Discrimination

Hundreds of millions of people suffer from discrimination in the world of work. This not only violates a basic human right, but has wider social and economic consequences which perpetuate poverty and inequality while worsening social tensions. Lessening discrimination could help the world dramatically decrease poverty and promote decent work for all.

Unions can play a crucial role in fighting discrimination nationally and internationally through political action and collective bargaining. But, their leaders and members are themselves subject to discrimination as workers are penalized for joining unions or participating in union activities. However, by better understanding discrimination in its many forms and devising strategies to combat it, unions could help eliminate discrimination and, at the same time, strengthen their organizations.

Discrimination in employment and occupation takes many forms, and occurs in all kinds of work settings. It entails treating people differently because of certain characteristics, such as race, colour or sex, which results in the impairment of equality of opportunity and treatment. In other words, discrimination results in, and reinforces, inequalities. With discrimination the freedom of human beings to develop their capabilities and to choose and pursue their professional and personal aspirations is restricted without regard for ability. Because of discrimination, skills and competencies cannot be developed, rewards to work are denied, and a sense of humiliation, frustration and powerlessness takes over.

The International Labour Organization - the United Nations agency concerned with the world of work - defines discrimination as "any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment or occupation".

Almost any worker can be subject to discrimination. In the labour market and the workplace discrimination can be found in many different work situations and forms of employment regardless of whether the work takes place in the formal or informal sector. Farmers, the self-employed, people engaged in the informal economy, lawyers, advanced-technology employees, home-workers, and others may all suffer from discrimination in one form or another.

When discussing the definition of discrimination emphasis is put on "occupation" as well as employment. In this way consideration is given to protection from discrimination not only to employees, but also to other segments of the labour force, such as own-account workers and unpaid family workers. This inclusive approach reflects the recognition that the patterns of economic activity of a country are linked to its stage of economic development. In particular, the relatively high incidence of own-account (working as an individual) work is characteristic of many developing countries.

Discrimination at work can be direct or indirect. Discrimination is direct when regulations, laws and policies explicitly exclude or disadvantage workers on the basis of characteristics such as political opinion, marital status, or sex. Job advertisements that exclude or overtly discourage applications from married workers or people over a certain age or a certain colour and examples of direct discrimination. Prejudice and stereotypes are normally at the heart of direct discrimination. "Stereotyping", which is also a cause of indirect discrimination, is the process that assigns people particular attitudes and talents or lack of talent, by virtue of their membership in a group be it racial, religious or other, irrespective of their skills and work experience.

Indirect discrimination may occur when apparently neutral rules and practices have negative effects on a disproportionate number of members of a particular group irrespective of whether or not they meet the requirements of the job. For example, the requirement of knowledge of a particular language to obtain a job, when competence in the language is not really necessary, is a form of indirect discrimination based on national or ethnic origin. Indirect discrimination may also occur when differential treatment is accorded to particular categories of workers. For example, less favourable treatment of part-time workers is an example of indirect discrimination against women, who constitute the majority of part-time workers.

Discrimination in employment and occupation often perpetuates poverty or makes it worse. By excluding members of certain groups from work or impairing their chances of developing skills or capabilities, they are restricted to lower quality jobs. This enhances their risk of becoming or remaining poor - which further reduces their ability to obtain jobs that can lift them out of poverty.

Poverty is also a cause of child labour as parents who face discrimination in the labour market by virtue of their social and ethnic origin force their children to work. Poor single-parent families, usually headed by women, and migrant families are also often forced to having their children work.

Many different groups are discriminated against, and as societies change new patterns of discrimination are developed.

Women constitute the largest discriminated-against group. Despite recent increases in employment opportunities, the opening of new career paths, and advances in educational achievements, women are still subject to widespread discrimination which affects their lives in the work world. For example, it is difficult for women to reconcile family duties with paid work without affecting their chances of promotion or skill enhancement. But even if they do, they still on average earn less than men. Also a significant proportion of employed women continue to be self-employed in the informal economy which is characterized by low pay, poor working conditions and lack of protection. Meanwhile more and more women are becoming involved in informal work in the domestic sector, partly as a result of female migration of labour.

The trafficking of people for illegal drug operations or sexual exploitation, which disproportionally affects women and children, is related to sex-based discrimination in the labour market. Women have unequal access to remunerative employment and therefore are at risk of falling into exploitive work.

Cultural norms and social beliefs also contribute to discrimination by restricting peoples' access to education. In most societies, women rather than men are expected to take time off work to look after children or other family members. There is also the persistent belief that women have less need to earn an income than men. This may lead parents, especially in situations of scare resources, to invest more in education for boys than girls. This subsequently affects the quality and type of jobs women may be offered.

Another widespread form of discrimination is based on race. In the world of work, "racial discrimination" is used to refer to arbitrary barriers to the advancement of members of linguistic communities or minorities whose identity is based on religious or cultural characteristics or national origin. The UN Convention on the Elimination of all forms of Racial Discrimination (1965) defines racial discrimination as: “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. Ethnic minorities, indigenous and tribal peoples, people of different colours, and migrant workers are common victims of racial discrimination in employment and occupation.

Many people are discriminated against because of their religion. Problems of religious discrimination in employment and occupation often arise as a result of a lack of religious freedom or intolerance towards people or a particular faith, or towards people who profess no religion. Examples of unfair treatment in employment on religious grounds include offensive behaviour at work by co-workers or managers towards members of religious minorities, lack of respect towards or ignorance of religious customs, obligations to work on religious holidays, biases in recruitment practices and promotions, and lack of respect for dress customs.

Another group widely discriminated against are people with HIV/AIDS. In the world of work, discrimination against workers with known or suspected HIV/AIDS may originate from co-workers, customers, service suppliers, and employers. Fear, ignorance and the prejudices surrounding the illness and a lack of information about the prevention and the transmission of the virus are at the heart of discrimination against people with HIV/AIDS. The discrimination takes many forms. Pre-employment testing which results in a refusal to hire, is wide-spread, even where national and workplace policies against discrimination based on HIV/AIDS are in place. A growing number of countries require mandatory HIV/AIDS testing for long-term foreign visitors (such as students and workers) prior to entry. Meanwhile the burden for caring for HIV-infected family and community members falls more on women and girls, thereby increasing their workload and diminishing their income-generating and school possibilities.

Another group often discriminated against in the world of work are people with disabilities. These disabilities can be acquired in diverse ways, may take different forms, and may constitute physical, sensory, intellectual or mental impairment. Disabilities can affect people's abilities differently and so different types of accommodation measures are necessary. This gives rise to diverse forms of discrimination. The most common form of discrimination is the denial of opportunities to the disabled either to find employment or build on their abilities or potentials. In many developing countries the unemployment rate for people with disabilities reaches an estimated 80 per cent. If they do find work people with disabilities are often given low-paid, unskilled and menial work. And they are often part of the "last hired - first fired" group of workers who are more vulnerable to recessions.

Age discrimination affects both ends of the age spectrum. Both young and old workers experience differential treatments as opposed to people in their adulthood. In particular, older workers form another group which faces discrimination. In many developing countries increasing export dependency, international indebtedness and industrialization have drawn resources away from regions and sectors such as agricultural production and informal trade, where older people, especially women, are more active. The barriers that older workers face in finding employment are high and once they lose their jobs they find it difficult to find new employment. Exclusion from jobs can result from overt discrimination, in the form of age limits for hiring, or may acquire more subtle forms such as allegations of lack of " career potential" or "too much experience". Older workers are also discriminated against in the form of age limits for training. And in countries where wage increases are linked to seniority, firms may be tempted to replace older workers by less-costly younger ones.

Many people suffer from "multiple discrimination". Indigenous and tribal people, for example, are among the poorest of the poor, and women within these groups are even more severely affected. The intensity or severity of the disadvantages they may confront depend on how many personal characteristics may generate discrimination, and how these interrelate. For example, one person can have several characteristics that give rise to discrimination. People who suffer several forms of discrimination tend to be over-represented among the poor, particularly the chronic poor, and in the informal economy.

The recognition of new forms of discrimination occurs are issues are raised in the workplace This has been the case of issues such as disability, HIV/AIDS status, age, and sexual orientation.. Discrimination based on age happens at both ends of the age spectrum. About ten per cent of the world’s population or around 650 million people live with a physical or mental disability. Yet not enough progress is being made to address their needs. Also actual or perceived HIV/AIDS status is a growing form of discrimination.

There are also emerging manifestations of discrimination. This concerns discrimination on the grounds of genetic predisposition or lifestyles choices (e.g. being overweight or a smoker). The main challenge in this area is striking a balance between employers’ interference in employees’ private life and the right of employees to lead the life they wish.

Most countries are committed to combating discrimination and promoting equal treatment and opportunities in the world of work. This is shown by the almost universal ratification by ILO members states of the Organization's major Conventions which address the issue. Conventions are legally binding international treaties that become part of the legal structure of the countries which ratify them. Only a small number of ILO member states have not ratified the two Conventions which primarily address discrimination and equality: No. 100: Equal Remuneration (1951) and No. 111: the Discrimination (Employment and Occupation) Convention. Only a few, however, have ratified Convention No. 156 Workers with family responsibilities, which sanctions discrimination against workers on the basis of their responsibility over other family members.

The ILO monitors the application of its fundamental Conventions (and other instruments related to the issue) and provides technical assistance to member states to ensure that national law and practice comply with the Conventions. The assistance can take many forms: it can range from providing legal advice on the content and scope of a draft labour law, helping to develop a strategy for law implementation, or supplying capacity building to law drafters or labour judges. To focus its activities in the area of discrimination the ILO has adopted an action plan based on two thematic priorities: the gender pay gap and racial/ethnic equality (and its gender dimensions). The rational for these choices was the persistence and universal nature of the gender pay gap and the resilience of racial and ethnic discrimination and their link to poverty.

The ILO has put special emphasis on promoting a better understanding and implementation of the principle "equal pay for work of equal value" by generating knowledge on the benefits of promoting gender pay equity and highlighting the causes of the gender pay gap.

The use of the terms gender and sex sometime cause misunderstandings which need to addressed. Gender refers to the social differences between men and women that are learned, changeable over time and have wide variations within and between cultures. Gender is a socio-economic variable used to analyze roles, responsibilities, constraints, opportunities and needs of men and women in any contaxt. Gender roles and needs are affected by age, race, ethinicity, class, religion and differing ideologies. They are also affected by the geographical, economic and poltical environment. Within any givensocial context they may be flexible or rigid, similar or different, and complementary or conflicting.

Sex refers to the biological differences between men and women that are universal. The term sex should be used whenever reference is made to women and men as belonging to different physical categories (for example: statistical data are broken down by sex).

Gender pay equity refers to equal or identical work or work in equal or identical conditions and different kinds of work which based on objective criteria are of equal value. Comparison between jobs is not limited to the same job, the same employer or the same sector. The principles applies to basic salaries and to any other additional monetary benefits (supplements, bonuses, allowances, etc) paid directly or indirectly to the worker, in cash or in kind, as a result of his or her work.

The fundamental ILO conventions related to discrimination and gender are “No 111 The Discrimination (Employment and Occupation) Convention” and “No 100 the Equal Remuneration Convention”. The Organization actively promotes the adoption and respect of these conventions, but it has also adopted a major action plan to promote gender pay equity which has two components: targeted initiatives aimed at narrowing and eliminating the gender gap; and gender mainstreaming.

Moving closer to pay equity in the world of work will need active labour policies conducted governments, tripartite action by the social partners (governments, workers and employers' organizations) and recognition that the gender pay gap exists in various dimensions in different countries. However, there are basic steps which can be taken. They include: understanding the causes of the gender pay gap, implementing tools in the workplace such as gender neutral job evaluation methods, to narrow the gap, and developing conditions which promote pay equity.

One method of establishing pay equity is through job evaluation methods that are free from gender bias. This involves a number of steps:

The rating of job content is based on criteria related to responsibility, skill, effort and working conditions.

Job evaluation does not always correct pay gaps because countries have different understandings of pay equity and different models to promote it. The complexities of analytical job evaluation remain a challenge for many countries. And although a number of countries have passed laws and regulations which refer to "identical" work, they do not include the principle of "work of equal value".

To be effective efforts to reduce the gender pay gap, such as job evaluation, need to be supported by other conditions such as:

The ILO Conventions and Recommendations related to the gender pay gap and other forms of discrimination are:

There are other initiatives which need to be undertaken in order to reduce and eventually eliminate the gender pay gap. For example, workplace family policies are required for both men and women in order to overcome the problems of workers with family responsibilities. These policies need to promote better balancing of work-family issues in a world of longer working hours and work patterns that disadvantage women and effect their careers.

The growth of part-time work in the world in the past few years has been significant and has resulted in higher female labour force participation and employment rates. However, opportunities for women are often concentrated in low-status jobs.

Childcare arrangements, especially for children under three years old, are still limited or non-existent in many countries. There is a special need for childcare in the informal sector. But arrangements for childcare remain a low priority issue for many governments.

Meanwhile, there has been significant change in policies encouraging fathers to take care-related leave. Both developed and developing countries around the world have made it easier for men to take parental leave, but still, the rate of men taking advantage of parental leave remains low mainly because of cultural biases.

Pay equity is of course not the only remedy for gender inequality in the workplace. Other remedies include:

Racial discrimination continues to be an obstinate problem. It shows a slow decline in countries such as Brazil and South Africa that have started addressing it more recently, considerable vitality in countries that still deny the problem, and resilience even in countries that have long recognized it as a problem.

Racial discrimination affects millions of different workers around the world, ranging from black people and ethnic minorities to indigenous peoples, nationals of foreign origin and migrant workers. Very often those who suffer racial or ethnic discrimination are very poor. Centuries of unequal treatment in all spheres of life, combined with persistent and deep ethnic socio-economic inequalities, explain their low educational and occupational attainments. Lower achievements, in turn, make them vulnerable to ethnic stereotyping, while social and and geographic segregation perpetuates ethnic inequalities, reinforcing perceptions of "inferiority" or "distastefulnesss" by majority groups.

Past conflicts or civil wars along racial or ethnic lines have made the problem worse in a number of regions.

All over the world, the intensification of labour migration, and the feeling of anxiety that has it has generated in host societies have fuelled an increase in expressions of hostility against migrant workers and people of foreign origin, whether or not they become nationals of the countries in which they work.

Patterns of racial discrimination against migrant workers, second and third generations of migrants, and citizens of foreign origin have changed considerably with the intensification of global migration. Although nationality is what often leads to discrimination against non-nationals, their race, colour and perceived religion are also factors. It is the perception of these workers as foreigners that may explain discriminatory behaviour against them.

Throughout the world, migrant labour today is a vital asset in many sectors, including agriculture, construction, labour-intensive manufacturing, domestic work and the sex sector. This has, in some cases, led to a competition between nationals, particularly in the marginal segments of the labour force, and migrant workers who are willing to work for lesser conditions.

Arguments used to justify racial discrimination against immigrants have evolved. Allegations of the disruptive effects that foreign and "incompatible" cultures may have on the integrity of national identities are used instead of the older theories of purported superiority of one racial or ethnic group or other.

The ILO works at eliminating racial discrimination in a number of ways. It provides technical assistance to governments which have indicated their interest in developing employment and social policies to promote racial equality and inclusion. It supports activities which support racially and gender-inclusive labour market and workplace interventions as central components of development strategies. It promotes the differentiated treatment of indigenous and tribal peoples within the framework of the Poverty Reduction Strategy (PRS) processes. And it organizes special activities such as the Project to Promote ILO Policy on Indigenous and Tribal Peoples (PRO 169) which has been in operation since 1996. The strategy of PRO 169 is to promote, protect and monitor respect for the rights of these people, as enshrined in ILO Convention No 169, while ensuring that they participate in, and benefit from, broader efforts to achieve decent work and respect for international labour standards.

Despite the many challenges they face unions have been dramatically increasing their ability to fight discrimination in the world of work. Partly this is because of greater recruitment of under-represented groups into union membership and leadership. This has been the result of more inclusive organizing strategies and more democratic structures.

While fighting discrimination in the world of work unions may present a whole range of issues for negotiations. Every worker, irrespective of sex, race, colour, religion, political opinion, national or social origin, age, sexual orientation or disability has the right to an equitable, fair and safe work environment, as well as the right to be able to fulfill responsibilties relating to their personal or family life. Consequently, any issue which is identified as eliminating direct or indirect discrimination, promoting equality of opportunity and treatment or more effectively balancing work and family responsibilities is a legitimate issue for collective bargaining. Unions are only limited in practical terms by restrictions which are articulated through national or local legislation or by employer attitudes.

While reliable data is difficult to accumulate the available information shows a continued tendency towards the growth of female union membership in some countries and specific sectors. An ILO study published in 2005, examining trade union membership and collective bargaining coverage in a number of countries, revealed that union density rates were higher for female workers than for males in about half of the countries examined across various regions. The rapid advance of female union membership and density in particular countries and sectors reflects the increased attachment of women to paid work, higher female unionization in public services in both developing and economically-advanced countries, and the adoption of equal opportunity policies. The expansion of unionization in the previously less unionized service sector, along with the decline of unionization rates in the male-dominated manufacturing sector, may have further contributed to progress in female unionization rates.

Gender equality bargaining can be a powerful mechanism through which unions can either reinforce existing rights under legislation, or previous collective agreements, by devising practical methods of implementation, or extending workplace rights on issues which have been traditionally been ignored.

Unions may strategically choose which issues they will present for negotiations. Their choice will depend on those factors which may affect their bargaining leverage and success, such as the state of the local or national economy, the current state of the labour market, the economic situation of the company or the public image of the company.

One of the issues which unions needs to effectively address is that of the "glass ceiling" for women union leaders. While there has been an increase in the number of women who are union members there has not been a corresponding increase in the number of union leaders.

The inclusion of pay equity requirements in collective agreements is an important recognition of the fact that the elimination of sex discrimination in remuneration is central to the achievement of gender equality at the workplace. However, leaving pay equity entirely to the bargaining context runs the risk of allowing it to become subordinated to other concerns. Reviews in some countries have pointed out that the union or the employer might compromise on or even abadon pay equity objectives because of the emphasis on reaching an agreement.

Another factor that has been shown to have an impact on the size of the gender pay gap is the level at which collective agreements are negotiated - at entreprise or sectoral level - and the degree of coordination among different levels of bargaining. The more collective bargaining is decentralized, the wider the wage disparities and therefore the gender pay gap.

A growing number of unions, especially in the economically-advanced countries, are placing the issue of work-family reconciliation measures on their bargaining agendas. They see this as a way of increasing their memberships as well as better representing the needs of their members. In some countries unions have been able to negotiate contract clauses which go beyond what is required by national legislation. In many other countries however work-family reconciliation measures are absent from bargaining agendas.

Funding or on-site provision of day-care services is a growing trend in countries with institutionalized collective bargaining systems. In a number of countries day-care services extend beyond the requirements set down by law. But, again, many countries ignore the need.

Part-time and contingent work, telework, and other flexible arrangements are proliferating throughout the economically-advanced countries. These carry benefits for balancing work/family life, but also potential drawbacks as regards job security and trade union organization.

National and international labour organizations are working hard to accomodate, through non-traditional organizations and strategies and forms, unorganized workers who are especially vulnerable to discrimination. These workers include informal workers, migrants, people of colour and others. For example, SEWA - the Self Employed Women's Association of India - has been affiliated to the International Trade Union Confederation (ITUC). SEWA is the largest member based organization of poor working women in India, with seven hundred thousand members across country. In some, mainly economically-advanced countries, many unions are recruiting members from discriminated groups such as black people, ethnic groups and migrants. There is still a long way to go to eliminate discrimination in the world of work. But, by combining the work of the social partners with active labour market polices and unionization the problem can be significantly reduced.

The list presented below [NOTE 1]includes (in no particular order) issues which unions may want to raise in collective bargaining from a gender and anti-discrimination perspective:

Unions can play a key role in helping to eliminate discrimination and promote equality. As well as using collective bargaining and instruments aimed at pay equity they can also organize their own internal union policies and mechanisms to better represent the diversity of their membership within their structures, and in their policies and leadership. They can also involve themselves in national level policy debates on how to combat discrimination. This can best be done within tripartite structures which promote social dialogue.

Through their involvement in the formulation of employment and social policies, the social partners can help find ways of levelling the playing field so that everyone, regardless of sex, race or disability, among other grounds, enjoys equality of opportunity to succeed in the workplace.

Equality is a core value of trade unions – it must therefore be given the political importance it deserves in trade union policy and practice. This means that unions must tackle the challenge of equality at least at four different levels, namely within their unions, at work, in society and lastly through international solidarity. They are:

1. How can unions combat discrimination at the local, national and international levels?

2. How can international labour standards - such as ILO Conventions no. 100: Equal Remuneration and No. 111: Discrimination (Employment and Occupation) - be used to work for the elimination of discrimination in a country?

The following publications were used extensively in the creation of this document.

Equality at Work: Tackling the Challenges. (2007). Published by the International Labour Office. Geneva. Available at: www.ilo.org/declaration.

Time for equality at work. (2003). Published by the International Labour Office. Geneva. Available at: www.ilo.org/declaration

Promoting Gender Equality: A Resource Kit for Trade Unions. (2002). Published by the International Labour Office, Gender Promotion Programme.

http://www.ilo.org/public/english/dialogue/actrav/genact/declar/equality/index.htm

Gender, Poverty and Employment on-line learning programme. Available at the Gender Campus of the ILO International Training Centre. http://gender.itcilo.org

[NOTE 1] Source: Promoting Gender Equality: A Resource Kit for Unions. Published by the ILO Gender Promotion Programme in cooperation with the ILO Bureau for Workers' Activities (ACRAV). 2002