5
Information and Indicators of Discrimination

PRESENTATION

In her presentation to the committee, Constance Thomas (2002), Section Chief of the Equality and Employment Branch in the ILO Department of International Labour Standards, cautioned the committee not to reinvent international labor standards. She urged the committee, as well as national governments and international organizations, to use the definitions of core labor standards contained in the relevant ILO conventions. Saying “Let’s use the same definition; let’s create one body of pressure, one voice,” Thomas added that countries that don’t want to comply with international labor standards “love the confusion of lack of definition and clarity.” Referring to Lance Compa’s distinction between negative and positive rights, she said that the ILO emphasizes the positive role of government action to reduce discrimination.

Although each of the previous speakers said his or her topic was the most difficult to analyze, Thomas contended that discrimination was really the most difficult. “The more you know about discrimination, the more difficult it is to identify a few indicators.” She warned the committee that the measurement of human rights is far from being a quantifiable science. For example, she cited a recent survey by Green (2001) showing that the term “indicator” may take on various meanings, from statistics to themes to benchmarks or even quantitative indices. Because this is not an exact science, Thomas asked the committee to be sure to involve subject matter



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5 Information and Indicators of Discrimination PRESENTATION In her presentation to the committee, Constance Thomas (2002), Section Chief of the Equality and Employment Branch in the ILO Department of International Labour Standards, cautioned the committee not to reinvent international labor standards. She urged the committee, as well as national governments and international organizations, to use the definitions of core labor standards contained in the relevant ILO conventions. Saying “Let’s use the same definition; let’s create one body of pressure, one voice,” Thomas added that countries that don’t want to comply with international labor standards “love the confusion of lack of definition and clarity.” Referring to Lance Compa’s distinction between negative and positive rights, she said that the ILO emphasizes the positive role of government action to reduce discrimination. Although each of the previous speakers said his or her topic was the most difficult to analyze, Thomas contended that discrimination was really the most difficult. “The more you know about discrimination, the more difficult it is to identify a few indicators.” She warned the committee that the measurement of human rights is far from being a quantifiable science. For example, she cited a recent survey by Green (2001) showing that the term “indicator” may take on various meanings, from statistics to themes to benchmarks or even quantitative indices. Because this is not an exact science, Thomas asked the committee to be sure to involve subject matter

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experts, with knowledge of discrimination and of individual countries, in the selection of indicators and the interpretation of data on discrimination. Thomas briefly described the ILO system for supervising countries’ implementation of conventions they have ratified (ILO, 1998a). In the case of discrimination, she said, the ILO begins with the assumption that there is discrimination in every nation and sets out to identify the problem and encourage government action to counter it. The ILO recognizes that we will never achieve the goal of eliminating discrimination, but Thomas characterized the ILO’s goal as “a work in progress, with always another step to take.” If a country doesn’t recognize discrimination as a problem, this is a red flag— an indicator of noncompliance. In contrast, the ILO views the following as indicators of an important first step towards compliance: the country recognizes the problem (in reports to the ILO); the country does research to identify where discrimination exists and how it is manifested; and the country allows an NGO to study the problem. Addressing the question “How can we quantify discrimination?” Thomas responded that the ILO focuses on government action. What is the government doing? What is the trend in government action and the resulting increase or decrease in discrimination? She views ratifications of ILO conventions as weak measures. For example, almost all countries (including Saudi Arabia but not the United States) have ratified Convention 111 on Discrimination in Employment and Occupation (ILO, 1958). For purposes of enforcement of international labor standards, ratification of Convention 111 (C. 111) and/or Convention 100 (Equal Remuneration, ILO, 1951) starts a dialogue between a nation and the ILO. For example, now that Saudi Arabia has ratified C. 111, the government provides reports on discrimination, and national and international unions comment on these reports. The government feels pressure to act and provides more information to the ILO; this results in more extensive ILO comments and questions. Just three weeks before this workshop was held in July 2002, Saudi Arabia invited an ILO mission to look at discrimination. This invitation is the result of a 20-year dialogue between the government and the ILO. In supervising this international labor standard, the ILO relies on official sources, including reports from governments, unions, employers, and the UN. The quality of reports from governments varies tremendously,

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depending in part on whether a nation expects scrutiny from the ILO. Some countries provide surprisingly frank reports because they realize that more disclosure of problems will get them more technical assistance from the ILO. In general, country reports have increasingly recognized discrimination problems. In some countries, Thomas said, free and independent trade unions provide a check on the accuracy of government reports to the ILO on discrimination, but in a lot of countries there are no comments from unions. In these cases, the ILO uses secondary sources to verify and expand on country reports. The ILO would never rely on a single NGO study to determine whether a country is in violation of the antidiscrimination standard, but such a study could be used to direct more pointed questions to the government or to search for more information. Pointed questions send signals to the unions and NGOs, and they start investigating, so that the ILO soon has more information on the subject. According to Thomas, the ILO also finds very useful information from the UN. The UN’s 1979 CEDAW incorporates several ILO conventions on discrimination and equal pay. Governments report regularly to the UN on their implementation of this convention, and these reports are “much more open and forthright” than the same governments’ reports to the ILO. This is because knowledgeable experts on those countries write the reports to the UN. The ILO uses both types of report. For example, Thomas noted that the report Greece sent to the ILO indicated that the nation had no problem with discrimination, but the ILO replied that Greece’s report to the CEDAW acknowledged eight problems of discrimination against women. Thomas said that another source that “could be very interesting for the committee” are shadow reports to CEDAW, released by the International Women’s Rights Action Watch at the University of Minnesota’s Hubert Humphrey Institute of Public Affairs (various dates). This group compiles information from NGOs, trade unions, and other reliable nongovernmental sources into a shadow report released at the same time that the country provides its official report to CEDAW. Taken together, these sources—the shadow report, the official report, and the examination by CEDAW—yield “very good information,” according to Thomas. She works closely with the committee and supplies questions that are posed to country representatives. She has found that countries are more responsive to the UN when all agencies, including the ILO, CEDAW, and the Committee on Human Rights, send consistent messages. The different UN organizations convey

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the same message, but through different ministries within the government, and this has an impact. Beginning with government sources allows a dialogue to start, because the ILO creates a relationship with the government. As part of this dialogue, the ILO encourages nations to build institutional capacity, including statistical capabilities and the ability to conduct studies. Thomas noted that the ILO convention on discrimination (C 111) is very broad: It identifies seven different grounds—race, religion, ethnicity, political opinion, color, social origin, and gender. Although some data on gender-based discrimination are available, the greatest challenge for the ILO is obtaining data on the other types of discrimination. For example, reports from the Asia Development Bank and the Inter-American Development Bank refer only to gender-based discrimination and not to the other types of discrimination. The UN 2002 World Conference against Racism, held in Durban, South Africa, revealed that many nations do not gather employment statistics disaggregated on the basis of race or ethnicity (available at <http://www.unhchr.ch/html/racism/> [August 2002]). Because of the history of persecution of racial minorities during World War II, many European nations are afraid to gather such information. France is an extreme example: The official definition is that there are no minorities in France! About 25 developed nations have the capacity to produce employment data disaggregated by race but choose not to. Thomas said it is important to consider gender in the application of all of the four core labor standards, not only the standard on elimination of discrimination. On the subject of quantitative indicators, she said that the UN Development Program’s Human Development Index was unrealistic, but it became more accurate with the overlay of the gender index. Thomas cautioned against trying to do a comparative ranking of countries. She suggested using the following key indicators to measure progress toward the fundamental right of nondiscrimination at work. The existence of a national law prohibiting discrimination on the grounds of race, sex, political opinion, national extraction (ethnicity), color, religion, and social origin in employment and occupation (a constitutional right to equal rights before the law is relevant but neither the same nor sufficient by itself); supporting laws such as maternity protection, recognition of part-time work, the right to education, etc., are also considered to be important. Existence of any discriminatory laws or removal of such laws.

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Labor force statistics, including the percentage of women, men, and specified groups in the labor force and their labor force participation rates. These statistics should include indicators of unemployment or employment growth among vulnerable population groups (racial or religious minorities, females, etc.). Statistics on educational attainment among men, women, and protected groups, including their rates of participation in education and vocational training would be valuable. Employment statistics on the extent to which these groups are employed in different occupations, at different levels, including at the administrative/managerial level would be useful. Statistics should cover public as well as private employment. Job segregation (concentration of women or minorities in a few types of jobs or industry sectors). Most experts consider a concentration of 70 percent to indicate discrimination. Information on the types of job classifications occupied by women or minorities, including their representation in decision-making positions. Remuneration levels (using a wide definition of remuneration and equal value standard where possible). Self-employment: size and type of businesses owned by women or minorities. Productive assets: land, information, technology and financial resources (rights to ownership, access to credit, etc.). Explicit national policy on equality in general or addressing equality for a specific group or gender. Positive/affirmative action programs (these should be aimed at achieving equality and should not be considered to be discriminatory). A national mechanism or agency to promote equality. To be effective, this mechanism should be independent of political influence, composed of knowledgeable individuals, and have a clear mandate. Labor inspection to assess discrimination and equality issues (number of grievances, complaints, resolutions of complaints, training in discrimination areas). Complaints mechanism to handle and remedy discrimination complaints (resources, use, number of complaints on employment discrimination and decisions, training of judges in discrimination areas). Promotion of equality through industrial relations and by and within workers’ and employers’ organizations. This may include agreements in union contracts, action plans, policies, guidance services on issues of discrimination, workers’ education, and/or management training.

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Sensitivity training and/or public education to reduce discrimination and promote equality. Relevant support measures (i.e., child care or family care services for workers, safe public transportation for poor communities, outreach programs). Requests for and implementation of international technical assistance projects to promote equal opportunity and treatment in employment through legislative drafting assistance, law review, employment creation for minority groups and/or women, training in nondiscrimination and equal rights, etc. Reported or documented discriminatory practices such as negative pregnancy testing. Thomas said that these indicators were “a pretty solid list” but should be “contextualized.” She approved of Sandra Polaski’s proposal (discussed above) because it would focus on progress within individual countries, rather than comparisons across countries. This is the approach the ILO uses, posing such questions as “Are you moving forward? Are you creating a little bit better enforcement mechanism? Have you amended your law? Have you increased the percentage of women in employment?” Such questions put quantitative measures into the country context. A country with a number that is low in absolute terms may be moving in the right direction compared with previous years. In Thomas’s view, the four factors suggested by Polaski1 as a basis for assessing compliance with freedom of association would also make a good basis for assessing compliance with the antidiscrimination convention. Finally, Thomas noted that the ILO’s files are very extensive and publicly available. The ILO lacks the resources to disseminate this information, but researchers are welcome to use it. Large volumes of information on discrimination are available for most ILO member nations. In addition, the ILO’s CEACR produces written observations on the country reports and also makes direct requests for more information. These direct requests provide very good information on the status of discrimination in particular countries. 1   Polaski’s four factors are (1) analysis of labor laws and any evaluations of those laws; (2) evaluation of the capacity and performance in actual implementation of the labor laws; (3) outcomes measures; and (4) ratification of ILO conventions.

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DISCUSSION Bama Athreya, Deputy Director of the ILRF, applauded Thomas’s “excellent points” but disagreed with her on the subject of defining international labor standards on discrimination. Athreya views the current ILO standard as a floor that would not exist without the work of advocacy groups. Although agreement on the ILO standard represents “enormous progress, it is important not to rest on this standard,” she said. Athreya argued for expanding the existing ILO definition of discrimination to encompass additional government and employer practices that discriminate substantially against groups of workers. She gave the example of China’s system of household registrations. As this system has been relaxed in recent years, many rural people have moved to cities to seek work, but they face enormous discrimination problems. Athreya said some of these rural people can only find jobs that are forms of bonded labor, they lack access to housing, they may be detained by police if they lose their jobs, their children may not be allowed to attend public schools, and they lack access to social services. Athreya said that the problems faced by these rural people in China “fall between the cracks of the ILO definition.” This is just one of several examples the ILRF has encountered as it works with women around the world. Another example involves pregnancy testing in Mexican factories. In a complaint under the NAFTA North American Agreement on Labor Cooperation, the ILRF raised the issue of pregnancy testing as a form of discrimination against women, breaking new ground. She said that sexual harassment in the workplace is not specifically encoded as a form of discrimination within the ILO definition, and sexual harassment is mentioned but not clearly defined in the UN’s CEDAW. Athreya supported Thomas’s approach to measuring compliance with the elimination of discrimination convention, particularly beginning with government admission of the problem as the first step toward “winning normative change.” She also agreed with Thomas on the importance of comparing government reports with reports from other sources, such as academics or advocacy groups. Such comparisons and scrutiny can encourage governments to become even more open in their reporting on discrimination. Advocacy groups can help gather information in sensitive areas such as sexual harassment and violence against women. It is unlikely that women will reveal such problems in surveys by government officials. Athreya echoed a point made by Kevin Bales in his presentation on

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forced labor—that researchers are just beginning to develop systematic survey data on forced labor, relying in the meantime on case studies and ethnographic data. She believes that the situation is the same when it comes to discrimination, and that there is no reason to wait for systematic surveys. She suggested extrapolating from very good case studies. For example, case studies of harassment in the workplace can provide “a very rich kind of context of the sorts of cultural issues faced by women in that particular field of employment or more broadly in that country.” Finally, Athreya posed a question to Thomas: Does the ILO, when assessing a country’s progress (ratification of conventions, adoption of laws, enforcement of laws, public education campaigns), also look for evidence of backlash? Responding to Athreya’s critique, Constance Thomas said that in two of the three examples, the ILO had found that discrimination was present. First, 12 years ago, the ILO Committee of Experts looked at a case of compulsory pregnancy testing in Brazil and found the practice to be in violation of ILO Convention 111. The ILO helped Brazil set up a new compliance system to eliminate this problem, and the system has become a model for other developing nations. Second, in China, the ILO considers the problems faced by people from rural areas in China to be discrimination based on social origin, “almost like a new form of a caste system.” On the subject of backlash, the ILO tries to learn about it through informal sources because governments will never openly report on backlash, and unions are also unlikely to talk about it. Backlash is apparent when governments change programs from “affirmative action” to “equality,” or when compulsory reporting systems become voluntary. The ILO tries to give appropriate credit for progress, but it also tries to ensure that progress is maintained and backlash is stopped. Responding to a question about Taiwan, Athreya noted that one of the most important factors affecting gender equality in Taiwan was a transition in government. The country has undergone “a historic transformation” and is now more genuinely a democracy. The party in power has strong ties to independent labor unions and human rights groups, and the new government has appointed a prominent women’s rights activist as labor minister. Thomas noted that the ILO does not scrutinize the country reports it receives as the follow-up to the 1998 Declaration of Fundamental Principles and Rights at Work but simply accepts them. This approach differs greatly from that taken by Thomas and others in the supervisory arm of the ILO. She would never accept such reports at face value. Sandra Polaski noted that although this is the case with the country reports, the ILO is also

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putting out a series of “global reports.” In these reports, the ILO staff does evaluate and verify information from the country reports and a variety of other sources. She thinks these reports have “very high quality” and “a long shelf life.” “If I were to make a list of the top five sources,” Polaski said, the global reports “would be in the list of [the] top five.”