Women and Justice: Keywords

Legislation

Ley 1468 de junio 30, 2011 (2011)

Employment discrimination, Gender discrimination

This law modified articles 236, 239, 57, and 58 of the Labor Code, among other provisions to establish special labor protections for pregnant and lactating women. The law prohibits the dismissal of pregnant or lactating women without cause and without prior permission of a labor inspector. It also granted women the right to receive their regular salary during a 14-week maternity leave.

Esta ley modificó los artículos 236, 239, 57 y 58 del Código Sustantivo del Trabajo, entre otras disposiciones. Su intención es establecer protecciones laborales reforzadas para las mujeres embarazadas y lactantes. En esta medida, la ley establece la prohibición de despedir a una mujer embarazada o lactante sin causa y sin permiso previo de un inspector de trabajo. También otorgó a las mujeres el derecho a recibir su salario regular durante una licencia de maternidad de 14 semanas.

Labor Code: Chapter 1 (General) and Chapter 2 (Conclusion of an Employment Contract) (1999)

Employment discrimination

Art. 14 prohibits employment discrimination; which is defined as restricting labor rights or obtaining privileges based on certain qualities or circumstances of a person, including gender. A person that believes he or she has been discriminated against can apply to a court to eliminate such discrimination. Art. 16 prohibits the unjustifiable refusal to conclude an employment agreement with a pregnant woman, woman with a child under three years of age, or a single parent of a child under 14 years of age or a disabled child under 18. Under Art. 23, conditions of an employment contract of a “discriminatory nature” are invalid.

Ligji Nr. 05/L -020 Për Barazi Gjinore (Law No. 05/L -020 on Gender Equality) (2015)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

Law No. 05/L-020 on Gender Equality promotes gender equality, by defining the relevant concepts, setting forth various measures to protect equal rights of genders, and specifying the institutions responsible for gender equality. The Law defines “woman” and “man” as including any person who considers oneself as such, and describes gender identity – which does not require medical intervention – as a “protected characteristic.” Direct and indirect gender discrimination are prohibited under the Law, including less favorable treatment of women for reasons of pregnancy, maternity, or sexual orientation, and gender-based violence. Harassment and sexual harassment are also forbidden, and whether a person refuses or surrenders to such behavior shall not be used as a basis for a decision affecting that person in a legal proceeding. The Law directs the Kosovo institutions to implement various general measures to achieve gender equality in Kosovo, including gender mainstreaming in all policies and legislation, gender budgeting in all areas, and ensuring recruitment and appointment are consistent with the requirement for equal representation of women and men. In areas where inequities exist, public institutions are further instructed by the Law to take temporary special measures to accelerate the realization of gender equality, including quotas, preferential treatment, hiring, and promotion. The Law in particular requires legislative, executive, and judicial bodies at all levels to adopt special measures until equal gender representation is achieved. The Law establishes an Agency for Gender Equality to support the implementation of the Law, and further mandates that all ministries and municipalities must appoint gender equality officials, and allocate sufficient resources from their budget, to implement the Law. Discrimination on bases including sex, pregnancy, or birth, is prohibited in employment matters including access to employment or training, and working conditions. In regard to education, the Law proscribes sex discrimination in access to education and scholarships, evaluation results, and attainment of degrees, and mandates the inclusion of gender equality education in school curricula at all levels. Persons who believe the principle of equal treatment has not been implemented in relation to them may initiate proceeding in accordance with the Law on Protection from Discrimination. Violations of the Law are punishable by fines of up to 700 Euros for individuals, and 900 Euros for legal entities. (Unoffocial English version available here.)

Equality Act (2010)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

This Act is a comprehensive act that replaced several pieces of legislation, including the Sex Discrimination Act of 1975. In general, The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society, and provides equality provisions, including the following:

the basic framework of protection against direct and indirect discrimination, harassment and victimization in services and public functions, work, education, associations and transport changing the definition of gender reassignment, by removing the requirement for medical supervision protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic clearer protection for breastfeeding mothers applying a uniform definition of indirect discrimination to all protected characteristics harmonizing provisions allowing voluntary positive action allowing claims for direct gender pay discrimination where there is no actual comparator making pay secrecy clauses unenforceable extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment introducing new powers for employment tribunals to make recommendations that benefit the wider workforce


Kodi i Punes (Labor Code) (2008)

Employment discrimination, Gender discrimination, Sexual harassment

The Labour Code enshrines equality in the workplace into Albanian legislation and provides specific protection to women’s rights. Article 9 (Prohibition against Discrimination) expressly prohibits any discrimination in the fields of labour and education (including but not limited to discrimination based on sex, race and nationality). Article 32 (Protection of Personality) specifically prohibits any acts of sexual harassment against an employee by an employer or other employees. Sexual harassment is defined to include any act that “considerably harms the psychological state of the employee because of sex.” Article 54 (Working Conditions) provides a requirement for pregnant women to have breaks every three hours. Article 105/a (Woman's Employment Protection) provides that women cannot be dismissed solely based on the reason of pregnancy or child delivery. Article 115 (Equality between Sexes in terms of Reward) makes mandatory equal pay between men and women for carrying out jobs of equal value. (External link to the International Labour Organization website for Albanian labor-related legislation, including the ILO's unofficial English translation available here.)

雇用の分野における男女の均等な機会及び待遇の確保等に関する法律（昭和47年法律113号）(Act on Securing, Etc., of Equal Opportunity between Men and Women in Employment (Act No. 113 of 1972)) (2017)

Employment discrimination, Gender discrimination, International law, Sexual harassment

The Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment ("the Act") aims to promote equal opportunities and treatment of men and women in the workplace. The Act falls under Article 1 of the Constitution’s mandate for the government to ensure equality under law and promote measures to ensure the health of working women during pregnancy and after childbirth. Japan enacted the Act in 1985 upon the United Nation’s ratification of Convention on the Elimination of all forms of Discrimination against Women. The Act prohibits employment discrimination based on sex at each stage of recruitment, assignment, and promotion. It also prohibits discriminatory treatment based on marriage status, pregnancy, and childbirth. In addition, an Amendment to the Act in 2017 obligates employers to take steps to prevent harassment based on a protected status. To ensure its effectiveness, the Act requires that employer violations of the statute be publicly announced, and a fine imposed on employers who violate the reporting obligation.

「雇用の分野における男女の均等な機会及び待遇の確保等に関する法律」は、職場における男女の均等な機会及び待遇を促進することを目的としている。本法は、憲法第1条の「法の下の平等を確保し、働く女性の妊娠中及び出産後の健康を確保するための措置を推進すること」に該当します。 日本は、国連の女性差別撤廃条約の批准を受けて、1985年に本法を制定した。 同法は、採用、配置、昇進の各段階において、性別に基づく雇用差別を禁止した。また、婚姻関係、妊娠・出産に基づく差別的取り扱いも禁止している。2017年、同法改正により、雇用主は保護されるべき地位に基づくハラスメントを防止するための措置を講じることが義務付けられた。 その実効性を確保するため、同法では、雇用主が法令に違反した場合にはその違反を公示し、罰金を課すことができる。

Domestic Case Law

平成24年（受）2231 (2012 (Ju) No. 2231) 最高裁 (Supreme Court of Japan) (2014)

Employment discrimination, Gender discrimination

The plaintiff was a physiotherapist in a managerial position at her employer. She requested and was granted maternity leave but was not allowed to return to her position at the end of the maternity leave. She filed a lawsuit against her employer, asserting that there was a violation of the Equal Employment Opportunity Law. The Supreme Court found in favor of the plaintiff because the Equal Employment Opportunity Law forbids disadvantaging employees based on the employee’s pregnancy, childbirth, request for maternity leave, or request for transfer to lighter work.

原告は、管理職にあった理学療法士で、育児休業の終了後、元の職に戻れなかったことから、被告の雇用主に対して、男女雇用機会均等法違反に基づいて損害賠償を求めた。最高裁は、男女雇用機会均等法は、妊娠・出産・産前産後休暇の申請・軽易な業務への転換の申請などを理由に従業員に不利益な扱いを禁じていることを理由に、原告を支持した。

Du Bois-Hammond v. Ariel Anti-Discrimination Tribunal Queensland (2004)

Employment discrimination, Gender discrimination

The complainant worked as a Reservations Manager at the Raging Thunder Pty where both respondents, Cole and Ariel, were directors. The complainant became pregnant and went on maternity leave in agreement with the directors that she would return to the company at the same position after her maternity leave. Closer to the date when the complainant was about to return back from her maternity leave, she contacted Mr. Cole and discussed the possibility of returning on a part-time basis, but Mr. Cole informed her it was not possible for a managerial position to be part-time. The complainant tried to contact Mr. Cole again to inform him that she was willing to work full-time, but could not reach him, so she sent him the message through the receptionist. After several calls with Mr. Cole and without a definitive answer on her return date to work, Mr. Ariel called the complainant to inform her of a company restructuring and that her position was no longer available and that the two newly introduced positions were already filled by her colleagues. The complainant asked if they were going to offer any similar positions, but Mr. Ariel told her they had no more positions and he would not create one for her. The complainant suffered emotional distress and financial loss due to becoming redundant, therefore filed for this complaint seeking compensation. The complainant alleged that, due to her pregnancy and maternity leave, the respondents (i) failed to discuss the terms of her returning to work; (ii) failed to discuss her offer to work part-time;(iii) failed to appoint her in the new position of Call Center Manager and appointed Ms. S. instead; (iv) failed to appoint her in the new created position of 2IC and appointed Ms. G.; and, (v) failed to offer her an alternative position. The Anti-Discrimination Tribunal did not find the respondents liable for all of the complainant’s allegations, but ruled that the company and Mr. Ariel failed to offer the complainant the 2IC position after restructuring even though she was more experienced and familiar with this role than Ms. G., who was only covering for the complainant during her maternity leave. Thus, the Tribunal found that the reason for not offering this position to the complainant was due to her maternity leave. The company and Mr. Ariel also failed to offer the complainant any alternative position, again due to her maternity leave, and therefore her return was not considered while planning the restructuring of the company. The Tribunal found that respondents did not discriminate against complainant in conversations about her returning to work, in not discussing her offer to work part-time, in choosing to restructure, or in failing to appoint her in the Call Center Manager position under the Anti-Discriminatory Act 1991. However, the Tribunal did find that if complainant had not been on maternity leave at the time of the restructuring, she would have been offered the 2IC position, and that decision constituted pregnancy discrimination on the part of the first and third respondents. Also, the Tribunal found the failure to offer complainant a suitable alternative position constituted pregnancy discrimination. Therefore, the Tribunal ruled a compensation sum to be paid the complainant.

Noorfadilla Binti Ahmad Saikin (Plaintiff) v. Chayed Bin Basirun et al. (Defendants) High Court of Malaya at Shah Alam (2011)

Employment discrimination, Gender discrimination, International law

The Plaintiff interviewed with the education officers of the Education Office of the Hulu Langat District to become an untrained teacher. During the interview, the Plaintiff was asked questions pertaining to her general knowledge, personal details, problem solving skills and residential address. She was not asked about her pregnancy status. The Plaintiff was accepted for the position and presented herself at an instructional meeting as instructed. At the meeting, she was told to report for duty immediately. Subsequently, an education officer asked whether anyone at the meeting was pregnant. Once the Plaintiff admitted that she was pregnant, her placement memorandum was withdrawn. The High Court held that it was not relevant whether or not there was a binding contract, as the the Defendants’ decision interfered with the Plaintiff’s right to be employed, which is contrary to Article 8(2) of the Federal Constitution, which provides that there shall be no discrimination on the ground of gender in the appointment of any office or employment under a public authority. This Article of the Federal Constitution was adopted to comply with Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The High Court declared that using pregnancy as a factor in employment is a form of gender discrimination under the Malaysian Constitution, applying CEDAW in interpreting Article 8(2) of the Constitution, because of the basic biological fact that only a woman has capacity to become pregnant.

Reports

Analysis of the precedents of the Cantonal Courts on the Gender Equality Act (2017)

Employment discrimination, Gender discrimination, Sexual harassment

The study is an in-depth analysis of 190 records of cantonal conciliation hearings and judgments under the Federal Gender Equality Act, 1996 (the “Act”) over the period of 2004 to 2015 by authors Karine Lempen (Law Professor, University of Geneva) and Aner Voloder (Lawyer, Office for Gender Equality of the Municipality of Zurich). Among the major findings and conclusions reached in the study are the following:

Proceedings under the Act are nearly always brought by private individuals (mainly women) and very rarely by organizations, notwithstanding the provision of the Act authorizing court actions relating to gender discrimination to be brought by organizations. Individuals bringing a case of gender discrimination to the courts most commonly complain of pay discrimination or discriminatory dismissal, and in the vast majority of cases employment has ceased before the court issues its judgment. Bringing an action under the Act very often entails losing one's job. Almost one-third of discrimination cases relate to pregnancy or maternity, with discrimination often occurring on return to work after maternity leave and the mother being dismissed by the employer. Discriminatory or constructive dismissal cases are often adjudged solely under Swiss employment laws rather than under the specific provisions of the Act. In some cases this has resulted in a failure to relax the plaintiff’s burden of proof as provided in the Act. Most persons bringing proceedings for gender-based discrimination do not win their cases, with the analysis showing that 62.5% of rulings enforcing the Act find mostly or entirely against the claiming employee. Similarly, it is not unusual for the employee in the action to be ordered to pay costs which may amount to several thousand Swiss francs. The protection in the Act against constructive dismissal has proved to be fairly ineffective in practice, with court actions rarely being brought under that provision and all but one of such actions failing. The failure rate is particularly high (82.8%) when the alleged form of discrimination is sexual harassment, with the courts often failing to recognize that the intention of procuring sexual favors is not necessary to a finding of a hostile working environment, and therefore of sexual harassment under the Act. Moreover, it is rare for judgments to assess the extent to which the employer has met its obligation to prevent harassment. The special compensation allowed under the Act for sexual harassment is rarely awarded.

Based on the conclusions reached in the study, the authors make a number of recommendations -- for amendments to the Act and other specific legislative changes, improved training of the judiciary with regard to the Act, actions by Swiss equality offices (including improved data collection, more in-depth study of maternity-based discrimination in Switzerland and actions to raise awareness generally of the Act and the rights it provides), and universities (to require study of the Act as part of the bachelor’s degree course of study in law) -- in order to improve access to justice for people discriminated against on grounds of gender in working life.