
There are many variables influencing the levels of educational attainment of ethnic minorities. First, recent immigrants do less well than ethnic minorities who are long-settled. Other variables are language, social origin, and the attitudes of the majority; the degree of racism and hostility, and the attitudes of the ethnic minorities themselves concerning education. In general, ethnic minorities are more likely to be underachieves at school. This is frequently followed by 'dropping out' of school, which is the first stage on the way to social marginalisation, and to the accumulated disadvantages referred to in Chapters 3 and 4. Failure to complete secondary school, or leaving without a final school certificate, make it more difficult for the young people concerned to enter vocational training or to obtain vocational guidance, and rule orrt higher education and entry to professional training. In many Western European countries, ethnic minority children, especially if they are also immigrants, tend to Ieave school sooner with fewer qualifications, and are also overrepresented in special or remedial education.
This problem can be seen, for instance, among the Roma minority in Central and Eastern Europe. Because of an unstipportive home environment and insufficient knowledge of the majority languages, Roma children often have poor results at school and are pushed to special schools for mentally disabled children even though their mental capacity is sr.~fficient for mainstream school.26 Inability to cope with school requirements often leads to their leaving school at lower grades than other children, and even to partial or ft,~ll illiteracy. According to the Hungarian case study, in 1993 a full 42.7% of the Roma minority did not complete 8 years of primary education, and I S% did not even complete 4 years.
Balancing the need for ethnic minorities to maintain their cultural identity with the need to maximise educational attainment has also proved a difficult challenge, and there is still debate in Western Europe about the extent to which it is desirable to make separate educational provision for ethnic minorities, or whether it is preferable to integrate them in schools, regardless of differences in language and cultural background, and adapt school curricula and facilities to meet different needs. Recent policies have favoured the latter, with a rnrilti-cultural approach to education, as it has been found detrimental to integration to have separate schools. It is difficult to maintain consistent standards in separate systems, and if one of the communities is more socially or economically disadvantaged, their schools may have resources which are inadequate to cope with the social problems suffered by the disadvantaged, and thus will gain a reputation of inferiority or be seen as schools for an under-class.
An example of the long term consequences of segregated schools can be seen in Northern Ireland in the United Kingdom, where a significant contributory factor in the polarization of the two communities has been the existence of separate schools. It has also contributed to the segregation of the labour market as the two educational systems offer different curricula, and are believed to produce different standards, with varying emphasis on for example, science and arts subjects.
The data given in Chapter 1 indicates that consideration of community-specific schools is an important question for Central and Eastern European countries, especially if mother-tongue teaching has a high priority for well-established national minorities. This may be felt particularly important for minorities which do not have another country as their cultural point of reference, and who are afraid of losing completely their national identity. However, there is evidence that community-specific schools may provide education of poorer quality and an insufficient command of the majority language, thus putting applicants from these communities for higher education in a disadvantaged position in entrance examinations and during further studies. This is mainly the case of smaller minorities which could thus be trapped in too narrow a range of professions because they are the only ones for which training is available in the minority language, and they may therefore, suffer from segregation and marginalization.
Poor attainment in general compulsory education, leads to an inevitable cycle of under-achievement. Young members of ethnic minorities are channelled into training for manual or unskilled work and are more likely to drop out from this as well, and to enter the labour market at an early age with few qualifications and at a disadvantage in competing for jobs in comparison with better qualified young people from the majority. For example, in Hungary in 1993 the chance of a Roma child continuing his/her studies in a secondary school was 15 times lower than for a non-Roma one, and at university 50 times lower.2~ In most Western European countries, ethnic minority young people suffer the highest unemployment rates. For example in Belgium, young people of Turkish and Moroccan origin have unemployment rates of 50°/0, compared with the national rate for the age group of 23°0. In Britain, the unemployment rate for young members of ethnic minorities is twice the national rate, and is as much as 50% in some areas. The same disproportion is found for young Roma workers in Central and Eastern Europe, for young Turks in Bulgaria, etc.
There is evidence from many Western European countries that ethnic minorities are also disadvantaged by lack of information and guidance on the availability of vocational training. This may be due to several factors including isolation from the majority society, and lack of familiarity with the procedures, or by cultural barriers (including a hope for a seldom-realised return to the country of origin). They may undervalue vocational training, or have low aspirations because of their social or economic circumstances. Even well-educated members of ethnic minorities are likely to have limited contacts in the majority community and thus will be excluded from some of the networks through which work and training are obtained. Older members of ethnic minorities may have obsolete skills or, as is the case in many Central and Eastern European countries, have skills relevant to declining industrial sectors. Because of hard competition for training in developing industries, young people from these minorities often have access only to out-of-date training and thus little chance of getting a job later.
The situation is even worse for adult training and retraining. As all national reports from Central Europe show, training courses are designed in a way inappropriate for adult members of minorities such as the Roma so that their participation in training equals zero.3~ Employment offices are often reluctant to offer training to Roma persons as they assume that Roma trainees will not be able to cope with the requirements and will drop out.
Analogously, most other so-called active labour market programmes are ineffective for ethnic minorities as they offer them practically no possibility of overcoming their disadvantages in the labour market. For example, Roma job seekers are often offered only participation in short-term public works schemes giving them neither additional skills nor access to more permanent jobs. Because of a very limited or inexistent housing market and an absence of residential construction programmes supported by the state or regional authorities in most Central and Eastern European countries, the possibilities of moving to regions with available vacancies are highly restricted, even if the employment service offers some mobility incentives. Sometimes, the reason that training and retraining does not reach the persons in need is that young people from a disadvantaged ethnic minority are not registered with the employment service and thus have access neither to information about training possibilities nor to financial resources covering training costs.
Lack of vocational and professional qualifications, or unrecognised foreign qualifications, puts ethnic minorities at a disadvantage when they obtain work. They will be compelled to accept jobs below their potential, and will find it difficult to transfer to more skilled work or to gain promotion (see Chapter 4). Access to on-the-job and development training may also be affected by racial or ethnic discrimination. For example, managers may be reluctant to train ethnic minority workers because of fears that existing skilled workers will be reluctant to accept them or will even be hostile against them for ethnic reasons. Managers may also assume that ethnic minorities, especially women, are not interested in a career or in being upgraded to higher-skilled work, or that they lack sufficient language fluency. Ethnic minority workers may not apply for training, either because of low aspirations, or because they fear that they will be rejected for discriminatory reasons. For example, a study in France showed that immigrants had fewer opportunities to take part in training to improve their job qualifications, and that this was one of the reasons for their low numbers in skilled work.
Remedies
A coordinated approach is needed to avoid marginalization of minorities and to ensure that they top in training and retraining programmes, and that the contents of the programmes are flexible and relevant to the needs of ethnic minorities and to indcrstry. It may be necessary to make contacts with parents and commc~nity leaders, to ensure that they help plan the training and that ethnic minorities are encouraged to take it up. Investment in such training will benefit employee efficiency and make them more competitive. Details of what needs to be done are contained in the,fóllowing paragraphs.
The disadvantages in access to education and training, like those suffered at the workplace, are cumulative and a determined and focused effort is needed to alleviate them. For example, a study by the Council of Europe of eight vocational training projects designed to promote equal opportunities for ethnic minorities and immigrants in the labour market, indicates that the role of national and local government is crucial in market economies.33 As marginalization of some ethnic minorities starts already at primary school, it is recommended that governments as well as regional authorities and NGOs pay great attention to educational standards in all types of schools in order to ensure equal opportunities for all students regardless of ethnic origin. Pupils with insufficient knowledge of the majority language should obtain additional language training. For those coming from problematic social conditions, local authorities can consider organizing special preparatory courses prior to regular school attendance, helping them overcome feelings of social backwardness and later segregation at school. Special assistance provided during attendance in mainstream schools, when necessary, would avoid the unfortunate practice of pushing such pupils to special schools, thus segregating them from other young people.
In order to be fully informed of all problems, including labour market ones, with which the minorities are confronted, governments should create governmental advisory bodies on ethnic problems composed of representatives of all ethnic minorities permanently living in the country. Among other things, these advisory bodies should have the right to be consulted about new legal provisions and policies concerning economic activity. In most Central and Eastern European countries, such advisory bodies or national committees have been created since 1989. However, their power and efficiency depend greatly on the actual political situation, the strength of individual organisations of ethnic minorities and international relations (including support from "native countries"). In any case, their activity is not primarily oriented to labour market problems, which also explains why the Central and Eastern European governments have so far presented only very modest programmes for ethnic minorities, if any at all.
Governments should ensure that ethnic minorities have equal access to employment and training programmes, including special programmes for the unemployed, and that the private sector is encouraged to organize training. The training should be designed flexibly so as to be able to meet a variety of circumstances, including for example, language tuition and perhaps, where self esteem is low, self development. This should be recognized in funding arrangements, as this kind of training will be more expensive than standard vocational training which caters for more homogeneous groups such as qualified school leavers. The costs have to be set against the social costs of neglect and inaction. Training facilities should be given appropriate motivation to reserve places for members of disadvantaged ethnic minorities. As many drop-outs result from an unsupportive social and family environment as regards vocational schooling and training, some promotional measures could be considered such as special scholarships for such students, on condition of regular school attendance and satisfactory results.
Employers also have a crucial role in promoting equal opportunity for ethnic minorities in access to training. They should be encouraged to act in partnership with the government to carry otit prerecruitment training for unemployed people, especially ethnic minorities where they are disadvantaged in the ways described in this chapter. The involvement of employers in the design and delivery of training, and especially in direct work experience, is important in ensuring that it is appropriate, realistic and job related. Training should lead to a recognised vocational qualification and should be accredited. Where possible, foreign qualifications should be validated and updated, and if language training is needed, this should be built into the vocational training so as to be relevant to the jobs concerned.
Employment centres should encourage ethnic minority members to top in training and retraining, and should adjust training courses to meet the special needs of these groups as well as the requirements of potential employers. Training should also be combined with participation in public works schemes in order to extend future job opportunities to such workers. Also, assistance in on-the-job training provided by employment offices or NGOs for ethnic minorities, as will be discussed in Chapter 6, could improve the competitiveness of minority workers in the labour market.
Experience in Western Europe has shown that training for ethnic minorities is more effective if people from these communities are involved in planning and carrying it OLIt, and in giving information and guidance on it to the communities to encourage them to take part. Such involvement helps to bridge the gap between the ethnic minorities and the majority, and helps overcome any reluctance on their part to apply.
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Chapter 6: The Role of the National Authorities
6.1 Labour market data
6.2 Government employment policies
6.3 Legal provisions
6.4 Information campaigns
6.5 Non Governmental Organizations (NGOs)
National and regional governments have the key role irz taking the lead in ensuring that there is equal treatment for all residents. They should target labour market policies to reduce racial or' ethnic disadvantage, and to facilitate entry to jobs. They should also set the torte of public debate, disseminate facts and conduct information campaigns orr the principle of~ equality. Above all, they should show the way to other employers by having exemplary eqLCal opportcenities policies fór the employment of public servants.
All governments in Central and Eastern Europe which have ratified ILO Convention No. 11134 have a binding obligation as described in Chapter 2 not to engage in any act of direct and indirect racial discrimination. The requirements of the Convention include the formulation of a national policy for the prevention of racial discrimination and for the promotion of equal opportunity and treatment in employment and occupation, applied through legislative measures and on other arrangements such as collective agreements as consistent with national practice. The Convention places obligations on states to formulate a clear policy and to take action, and not merely make public statements condemning racism. States should also adapt labour market policies in order to reduce the disadvantage st,~ffered by ethnic and national minorities which has been described in previous chapters, and should have appropriate agencies to consider complaints of discrimination by aggrieved persons, which are able to conciliate or issue decisions.
6.1 Labour market data
Facts on the relative position of the majority and minority popcclations are essential irz order to devise relevant labour r~rarket policies, and to evaluate their efféctiveness. The collection of ethnically based statistics is often sensitive, as minorities may fear that it will be used t0 scr~J~70Yt discrimination against them. It can,only be done with the aid of a public information campaign, explaining why the data is needed and I~row it will be used to benefit policy deterrni~zatinn. Surveys, áór example, on comparative experiences in the labour market also provide a basis fór policy evaleration.
The first requirement for the development of effective policies to eliminate racial discrimination, and for planning action to promote equal opportunities, is to have facts on the positions of ethnic and national minorities and the majority in the labour market, and on the extent of discrimination. This should include data on comparative unemployment rates for each age group, by sex, and for each group with vocational and professional qt,~alifications, length of time of unemployment, and occupational category. Such information will allow more effective planning of social and legal measures, and so ensure that the programmes which are introduced tackle the true causes of inequality and disadvantage. For example, it may be assumed that minorities have high unemployment rates because they lack specific skills, have low mobility or insufficient fluency in the majority language; but these problems may not affect the young, who may nevertheless be subject to the assumption that they have these problems.
One difficulty which many Western European countries face is that there are no adequate data on the position of ethnic minorities. For example, in France, Belgium and Germany, the available data is on the basis of nationality, which does not allow analysis of minority members who are citizens and who have been educated in the majority language. It is therefore not possible to analyse whether the employment rates for minorities improve with better education and language fluency, nor whether they have improved access to training. Such information is vital for planning the allocation of resources, and for evaluating the success of labour market policies in reducing inequality.
In Central and Eastern Europe, such information about the actual labour market situation of national and ethnic minorities in comparison with the majority population has not so far been collected mainly for a political reason - that it could strengthen interethnic tensions in some countries. The Roma minority is an exception in some countries due to its sharply deteriorating employment and social conditions during the transition period. In Slovakia the employment service regularly collects such information, while in the Czech Republic this information is optional and the decision on whether to gather it or not is up to each labour office director. Although other countries do not distinguish between Roma and non-Roma unemployed persons, either official statistical bodies or research institutions in some of them have already organised separate surveys on the Roma population (e.g. Bulgaria, Hungary, Ukraine) also tackling labour market problems, or they have included additional questions in the regular Labour Force Surveys (Hungary).
There are generally two reasons why labour market information on Romas is not regularly collected in most countries of Central and Eastern Europe. The official explanation refers to the constitutional right to equal treatment of all people regardless of their race and ethnic origin, including their treatment by the employment service. This is why ethnic origin is not included in the information sought from each jobseeker. The second reason is a strong opposition by Roma organisations to any data collection on this minority due to potential discrimination. There is also another specific obstacle - the unwillingness of many Romas to be identified as members of this group. The first reason can easily be rejected in the light of frequent cases of unequal treatment of this minority in practice. The second reason is more serious and should be mitigated by pointing out why this information is so important for labour market institutions in order to address the needs of Romas by appropriate policies (which simultaneously these organisations are calling for).
The labour market data needed can be produced from censuses, and from periodic sample surveys of the labour force if it includes some additional relevant questions. Data on the extent of discriminatory practices can also be gathered from special research projects. For example, in Great Britain,35 there have been surveys done involving the use of discrimination testing, to measure the scale of the problem. This is done by sending matched applicants, with similar education and experience, to apply for job vacancies. One of each pair is from an ethnic minority. The research then measures the extent of any different treatment accorded to the testers. The incidence of less favourable treatment of the minority gives an indication of the level of direct discrimination. Similar studies are being carried out by the ILO in several Western European countries, including Germany and the Netherlands.
Great Britain and the Netherlands also include ethnic origin in some official statistics. The data allow the governments to test the effectiveness of legal measures against racial discrimination, to measure levels of disadvantage and evaluate the effectiveness of social policy, and to review priorities for spending on training and other labour market measures. Data on attitudes towards ethnic minorities can also give an indication of the acceptance of racial discrimination, and help in planning information campaigns. The first step in educating the public is for governments to ensure that the facts are available and disseminated.
6.2 Government employment policies
Government employnent policies should reflect the principle of equal treatment. This is particularly important in the visible public services, and in the police. Officials who work in public services should be trained in the application of equality principles, and be sensitive to the needs and values of people from different cultures. In addition, governments have an obligation under the ILO Convention to set an example in their own practices, and to have effective equal opportunities policies.
Governments are often the biggest employers in their countries, even in times of privatisation. They therefore have a direct impact on minority employment, as well as being law givers. To increase the proportion of ethnic minorities in government and to demonstrate commitment to equal opportunities policy, it is also important to employ people from minorities in public service. In visible public services, for example, the police forces, the judiciary, and in public service broadcasting, the presence of ethnic and national minorities not only helps to give credibility to government support for equality, but it also makes a strong statement to the minorities themselves that they are able to top fully in national life. In Great Britain, the Netherlands and Belgium, for example, attracting ethnic minority recruits to the police forces has been given high priority. Experience in these countries demonstrates that the police can operate more effectively if they reflect the diversity of the population in their ranks. There is greater sensitivity to the needs and values of the minority population, and greater trust can be built up through links with local community liaison officers.
In addition, police training should include knowledge of ethnic minority cultures, cross-cultural communication, and awareness of how unconscious prejudices may affect behaviour. This will enable police officers to have greater understanding of how attitudes and values may influence their reactions to people from a different cultural background from themselves, and help them avoid insensitive or stereotyped behaviour. This practice has been tested in some Central and Eastern European countries (e.g., Roma policemen in locations densely populated by Romas in the Czech Republic) with promising results.
Similar arguments apply to the employment service and the social services, which are more likely to be sensitive to the needs and cultures of minority populations if their staff include people from these communities. If people from the ethnic and national minorities see people from their communities employed in such public services, this helps establish their confidence in the service, which is important to the well-being of a pluralist society. Local employment offices with multi-ethnic staff in ethnically mixed regions often achieve better results in job placements or placements in employment programmes of persons of ethnic minority origin.
Some Central European countries have started to include Roma officials into the staff of employment offices to provide services to Roma clients. However, the results have not been too encouraging so far. There was much criticism on the side of Roma organisations that such an approach was a manifestation of racial discrimination.37 Also, these persons sometimes appeared to have little experience and to be unable to establish good contacts with employers. That is why this practice has not been adopted in the Czech Republic. Personal communications with the labour office staff has revealed that the creation of a climate of mutual trust for all parties is a longer-term process of overcoming past bad experience, prejudices and discrimination. Especially at the beginning these contacts between the employment office staff and Roma job seekers could be mediated by social care centers at the local level, so Roma people will come to know these social workers over a long period and to trust them, while social workers will gradually be able to provide objective and reliable information about Roma workers to employers.
Equal opportunity legislation and policies, described in the following section, may not be enough to ensure good employment prospects for ethnic minorities. If some minorities are facing high unemployment, the government should launch special programmes and policies promoting employment and mitigating the effect of unemployment for these particular minorities. The Hungarian Ministry of Labour has initiated such programmes for Romas at the local level. In the Ministerial Action Programme for 1994 the idea was to base it strictly on ethnicity (Roma coordinators for programmes for Roma workers) and finances were distributed on a competitive basis among Roma organisations at the regional level. However, Roma coordinators often appeared to be inexperienced organisers and the funds were spent at the highest level without reaching the persons hit by unemployment.3~ Similar experiences were encountered in employment and training projects organised by the Czech Ministries of Labour and Education. Such projects so far have tended to be more successful when coordinated by non-Roma persons or in cooperation between Roma and non-Roma organisations.3`~ Nevertheless improved training and careful selection of minority coordinators may help to alleviate such problems in future.
As Roma persons are overproportionately represented in the long-term unemployment pool they are often offered participation in public works schemes. Most public works schemes, however, are organised for short-term activities such as cleaning of public areas, seasonal work in agriculture, etc. and do not improve the employment prospects of the participants. It is recommendable to enlarge the range of public works schemes to cover also activities which could be later transformed into permanent jobs (such as construction work, social care, and some industrial jobs) and to combine them with on-the-job training.
Government training programmes should be targeted at reducing the particcclar disadvantages faced by ethnic minorities, and the award of public grants and other disbursements .should encourage recipients to reduce t`eeir disadvantages, forexample, by making the grant coJ2ditinnal on meeting certain targets for training, or fór the attainment of vocational qualifications, of specified minority groups.
It is also important for governments to encourage the private sector to develop effective equal opportunities policies, by adopting clear rules making the award of public contracts and grants dependent on the observance of equal opportunity principles, and by withholding contracts from those organisations which practice racial discrimination. This has been a significant stimulus to encouraging the development of good employment practices in the United States and Canada, and is also a practice favoured under ILO Recommendation No.l 11. Similar principles apply to other government functions, such as licensing and registration. The standards should include a requirement for equal treatment of all clients, and failure to abide by these standards should be a ground for refusal of the authorisation.
6.3 Legal provisions
Legal instruments preventing acts of direct or indirect discrimination on racial or ethnic grounds are an essential underpinning for all states for complying with international obligatiori,s. These should be enforceable, and there should be easy access to tribunals and courts.
Although not specifically required by the Convention, it is difficult to envisage how governments can fulfil their obligations under ILO Convention No.lll without enacting some form of legislation to prevent employers and others who offer goods and services from practising racial discrimination. There are two possible approaches to such legislation. First there are provisions which introduce obligations and prohibitions (for example, in Great. Britain, employers are prohibited from carrying out discriminatory acts) and which give rights to individuals against racial discrimination. Secondly, there are regulatory provisions under which the authorities are required to have programmes which set objectives for reducing discrimination and inequality. These are not usually sources of individual rights, but focus on principles and practices. (For example, again in Great Britain, local government has a legal obligation to carry out its functions without practising racial discrimination, and to promote equal opportunities.)
Experience in Western Europe has shown that there are some key principles which need to be followed in order to make the laws and regulations against discrimination effective.4~ First, it is important for there to be easy access to procedures for aggrieved persons. In some countries in Western Europe, for example, France and the Netherlands, racial discrimination is a criminal offence, with enforcement through the criminal courts. Contrary to the intended effect, this makes it more difficult to meet the burden of proof required than in civil or industrial courts and tribunals. As a result, so few cases are brought that the law is not a deterrent. It is also important to facilitate access to other fora than the law courts, such as industrial tribunals or equal employment opportunity commissions.
Effective legislation should also be in place against discriminatory practices as well as direct discrimination. Several Western European countries, for example Sweden and Denmark, have done this by giving the powers needed to a civil ombudsman.
Another approach is to empower labour inspectors to order action to combat racial discrimination. Governments also have a role to play in ensuring that the prosecuting and regulatory authorities are equipped to deal with racial discrimination, for example by providing that the training of the judiciary or inspectorate includes sensitivity to the subtle ways in which racial discrimination is practised, and in the interpretation of evidence on the matter. Successful enforcement proceedings against racial discrimination are vital if the law is to have credibility and influence on employers' behaviour.
In Central and Eastern Europe the equal rights of all citizens, regardless of their race, ethnic origin, gender, etc., are stipulated in national Constitutions. Employment acts stipulate the right to work for all citizens in their preambles. However, only Slovenia has included an anti-discrimination provision into its Employment Act, making unlawful any act of discrimination against a person on the ground of gender, ethnic origin or age, such as discriminatory advertisements, or refusal of an employer to recruit a job applicant based on racial or gender prejudices against him/her. Very recently, Slovenia has indicated its commitment to discouraging any discriminatory behaviour of employers in a case in which such treatment of a woman worker by an employer was brought to the court, which decided against this employer. This kind of anti-discrimination legislation should be enacted in other Central and Eastern European countries as well, and should focus on race and ethnic origin as well as on sex.
6.4 Information campaigns
When there is social distance between a minority and the majority, myths about the minority are often held. The production of factual data also helps to dispel or reduce the prevalence of myths, which if unchecked can be a source of social tension and antagonism which is the first step to racism and ethnic conflict. Governments set the tone of the public debate on the treatment of ethnic and national minorities. There is evidence that weak responses by the authorities and lack of positive policies towards minorities are major factors in creating an atmosphere in which racist violence and hostility can flourish.41 It is important for there to be explicit recognition in government statements and publications of the importance of providing equal opportunities for all residents. If there is an indication that an employer or training organisation is practising racial discrimination, governments should condemn it unequivocally. If the tone of government statements is vague, ambiguous, or uncertain, this will be interpreted as giving covert support to racial discrimination, or it will at the least give a signal that it is not regarded as being important.
In addition, governments have to set an example in their own employment practices, and to have effective equal opportunities policies, and it is necessary for governments to show that equality is an important foundation of a democracy by promotion of the ideals of equality through information campaigns. This can be backed by strong statements by ministers against racial discrimination, and in favour of equal opportunities. Information campaigns can include the dissemination of guidance for employers on how to implement equal opportunities policies at work; and information for ethnic minorities on their rights under laws against discrimination, and on the availability of training programmes and other help. It ís helpful if this information is in the minority language. It has been found that, even where the minorities speak the national language fluently, government publications gain credibility if produced in the minority languages.
6.5 Non Governmental Organizations (NGOs)
The presence of vigorous and independent voluntary organizations and pressure groups is to be encouraged as it is essential,fór the development of'a healthy pluralist democratic .system.
Although criticism can be uncomfortable to those in authority, especially if it is strident or not well founded, the existence of voluntary groups and pressure groups is essential to a flourishing democracy. In the field of equal opportunities, it is especially important to encourage the development of organizations which are run by and for ethnic and national minorities. These organizations have many positive benefits. First, they give a voice to the minorities, and an outlet for expressing their grievances and experiences. This encourages leadership in the communities, and they become involved in contributing to solutions to problems, and in participating in national life. This in turn fosters self esteem and confidence.
Second, NGOs from these communities provide information and case histories with first-hand experience of the nature and scale of racial discrimination, which is not available otherwise. It brings the problem home to the majority in a vivid and personal way. It helps raise public concern about discrimination, and gains support for measures to be taken against it. Campaigning NGOs keep the problem alive and bring pressure on the authorities to take action.
Non-governmental voluntary organizations also have an important role in providing support and advice for the victims of racism and intolerance. They will be able to empathise with victims, will have staff who speak their language, and are more likely to be used than official agencies who may be seen as remote or insensitive.
Although they should not compromise their independence, nevertheless experience in Western Europe shows that NGOs also have to work in partnership with public agencies if they are to be an effective bridge between the minority communities and the authorities. They need to exchange information and build up trust with the authorities; often this can be difficult if NGOs are seen as publicly critical of the government, or aligned with an opposition viewpoint. Despite this, many Western European governments give financial assistance to the voluntary sector, under strict rules governing their registration, and charitable status, rules which also may restrict their political activities. Examples include the AntiDiscrimination Bureau in the Netherlands, and Racial Equality Councils in Great Britain.
There are many NGOs run by ethnic minorities in Central and Eastern Europe. However, their influence is limited by the fact that most of them are relatively small and have not created effective bridges to political parties or influential groups in the national legislative or executive bodies of the state. Their activity, although officially supported, is actually restricted to cultural activities, and to a lesser extent to educational activities, and governments prevent or discourage mass media from widely publicising this activity for fear of political and ethnic tensions. This practice should be changed. International institutions such as the ILO, the Council of Europe or the OSCE should encourage the Central and Eastern European countries to create a supportive environment for the activity of NGOs, and to pay proper attention to their advice on legal provisions and economic, labour market, social and cultural policies aimed at overcoming the disadvantages of minorities and promoting equal rights for all citizens.
Table of Contents
Chapter 7: The Role of the Social Partners
7.1 The role of employers
7.2 The role of trade unions
Employers and their organizations, and trade unions, have an impon-tant role to play in creating positive relations and ensuring eqccal treatment at work. It is in their interests to be active in promoting a constructive `climate' with eqtcal opportunities for all, as these policies contribute to the economic health of the nation, help prevent social tensions and redecce social unrest.
Employers, employers' organizations and trade unions have a special role to play in securing equal opportunities at work. Employers have, the main responsibility for providing equal treatment, and it is in their interests to do so, because it ensures that they make full use of the potential of all sections of the community and gain access to all available human resources - including the often considerable experience of minority groups. This will contribute to a stable and just society, which is essential for business to flourish. Trade unions have a responsibility to ensure that they cooperate with the introduction of positive workplace policies, and that they promote the equal treatment of all workers, and take up grievances about all forms of discrimination. Attitudes towards ethnic and national minorities can become very negative in times of recession. Experience in Western Europe has shown that, especially in the absence of political leadership, unions can play a key role in continuing to press for equal rights at work for minorities, and to draw attention to their special training needs or to the social implications of the higher unemployment levels which they suffer, and to secure majority support for anti-discrimination policies among all workers.
In order to make sure that equal opportunities are available to all job applicants and employees, and to eliminate discriminatory practices in the workplace, equal opportunity policies in the workplace are instrumental.
Equal opportunities policies are best introduced and adapted at plant or workplace level, as is the case, for example, in Great Britain, the Netherlands and Sweden. In some countries, the introduction of equal opportunities policies is encouraged by labour codes or codes of practice promoting fair employment practices. In Sweden, the Swedish Immigration Board and the Swedish employers and trade unions have produced guidelines for equal treatment in the workplace. In the Netherlands, Works Councils are empowered to act against discrimination in the company. In Germany, state Labour Offices have begun to develop guidelines for discouraging discriminatory practices at work. In Great Britain, there is a Code of Practice for the Elimination of Racial Discrimination and the Promotion of Equal Opportunities at Work, which was approved by Parliament. The employers' association, the Confederation of British Industry, has issued guidance to members, with model equal opportunities policies. Large employers have also publicized their policies, to offer an example to other employers.
7.1 The role of employers
The principles of equal opportunity policies and their possible benefits to the individual employer are generally well understood in responsible business circles, as illustrated by the examples of national level guidelines and Codes indicated above. Applying principles in the individual case and in small workplaces is more complex, for obvious reasons. In Western European countries it is therefore mostly larger employers that have established workplace or enterprise-wide practices in accordance with such principles, and that manage to apply these in the great majority of cases.
So far, such specific equal opportunity policies as discussed in these guidelines have not been developed and applied in the evolving market economic settings of the Central and Eastern European countries. Even where quite advanced equal rights and equal opportunities principles existed and were upheld by the authorities and enterprises, they were applied with little regard to cost and productivity consequences.
Employers and their organisations in the transition countries are still struggling to develop and apply basic and general market economic principles and guidelines on central, branch and enterprise level policies, and to consolidate production at sustainable levels. Strategic ambitions for all other policy positions and recommendations, however positive, must be (re-)aligned with these basic priorities. It is therefore now necessary to approach such issues as equal opportunities and non-discrimination from both social and economic perspectives.
This is an endeavour well suited for tripartite consultations and deliberations. It is necessary to demonstrate possible consequences and benefits on the local (enterprise) level of applying equal opportunity policies. Positive effects can be approximated, such as those affecting labour costs and productivity when accessing a larger part of potentially available human resources; of developing positive and attractive personnel and human resource development policies; of possible eligibility to promotional measures; and so on. Similarly, potential negative effects should be considered: effects of possible conflicts; strained industrial relations; or government interventions.
It should also be pointed out to employers that both international and EU standards are increasingly applied to trading partners, and that transition countries applying for EU membership (as well as those with associate status) are required to bring national practice up to comparable standards.
Central and branch level organisations of employers need to engage in information campaigns and developing of promotion materials that can convince individual employers to develop positive practices that can improve their economic performance; strengthen their image generally and among their customers (not least their foreign ones); improve the whole entrepreneurial climate in their country; and promote productivity and product quality.
From the West European experiences cited above, examples of guidelines or policies that employers should be encouraged to implement in their enterprises can be mentioned:
From centrally developed guidelines or policies, the individual employer should draw up an enterprise policy, in close collaboration between management and union or employee representatives. The employer should then take systematic steps, such as, for instance, the following
-
Make the policy known in writing
to all employees and job applicants;
-
Develop an action plan, with
objectives which are to be achieved, covering recruitment, access
to training, treatment at work and promotion;
-
Discuss the policy and action
plan with trade unions and employee workplace representatives,
and consult the representatives of ethnic and national minority
organisations, where possible;
-
Designate a senior manager to
be responsible for the implementation of the plan, and designate
a work place forum, for example a joint working party or works
council, for reviewing progress;
-
Provide bríefíng, guidance and training to managers, supervisors, and personnel staff so that they know how to put the equal opportunity policy into practice, and understand its principles; trade unions should either take part or arrange parallel training;
-
Check the effectiveness of the
plan by monitoring whether the objectives are being met, and by
monitoring the progress of minority employees and comparing it
with the progress of employees overal l ;
-
Check in the light of the monitoring
whether there are any discriminatory practices, or barriers to
equal opportunities, such as have been outlined in other chapters
of these guidelines;
-
Offer special assistance to racial
or national minorities to help them to compete equally and include
language and vocational training and work experience for applicants,
within or outside the company;
-
Make sure that there are no working
practices, such as dress codes, which might conflict unnecessarily
with the cultural practices of a minority;
-
Make sure that the grievance
procedure allows employees to complain about racial and ethnic
discrimination at work, and that the disciplinary code recognises
discrimination as a disciplinary matter.
7.2 The role of trade unions
Trade unions have an important role in promoting policies for equal opportunities. They should adopt policy statements covering the treatment of all employees, members and potential members of unions, to safeguard them against ethnic discrimination. The issues of ethnic relations need to be included in trade unions' information and education programmes. The elected officials and staff members of trade unions are to be aware of potential problems related to ethnic backgrounds of workers, and they should have access to information and training, where relevant, to address these problems. They can contribute to the forming of and top in the implementation of the equal opportunities policy that is present at the workplace.
In collective bargaining at all levels, trade unions are in a position to observe those items that might give reason to concern based on ethnic issues. For example, criteria and practices for recruitment, access to training and promotion in the job should not contain any opportunity for discrimination on ethnic grounds. More importantly, trade union representatives should have the opportunity and necessary information to intervene, if the collective agreements or other regulations that are present at the workplace would be implemented in a way that gives reason to concern. Equal opportunity clauses should be introduced in collective agreements, where relevant.
An example of a general statement of an equal opportunity clause in a collective agreement is from the National Paper Industry Agreement in Great Britain in 1995:
"The parties to this Agreement are committed to the development of positive policies to promote equal opportunity in employment regardless of the workers' sex, marital status, colour, race or ethnic origin. This principle will apply to all conditions of work. The parties undertake to draw opportunities for training and promotion to the attention of all eligible employees, and to inform all employees of this Agreement on Equal Opportunities. Where any employee considers that he or she is suffering from unequal treatment on any of the above mentioned grounds and this cannot be resolved at local level, the matter will ire subject to the provisions of the Procedure Agreement."
Union representatives are in the best place to identify and draw attention to discriminatory practices. They can also exercise influence by adding their support to campaigns against racism and xenophobia, and work with NGOs to help educate and raise the awareness of people to the rights of minorities.
Trade unions should encourage workers from ethnic and national minorities to top fully in their activities. Their specific needs must be taken into account in planning and organizing educational and other trade union events. It may be advisable to make special efforts to promote persons of ethnic minorities to be candidates for office in the union or as members of works councils, etc. An effort needs to be made to have union information available in a language that is understood by every worker. Unions may need to undertake specific activities to reach minorities with their information material.
The international trade union movement is active in taking up issues of equal opportunity for ethnic minorities. The International Confederation of Free Trade Unions, at its Congress in 1996, reaffirmed the goals that include "comprehensive social protection to fight marginalization of the unemployed, older citizens, youth, ethnic minorities, women, the handicapped, migrants and refugees". The ICFTU has warned of the dangers of religious fundamentalism "which is leading increasingly to serious abuses of human and trade union rights".
Workers' education is one of the best ways in which t~°ade union organizations can contribute to the improvement of the position of ethnic minorities. The International Federation of Workers' Education Associations (IFWEA) has given prominence to these issues. They aim at organizing inter-cultural education at local level, strengthening the psychological and ideological foundations of tolerance and promoting a universal and humanistic view of world culture. The European regional organization of IFWEA exchanges information about projects and initiatives involving work with ethnic minority groups, as well as practical experiences.
Ethnic minorities have established several organizations and some of those have also the task of representing the professional interests of their membership, like the Alliance of Hungarian Teachers in Romania which is a part of a larger association of Hungarians. More often, however, trade unions and NGOs of ethnic minorities would develop joint or co-ordinated campaigns and other activities.
Ethnic discrimination is not a priority issue for many trade unions in Central and Eastern Europe in the same way as in several Western European trade unions. It is not often seen as a specific task for trade unions, and obviously, the responsibility for addressing the issue is with the governments and employers. However, as the most comprehensive civil organizations, trade unions should play a role. For instance, in Estonia, the Confederation of Trade Unions EAKL is actively promoting ethnic tolerance among Estonians and Russians. EAKL publishes its newspaper in both languages - at a very high cost, and organizes education and other activities in both languages. Several other trade union organizations do the same. Regular contact with international organizations such as the IFWEA would help in providing practical examples and useful information.
Table of Contents
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