Combating discrimination and victimization
Although there are international and national standards on freedom from sex discrimination and protecting the right of workers to organize and take part in trade union activities, people are still discriminated against and victimized on these grounds. Proving such discrimination or victimization has presented a difficult challenge to unions, since there are seldom clear statements or written proof of discriminatory motives. in many instances, overt discrimination has been replaced by more subtle forms of discrimination and victimization.
It is important for unions to negotiate with a view to protecting workers who are active in trade unions, as well as workers who may be discriminated against on the basis of sex, race, color, religion, political opinion, national extraction or social origin, disability, family responsibilities or sexual orientation.
1. Trade union activities
For women to be able to promote and protect their rights and interests, they must be able, like all workers, to take part in trade union activities without suffering disciplinary measures or dismissal or otherwise being prejudiced.
Trade union activists often face obstacles with respect to recruitment, advancement, promotion, training opportunities, dismissal or lay-offs, all related to their attitudes towards or participation in trade unions.
While it may be difficult for unions to prove victimization or harassment against trade unionists, it is possible and necessary to find ways and means of protecting these workers. Unions can place conditions in collective agreements or influence national legislation to ensure that the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1 949 (No.98) are respected.
Since proof of anti-union discrimination is so difficult to establish, consideration could be given to lobbying for a reversal of the onus of proof in legislation. Such a reversal can also be placed in the collective agreement.
The Right to Organize and Collective Bargaining Convention (No.98)
Article 1
1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated to
(a) make the employment of a worker subject to the condition that he [or she] shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
See the Termination of Employment Convention, 1982 (No. 158) and Recommendation (No.166).
Reversal of the onus of proof
Where a worker claims to have been dismissed for trade union activities and wishes to make a complaint that the dismissal was unfair, he or she often bears the burden of proof, that is to say, the worker must be able to prove that this was the employer's reason. When the onus of proof is reversed, once the tact of dismissal is proved by the worker, it rests with the employer to prove that the dismissal was for a valid reason and unconnected with the worker's trade union activities.
The Committee of Experts on the Application of Conventions and Recommendations has addressed this point:
In cases of termination of employment, the application of the general rule applicable in contract law, whereby the burden of proof rests on the complainant, could make it practically impossible f6r the worker to show that the termination was unjusbfied, particularly since proof of the real reasons is generally in the possession of the employer. This is all the more true if there is no clear statement of the reasons by the employer, which may well be the case when the employer is not required to provide written reasons for the termination of employment. In an employment relationship, it is the employer who has the upper hand, particularly because he [or she] controls the sources of information.'
ILO: Protection against unjustified dismissal, General Survey on the Termination of Employment Convention (No.158) and Recommendation (No.166), 1982 (Geneva, 1995) p.77.
2. Sex discrimination
Just as trade unionists may be discriminated against merely for being trade unionists, some women face discrimination merely because they are women or because of their marital status or family responsibilities.
Like discrimination against workers on the basis of trade union activities, women workers are also faced with areas of discrimination which are difficult to prove with respect to recruitment, advancement, promotion, training opportunities, dismissal and lay-offs.
Sex discrimination can be overt, such as limiting applications for certain jobs to only men or only women (direct discrimination) or more subtle, indirect discrimination.
The Committee of Experts on the Application of Conventions and Recommendations defines "indirect discrimination" as "apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics. It occurs when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of characteristics such as race, color, sex or religion, and is not closely related to the inherent requirements of the job." 1 So where a requirement or condition is gender- neutral on its face, but in reality is more difficult for women than men to meet, indirect discrimination may be found.
Unions can negotiate for provisions in collective agreements to protect women against discriminatory practices.
A policy and agreement on equal opportunities was negotiated between ASDA plc. and the General Municipal Boilermakers and Allied Trade Unions:
All employees of the company and all applicants for employment with the company will be given equal opportunity in employment irrespective of their sex, marital status, colour; race, nationality, ethnic or national origins, or religion.
The Company is committed not only to the letter of the law but also to the promoton of equality of opportunity in all aspects of employment...
Job requirements that affect certain employees more than others or that restrict the opportunities open to certain groups more than others will be only those that are necessary for the effective performance of the lob.
All employees of the Company and all applicants for employment with the Company will be made aware of the provisions of this policy by all appropriate means.
Possible preconceptions
It is expected that all 8mployees of the Company responsible for the application of this policy will guard against discrimination on the basis of possible preconceptions that individuals, on any grounds, possess characteristics which would make them unsuitable for employment. Such preconceptions
might include:
(i) Lack of commitment to work
(ii) Have outside commitments that would interfere with work
(iii) Possess poor mental/physical ability
(iv) Produce an anticipated unfavorable reaction from other employees and members of the public
(v) Be unsuitable for the job due to a feeling that certain types of work are only suitable for a member of some other group
(vi) Be unable to supervise
(vii) Possess limited career intentions
(viii) Be unwilling to undertake training
(ix) Have poor standards of behavior/conduct
(x) Have limitations imposed by so-called traditional interests and experience attributed to any group
(xi) Require higher academic qualifications than individuals of another group in order to do the same job.
The Company emphasizes that discrimination as a consequence of any such preconception is unacceptable
1 From: ASDA management policy manual, internal document, July 1989. The burden of proof is an important issue in the context of sex discrimination and should be discussed in negotiations (see section 1 above).
In Italy a law promoting equality between the sexes and abolishing all forms of discrimination between men and women at the workplace was unanimously approved by Parliament in April 1991.
A significant feature of the law is that where there is an allegation of discrimination, the onus is on the alleged discriminator to prove his or her innocence. Charges may be brought against an employer, or other organization, without having to prove a specific instance of discrimination. All that is necessary is to provide coherent factual or statistical evidence in such areas as recruitment, pay rates, task and job assign ment8, transfers, promotions or dismissal showing that one sex is, directly or indirectly, more favoured by the policy than the other. The organization will then have the burden of disproving ihe evidence.1
1 Reported in the Social and Labour Bulletin, Vol.2191 (ILO, Geneva).
Checklist for bargaining to avoid sex discrimination:
general equal opportunities clause, expressing the commitment of the union and the employer to promoting equal opportunities for women and men
opportunities for women, including those with non-permanent contracts, to apply for all positions and to benefit from training programmes
no discrimination against workers with family responsibilities, in particular with respect to promotion and advancement
avoid informal systems of recruitment that often prejudice women
carefully determine what training, education or past experience is actually needed for a position, as well as whether age limits or mobility requirements are absolutely essential
job application forms should include only those questions relevant to the job
if the candidate is successful, then questions such as marital status and number of children can be asked if linked to particular benefits
neutral job descriptions - if they are gender-specific, stereotypes are enforced. Women may also feel excluded
gender-inclusive language in the collective agreement - if possible, avoid saying "the worker, he shall ...". Gender-inclusive language shows a commitment to equality
equality officer or women's committee to implement objectives and review progress
training in equal opportunities issues for all those involved in recruitment and negotiations
reversal of burden of proof - once a worker can show she was disadvantaged, it is for the employer to prove that it was not on the basis of sex.
See the Discrimination (Employment and Occupation) Convention, 1958 (No. Ill) and Recommendation (No. Ill).
See also booklet 2, working conditions regarding equal pay which is a specific discrimination issue, and booklet 6, Giving women a voice
3. Sexual harassment
A serious, and often misunderstood, form of sex discrimination is sexual harassment. It can also be considered a safety and health issue. It is an issue of dignity and integrity and can- not be ignored.
What is sexual harassment?
Although legal definitions vary from country to country, sexual harass ment is essentially unwanted conduct of a sexual nature. Two types of sexual harassment have been distinguished at the international and national levels:
quid pro quo harassment (also known as "sexual blackmail"2 in Europe or "lay down or lay off" in Asia). Generally, it is a demand by a supervisor, usually a man, directed to a subordinate, usually a woman, for sexual favours in order to keep or obtain certain employment benefits or privileges
hostile environment (also known as abusive, offensive or poisoned working environment). In this situation, the complainant does not need to show the loss or threat of loss of specific employment benefits. It is a more subtle form of harassment and creates a stressful or intimidating environment (for example, inappropriate sexual comments, touching, the display of obscene pictures, etc.).
Some different definitions of sexual harassment
|
European Union |
Unwanted conduct of sexual, or other conduct base on sex affecting the dignity of women and man at work. This can be include unwelcome physical, verbal or non-verbal conduct. |
|
Commonwealth TUC |
Any unwanted sexual attention. That means any unwanted verbal or physical advance or insulting statements. These actions cause the victim discomfort or humiliation and can affect job performance. |
|
Philippines |
Republic Act 7877 known as the "Anti-Sexual
Harassment Act 1995" makes all forms of sexual harassment in the
employment, education or training environment unlawful. The rules and
regulations implementing the Act state that sexual harassment may be
committed in any of the following forms:
|
|
Government of British Columbia, Canada |
Any unwelcome comment or conduct of a sexual nature that may lead to adverse lob-related consequences for the victim of the harassment. Sexual harassment includes, but is not limited to, unwanted physical contact, sexual advances, requests for sexual favors, suggestive or offensive comments or gestures emphasizing sexuality, sexual identity, or sexual orientation. |
Although men may be victims of sexual harassment, the victims are most often women, and they may suffer more because of societal attitudes and their often precarious employment position. Frequently targeted are young women, widowed or divorced women, women of racial minorities and disabled women. Women in low-paying, low-status jobs may also be particularly vulnerable. Many women, particularly those in low-status jobs or with pre carious employment contracts, find it difficult to complain or seek support for fear of jeopardizing their job.
Sexual harassment can result in biased job evaluations, poor personal recommendations, demotion, resignations, dismissal or transfer. It may create an intimidating and thus unproductive working environment. It can also result in stress-related illness.
Sexual harassment may also occur in the union, at union meetings, or between union members. In dealing with sexual harassment, as much is expected of unions as employers. Internal union policies and procedures need to be developed in line with those recommended for employers. The union should commit itself to maintaining a harassment- free environment.
Role of trade unions in combating sexual harassment
1ILO: Promotion of equality of opportunity and treatment for women workers: An ILO manual for Asia and the Pacific (Thailand, 1994), Module 7.
Provisions in collective agreements should include measures to prevent sexual harassment such as
the issuing and publicizing of strong policies against sexual harassment
information and education campaigns drawing attention to the various forms of sexual harass ment and the fact that it will not be tolerated.
The collective agreement should also include measures to deal appropriately with sexual harassment complaints such as:
establishing a complaints procedure that enables and encourages women to take action against their harassers. Procedures should be discreet and sensitive to the emotions of the women. The use of female counselors or complaints officers should be considered. It should be ensured that where the harasser is a supervisor, the complainant can submit a complaint to a higher level of management
all complaints must be taken seriously and dealt with promptly
often the process begins with an informal procedure, moving on to a formal procedure if necessary. The formal procedure may be part of the regular grievance procedure, or a special sexual harassment procedure may be established
union representation should be
permitted at all stages
where harassment is proven, the harasser must be dealt with seriously and the person who was harassed should not be prejudiced -in any way in an attempt to separate the two workers from the same working environment (i.e. transfer the harasser, not the complainant).
Public Services International (PSI) has prepared a guide for women workers and their unions entitled "Stop Sexual Harassment". With respect to clauses in collective agreements, it states:
Negotiate clauses in collective agreements to deal with sexual harassment. As minimum protection, the collective agreement should specify that:
sexual harassment will not be tolerated or condoned and is a disciplinary offence
management is responsible to ensure- the workplace is free from sexual harassment and must -take prompt corrective action -to stop sexual harassment when it occurs
a worker who is being sexually harassed can seek redress and remedy through the grievance procedure or a special procedure for sexual harassment complaints
complaints will be dealt with promptly and in confidentiality
a complainant may request not to have to work with an alleged harasser. If this involves a temporary transfer, it is the harasser, not the complainant,-who should be moved.
A more comprehensive contract clause might provide-for a jointly negotiated sexual harassment policy and complaint procedure. 'Additional management responsibilities, such as publicizing the policy, providing workplace education and training, could also be clearly identified.
PSI: Stop sexual harassment: A Guide for women workers and trade unions, 1995, pp. 33~34.
Specific reference to protection against sexual harassment is made in the indigenous a-nd Tribal Peoples Convention, 1989 (No. 169), Article 20(3)(d). Sexual harassment is also considered to be discrimination -under the Discrimination (Employment and Occupation) Convention 1 958 (No. i11).~ See also Recommendation No.111.
4. Violence at the workplace
Violence at the workplace may occur between co-workers; workers may also be at risk of violence from others such as customers or clients.
Violence between co-workers should be treated as a serious disciplinary (or even criminal) offence and perpetrators disciplined accordingly. Criminal charges should be laid where appropriate.
Violence can be psychological or physical to different degrees. A variety of behavior constitutes violence, including abuse, assault and threats:
Abuse is all behavior which - departs from reasonable conduct and involves the misuse of physical or psychological strength
Assault generally includes any attempt at physical injury or attack including actual physical harm
Threats include the menace of death or the announcement of an intention to harm a person, or damage his or her property.4
Harassment, bullying and mobbing are particular forms of workplace violence. "Bullying" has been defined as "offensive behavior through vindictive, cruel, malicious or humiliating attempts to undermine an individual or groups of employees. These persistently negative attacks on their personal and professional performance are typically unpredictable, irrational and often unfair. " 5 Recently, "mobbing" has been recognized as a form of workplace violence, involving ganging up on an employee and subjecting him or her to psychological harassment. It may consist of subjecting the person to constant criticism or ridicule, or spreading false information about that person. 6
A new clause on dignity at work was included in the 1996 England and Wales printing industry national agreement between the British Industries Federation and the Graphical, Paper and Media Union providing redress for various forms of harassment and intimidation, including bullying:
The parties to this agreement recognize the right of every employee to be treated with respect and dignity. The parties are committed to providing a working environment that offers equal treatment and equal opportunities for all
These guidelines have been drawn up with the objective of preventing sexual and racial harassment and bullying at the workplace and are applicable to all companies and employees at every level
Bullying is persistent, offensive, abusive, intimidating, malicious or insulting behavior, abuse of power, or unfair penal sanctions which makes the recipient feel upset, threatened, humiliated or vulnerable, which undermines their self-confidence and which may cause them to suffer stress. Employers have a general duty to protect employees' health and safety at work
1 Reproduced in IRS Employment Review IRS Employment Trends, No.609, June 1996, p.16.
Some workers are more at risk than others because of the nature of their work (e.g. handling money or valuables) or because they work alone or with people in distress. Some are more likely to be exposed to violence, in particular women, because they are in a vulnerable position, such as workers belonging to ethnic minorities and rural workers.
Preventive strategies are needed, as well as policies and procedures to deal quickly and effectively with violence when it occurs. A risk assessment can be undertaken to identify where there are risks of violence. Policies and procedures for reporting, investigating and dealing with violence need to be drawn up and put into practice. Workers need to be informed of the policies and procedures and the workplace risks. Finally, provision should be made for the evaluation and monitoring of the policies and procedures. All these steps should be taken with the full involvement of the union.
The Canadian Union of Public Employees has prepared model collective agreement provisions on violence at work:
1. Definition of violence - Violence shall be defined as any incident in which an employee is abused, threatened or assaulted during the course of his/her employment. This includes the application of force, threats with or without weapons, severe verbal abuse and persistent sexual and racial harassment.
2. Violence policies and procedures - The Employer agrees to develop explicit policies and procedures to deal with violence. The policy will address the prevention of violence, the management of violent situations and the provision of legal counsel and support to employees - who have faced violence. The policies and procedures shall be part of the Employer's health and safety policy and written copies shall be provided to each employee
3. Measures and procedures to prevent violence to employees - The Employer agrees that, in all cases where employees or the Union identity a risk of violence to staff, the Employer shall establish and maintain measures and procedures to reduce the likelihood of incidents to the lowest possible level. It is understood that the measures and procedures are in addition to and not a replacement for a training programme about dealing with violence.
In developing measures and procedures to prevent violence, priority will be given to options such as job redesign, adequate staffing levels and improving the working environment, before considering the need for personal protection-or alarms.
4. Function of workplace Union-Employer Health and Safety Committee All incidents involving aggression or violence shall be brought to the attention of the Health and Safety-Committee. The Employer agrees that the Health and Safety Committee shall concern itself with all matters relating to violence to staff, including but-not limited to:
(i) developing violence policies:
(ii) developing measures and procedures to prevent violence to staff:
(iii) receiving and reviewing reports-of violent incidents: and
(iv) developing and implementing violence training programmes.
Where no-Union-Employer Health and Safety Committee has been-established, the Employer agrees to consult with the Union.
5. Staffing levels to deal with potential violence - The Employer -agrees that, where there is a risk ot violence~, an adequate level of trained employees must be present. The Employer recognizes that workloads can lead to fatigue and a diminished ability both to identify and to subsequently deal with potentially violent situations ...
CUPE Health and Safety Department: Violence at Work Campaign, 1994.
MSF, UK, (the Manufacturing, Science and Finance Trade Union) prepared a detailed policy on working alone, which has specific provisions on women working alone:
Many women do work alone and they-may face increased risks of violent, including sexual, attack. These risks should be carefully assessed by employers and steps must be taken to minimize the likelihood of attack. These may include special training and/or ~the provision of special equipment. The need for regular contact with those working alone is especially important in such cases.
Where women travel alone in the course of their work, employers should ensure that they have been trained in the precautions to take when using public transporf, when-parking vehicles and when returning to parked vehicles. In some cases the fitting of a car telephone or emergency device may be necessary.
Women should be instructed by their employers that they can use freely their judgement on when to use a taxi/hire a car, etc. and know that the cost will be reimbursed by their employer. women should not be forced to take risks during the course of their employment.1
1MSF Health and Safety Office: Guidance for MSF members end safety representatives.
5. Creating an enabling environment -
To deal with the problems of victimization noted above, there should be an open and enabling environment to allow for dialogue and discussion. Information should be made available about the rights of workers, and women workers in particular, so that all management, colleagues, workers and workers' representatives are familiar with the issues.
One approach is to provide trained confidential advisers comprising at least a trade union woman representative and a woman representative from management who could as a preliminary measure advise and deal with any complaint in an objective and sensitive way and then be able to continue along a negotiated procedure to ensure discretion and confidentiality.
Unions should negotiate for more widely disseminated information on the issues of discrimination, sexual harassment and violence to ensure dignity at the workplace.
Notes
1 See ILO: Special Survey on equality in employment and occupation in respect of Convention No. Ill, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report Ill (Part 4B1, t996, p. 13.
2 See "European Parliament Resolution on Violence Against Women", in official Journal of the European Communities. Vol. 29, No. C. 176, 14 July 1986.
3 See ILO: Special Survey on equality in employment and occupation in respect of Convention No. Ill, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report Ill (Part 4B1. 1596. pp. 15-16.
4 See ILO: Preventing work-related violence (General, publication pending, p. 5
5 ibid, p.7
6 ibid., p.7