7. Application and enforcement at the national level
In the past, many countries adopted specific legislation prohibiting discrimination and promoting equality in employment. Now, emphasis is increasingly placed on law enforcement through legal, administrative and promotional measures to fill the continuing gaps between the law and its application.
Women workers often encounter de facto disadvantages as a result of apparently "neutral" provisions in laws or collective agreements. These might imply a case of indirect discrimination. Discrimination may be "direct" - making a distinctive difference between the sexes - or apparently neutral, but in fact producing inequality and therefore constituting "indirect" discrimination. Both manifestations of discrimination fall under the scope of the relevant Conventions. The distinction is important because forms of direct discrimination seem to be on the decline, whereas cases of indirect discrimination, which are more difficult to detect or to prove, appear to be on the increase.
In most countries, equality legislation is supervised by the labour inspectorate. This verifies, through the inspection of premises and records, that the enterprises under its control comply with the requirements of the law. Labour inspection services also provide information and advice for employers and workers on the most effective means of complying with the legal provisions. Labour inspectors may have the power to refer the complaint to the appropriate authorities or initiate proceedings before the courts or tribunals.
As part of the framework of national machinery to improve the status of women, a number of countries have established enforcement agencies which examine complaints of discrimination and monitor the implementation of anti-discrimination measures. These agencies can facilitate the filing and resolution of individual actions. In some countries, the filing of a claim with an Equal Opportunity Commission is a procedural prerequisite to pursuing any employment discrimination complaint.
Depending on the national system, international as well as national standards may have to be observed by the labour courts or other competent bodies. Some ILO Conventions can be regarded as self-executing (to be applied without further legislation), but in general Conventions have to be implemented by legislation. Once international law is transformed into national law or is given effect through collective bargaining, the respective national provision is usually referred to.
In general, labour court judges, lawyers and others involved in litigation procedures have become more aware of the implications of sex discrimination. There is, however, criticism - and also some evidence - that legal systems dominated by men who do not understand the equality issue may constitute an obstacle to the enforcement process. To facilitate litigation in cases of sex discrimination, legal aid, a modification of the burden of proof (see entry, Burden of proof), and protection against reprisal are useful tools.
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