Background Paper for the Working Group on Discrimination against Women in Law and Practice (the Working Group): Economic and Social Life
Sandra Fredman FBA QC (hon)
Rhodes Professor of Law
Executive Summary (i) Background and context
The conceptual framework used in this research is designed to capture the many and interlocking inequalities facing women in relation to economic and social rights. Moreover, an important dimension of the project is to recognise and address the ways in which other sources of inequality adversely affect women’s economic and social opportunities.
Women’s social and economic situation is dependent on a range of interlocking factors, which need to be understood in a holistic manner. Thus women’s disadvantage in the waged labour force reflects not just prejudice in the workforce itself, but also their unequal access to power and resources more generally, whether in the family, in education, in access to property, or personal security. In many countries, women are subject to laws which discriminate against them in relation to property or land ownership, succession, and family law, and these laws undermine women’s economic opportunity, welfare and autonomy. Further structural barriers to women’s access to social and economic rights include: women’s responsibilities for child-caring and the elderly; women’s unpaid work in the home and in family concerns; the undervaluation of women’s work; lack of access to credit or social security; lack of appropriate education or training, violence against women in the public space, the workplace and in the home; and stereotypes which are prejudicial to women.
Legal intervention, to be effective, should be capable of addressing the interaction between these factors. Discrimination law often focuses on the paid labour force. This is an important aspect of the inquiry. But the challenge is also to find means to address inequalities and disadvantage in the great variety of productive occupations and activities engaged in by women, ranging from formal employment, to informal employment, micro-entrepreneurship, family employment, subsistence and farming work, home-working, domestic work, voluntary work and others.
In order to provide background material for such a cross-cutting analysis, this background paper provides a review of equality and anti-discrimination laws and best practice in a selection of lower and middle income countries across a range of social and economic issues, with the aim of providing background material for such a cross-cutting analysis. Among low income countries, it considers Kenya, Bangladesh and Nepal; among lower middle income countries, it examines India, the Philippines and Zambia; and among upper middle income countries, it examines South Africa, Botswana, Brazil, Jamaica and the Czech Republic. The countries were chosen to reflect a spread of different cultural, regional, historical and developmental factors, as well as the availability of literature in English.
Constitutional protections for gender equality in social and economic life
1. De Jure Equality
All the countries have a constitutional equality guarantee, generally providing for equality before the law, and in some cases specifying that there should be no discrimination on grounds, inter alia of sex. In some cases, this expressly guarantees gender equality in social and economic or in working life.2
However, such guarantees do not guarantee that formal equality has been achieved for women. In some countries, exemptions from the constitutional equality guarantee are provided for personal or customary law, with the result that it remains legal to discriminate against in relation to marriage, divorce, marital property ownership and succession. This is true for Botswana, Zambia and India. In other countries, discriminatory laws and practices persist despite constitutional guarantees. This is true for the Philippines, Nepal, Kenya and Nigeria. These provisions substantially impede women’s ability to participate equally in social and economic life. Women who are subject to early marriage, to treatment as minors under the guardianship of male relatives, to eviction from their property on widowhood, and other legal forms of discrimination, are inevitably highly limited in their ability to undertake paid work, or to benefit from paid work in terms of income, training, career progression or solidarity at work. Without secure rights to education, property, social security or contract, labour market participation is severely compromised: where workers can access jobs at all, they are likely to be precarious or on poor terms and conditions.
Nevertheless, some examples of good practice were found. In South Africa, the Constitution establishes a clear hierarchy, allowing the Court to strike down customary laws which infringe equality. Thus in Bhe, the customary law of male primogeniture (by which only male relatives of the deceased could inherit property) was found to be in breach of the Constitution.3 In Kenya, the new Constitution passed on 2010 provides that any law - including customary law - that is inconsistent with the Constitution is void.4 In an important new case in Botswana, the Court of Appeal held that discriminatory customary laws of succession might be in breach of the Botswana constitution. The new Zambian draft constitution declares that all laws, customary or regulatory that permit or have the effect of discriminating against women are void. The Philippines adopted a Magna Carta for women in 2009, which requires the State to review and repeal all discriminatory laws over the next three years.5 In Nepal, as part of the Constitutional process leading to the interim Constitution in 2007, the 2006 Gender Equality Act was passed revising discriminatory provisions in the areas of property, marital rape and the age of marriage. It should be stressed, however, that change in the law has not necessarily brought change in the practices.
Violence against women
In many situations, women are excluded from the most fundamental legal protection, namely the right to physical security and protection against violence, whether by husbands, employers, peers or the State itself. Poverty and violence interact in a vicious cycle. Women facing sexual harassment at work, violence at home or violence on the streets, are unlikely to be able to participate on equal terms in the paid labour market. Poverty also forces women to carry out daily economic activities which put them at higher risk, such as fetching wood and water, accessing work-places at night, working as domestic workers in other people’s households, or engaging in precarious work generally. Women who lack sufficient economic resources may have to engage in transactional sex, exposing them to heightened levels of violence.
The scale and prevalence of violence against women in the jurisdictions under consideration are striking, as consistently recorded in the reports of the UN treaty monitoring bodies such as CEDAW and CERD. This is true of the Philippines, Nepal, Bangladesh, Brazil, Nigeria, Botswana, India, South Africa and Zambia. Violence includes domestic violence, rape, acid throwing, dowry related violence, fatwa-instigated violence and sexual harassment at work, with alarming rates of violence against migrant women, Dalit women, and women from ethnic minorities. The threat of rape and sexual assault is a particular problem for women and girls living in urban slums and informal settlements, where lack of access to adequate sanitation facilities exacerbate the risks of sexual violence.6
There are some examples of good practice: several countries with serious problems of violence against women have recently passed legislation relating to domestic violence, rape, sexual harassment at work and other violence. These include the Philippines, Nepal, Bangladesh, Zambia and Brazil. Nevertheless, patterns of violence continue, demonstrating that while legislation on marital rape, protection against domestic violence and sexual harassment at school and at work is essential, it is also necessary to have effective implementation, including cultural change.
Even where de jure discrimination has been abolished, women continue to display high rates of disadvantage in the labour market in all the countries considered. This is true too in relation to health, education, housing, social security and other basic rights. High rates of female unemployment, job segregation, low pay, sexual harassment at work and a wide gender gap are characteristic of all the countries studied. Women cluster in low paid and precarious work, with little chances of advancement. A major reason is the fact that women remain primarily responsible for childcare and housework. Women are increasingly drawn into the paid labour force because their income is essential for family survival, but their responsibilities at home are undiminished.7 This double burden makes it inevitable that they are only able to seek flexible, part-time or other forms of precarious work close to their homes and families. Moreover, because work in the home is unpaid and invisible, the same work done within the labour market is under-paid and undervalued. Alternatively, women are required to make a stark choice and leave their homes to work in other people’s houses or even to migrate to other countries to find work. In all these cases, their work tends to be low paid and insecure.8
To address these issues, statutory anti-discrimination laws have been enacted in various countries. These are evaluated briefly below.
In some jurisdictions, there is still no legislative prohibition of discrimination on grounds of sex. This includes India, Nepal and Bangladesh. In other jurisdictions, coverage is confined to employment. For example, although Kenya has a strong constitutional equality provision binding public and private parties, and specific legislation in relation to disability discrimination and race, it lacks a statutory prohibition of discrimination on grounds of gender outside of the employment context. There are, however, some examples of best practice. South Africa has two major pieces of legislation, one covering employment and the other covering all non-employment issues.
Constitutional equality guarantees invariably cover sex, together with other grounds. However, it is only the most recent that expressly include pregnancy. These include the South African and Kenyan constitutions. Following the EU jurisprudence, in the Czech Republic, discrimination on grounds of pregnancy and maternity is considered discrimination on grounds of sex.
A further question concerns the possibility of making claims for intersectional discrimination. This is not well developed in any of the jurisdictions. For example, in India, the Court has made it clear that claims based on gender plus other grounds will not be considered unlawful discrimination under the Indian Constitution.
(iii) Definition of discrimination:
There are various ways of defining discrimination in law. The basic conception is the equal treatment principle. If A is treated less favourably than B because she is a woman, then she has been subjected to unlawful discrimination. This is often called direct discrimination, or disparate treatment discrimination. However the equal treatment principle is limited in several ways. An apparently neutral criterion, such as the requirement of full-time working, might be applied equally to both men and women, but women might find it significantly more difficult than men to comply, with the result that the far fewer women than men are able to take advantage of this opportunity. Thus equal treatment might lead to unequal results. To address this situation, the concept of indirect or disparate impact discrimination has been developed. According to this conception, equal treatment will be held to be discriminatory if it has a disproportionate effect on women (or men) unless it can be justified as necessary for the proper execution of the job in hand.
The equal treatment principle remains the dominant conception of equality in most of the jurisdictions covered here. An example is Botswana, where both the constitution and statute prohibit only direct discrimination. However, there are good examples of highly developed statutory definitions of discrimination in some countries. The Czech Republic, which is bound by EU law, has detailed provision for both direct and indirect discrimination. Kenya’s Employment act 2007 prohibits both direct and indirect discrimination, but indirect discrimination is not defined directly. By contrast, the Kenyan National Cohesion and Integration 2007 has a detailed definition of indirect discrimination on the grounds of race, which largely mirrors that of the EU.
(iv) Sexual harassment
The recognition of sexual harassment as a species of discrimination has been of real importance in the development of anti-discrimination law. At first, sexual harassment was dealt with as a species of direct discrimination, but like pregnancy, it encountered difficulties in finding an appropriate comparator. More recently, it has been dealt with in its own right. Rather than being regarded as a wrong because a woman is less favourably treated than a man, it is regarded as a wrong because it is an affront to the dignity and self respect of the victim. More developed conceptions of sexual harassment distinguish between two kinds of harassment: quid pro quo harassment, and harassment caused by an intimidating, hostile or humiliating work environment. Both EU law and the ILO recognize both these forms of sexual harassment; and the ILO requires contracting states to include both in their anti-discrimination legislation.
A prohibition on sexual harassment has not been introduced in some jurisdictions (Zambia and Nepal) and only partially in others. For example, in Botswana, it is only an offence in relation to public employment.9 On the other hand, there several examples of good practice. The Czech Republic includes a provision on sexual harassment.10 Based on a transposition of EU law, the Czech legislation defines sexual harassment as conduct which has the purpose or effect of violating the dignity of a person. The Kenyan Employment Act 2007 is prohibits both ‘quid pro quo’ harassment and harassment resulting from a hostile environment.11 However, only employers of more than 20 employees must adopt and implement a policy statement on sexual harassment. Most recently, in India, the Sexual Harassment of Women at Workplace Act 2013 became law in April 2013, giving statutory force to a 1997 decision of the Indian Supreme Court.12 However, unlike other similar statutes, which give a remedy to a judicial tribunal, enforcement of this statute depends on the creation by the employer of Internal Complaints Committees. Where the complaint is against the employer, or the employment has fewer than 10 employees, the government must set up a local complaints committee at district level.
Positive Duties to Promote Equality
Several of the jurisdictions under consideration have incorporated proactive measures. The Brazilian government has recognized that it is not sufficient simply to prohibit discriminatory practices: instead, the prohibition against discrimination must be combined with promotional strategies which can accelerate progress towards achieving equality.13 The Kenyan Employment Act 2007 places a duty on the Minister, labour officers and employers to promote equality of opportunity in employment in order to eliminate discrimination in any employment policy or practice.14 The South African Employment Equity Act imposes positive duties to eliminate discrimination and harassment on all employers, with more extensive obligations on employers with more than 50 employees. Recent EU law imposes on 28 member states, including the Czech Republic, a positive duty to encourage public and private actors to ‘take effective measures to prevent all forms of discrimination on grounds of sex in access to employment, vocational training and promotion.’15
Quotas, affirmative action and Temporary Special Measures.
Some countries, such as Botswana16 and Zambia,17 do not have any provision for affirmative action. Others have an express legal mandate to permit such measures. For example, the Kenyan Employment Act specifically states that it is not discrimination to take ‘affirmative action measures consistent with the promotion of equality or the elimination of discrimination in the workforce.’18 In the EU, the legality of affirmative action provisions is tightly controlled. Only if candidates are of equal merit is affirmative action potentially lawful and even then, a ‘savings’ clause is necessary to permit individual consideration. Even within these confines, however, the Czech Republic has not instituted special measures.19
On the other hand, there several examples of good practice. A particularly wide-ranging set of affirmative action measures has been instituted by Brazil. It sets goals for the achievement of a specified proportion of participation by all segments, Afro-descendants, women and the disabled.20 The South African Constitution, like the Indian, expressly permits affirmative action, regarding it as a means to achieve equality, rather than a breach or derogation. The Employment Equity Act of 1998 therefore requires designated employers to ‘implement affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce.’21 Designated groups include black people (a generic term which means groups classified by apartheid as Africans, Coloureds and Indians), women and people with disabilities.
In effect protective legislation, such as night bans or prohibitions against working in hazardous occupations, excludes women from accessing certain type of jobs. Rather than excluding women from valuable opportunities the focus needs to be on improving working conditions and protecting women from violence associated with working at night.
Who is a worker?
Legislative benefits, entitlements and protections often only apply to ‘workers’. Great care needs to be spent on the definition of worker to ensure that new and emerging employment relationships are covered.
If the statutory scheme restricts ‘workers’ to the traditional employment relationship model, the employer has as incentive to sidestep the legislation by re-characterising the work relationship as falling outside of the standard model. This can be done through ‘sham’ contracts, which make dependent employees appear to be independent contractors; through casualization of employment; through outsourcing or the use of agency workers and other similar means.
Under Brazil’s employment laws, a person is presumed to be an employee unless proven to be an independent contractor. Moreover, the Brazilian authorities do not look at the contractual documents, but at the actual factual circumstances of the employment relationship. The Brazilian Labour Code extends protection to contingent workers and ensures they receive the same salary as regular employees. South Africa has a similar presumption.
Who is an employer?
One of the most problematic aspects of the modern flexible workforce, both in developed and developing countries is the need to determine who should be responsible for providing employment benefits.
Legislation often excludes employers from the obligation to ensure equal pay. In South Korea, businesses with fewer than five workers or workplaces consisting of blood relatives are not required to ensure equal pay. Ontario draws a distinction between public and private sectors. All public sectors employers are obligated to ensure equal pay, while only private sectors employers with 10 or more employees have a similar obligation.
The Informal Sector
In contrast to the formal employment market, the informal sector is not always recognized, recorded, protected or regulated by public authorities. Informal workers include casual and seasonal workers, part-time workers, temporary and agency workers, home-workers, domestic workers, and unpaid family workers.
There is a global shift towards flexibility in the labour market. Employers are favouring non-standard employment relationships to cut labour costs and avoid regulation. Workers in the informal economy are low paid, have no job security, social protection and less access to education and training. A large percentage of women are employed in the informal labour sector.
One of the biggest challenges for labour law in general and discrimination law in particular is to find means of extending protection against discrimination to the informal sector. For example, how can the standard definition of the employment relationship be modified to cover new non-standard relationships such that employers are not incentivised to disguise a worker’s true legal status?
In South Africa, the legislation presumes that person earning less than a certain amount is an employee provided she is ‘under the control and direction; of the employer, or forms part of the employer’s organisation, or has worked an average of 40 hours per month for the same employer for the past three months, or is economically dependent on the employer, or works only for one person, or if the other person provides the tools of the trade.22 This approach has been influential in other countries such as Tanzania. However, this is not a perfect solution as these presumptions can be rebutted.
Part Time, Temporary and Agency Workers
Several jurisdictions have begun to deal with these problems by giving non-regular workers the rights to the same pay and conditions as permanent workers.
EU legislation provides that the basic working and employment conditions of agency workers must be at least those that would apply if they had been recruited directly by the end user to do the same job.23
SouthKorean legislation expressly prohibits unfavourable treatment in relation to pay and other conditions against fixed term workers.24
In Brazil, contingent workers must receive equivalent salaries as those employees in the same occupational category at the client company. Both South Korea and the EU provide similar protection for part-time workers.
South Africa has taken steps to regulate agency workers to ensure that the employee does not fall into the legal gap between the agency nor the client end-user The law deems the worker to be an employer of the temporary employment service. Both the service and the end user are liable for any breach of the provisions of the Basic Conditions of Employment Act. The client can be liable for any unfair discrimination.25
As the number of women participating in the formal labour market increases, corresponding to an increase in the privatisation of public services, many women have delegated child-care and housework to other women. These domestic workers are often migrants from the global South and are highly vulnerable to loss of autonomy, privacy and sexual harassment. Domestic workers raises complicated questions of employment relationships layered on top of issues of both racial and gender discrimination. It is in the context of widespread invisibility and devaluation of domestic work that the ILO passed the Convention on decent work for domestic workers.
Brazil has taken steps to address the situation of domestic workers. The Constitution provides rights to minimum wages, paid weekly leave and vacation, paid paternity and maternity leave, notice of dismissal, pension, as well as integration into the social security system.26
The most comprehensive regime for protecting domestic workers is from South Africa. The Domestic Worker Sectoral Determination, 2002 provides for overtime pay, prohibits payment in kind, regulates maximum hours of work and guarantees breaks between shifts and mealtime breaks.
It is crucial to have inspectors and enforcement mechanisms to ensure these protections are actually enjoyed by domestic workers. Implementation is a challenge because the place of employment is within the employer’s private home. Inspection visits necessarily entail access to private homes. Domestic workers may be afraid to access formal enforcement mechanisms because of their migration status. Moreover, the close relationship between domestic worker and employer makes it difficult for the domestic worker to resort to courts.
In response to these factors, South Africa has developed the Commission for Conciliation Mediation and Arbitration (CCMA). Employers or employees may refer disputes to the CCMA by filling out a simple referral form. A commissioner assists both parties to develop their own solution to the dispute in an informal, confidential and lawyer-free environment.
Migrant workers are vulnerable to physical and psychological abuse, sexual violence and slavery-like working conditions. The Filipino Government has made a significant effort to address these issues, for example by providing pre-departure information and support services to overseas Filipino workers if they migrate legally.27
Rural women workers are disadvantaged due to persistent customs and traditional practices that prevent women from inheriting and own property. Zambia has taken the initiative by providing for the allocation of 30 percent of titled land to women.28
The countries under consideration use a variety of enforcement methods. All have their limitations:
Inspection combined with criminal penalties is heavily dependent on the resources the State applies to inspectors, and it is not clear that fines produce changed behaviour.
Individual complaints to tribunals or independent commissions have the advantage of giving individuals the opportunity to complain in their own right. However, this can constitute a heavy burden on individuals, depending on how costly the court or tribunal process is and how exposed they are to victimization.
Mainstreaming is a proactive approach to ensuring equality is a factor in all decision making. However, it depends on political will and institutional structures which may not be in place. It can be difficult to evaluate and requires effective monitoring processes and the collection of disaggregated data
Affirmative action and temporary special measures can accelerate achieving de facto equality, it is generally necessary to express legal mandate to permit such measures, the impact of these programs remain unclear.
This background paper provides a review of laws and best practice in several key areas of economic and social life for women in a selection of lower and middle income countries. It draws directly on work for the World Bank Development Report 2013 on anti-discrimination laws in developing countries29. Part I examines de jure inequality while Part II considers the scope and structure of anti-discrimination laws in more detail. Part III addresses the particular problems raised by the informal sector while Part IV examines different legal structures for enforcement and implementation of equality and anti-discrimination laws. A separate paper addresses in detail the right to equal pay for work of equal value.
The review is based on material available on-line or in libraries, including: primary legislation; country reports to fulfil international human rights obligations, including the ILO; data; and secondary literature where available. The main sources have been the reporting mechanisms of the main international discrimination law conventions, the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). All the recent reports of these bodies have been dealt with. Material from the ILO, the International Convention on Civil and Political Rights (ICCPR), the International Convention on Economic, Social and Cultural Rights (ICESCR), the European Union (EU) and the African Commission on Human and People’s Rights (ACHPR)30 and The Inter-American Commission for Human Rights (IACHR)31 has also been included, where relevant. Primary materials include constitutions and statutes from individual countries, where available, and some secondary materials where accessible.