Sexual Discrimination & the Law Sexual Discrimination & the Law
- Sep. 01 2005 00:00
The 1918 constitution of the RSFSR was not only the first in the world to give men and women equal civil, political and social rights, it also laid a special onus on both sexes to be engaged in gainful employment. “Whoever does not work will not eat!” proclaimed article 18 of the constitution. Women fighting for gender equality in the West could only envy the radical innovations of Soviet communism, albeit not the actual working conditions and salary levels.
But when it comes to gender equality in the workplace today, Russia is a long way down the scale on world ratings. Feminism in the workplace has negative associations in Russia, such as unemployment, poverty and discrimination. Experts estimate that women account for two thirds of the officially registered unemployed, while the average salary for women is equal to just two thirds of the average wage earned by men.
Despite the fact that proportionally more women have a university education (63 percent of women as opposed to 47 percent of men), in most cases women have a less well paid or less prestigious job. On average about 40 to 50 percent of women say that they have been subjected to sexual harassment at work and some experts say that if Western definitions were to be applied, then that figure would rise to 100 percent.
Russia has ratified many international treaties intended to combat inequality and discrimination against women. The UN convention of 1979 on the elimination of all forms of discrimination against women holds a special place among them. Russia also signed International Labor Organization convention No. 100 on equal remuneration for men and women for any given task.
What do international treaties define as sexual discrimination? Under the UN convention of 1979 on discrimination against women, discrimination is defined as any differentiation, exclusion or restriction on the grounds of gender aimed at either diminishing, or else rendering impossible, due recognition, exercising or realization by women of their equal human rights to men and basic freedoms in all social spheres, irrespective of their marital status.
The constitution and labor code of the Russian Federation forbid all forms of sexual discrimination in hiring, promoting and remunerating employees. In 2004 a plenary session of the Supreme Court of the Russian Federation issued guidelines on reviewing legal cases brought against discrimination by employers hiring staff.
Legal and even criminal action can be brought against managers who use discriminatory tactics or allow discriminatory behavior. Citizens who feel their rights have been infringed can appeal to courts, employment tribunals, the Federal Labor Inspectorate, the public prosecutor, a trade union or any other organ which represents employees’ interests. Russian legislature makes adequate allowances for fighting discrimination. But where do you start?
Strange as it may seem, you do actually need to have an active desire to defend your rights in order to get started. No one else is going to do it for you. But by no means everyone wants to get into open conflict with an employer, at times the entire workforce and, for example in cases of sexual harassment, to relive psychological trauma during the course of a trial.
In my opinion there is one serious barrier in the Russian legal system which significantly reduces the possibility of effectively defending the rights and legal interests of individuals who have suffered from discrimination, and that is the miserly compensation for moral harm awarded by the courts. The principle of good sense and justice to which courts ought to adhere to when deciding the amount of compensation to be paid these days is not used in the interests of the victim. Yet it seems to me that compensation cases brought against discriminatory hiring or firing of employees or against sexual harassment could be one of the main legal defenses for equal rights of men and women.
Article 64 of the Labor Code of the Russian Federation forbids employers to turn down a job application without having due grounds for doing so and regards discrimination as any direct or indirect restriction of rights or showing direct or indirect preference when hiring on the grounds of gender or anything else unrelated to the applicant’s professional qualities. Moreover, the same article of the labor code expressly forbids employers to refuse job offers to women on the grounds of their being pregnant or having children.
Taking all this into account, I can only recommend that candidates carefully document all the stages of their dealings with a potential employer, starting right from the beginning, as though they were potential counteragents. An applicant for a job is not asking for charity, he or she is offering services on the labor market. Even the job advert may contain discriminatory requirements, such as stating that women need not apply, which can subsequently be used as evidence in court. If the job requirements are not clear, then the employer can be asked to state them in written form.
Concrete evidence that negotiations with an employer were held, and what it was intended to discuss can be provided in the form of faxes, letters or e-mails. But it is illegal to provide a employer with false information, since this could subsequently be used against your favor. In the event of an application being turned down, article 64 of the Labor Code states that the employer can be asked to provide a written statement of the reasons behind this. Refusing an application without any legitimate reason for doing so can serve as grounds for bringing a court case. Depending on the case in hand the court can force the employer to hire the individual or else to pay him damages or compensation.
But women who are already in employment and have suffered sexual discrimination which has prevented them from receiving adequate remuneration or from being promoted are in a much more thorny position. In this event it is the employee who has to bring charges of discrimination against the employer.
This sort of discrimination may take the form of a long standing practice of promoting to (usually) managerial positions only men who also lack either the necessary qualifications or experience, or else bypassing the requirements expected of an employee in that position laid down in the organization’s internal regulations, or ignoring the results of attestations, or employee regulations governing employment and pay.
Any individual who feels that he or she has been subjected to discrimination has a right to demand a court hearing of the case. But the risk of souring relations with the employer is a powerful deterrent to bringing such cases. As an alternative, it is possible to bring a tribunal against the employer through an appeal to the Federal Labor Inspectorate.
State inspectors have a wide range of powers at their disposal and can hold the guilty party to corporate responsibility. At the same time, they are obliged to observe the confidentiality of the source of the complaint and not to disclose the name of the person who has brought it if he or she has asked for it not to be disclosed. Incidentally, it is important not to lose sight of the fact that the Labor Code allows for disputes to be resolved through direct negotiation between the employee and employer.
Ultimately, an employer can only dismiss an employee on the basis of what is provided for by the law. Employers are not allowed to dissolve contracts with pregnant women, unless the employing organization has gone into receivership. The grounds for dismissing women with children less than three years old and single mothers bringing up under-aged children are restricted even further by article 261 of the Labor Code.
In the event of sexual discrimination, it makes sense to contact legal and women’s organizations which have qualified experts, lawyers and the necessary contacts with the press in order to bring the matter to the attention of society at large and to state law-enforcement organs in order to increase the chances of a successful challenge.