7
Discrimination

To discriminate, according to Webster’s New Collegiate Dictionary, is “to mark or perceive the distinguishing or peculiar features of.” The policy issue addressed here involves identifying the circumstances under which it is unacceptable for governments, employers, or unions to distinguish among various groups when making decisions on the terms or conditions of employment. This entails identifying both the grounds on which distinctions among workers are to be prohibited and the range of activities in which such distinctions shall not be permitted.

The International Labour Organization (ILO) approaches the problem of discrimination in employment and occupation differently from the other core standards because it starts from the presumption that no country is in compliance. This is both because discrimination against various groups is rooted in politics and culture and therefore takes time to change, and because definitions of what constitutes unacceptable discrimination are constantly evolving. Even more than the other core labor standards examined by the committee, it is crucial, therefore, to focus on the direction of change and whether countries are taking appropriate, proactive steps to address discrimination.

This chapter begins by reviewing the issues involved in defining discrimination in employment and the approaches that the various international conventions in this area have taken. The second section then discusses the pluses and minuses of the committee’s proposed indicators to assess compliance with international nondiscrimination norms. The third



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Monitoring International Labor Standards: Techniques and Sources of Information 7 Discrimination To discriminate, according to Webster’s New Collegiate Dictionary, is “to mark or perceive the distinguishing or peculiar features of.” The policy issue addressed here involves identifying the circumstances under which it is unacceptable for governments, employers, or unions to distinguish among various groups when making decisions on the terms or conditions of employment. This entails identifying both the grounds on which distinctions among workers are to be prohibited and the range of activities in which such distinctions shall not be permitted. The International Labour Organization (ILO) approaches the problem of discrimination in employment and occupation differently from the other core standards because it starts from the presumption that no country is in compliance. This is both because discrimination against various groups is rooted in politics and culture and therefore takes time to change, and because definitions of what constitutes unacceptable discrimination are constantly evolving. Even more than the other core labor standards examined by the committee, it is crucial, therefore, to focus on the direction of change and whether countries are taking appropriate, proactive steps to address discrimination. This chapter begins by reviewing the issues involved in defining discrimination in employment and the approaches that the various international conventions in this area have taken. The second section then discusses the pluses and minuses of the committee’s proposed indicators to assess compliance with international nondiscrimination norms. The third

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Monitoring International Labor Standards: Techniques and Sources of Information section discusses the most useful sources of information on discrimination issues. The final section presents the committees conclusions and recommendations. DEFINITIONS From its founding in 1919, the ILO recognized the importance of protection for vulnerable groups, such as women, children, and migrants, and the need to address discrimination. The Philadelphia Declaration of 1944, in which the ILO reaffirmed the importance of its mission and principles in an age of rebuilding and decolonization after World War II, included a commitment to equal opportunity in work and education and vocational training for all people, “irrespective of race, creed, or sex.” One of the first acts by the new United Nations in 1948 was approval of the Universal Declaration on Human Rights, which states that, “Everyone is entitled to all of the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”1 In addition to basic civil and political rights, the Universal Declaration on Human Rights also includes a prohibition of forced labor and promotes freedom of association, the right to organize, and other labor rights. In subsequent years, both organizations adopted more focused and detailed instruments to promote nondiscrimination, in general and in the workplace. The ILO adopted two conventions that are now listed among the eight core conventions, Convention No. 100 (1951) on equal remuneration and Convention No. 111 (1958) on nondiscrimination in employment and occupation. Other noncore conventions that address the special needs of vulnerable groups are discussed below.2 ILO Convention No. 100 addresses the need for “equal remuneration for men and women workers for work of equal value,” an issue originally 1   Written at a time of emerging decolonization, the declaration also clarified that the rights apply in all territories, regardless of “political, jurisdictional or international status; whether [they] be independent, trust, non-self-governing or under any other limitation of sovereignty.” 2   The key U.N. instruments are the Convention on the Elimination of Racial Discrimination (1965) and the Convention on the Elimination of Discrimination Against Women (1979).

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Monitoring International Labor Standards: Techniques and Sources of Information raised in the preamble to its constitution. Convention No. 111 is broader, both in terms of the grounds for and applications of discrimination that it prohibits. The later convention includes “terms and conditions of employment,” including wages and benefits, and it bars discrimination, defined as “any distinction, exclusion, or preference … which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.” There are seven prohibited grounds for discrimination: race, color, sex, religion, political opinion, national extraction, and social origin. The interpretation of each of these grounds, as well as the other terms of the convention, is discussed in detail in the 1996 ILO Committee of Experts General Survey on Equality in Employment and Occupation (available in the ILOLEX database).3 The 2003 global report under the Declaration on Fundamental Principles and Rights at Work, Time for Equality at Work, also discusses the definition of discrimination in employment and the various forms that it can take. The report emphasizes that the ILO definition includes direct as well as indirect sources of discrimination and that intent to discriminate is not necessary to find that a problem exists (International Labour Organization, 2003). Convention No. 111 notes that distinctions among groups based on the “inherent requirements” of a particular job are acceptable, as are “measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the state,” as long as the person can appeal to a “competent body.” The legitimate scope of these exceptions is one of the more frequent sources of debates, particularly as they relate to political opinion or national extraction as grounds for discrimination in public employment. During the Cold War, for example, party loyalty was often a condition of public employment in communist or socialist single-party states. In West Germany, Communist Party members were barred 3   See http://www.ilo.org/ilolex/english/iloquery.htm [October 16, 2003].

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Monitoring International Labor Standards: Techniques and Sources of Information from some government jobs on the grounds of national security, leading to an Article 26 case in the 1980s (see Chapter 2 for a discussion of ILO Article 26 procedures). Similar issues, as well as allegations of discrimination against Hungarian and other minorities, led to another Article 26 complaint against Romania, also in the 1980s. Complaints about unjustified discrimination have also arisen frequently in conflict situations where workers suspected of sympathizing with the “wrong side” were fired, for example, Serbs and Bosnians in Croatia, Eritreans in Ethiopia, and Senegalese in Mauritania in various conflicts in the 1990s. In general surveys on Convention No. 111 in 1988 and 1996, however, the Committee of Experts noted that the security exception applies only to individual activities and that discriminatory measures taken “by reason of membership of a particular group or community … could not be other than discriminatory.” The 1996 survey also notes that conditions related to political opinion must be linked to the inherent qualities of the job, such as high-level government jobs that involve policy implementation. The ILO over the years has also clarified that national extraction is generally understood to refer to legal citizens of a country who have family roots in another country or who may be naturalized citizens, but that it does not necessarily refer to those of a different nationality. There are protections for migrant workers but nationality can be used as a legitimate criterion in some jobs, such as publicsector jobs. In general, the approach of the ILO is to emphasize that any distinctions must be closely linked to the requirements of the job or based on documented individual activities and not on membership in a particular group. The convention also specifies that “special measures of protection or assistance” provided in other ILO conventions or recommendations, for example, maternity protections, shall not be regarded as discriminatory. Nor are other “special measures” to overcome discrimination, including affirmative action programs, necessarily ruled out as discriminatory. Chapter 3 of the 1996 Committee of Experts General Survey addresses the conditions under which such special measures may be appropriate and emphasizes that they should be designed “to restore a balance and are or should be part of a broader effort to eliminate all inequalities.”4 Among the safe- 4   See http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=32&chapter=25&query=%28C111%29+%40ref&highlight=on&querytype=bool&context=0 [October 16, 2003].

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Monitoring International Labor Standards: Techniques and Sources of Information guards listed are requirements that any such measures should be the result of consultation with worker and employer representatives, “adapted to national circumstances,” reexamined periodically, and eliminated as soon as they are no longer necessary. But beyond this, ILO guidance is rather vague and it does not rule out, for example, explicit quotas, which are anathema in the United States but accepted in other places, such as India and Malaysia (International Labour Organization, 2003, p. 64). With respect to the activities where discrimination may occur, the convention bars distinctions in hiring, firing, remuneration, or other conditions of work. It also explicitly prohibits discrimination in access to vocational training. ILO experts who supervise application of the convention also look for differences in educational opportunities more broadly because of the effects on employability. Thomas (2002) lists the following areas as being covered by Convention No. 111: access to vocational guidance and training and placement services; access to self-employment, wage and salaried employment, and public service; access to workers and employers organizations; promotion; security of tenure; equal remuneration; inclusion in collective negotiations; social security; and other conditions of work, including safety and health, hours, and holidays. Other international legal instruments reinforce the nondiscrimination principle and, in some cases, add more specific grounds that are unacceptable. The 1965 U.N. Convention on the Elimination of Racial Discrimination includes a provision guaranteeing equal rights to work, “just and favorable conditions of work,” and “equal pay for equal work,” though the latter is narrower than the ILO standard for equal remuneration for “work of equal value.” The Universal Declaration on Human Rights adds language and property, birth, or status to the list, but these could be encompassed in one or another of the grounds specified in Convention No. 111 (national extraction or social origin). For example, in response to concerns that internal migrant workers in China are not covered by Convention

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Monitoring International Labor Standards: Techniques and Sources of Information 111, an ILO official noted that they are considered to be covered by the prohibition on discrimination on the basis of social origin.5 In 1979 the United Nations adopted the Convention on the Elimination of Discrimination Against Women, which according to at least one observer, “contains the fullest description of all these instruments of the measures to be taken to prevent discrimination in employment and occupation.”6 In addition to enumerating the equal rights that women should enjoy in the workplace, this convention also emphasizes the steps that government should take to “prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work” (emphasis added). These measures include: protection from dismissal on the grounds of pregnancy, maternity leave, or marital status, as well as special protections for women during pregnancy in types of work proved to be harmful to them; maternity leave with pay or with comparable social benefits without loss of former employment, seniority, or social allowances; and provision of the necessary supporting social services, in particular through promoting the establishment and development of a network of child-care facilities. However, in many countries, legal provisions that mandate maternity leave or other protections lead employers to institute pregnancy testing or conditions related to marital status when hiring young women. In addition to women and racial minorities, two other particularly vulnerable groups have been singled out for special attention, migrant workers and indigenous peoples. ILO Conventions No. 97 (1949) and No. 143 (Supplementary Provisions, 1975) address discrimination against migrant workers who are in a country legally with respect to employment, remuneration, trade union membership, social security, payroll taxes, and due 5   Comment by Constance Thomas, section chief of the Equality and Employment Branch in the ILO Department of International Labour Standards, at a committee workshop; National Research Council (2003) summarizes the discussion. 6   Thomas (2002) also discusses other international legal instruments that address discrimination in employment, including ILO conventions on other issues that include nondiscrimination provisions, the International Covenant on Economic, Social and Cultural Rights, and regional instruments in Europe, the Americas, and Africa.

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Monitoring International Labor Standards: Techniques and Sources of Information process. The United Nations also adopted a convention in 1990 on the protection of migrant workers and their families; it did not come into force until 2003 when East Timor became the 20th member country to ratify. In 1957, the ILO was the first organization to codify the rights of indigenous peoples in international law with Convention No. 107, rights later clarified in 1989 in Convention No. 169. These conventions provide protections similar to those provided for migrant workers to “indigenous and tribal populations.” In addition, however, they add “medical and social assistance, occupational safety and health, all social security benefits and any other occupationally related benefits, and housing …”. A final definitional issue regards potential new grounds for discrimination. Convention No. 111 leaves it to national governments to determine distinctions or preferences on grounds other than those listed above that may require attention. If sufficient consensus emerges, additional grounds that might be added to ILO jurisdiction in the future include discrimination based on age, sexual orientation, disability, and other health conditions, most notably HIV/AIDS. The recent global report on discrimination, under the Declaration on Fundamental Principles and Rights at Work, discusses possible discrimination problems associated with age, disability, and HIV/AIDS (International Labour Organization, 2003). In addition, at a U.N. special session in June 2001, the ILO unveiled a new “ILO Code of Practice on HIV/AIDS in the World of Work,” which is aimed at supporting efforts “to prevent the spread of HIV, manage its impact, provide care and support for those suffering from its effects and staunch stigma and discrimination which arise from it” (emphasis added) (International Labour Organization, 2001, pp. 4-6). The anti-discrimination provisions are not just hortatory but also discourage HIV/AIDS screening as a general condition of employment, the solicitation or disclosure of private information relating to HIV, termination as a general response to HIV-positive status, or discrimination against HIV-positive workers or their dependents in the provision of safety net programs. The U.N. General Assembly adopted a “Declaration of Commitment on HIV/AIDS” at the same special session that, among other things, calls on governments to “develop a national legal and policy framework that protects in the workplace the rights and dignity” of those living with or at the greatest risk of contracting the disease (International Labour Organization, 2001, pp. 4-6).

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Monitoring International Labor Standards: Techniques and Sources of Information ASSESSING COMPLIANCE As with the other core labor standards, government policies to eliminate discrimination has negative as well as positive aspects, with the latter usually being more important than the former. The government must not only eliminate all laws or regulations that explicitly or implicitly discriminate among groups, but it must also take proactive steps to ensure that private actors (employers and unions) do not discriminate and that vulnerable groups are given sufficient support to ensure they can take advantage of the opportunities theoretically open to them. As elsewhere in this volume, indicators of compliance with nondiscrimination standards are divided into three areas: legal framework; government performance; and overall outcomes. The first step is to examine whether there are laws that either explicitly discriminate based on one of the prohibited grounds or could result in de facto discrimination and whether laws provide positive protections to the right of nondiscrimination. Thomas (2002) argues that broad constitutional provisions are often not enough and that statutes explicitly prohibiting discrimination in employment are usually needed. The next step is to examine how vigorously laws are enforced and whether policies to promote nondiscrimination are being effectively implemented. Failures in this area, particularly among developing countries, will often be sins of omission rather than of commission, arising more from a lack of financial and other resources than from intent. Nevertheless, it is useful to examine the level of human and financial resources allocated to discrimination in employment issues and to assess whether a government is doing the best it can with the resources available. Failure to deal with discrimination, however, often results from the unwillingness of governments to confront powerful groups or deep-seated cultural traditions and to take steps to level the playing field for vulnerable groups. Thus, in addition to having laws, indicators of whether the government is serious in combating discrimination include the implementation of educational campaigns to ensure that people understand their rights and to ensure that employers, unions, and others respect them. Affirmative action programs may be appropriate in cases of long-standing or entrenched discrimination. Effective grievance procedures are also crucial because nondiscrimination is often subtle and difficult for outside observers to identify. To make such procedures effective, however, certain other policies also have to be in

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Monitoring International Labor Standards: Techniques and Sources of Information place. First, since the groups most vulnerable to discrimination are often relatively poorer and less educated than other groups, supportive services, such as subsidized or free legal advice, may be necessary. Second, the law has to protect complainants from retaliation. Since effective grievance procedures are unlikely to exist in countries where discrimination problems are the most severe, some international agencies have either adopted or are considering complaints procedures that allow individuals or groups to bypass their national governments and appeal directly at the international level. Under Article 24 of the ILO constitution, any employer or union group that becomes aware of problems can file a complaint regarding violations of the discrimination conventions against any government that has ratified them. The U.N.’s Convention on the Elimination of Racial Discrimination provides for complaints by either individuals or groups to be submitted directly to the committee overseeing the convention. In 1999, the Convention on the Elimination of Discrimination Against Women added an optional protocol creating a similar procedure, but fewer than 50 countries had accepted it as of the end of 2002. Though they are little known or used today, these mechanisms could eventually become an important source of evidence on compliance. Finally, when available, quantitative indicators can be helpful in assessing how well antidiscrimination policies are working and in identifying areas in need of particular attention. Differences in literacy rates or school enrollment rates for different groups are likely to be a sign of problems because this will affect the opportunities available when members of the disadvantaged group enter the labor force. As with the other core labor rights, however, caution has to be used in interpreting some of the quantitative indicators. High numbers of complaints under grievance procedures or prosecutions for discriminatory practices, for example, can indicate a system that works well rather than one that works poorly. Small numbers of complaints could simply mean that citizens view the system as costly, ineffective, or too risky to use. Labor market data must also be interpreted with caution. Lower labor force participation rates for women, for example, could reflect voluntary decisions by families to have mothers withdraw from the (paid) labor force while children are young; the same might be the case if more women than men are in part-time work because of family choices. In such cases, however, it is also necessary to look at whether there are such national policies as parental leave and adequate child care so that outcomes reflect the family’s true preferences and not external constraints. Relative wages are an obvious

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Monitoring International Labor Standards: Techniques and Sources of Information indicator of potential discrimination. But, again, it is difficult to control for everything that affects wages, and family constraints or preferences may result in women’s wages being on average lower than men’s for legitimate reasons. Nevertheless, the larger the wage gap, the more likely that it is an indicator of a problem. Other indicators are also relatively more likely to indicate discrimination problems that need to be addressed. For example, disproportionately small numbers of women or ethnic, racial, religious, or other minorities in certain types of jobs or in certain sectors may be an indicator of problems. Low numbers of women or other minorities in management positions may reflect not intentional discrimination by employers but could indicate a failure by society to provide equal opportunities to some groups, such as an adequate basic education. If public schools do not exist or are of low quality in poor neighborhoods that are populated disproportionately by ethnic or racial minorities, children from those families will find it far more difficult than other children to get, retain, and move up the ladder in jobs with management potential. Although individual indicators are the most important sources for assessing compliance with nondiscrimination standards, the U.N. Development Programme’s “gender development index,” added to the Human Development Report in 1995, may also be useful to flag cases of particular concern and, as the series grows longer, to assess trends. The index includes several indicators of inequality: differences in life expectancy (adjusted for the fact that women, on average, have a longer life expectancy than men); differences in adult literacy and combined school enrollment (primary, secondary, and tertiary); and a measure of women’s earned income relative to men’s (U.N. Development Programme, 1995). Some of the individual components of this index are included in the list of the committee’s indicators. In addition, the difference between a country’s ranking on the human development index, which aims to capture quality of life aspects of development not reflected in national income, and its ranking on the gender development index might be useful in identifying countries with potential problems with gender-based discrimination. Differences between the per capita income and gender development index rankings can also be used to identify both those countries that are doing better than their income level would suggest and those that are doing worse. Such comparisons should only be used as a starting point for further research, however, and should not be taken as definitive. These indices are crude and, by necessity, simplify very complex relationships. As noted in the Human Development Report, they also miss much that is important

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Monitoring International Labor Standards: Techniques and Sources of Information because they “can capture only what is measurable” and, even then, data gaps mean that heroic assumptions have to be made to fill in the blanks (U.N. Development Programme, 1995, p. 72). Legal Framework Ratification of international conventions does not necessarily mean that the legal framework is consistent with international standards. Reporting requirements associated with ratification, however, mean that useful information may be available from ILO and U.N. sources. In addition, a new ratification could signal a commitment to improve conditions. When looking at a country’s laws, if they do not cover all the prohibited grounds, one needs to see which are excluded and why. If laws in these areas do not exist, is it because the custom is to treat all groups equally? Or is it because the political will to tackle discrimination is lacking? It is also important to determine whether there are penalties for noncompliance and assess whether those penalties are sufficient to deter discrimination. The committee proposes 10 indicators of the legal framework on eliminating discrimination, 4 on ratification of international conventions, and 6 on laws: A-1. ratification of ILO Convention No. 100 on equal remuneration; A-2. ratification of ILO Convention No. 111 on discrimination (employment and occupation); A-3. ratification of the U.N. International Convention on the Elimination of All Forms of Racial Discrimination; A-4. ratification of the U.N. Convention on the Elimination of All Forms of Discrimination Against Women; A-5. whether there are laws that prohibit discrimination in employment on the grounds of race, color, sex (including sexual harassment), religion, political opinion, national extraction, and social origin; A-6. whether there are laws that cover additional grounds on which employment discrimination is prohibited, for example disability or sexual orientation; A-7. whether there are laws that also protect migrant workers from discrimination in employment; A-8. whether there are laws that prohibit discrimination in access to and ownership of assets, including property ownership, inheritance, and access to other assets or credit; A-9. whether there are laws that make nondiscrimination in employ-

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Monitoring International Labor Standards: Techniques and Sources of Information certain preferences or public assistance on worker rights (and predating the ILO Declaration on fundamental rights), lists “acceptable conditions of work,” instead of nondiscrimination, as the fourth core standard. Fortunately, the Department of State’s annual Country Reports on Human Rights Practices does have a section on discrimination based on “race, sex, religion, disability, language, and social status,” but since it is separate from the discussion of worker rights, the treatment of employment issues is uneven. This section is divided into four parts: the ILO; the United Nations; other official sources, including the U.S. Department of State reports; and unofficial sources. The International Labour Organization As detailed in Chapter 2, the ILO has a variety of reports and databases that provide information on the application of labor standards, including discrimination in employment, and on labor market outcomes. The NATLEX, ILOLEX, and APPLIS databases, along with self-reporting by member countries, provide extensive information on national laws, policies, and practices, though the country coverage is incomplete. All are searchable by convention or issue area. Key Indicators of the Labor Market (International Labour Organization, 1999) is a useful source for quantitative indicators on labor market outcomes, but the data are usually disaggregated only by gender, if at all. Moreover, as with all other statistical sources, there are substantial gaps in the data for many developing countries, particularly the poorest, and there are problems with comparability across countries and within countries and in consistency over time (see discussion in Rama and Artecona, 2002). A specific source of material on law and policy in the nondiscrimination area is a new gender-focused database created by the ILO’s Employment Branch, e.quality@work. It pulls together international, regional (mainly European Union [EU]), and national laws, guidelines, policies, and practices on gender equality in employment and occupation.9 The website has links to international and national authorities that address these issues, as well as to legal and other documents. The goal is to make the database as comprehensive as possible, but it currently covers just over 40 countries and has varying amounts of information on both large and small 9   Available at http://www.ilo.org/public/english/employment/gems/eeo/ [June 6, 2003].

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Monitoring International Labor Standards: Techniques and Sources of Information developing countries, including Bangladesh, China, Ivory Coast, and Jamaica. The ILOLEX database gathers together a great deal of information from the ILO’s supervisory process and makes it available in searchable form on the ILO website and on a CD-ROM. In addition to providing the texts of the ILO constitution and all conventions and recommendations in force and a list of ratifications (searchable by country or convention), ILOLEX provides other information that will be helpful in creating a database on compliance with international labor standards. There are various documents that address compliance with specific conventions in general terms and with illustrative rather than systematic references to particular countries. This category includes periodic “general surveys” of convention implementation by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) and informal interpretations of conventions by the ILO, which are issued when a member requests advice on whether a particular law is in conformity with the relevant convention.10 On nondiscrimination the CEACR conducted general surveys of the application of the core conventions in 1996 (equality in employment) and 1986 (equal remuneration), as well as in the related areas of treatment of migrant workers (1999) and workers with family responsibilities (1993). There are also reports on compliance with particular conventions by particular countries. These include reports by the CEACR and by the Conference Committee on the Application of Standards that highlight both cases of progress and cases of serious or long-standing problems. The complete reports on implementation that countries must submit to the CEACR under Article 22 are also available for research, but only from ILO files and not on the Internet. ILOLEX, however, includes reports from investigations of Article 24 and Article 26 (more serious) complaints regarding specific violations. These reports, like the Article 22 reports, can be helpful in identifying discrepancies between national laws, policies, and practices and the international standard in question, but two caveats are in order. First, they are typically only available for countries that have ratified the convention in question, in this case No. 100 or No. 111 on discrimination in employment. Second, as with other complaints-based sources of informa- 10   The office emphasizes that only the International Court of Justice can issue definitive interpretations of ILO conventions.

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Monitoring International Labor Standards: Techniques and Sources of Information tion, the number or frequency of Article 24 and 26 reports should not be taken as evidence that one country is “worse” than another since the fewest complaints might be expected in situations where conditions are worst due to political repression and a lack of avenues to express dissent. Finally, the follow-up mechanism to the ILO Declaration on Fundamental Principles and Rights at Work (discussed in more detail in Chapter 2) provides additional information. Countries that have not ratified the core conventions must submit reports annually on what they are doing to implement each of the core principles in turn (beginning with freedom of association in 2000 and concluding the first cycle with nondiscrimination in 2003). Some ILO officials believe that these reports are not serious or as useful as the Article 22 reports because they do not undergo the same degree of scrutiny by experts (Thomas, 2002). But at least these reports are posted on the ILO website, while the Article 22 reports are available only to those willing and able to go to Geneva. More potentially useful are the global reports prepared by the International Labour Office and submitted to the conference by the director-general. The first such report on nondiscrimination was released in 2003 and includes a great deal of information on sources and manifestations of discrimination in employment, as well as examples both of continuing problems in some countries and of progress in others (International Labour Organization, 2003). However, the country treatment is neither comprehensive nor systematic. The United Nations The United Nations has three major sources relating to nondiscrimination that also address occupational issues. The Human Development Report and the Committee on the Elimination of Discrimination Against Women (CEDAW) provide information on gender-based discrimination, while the Committee on the Elimination of Racial Discrimination (CERD) addresses that set of issues. Since 1995, the Human Development Report of the U.N. Development Programme (UNDP) has included information on differences in social, political, and economic outcomes by gender. In addition to the human development index, UNDP also now publishes a gender development index and a gender empowerment measure, as discussed above. The 1995 Human Development Report focuses on gender discrimination issues and may be useful as background material. In addition to the development

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Monitoring International Labor Standards: Techniques and Sources of Information reports, the United Nations also has a website containing social indicators that can be searched based on gender.11 CEDAW and CERD reports are qualitative sources of information on national laws, policies, and practices with respect to gender and racial discrimination, respectively. The Convention on the Elimination of Discrimination Against Women has roughly 170 parties and the Convention on the Elimination of Racial Discrimination more than 120. As with ILO Article 22 reports, treaty parties are required to submit reports on what they are doing to implement the conventions’ provisions (usually every 4 years). The committees that oversee implementation then review the reports at their biannual meetings and prepare their own reports with comments under such headings as, “factors and difficulties affecting” implementation, “positive aspects,” and “areas of concern.” Each country section in each committee’s report concludes with “suggestions and recommendations.” These reports could be used for countries that have ratified one of these conventions but not ILO Convention No. 100 or No. 111, or to complement ILO supervisory comments on the application of those conventions. The CEDAW reports are supposed to include a section on equality in employment that includes a description of labor laws, basic labor market statistics, and levels of education among women in the workforce. Even a brief look of some of the country reports reveals the varied quality of the reports, however. Some are quite detailed and focused while others are more political or unfocused. Azerbaijan’s initial report, for example, spent many pages blaming the problems of Azerbaijani women on the conflict with Armenia and far less on describing its own actions to prevent discrimination. In addition, as of May 2002, more than a quarter of the countries that should have submitted initial reports had not done so; many others were late in submitting required updates. The country reports, information on ratification status, and compliance with reporting requirements are available electronically.12 The Fourth U.N. Conference on Women held in Beijing in 1995 also encouraged additional reporting that could supplement the routine CEDAW reports, including providing information for countries, like the 11   See http://www.socwatch.org/en/indicadoresDesarrollo/flash_content/index.html?lan=en&ind=A4 [October 16, 2003]. 12   See http://www.un.org/womenwatch/daw/cedaw/ [October 16, 2003].

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Monitoring International Labor Standards: Techniques and Sources of Information United States, that have not ratified CEDAW (or the ILO conventions). In addition to national reports that were supposed to be submitted in advance of the conference, the Beijing conference declaration included a Platform for Action, requiring that each country prepare a national plan of action for achieving equality for women. In 1998, the secretary-general sent a questionnaire to member countries asking them to report on three kinds of information:13 overall trends in implementing the Platform of Action, highlighting both major achievements and problems in implementation; status of implementation of national plans of action, focusing “in particular, on resource allocations and institutional arrangements; and policies, programs, and projects related to implementing the 12 “critical areas of concern” specified in the Platform of Action (women and … poverty, education and training, health, violence, armed conflict, the economy, power and decision making, institutional mechanisms, human rights of women, the media, the environment, and the girl child). Responses to this questionnaire, as well as national action plans and other information on the implementation of the Beijing Plan of Action, and from subsequent U.N. meetings that focused on women’s rights, are accessible from the Division for the Advancement of Women section on the U.N. website. The country information page includes a summary chart showing which countries have submitted information on their national machinery for achieving equality, their national action plans, and replies to the questionnaire; it also shows when the most recent CEDAW report was examined by the committee and which countries have signed and ratified the optional protocol allowing the committee to receive individual complaints.14 Finally, data on the status of women and an analysis of overall trends since Beijing are available in The World’s Women 2000: Trends and Statistics (United Nations, 2000), which also discusses gaps and weaknesses in the available data. This report, also available on the U.N. website, could be particularly useful to assessors who are trying to determine whether conditions in countries are improving or deteriorating. 13   Available at http://www.un.org/womenwatch/daw/followup/question.htm [October 16, 2003]. 14   See http://www.un.org/womenwatch/daw/country/index.html [October 16, 2003].

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Monitoring International Labor Standards: Techniques and Sources of Information CERD reports also suffer from gaps and quality problems. In addition, for reasons that are not revealed, statistical annexes that could be useful are not published electronically with the reports. An online report from Italy at the committee’s website lists 17 annexes at the end on issues such as migratory flows, “cases of intolerance and racial discrimination,” criminal offenses “aggravated by racial discrimination,” and non-EU workers by “activity of supervision” and “sectors of activity,” but annexes are not attached. Finland’s report states that its annexes are available in secretariat archives. It would be extremely useful if the ILO could make these annexes available electronically. Information on ratifications, reporting status, and the country and committee reports can be accessed from the CERD website.15 Other Official Sources As noted above, the U.S. Department of State’s annual country reports on human rights include discrimination, but in a separate section that is not focused on labor rights. Moreover, as noted in Chapter 2, the country reports are variable in quality and sometimes toned down for political reasons. Because it is addressed separately from worker rights, the treatment of discrimination in employment can be particularly spotty. The chapter on Bangladesh, for example, has two full paragraphs with some detail on how the economic structure affects women, some data on labor market outcomes, and information on government programs to address these problems. The chapter on Sri Lanka, by contrast, has only two brief sentences noting that, while protected in law, women’s rights at work are regularly violated in practice, with no detail or concrete examples. Still, the human rights report is one of the few sources that is comprehensive in terms of country coverage and broad in covering grounds for discrimination other than gender. While it would be useful to change U.S. law to reflect the international consensus on nondiscrimination as one of the core labor standards, the Department of State report is still an important source.16 15   See http://www.unhchr.ch/html/menu2/6/cerd.htm#60th [October 16, 2003]. 16   The absence of nondiscrimination as one of the “internationally recognized” worker rights for purposes of determining eligibility for trade preferences and financing, Export-Import Bank and Overseas Private Investment Corporation, however, does mean that investigations under those laws are generally not available as sources for assessing compliance with this standard (see Chapter 2).

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Monitoring International Labor Standards: Techniques and Sources of Information The World Bank’s World Development Indicators, available both online and on CD-ROM, provide data on some of the outcome indicators and associated factors, as well as on broader social indicators that could signal potential discrimination problems in labor markets. In addition, gender-specific data are available online.17 The availability of data varies widely, but for the indicators presented in this chapter, data for at least some years are available for more than 100 countries. The data, collected by national authorities, are often based on differing definitions and are therefore not always comparable across countries. If the goal is to assess each country’s compliance primarily against its own past and to determine whether progress is being made, then cross-country comparability is not a major problem, though there will still be problems with gaps in time series and with changes in definitions over time in the same country (see discussion on labor market data quality and comparability in Rama and Artecona, 2002). National sources are crucial for filling in and ensuring the accuracy of the information on legal codes and policies promoting nondiscrimination. In addition, national sources, such as statistical abstracts or other statistical reports, are the major source for information on nongender-based forms of discrimination, at least in some cases. The United States publishes detailed economic data that are disaggregated by various groups, and many developing countries also publish extensive economic data that can be useful in this context. Malaysia’s Department of Statistics, for example, publishes at least some data on population, health, education, other social indicators, and some employment outcomes by state, nationality, gender, and ethnic group. But the least developed countries are likely to be underrepresented, and even many developed European countries avoid collecting data based on race or ethnicity because of past abuses. Other Sources Reports from nongovernmental organizations (NGOs) and research by academics are discussed in detail in Chapter 3. Many of the sources discussed there are also potential sources for information on discrimination issues, particularly for severe problems, but the same caveats noted above regarding coverage, depth and quality of analysis, and potential bias apply 17   See http://devdata.worldbank.org/genderstats/home.asp [October 16, 2003].

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Monitoring International Labor Standards: Techniques and Sources of Information here as well. Also, like the Department of State human rights reports, the discrimination issues addressed in human rights NGO reports are likely to be broad-based and may not address employment issues specifically. One exception is the series of country reports to the World Trade Organization (WTO) by the International Confederation of Free Trade Unions (ICFTU), which review compliance with each of the four core standards. These reports have been prepared for 70-plus countries or regions since 1997 in parallel to the WTO’s trade policy review mechanism because the ICFTU believes that mechanism should address labor standards issues.18 A number of gender-specific websites provide quite useful, if noncomprehensive information. Two that provide information on international law are described here. The International Women’s Rights Action Watch (IWRAW), based at the Hubert Humphrey Institute of Public Affairs at the University of Minnesota,19 has prepared “shadow reports” on 50-plus countries, supplementing these countries’ own reports to the U.N. committees that supervise compliance with CEDAW and the International Covenant on Economic, Social, and Cultural Rights.20 In addition to providing information to the U.N. process itself, the organization also encourages dialogue by providing a “procedural guide” for local NGOs interested in preparing and submitting shadow reports on their own countries. The guide provides advice on how to get the report from the government, how to prepare the shadow report to maximize its effects, and explains the CEDAW process and how best to get access to it. This guide could serve as a model for other official organizations, such as the ILO, and to NGOs interested in promoting information exchange and dialogue in the other standards areas. As with most of the other reports discussed here and in Chapter 2, the 18   These reports are available in the “Trade and Labor Standards” section of the ICFTU website at http://www.icftu.org/focus.asp?Issue=trade&Language=EN [October 16, 2003]. 19   See http://iwraw.igc.org/ [November 24, 2003]. 20   The International Covenant on Economic, Social, and Cultural Rights is intended to promote these rights, including the right to work, to “just and favorable conditions of work, and the right to join unions (among others), and emphasizes that these rights are to be enjoyed by all people and prohibits discrimination on the same grounds specified in the Universal Declaration. Reports submitted to the convention committee could be used to supplement the reports from CEDAW and CERD but more countries have ratified those conventions than the ICESCR (170, 165, and 146, respectively, as of December 2002) and therefore the CESCR process is not treated separately here.

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Monitoring International Labor Standards: Techniques and Sources of Information IWRAW reports themselves are of variable depth and quality, but the most comprehensive can be quite useful. The reports provide general background information on the political, economic, and human rights situation in a country, sometimes including specific information on worker rights and freedom of association in particular (usually derived from other NGO sources, such as the ICFTU and Human Rights Watch). Some also highlight “critical issues” facing a country with respect to women’s rights (see, e.g., the report on Portugal). The basic template of the core of the reports follows the CEDAW reports article by article, commenting on the government’s report in each area. In some cases, there is also a section at the end that summarizes the conclusions and recommendations of other U.N. convention committees, including, where applicable, CERD and Covenant on Economic, Social, and Cultural Rights. The second useful NGO website for information on gender issues, especially of a legal nature, is Women’s Human Rights Resources, based at the Bora Laskin Law Library of the University of Toronto.21 This site provides a research guide on international women’s human rights law and describes important sources at both the international and national levels, with links to some of them. The website also has a “women’s human rights resources database” that includes summaries of and, in some cases, links to article citations, NGO reports, and official documents, including international conventions, national legislation, and case law. These sources are searchable by topic, including those of most relevance here: education, equality rights, labor and employment, property law and housing rights, slavery and trafficking, and social and economic welfare. CONCLUSIONS AND RECOMMENDATIONS As discussed here and in Chapters 2 and 3, the information to assess compliance with nondiscrimination norms is all too often missing or inadequate. Action by the Department of Labor or other U.S. agencies, as well as international agencies, to strengthen data collection capacity in general in developing countries is clearly needed. In addition, however, the survey instruments and other methods used to collect labor market data need to be adapted so they do a better job of capturing potential discrimination in employment. 21   See http://www.law-lib.utoronto.ca/diana/ [October 16, 2003].

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Monitoring International Labor Standards: Techniques and Sources of Information Some countries, even though able to do so, do not collect data that are disaggregated by race, ethnicity, or other categories because they fear that it might be misused. Some groups vulnerable to potential discrimination, for example HIV-positive individuals, are also concerned about how the data might be used and whether their privacy will be respected (International Labour Organization, 2003). But employment information that is disaggregated to reflect the experience of other potentially vulnerable groups is necessary to identify problems and to develop policies to address them. The ILO director-general’s global report on discrimination (International Labour Organization, 2003) notes that while efforts have been made to improve the gender sensitivity of labor market statistics, little theoretical or methodological work has been done for other kinds of discrimination. ILO or bilateral technical assistance should be provided to countries that lack the resources to collect this information or that have privacy or other concerns about how it should be used. While data disaggregated by gender are more readily available than for other characteristics, they are still not available for many developing countries, and in many countries, they still need improvement. In fact, some of the same weaknesses with household and other surveys identified in Chapter 6 on child labor also affect the quality of gender-specific data. As with children’s, surveys typically interview only the head of the household, often a male, and that person may either be unaware of or undervalue the work done by women. In addition, questions that ask women to list just primary and secondary occupations may miss work done in the household or on family farms. Women are also more likely to be classified as “unpaid family workers,” even when they work alongside husbands or other family members on family farms or in family enterprises (International Labour Organization, 1999). If resources are available, one way to addressing these problems is to use time-use surveys to supplement existing data collection instruments.22 Adding questions to existing household surveys to ask women themselves about the work they do would also be useful and is likely to be relatively inexpensive. 7-1 The committee recommends that national and international agencies cooperate in either modifying household surveys or creat- 22   For a discussion of current weaknesses in gender-sensitive data collection and of how some countries and organizations are trying to address it, see U.N. Development Fund for Women (2003).  

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Monitoring International Labor Standards: Techniques and Sources of Information ing a new system of data generation that better captures informal sector or household work that women do and that current methods often miss. 7-2 The committee recommends that the ILO, with U.S. Department of Labor support, assist national statistical agencies in gathering labor market information on ethnic, religious, migrant worker, or other groups that may be vulnerable to discrimination and post that information, along with other labor market information, on a public website. REFERENCES International Labour Organization. (1999). Key indicators of the labour market. Geneva: International Labour Office. International Labour Organization. (2001). An instrument of accountability ILO/AIDS: A global plan and a new code of practice. World of Work—The Magazine of the ILO, 40. International Labour Organization. (2003). Time for equality at work. Report of the director-general under the Follow-up to the Declaration on Fundamental Principles and Rights at Work. Geneva: International Labour Office. National Research Council. (2003). Monitoring international labor standards: Quality of information, summary of a workshop. M. Hilton (Ed.), Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academies Press. Rama, M., and Artecona, R. (2002, July). A database of labor market indicators across countries. Paper prepared for the National Research Council Workshop on International Labor Standards: Quality of Information and Measures of Progress. Washington, DC. Available: http://www7.nationalacademies.org/internationallabor/DQworkshop.html [November 26, 2002]. Thomas, C. (2002, July). Information sources and measures of international labour standards on discrimination (discussion draft). Paper prepared for the National Research Council Workshop on International Labor Standards: Quality of Information and Measures of Progress. Washington, DC. Available: http://www7.nationalacademies.org/internationallabor/DQworkshop.html [November 26, 2002]. United Nations. (2000). The world’s women 2000: Trends and statistics. New York, NY: Author, Department of Economic and Social Affairs, Statistics Division. Available: http://unstats.un.org/unsd/demographic/ww2000/ [October 16, 2003]. U.N. Development Fund for Women. (2003). Progress of the world’s women 2002: Gender equality and the millenium development goals. New York, NY: Author. U.N. Development Programme. (1995). Human development report. New York, NY: Author. World Bank. (2001, January). Engendering development: Through gender equality in rights, resources, and voice. Washington, DC: Oxford University Press.