Discrimination

Forms of discrimination
Old forms
New forms
Solomon Engda, Judge trainer at judicial
training center, ethiopia,e mail
solomonengda@mail.com
 old forms of discrimination
Old forms persist, often under more insidious
form
The old forms include
 Sex
 Race
 Religion
 Social origin
 discrimination

 Political opinion
 etc
 New forms
• HIV/AIDS status
 Eg: organizations such as trade unions or
professional associations deny membership
on the 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 such
activities 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 unjustified
dismissals 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 becoming
disadvantages
 Some enterprises:-
 May not recruit smokers
 Dismiss them even when they smoke out side
work 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 to
equality 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 to
discriminate against female workers ,in
matters of remuneration, on the ground---
• (F) prohibits discrimination b/n workers on
the basis 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 form
trade 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.”
Art .26(2)The following shall not be deemed to
constitute legitimate grounds for the
termination of a contract of employment:
(d) his nationality, sex, religion, political outlook,
martial status, race, color,
familyresponsibility, pregnancy, lineage line &
descendents from an .
• 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 discrimination
and 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 constituion simply
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 and
treatment 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 that
everybody should be brought to an equal level
to access work opportunities
• With the focus on “effect”, it is irrelevant
whether the discrimination was intentional
or not.
• By emphasizing the effect on equality of
opportunity and treatment, the Convention
aims 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 they
belong 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 into
account the cultural differences between
indigenous and non-indigenous groups( e. g.
different languages, different ways to relate to
the land, different cultural traditions, etc).
• This 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.
• The 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 be
permitted 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-case
basis, 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 measure’s
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 to
avoid discriminatory outcomes.
• The concept of indirect discrimination can
thus serve as a tool to challenge views ,
perceptions and approaches concerning
social and economic development held by
dominant segments of society that so far have
failed to recognize the rights and cultures of
indigenous peoples.
 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 groups
concerned, 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,
• Convention No. 111 allows ratifying States to
take special measures to protect the rights,
cultures and lifestyles of indigenous peoples.
 What are the State’s 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 be
corrected.
• 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. After
the 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.
• The final step in such an examination is to
assess whether the distinction, exclusion or
preference that negatively affects indigenous
peoples, is justified by an objective and
legitimate reason.
 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, administrative
regulation, 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 person’s
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.
 4. Is there a valid and legitimate
justification?
• Is the differential treatment justified because
it is based on an inherent requirement of a
particular job (e.g. a non-indigenous job
applicant has been preferred over an
indigenous applicant due to a difference in
qualifications that are actually needed for the
job)?
• 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. “
 Equal remuneration for equal
value of work
2. This principle may be applied by means of--
(a) national laws or regulations;
(b) legally established or recognized machinery
for wage determination;
(c) collective agreements between employers
and workers; or
(d) a combination of these various means
 Article 3(3) of conv. 100

• Differential rates between workers which

correspond, without regard to sex, to
differences, as determined by such objective
appraisal, in the work to be performed shall
not be considered as being contrary to the
principle of equal remuneration for men and
women workers for work of equal value
 SAINT VINCENT AND THE GRENADINES

The Equal Pay Act

ACT NO. 3 OF 1994

• Article 2. (1)  provides that In this Act, unless
the context otherwise requires –
• “equal pay” means a rate or scale of
remuneration for work done in which there is
no element of differentiation between male
and female employees based on the sex of the
employees;
“equal work” means work performed for one
employer by male and female employees in
which-
• (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;
• (c)    similar or substantially similar
qualifications, degrees of skill, effort and
responsibility are required; and
(d)    the difference (if any) between the duties
of male and female employees are not of
practical importance in relation to terms and
conditions of employment or do not occur
frequently;
 Instances where we can use ILS
• To answer all these as we may refer to
• Convention 111 on the issue of discrimination
• Can be used as per art 9(4) and 13(2) of the
FDRE constitution
• Convention 100 on the matters of equality of
works as per art 9(4) and 13(2) of the FDRE
constitution
 Common forms of
discrimination
• 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 women’s 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 in
construction, 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 to
family 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
 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,
women’s rights, etc.
 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
 Methods of wage
determination
• 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
 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
 At the source of this discrimination:
Occupational segregation by gender

• General definition of occupational segregation

by gender
• Vertical segregation: female teacher//school
principal; female bank teller// department head
• Horizontal segregation: nurse, teacher,
seamstress // computer analyst, engineer,
mechanic
• Micro-segregation: pediatrist, family doctor//
neurosurgeon, cardiologist