solomon engda Discrimination

8/7/2019 solomon engda Discrimination

http://slidepdf.com/reader/full/solomon-engda-discrimination 1/74

Discrimination

Forms of discrimination

Old formsNew forms

Solomon Engda, Judge trainer at judicialtraining center, ethiopia,e mail

[email protected]



old forms of discrimination

Old forms persist, often under more insidious

form

The old forms includeSex

Race

ReligionSocial origin



discrimination

Political opinion

etc



New forms

HIV/AIDS status

Eg: organizations such as trade unions or

professional associations deny membership onthe basis of HIV status

ICCPR art.22(1) states that everyone shall have

the right to freedom of association with

others ,including the right to form and join

trade unions for the protection of his

interests.



It is provided under sub 2 of the same article

that no restrictions may be placed on the

exercise of this right other than those imposed

in conformity with the law and which are

necessary in a democratic society.

Article 31

Freedom of Association

Every person has the right to freedom of

association for any cause or purpose.



Organizations formed, in violation of

appropriate laws, or to illegally subvert the

constitutional order, or which promote suchactivities are prohibited.

In both cases ,Discrimination based on

HIV/AIDS status is not legally imposed and

exclusion based on HIV status is not necessary

in a democratic society



Disability

Sexual orientation

etc



Further forms

Genetic status

Life style

Genetic testing may easily lead to unjustifieddismissals or denial of job

Genetic testing tells us that an individual may

be susceptible to develop a certain disease,but when and how sever it may be is not

known



Disc based on life style

Healthy life is becoming a factor in obtaining

or keeping a job

High cholesterol, smoking etc are becomingdisadvantages



Some enterprises:-

May not recruit smokers

Dismiss them even when they smoke out sidework place

Require them pay more health insurance



Ethiopia

Art 25 of the FDRE constitution provides that

all persons are equal before the law and are

entitled without discrimination to the equal

protection of the law---

Art 34 of the FDRE constitution maintains

equality of persons with regard to marital,

personal and family rights



Ethiopia

Art 35 of the FDRE constitution

(1) woman shall, in the enjoyment of rights and

protections provided for by this constitution,have equal rights with men

(3) Taking the historical legacy of inequality and

discrimination suffered by women , they are

entitled to affirmative action



Ethiopia

see Sub art . 35(5) (A),(b) and35 (8) which

provides that Women shall have a right toequality in employment , promotion, pay, and

the transfer of pension entitlements.

See art 38(2) of the constitution which

provides The right of everyone to be a member of his own will in political

organization, labour union, trade organization,or employers' or professional

association shall be respectedi{he or she meets the special and general

requirements stipalated by such organization.



The right of everyone to be a member of his

own will in a political organization, labour

union, trade organization, or employers' or

professional association shall be respected if

he or she meets the special and general

requirements stipulated by such organization.



Ethiopia

The labor proc

Art.14(1) (B) and (F)

(B) it shall be unlawful for an employer todiscriminate against female workers ,in

matters of remuneration, on the ground---

(F) prohibits discrimination b/n workers on thebasis of nationality, sex, religion, political

outlook, or any other conditions.



Article 42 of the FDRE constitution provides

that Factory and service workers, farmers,

farm labourers,other rural workers and

government employees -------, have the right

to form associations to improve their

conditions of employment and economic well-

being. This right includes the right to formtrade unions and other associations to bargain

collectively with employers or other

organizations that affect their interests.



Art.42(1)(d) of the FDRE constitution states that

Women workers have the right to equal pay

for equal work.

Art.87(1) of lab proc 377/2003 states that

Women shall not be discriminated against as

regards employment and payment, on the

basis of their sex.



ICCPR art.26 states that All persons are equal

before the law and are entitled without any

discrimination to the equal protection of the law. In

this respect, the law shall prohibit any discriminationand guarantee to all persons equal and effective

protection against discrimination on any ground such

as race, color, sex, language, religion, political or

other opinion, national or social origin , property,birth or other status



Committee on Human Rights(CHR) confirmed

that the term other status in anti-

discrimination provisions includes health

status ,including HIV status(1995 and 1996)



Instances where we can use ILS

There is no definition of discrimination in the

labor proc.or the constitution

The labor proc and the FDRE constituionsimply state the grounds of discrimination not

the definition of discrimination(look at art

14(1)(f))

But convention 111 which Ethiopia has ratified

provides the definition of discrimination

together with the grounds of discrimination.



Article 1 of conv.111 (a) defines discrimination

as any distinction, exclusion or preference

made on the basis of race, color, sex, religion,

political opinion, national extraction or social

origin, which has the effect of nullifying or

impairing equality of opportunity or

treatment in employment or occupation;



Distinction, exclusion or preference

These terms refer to the same phenomenon: a

person, persons or group is/are

being treated differently than others. Such differential treatment can exist in or

result from a variety of sources including

laws, administrative regulations, policies,practices, the functioning of institutions or

social pattern



Negative effect on equality of

opportunity and treatment

Differential treatment is discriminatory if it

produces negative effects on the

enjoyment of equality of opportunity andtreatment of person(s) or groups

concerned.



Equality of opportunity and

treatment includes two aspects:(1) the notion of equal treatment which requires

that all persons should be treated on an equal

footing; and

(2) the notion of equal opportunity which

requires that everyone must be offered

comparable means and opportunities. The

notion of equal opportunity suggests thateverybody should be brought to an equal level

to access work opportunities



With the focus on effect, it is irrelevant

whether the discrimination was intentionalor not.

By emphasizing the effect on equality of

opportunity and treatment, the Conventionaims at the elimination of both direct and

indirect discrimination



There are direct and indirect discriminations

But the labor law does not specify this issue



Direct and indirect discrimination

Direct discrimination refers to rules, policies

or practices that exclude or

disadvantage certain individuals because theybelong to a particular group or because they

have certain characteristics (example:

indigenous origin, sex, religion, etc.). This form

is generally easier to identify.



Example

An enterprise hires indigenous and non-

indigenous workers to perform plantation

work as casual workers. However, indigenous

workers are not hired under regular labor

contracts, under which better wages are paid

and benefits and allowances are available.



Indirect discrimination

is often hidden, more subtle and therefore

more difficult to identify. It occurs when

apparently neutral measures (rules, polices or

practices) have a disproportionately adverse

impact on one particular group. Even well-

intended measures may be discriminatory.



Examples

A national vocational training scheme that

applies to all parts of the population, including

indigenous peoples, does not take intoaccount the cultural differences between

indigenous and non-indigenous groups( e. g.

different languages, different ways to relate to

the land, different cultural traditions, etc).



T his leads to low participation of indigenous

peoples and as a result to fewer opportunities

for indigenous peoples to access employment

or to exercise the occupations of their choice,

including traditional occupations.

T he laws, regulations and policies on rural

development do not acknowledge, or may even discourage, traditional livelihood

activities that indigenous groups wish to

pursue.



As a result, the programmes and facilities to

promote rural development may undermine

the possibility of indigenous peoples pursuing

their traditional occupations and livelihood

strategies.



Not all measures taken that have a negative

effect on indigenous peoples are per se

discriminatory. Such measures may bepermitted if they are necessary and

proportionate to achieve a legitimate

objective. Whether a specific measure stands

this test has to be decided on a case-by-casebasis, depending on the specific

circumstances.



in order for a specific measure not to qualify as indirect

discrimination, it would have to be shown that the measures

objective takes account of the rights and dignity of indigenous

peoples, including the right to be consulted on matters that

concern them.

The need to avoid and eliminate indirect discrimination

requires decision-makers to take into account the differences

between persons and groups when designing and

implementing laws, polices and other measures, in order toavoid discriminatory outcomes.



Terms and conditions of employment

The concept of terms and conditions of

employment referred to in the Convention

provides that all persons, without discrimination,should enjoy equality of opportunity and

treatment in the following areas:

Career advancement;

Job tenure;



Remuneration for work of equal value; and

Conditions of work including hours of work, rest

periods, annual holidays with pay ,occupational safety and health measures, as

well as social security measures,

welfare facilities and benefits provided in

connection with employment.



Examples

Indigenous agricultural workers are paid less for the

same work than their non-indigenous

peers.

While indigenous workers are not provided with

appropriate health protection equipment (e.g.

to handle hazardous chemicals), such equipment is

provided to non-indigenous supervisors.



What are special measures?

Under the Convention, special measures can be

taken to protect certain specific groups in order to

meet their particular needs. Such measures, taken to

respond to the protective needs of the groupsconcerned, are not deemed to be discriminatory.

Convention No. 111 specifically refers to special

measures provided for in ILO

Conventions and Recommendations, such as

Conventions Nos. 107 and 169 that specifically

address the situation of indigenous and tribal

peoples. On this basis,



What are the States obligations

under the Convention?

Article 2 of Convention No. 111 provides that the States must

adopt and implement a national policy to promote equality of

opportunity and treatment in employment and occupation,

with a view to eliminating discrimination. Such a policy should

not only include legal provisions prohibiting discrimination,

but also proactive measures to achieve equality in

practice. Where groups such as indigenous and tribal peoples,

who are protected by the Convention, face inequalities in

employment and occupation, the situation should becorrected.



In order to identify situations that may involve

discrimination as defined by Convention No. 111,

it is necessary to examine carefully the facts that

are thought to constitute discrimination. Afterthe facts have been identified, they need to be

linked to the elements making up the definition

of discrimination

If all elements can be identified, discrimination in

employment and occupation may have occurred.



Checklist 1: Identifying discriminatory laws,

policies and practices

1. Determine what constitutes the distinction,

exclusion or preference?

Identify the person(s) or groups that face

differential treatment.

Identify the act, omission or process that treats

the persons or groups concerned differently or

leads to exclusions (a law, administrativeregulation, policy or practice etc).



Identify the author, if any, of the act or

omission (e.g. an administrative body or

authority or private actors (such as an

enterprise)).

2. Establish that the differential treatment is

based on a prohibited ground



Do the person(s) or groups that face

differential treatment or exclusion have

personal characteristics that relate to one or

more of the prohibited grounds of

discrimination (race, color, sex, religion,

political opinion , national extraction or social

origin)? Is the treatment due to the persons

indigenous or tribal origin?



In a case of suspected indirect discrimination,

do the apparently neutral measures

disproportionately affect indigenous peoples,

as compared to non-indigenous parts of the

population?

3. What is the negative effect on equality in

employment and occupation?



In which ways does the distinction, exclusion

or preference have a negative effect?

Identify the aspect of employment and

occupation that is affected (training, access to

particular occupations, access to necessary

resources, recruitment, terms and conditions

of work, dismissal, etc).

Examine how indigenous men and women are

affected.



In most places the proc prohibits disc among

employees but does not specify disc during

recruitment



Instances where we can use ILS

Art 87(1) of the labor proc states that women

shall not be discriminated as regards

employment and payment

But it is not clear that which jobs have equal

value



Article 1 (b) of convention 100 provides that

the term equal remuneration for men and

women workers for work of equal value refers

to rates of remuneration established without

discrimination based on sex.



(a) the duties, responsibilities or services to

be performed are similar or substantially

similar in kind, quality and amount;

(b) the conditions under which such work is

performed are similar or substantially similar;



Common forms ofdiscrimination

Jobs or occupations with a female

dénomination ,Under-valuation of certain jobs

or occupations

Invisibility of the qualities, tasks, skills &

efforts

Vertical & horizontal occupational ségrégation



Causes of the pay gap

Productivity related differences

Job availability

Job selection

Pay structure

Perceived labour costs

Lack of awareness



Productivity: referes to Biases based on non-

objective perceptions of womens work, such as

± Lower physical strength

± Mental orientation

± Biological and social reproduction

± Socio-cultural perceptions

± Pre-existing inequalities



Job availability:

horizontal and vertical segregation

jobs available for women are usually at the

lowest level of the employment ladder or in

low-paid occupations. Women and men are

concentrated in certain sectors: women in

services such as household work,

manufacturing, health and education .men inconstruction, finance, truck drivers, etc.



Job selection:

responsibility or choice, household

responsibilities, less overtime, part-time work.

Women often chose to work part-time or to

work at home because they still have the main

responsibility for family and child care.

Women often chose jobs with felxible working

time or where responibilities are low due tofamily resposnibilities



Pay structure dispersion or sosial

security systems

for example in agriculture collective

agreements may still refelct different male and

female pay rates, and in some countries

different productivity rates are set for men

and women

d l b b h



Perceived labour costs: by the

employer

Women costs more because of reproductive

role; employer do not want to invest in

training because assume that women will

leave anyway.



Lack of awareness

on gender equality, division of labour,

womens rights, etc.

P di i i ti l



Pay discrimination: examples

Separate wage scales or rates applied to men

and women

Women assigned to lower wage scales

irrespective of the work actually performed

Casual workers predominantly women or

lower caste - are paid lower wage rate for

work of equal value



Permissable pay differences

Based on objective differences in the work performed

Based on non-sex-based factors such as

±

Education ± Qualifications

± Experience

± Productivity

M th d f



Methods of wagedetermination

Legislation

Public service wage classifications

Collective agreements

Wage directives from wage boards

Custom and practice Individual contracts



Work of equal value

equal or identical work or work in equal or

identical conditions

different kinds of work which based on

objective criteria are of equal value

Comparison between jobs is not limited to the same

or similar job, the same employer or the same sector

H t id d bi ?



How to avoid gender bias?

Make gender equality an objective

Use objective criteria

Avoid stereotypes Avoid under-valuing tasks

Avoid over-valuing formal credentials

Consider formal and informal experience

solomon engda Discrimination

Documents

Transcript of solomon engda Discrimination