Discrimination is defined in the Discrimination (Employment and Occupation) Convention (No. 111), of 1958, as any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national extraction or social origin which nullifies or impairs equality of opportunity or treatment in employment or occupation. Protection against acts of anti-union discrimination is provided for in the Right to Organise and Collective Bargaining Convention (No. 98), of 1949.
In most countries, discrimination based on sex is prohibited by law. In practice, however, women in both developing and industrialized countries continue to encounter discrimination in one form or another in their working lives.
Other grounds upon which discrimination is prohibited may be included in a country's laws or regulations. In some countries, for example, discrimination in employment is also prohibited on the basis of physical or mental disability, age, marital status, maternity, sexual orientation, material well-being or being HIV positive.
Discrimination may be direct or indirect. Direct sex discrimination exists when unequal treatment between women and men stems directly from laws, rules or practices making an explicit difference between women and men (e.g. laws which do not allow women to sign contracts). Indirect discrimination means rules and practices which appear gender neutral but in practice lead to disadvantages primarily suffered by persons of one sex. Requirements which are irrelevant for the job in question and which typically only men can meet, such as certain height and weight levels, constitute indirect discrimination. The intention to discriminate is not required.
Discrimination may be de jure, meaning the existence of discrimination in law, or de facto, meaning in reality or in practice. A labour code regulation providing that women shall receive less pay than men would be regarded as de jure discrimination, whereas the actual practice of paying women less would be de facto discrimination.
While cases of direct and de jure sex discrimination have declined, indirect and de facto discrimination continue to exist or have emerged. To identify discrimination based on sex, it is therefore advisable to look not only at an intent or purpose reflected in rules or action, but also at the actual effect generated.
Employment practices are not considered to be discriminatory when based on the actual and real needs of a job, if they are meant to promote equality by affirmative action or to protect women on special grounds such as maternity. When discriminatory practices exist in the workplace, women and their representatives should be able to call for the intervention of the public labour inspection service or make a claim with the designated competent authority or court.
→ see also Burden of proof, Labour administration and Labour inspection
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