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CHAPTER II
Gender and Employment

Introduction

An estimated 40 million women were a part of the Latin American and Caribbean labour force in 1990; by the year 2000, an additional 13 million women will be working. The incorporation of women has been extremely rapid, albeit under discriminatory conditions with few opportunities for advancement. At the same time, increasing participation in the formal labour market has not been accompanied by a reduction in household responsibilities, obliging women to undertake double work loads. Clearly, traditional structures and rules of the labour market require change to create environments more conducive to balance in terms of gender and work load.

This chapter discusses gender issues in labour and legislation as needed to bring greater justice, parity and assure non discrimination in the work force. Women, like men, are creative and contributory agents and beneficiaries of change. The development and unleashing of women's potential should not be restricted by overprotection; however, the exploitation of women, either because of the absence of regulations or of insensitivity to their specific conditions, should be guarded against. The work place must constitute an environment where men and women enjoy the same good conditions and non-discriminatory practices. Women workers, like any others, must be able to enjoy balance and quality in their work environment in terms of gender, responsibility, reward and value.

The chapter is divided into three parts:

Part I consists of three sections. The first section, Gender and Work: A Conceptual Framework, offers a general discussion and analysis of the issue as well as statistical data. Section Two, Existing Legislation, reviews international and national labour laws from a gender perspective. The third section, Recommendations, concludes with pointed recommendations for the future.

Part II examines the pervasive problem of violence against women in the work place. This special type of violence and discrimination is known as sexual harassment. This part provides a global survey of the problem of sexual harassment and the efforts at the national and regional levels to protect women against such harassment.

Part III in this chapter, as in the forthcoming chapter on Gender and the Family, does not propose entirely new legislation. Because all Latin American and Caribbean countries regulate remunerated work for both women and men, what is required is modification and completion of existing codes and laws. Part III, therefore, proposes specific reforms to laws and codes already in effect.


Top of PagePART I

SECTION ONE

CONCEPTUAL FRAMEWORK AND DATA

The quest for justice in the work place and the labour market has deep historical roots, and has inspired much debate, from Adam Smith's theory of productivity to Marx's plea for a proletariat uprising to today's journey toward achieving engendered justice in the working world. The issue of gender and employment is not exclusive to women; rather, it bears on questions of how a society can maximise its productivity and the well-being of its citizens, both men and women, in a framework of justice and equity.

The issue of justice in the labour market is particularly pressing with respect to the employment situation of women since they must overcome historic disadvantages in an unfavourable economic environment. Furthermore, and as shown in Table 2.1, women constitute a substantial proportion of the work force in the region, ranging from a high of 47% in Barbados to a low of 15% in Dominican Republic. However, women suffer from greater insecurity with respect to their employment prospects; as indicated in Table 2.2, unemployment rates in the region are higher for women than for men and significant wage differentials exist.

 

Table 2.1
Share of Women in the Labour Force, 1990

Country Women as % of Total Labour Force Country Women as % of Total Labour Force
Antigua & Barbuda -- Haiti 41
Argentina 28 Honduras 20
Bahamas -- Jamaica 46
Barbados 47 Martinique 44
Belize -- Mexico 27
Bolivia 25 Netherlands Antilles 42
Brazil 28 Nicaragua 26
Chile 28 Panama 27
Colombia 22 Paraguay 21
Costa Rica 22 Peru 24
Cuba 32 Puerto Rico 29
Dominica -- St. Kitts & Nevis --
Dominican Rep. 15 St. Lucia --
Ecuador 19 St.Vincent/Grenadines --
El Salvador 25 Suriname 31
French Guiana -- Trinidad & Tobago 30
Grenada -- Uruguay 31
Guadaloupe 44 U.S. Virgin Islands --
Guatemala 16 Venezuela 28
Guyana 25

Source: United Nations (1991). The World's Women 1970-1990: Trends and Statistics. Social Statistics and Indicators, Series K (8). New York: United Nations Publications. Table 8, pp. 105-106.

 

Table 2.2
Unemployment Rate By Gender - 1990/1991

Country Female Male Total
Argentina

--

--

--

Bolivia

7.8

6.9

7.3

Brazil

--

--

--

Canada

9.7

10.7

10.2

Chile

5.8

5.1

5.3

Colombia

9.8

9.8

9.8

Costa Rica

7.4

4.8

5.5

El Salvador

6.6

8.3

7.5

Honduras

6.2

8.9

7.7

Jamaica

23.1

9.3

15.7

Mexico

3.0

2.6

2.6

Nicaragua

19.4

11.3

14.0

Panama

21.5

12.7

15.7

Paraguay

4.7

5.4

5.1

Peru

7.3

4.8

5.8

Trinidad & Tobago

23.4

15.7

18.5

Uruguay

10.9

6.9

8.5

Venezuela

9.3

10.9

10.4

Source: International Labour Organisation (1993). World Labour Report 1993. Geneva: ILO. Table V, p. 92.

Adequate controls on gender discrimination in the work force do not exist. The distance between the ideals underlying labour relation norms and the reality of their application is extremely wide. Real wages have declined. However, because unemployment rates have risen, women in Latin America and the Caribbean prefer to have a job, even if under exploitative conditions. They find themselves with no choice but to work in precarious conditions, in maquilas or family micro-businesses, despite laws that prohibit such working conditions.

Discrimination exists not only in the content and application of law but also in the political culture. This is reflected in women's lack of awareness of their rights, their inability to access legal services, and the lack of professional support to guarantee these rights to them.

Furthermore, women experience tension as they seek to balance domestic responsibilities with work outside the home. In associations, organisations, or unions -- even in those where women are numerically dominant -- women's qualitative participation in leadership positions is limited. Recent statistics reveal that women hold under 8% of all governmental decision-making positions by region and sector. All of these tensions and limitations affect women’s possibilities for achieving equal access and opportunities to work.

Women in Latin America and the Caribbean experience discrimination in the working world in five primary areas: employment, professional training, working conditions, social security, and domestic work. The conceptual analysis of gender and employment will be divided into the aforementioned five categories.

Employment

The right to work is generally recognised for both men and women. However, this right is more a declaration of principle and has little to do with actual practice. In the majority of Latin American and Caribbean countries, there exists a juridical discrepancy between governmental recognition of this fundamental right and governmental capacity to create conditions for the universal realisation of the right to work. The right to work is unenforceable; workers cannot oblige their respective governments to create jobs.

Women in particular have difficulty in exercising the right to work because men and women do not have equal access to employment. Just employment practices require that sexual differentiation be expressly prohibited. However, women face different conditions: their freedom to choose their profession and occupation is restricted; their ability to renounce type-cast professions and occupations is even more restricted.

Not only do national economic conditions make free choice of employment difficult, but social stereotypes construct criteria for what is considered appropriate for women and appropriate for men. Cultural norms establish gender discrimination in occupational categories. Thus, when an employer requests secretarial services, he/she expects to contract a women. Meanwhile, men are considered appropriate candidates for masons, guards and carpenters. These sexual stereotypes aggravate the situation of women in the contracting Latin American and Caribbean labour market. Without access to employment, women will be unable to enjoy equal opportunities, income, and treatment.

Even when the formal right to work exists free from discrimination based on sex, it is customarily considered that women —especially married women— should not work. Furthermore, a few Latin American countries, like Bolivia and Guatemala, continue to prohibit married women from holding remunerated jobs without their husbands' permission. While such laws have been repealed in most countries, the custom remains in force.

In addition, women are considered part of the supplementary work force. Therefore, state and employer policies tend to favour men when facilitating access to jobs. The perception of men as the "providers" has changed little despite evidence to the contrary. Table 2.3 indicates that, on average, women in Latin America and the Caribbean head between 20 - 40 % of all households.

Declining family income in the 1990s has forced women to challenge customary prejudice and seek employment outside the home. Table 2.4 below shows that the share of economically active women has generally increased in the last two decades.

 

Table 2.3
Share of Households Headed by Women

1980 1990     1980 1990
19.2

--

43.9

--

--

14.4

--

17.6

28.2

21.6

37.7

21.7

--

--

24.4

--

--

--

--

--

20.1

22.7

20.0

--

21.0

--

25.0

--

26.6

--

Argentina

Bahamas

Barbados

Belize

Bolivia

Brazil

Colombia

Costa Rica

Cuba

Chile

Dominica

Dominican Republic

Ecuador

El Salvador

Guyana

Guatemala

Grenada

Haiti

Honduras

Jamaica

Mexico

Nicaragua

Panama

Paraguay

Peru

St. Kitts and Nevis

Suriname

Trinidad and Tobago

Uruguay

Venezuela

--

45.3

--

--

--

15.2

--

21.5

18.1

--

45.6

--

25.3

21.0

21.8

16.9

--

--

20.4

--

--

24.3

22.3

17.0

17.3

--

--

--

23.0

21.3

Source: United Nations Development Programme (1995). Human Development Report 1995. New York and Oxford: Oxford University Press. pp. 64-65, Table A 2.5.

 

Table 2.4
Share of Women who are Economically Active (percentages)

Country 1970 1990 Country 1970 1990
Antigua & Barbuda 45 -- Haiti 72 56
Argentina 27 28 Honduras 15 21
Bahamas 57 -- Jamaica 58 68
Barbados 43 61 Martinique 39 52
Belize 20 -- Mexico 18 30
Bolivia 22 27 Netherlands Antilles 37 44
Brazil 23 30 Nicaragua 21 28
Chile 22 29 Panama 30 30
Colombia 22 22 Paraguay 23 23
Costa Rica 20 24 Peru 20 25
Cuba 19 36 Puerto Rico 24 26
Dominica -- -- St. Kitts & Nevis 39 --
Dominican Republic 11 15 St. Lucia 36 --
Ecuador 17 19 St.Vincent/Grenadines -- --
El Salvador 24 29 Suriname 27 31
French Guiana 36 -- Trinidad & Tobago 33 34
Grenada -- -- Uruguay 28 32
Guadaloupe 45 53 U.S. Virgin Islands 50 --
Guatemala 14 16 Venezuela 22 31
Guyana 22 28      

Source: United Nations (1991). The World's Women 1970-1990: Trends and Statistics. Social Statistics and Indicators, Series K (8). New York: United Nations Publications. Table 8, pp. 105-106.

While the violation of the right to work is the most fundamental form of employment discrimination, gender discrimination in the labour market is manifested in many ways. Some of these may seem well-intentioned toward women. For example, many laws seek to "protect" women by limiting their access to certain potentially dangerous occupations, such as night work. However well-intentioned, these prohibitions are discriminatory. The criteria of whether or not a job is too dangerous should apply equally to men and women. Furthermore, by cutting off women's access to night jobs, these laws effectively restrict women's access to frequently higher paid jobs. In addition, in many countries, night workers often enjoy reduced working hours, sometimes only thirty-six hours a week. This type of schedule could better suit some women who prefer to work fewer hours albeit at night. Women should have the freedom to choose any occupation without external interference. The issue is not so much what women choose, but that they have equal rights and conditions for choice.

The trend in Latin America and the Caribbean is towards a growing informal economy which is outside the purview of labour legislation and norms. National census data and household surveys suggest that the Urban Informal Sector (UIS) generated 30% of the Latin American region's GNP in 1989. This share has tended to grow significantly since 1960. Moreover, in the 1980-1989 period, the annual growth rate of this sector was 6.7%, compared to a 2% annual growth rate registered for the total labour force in the region and 3.7% for the non-agricultural EAP. As shown in Table 2.5 in the UIS, women again constitute a large proportion, ranging from over 70% in Chile, Costa Rica and Brazil to 60% in Bolivia to just under 10% in Panama. In this context, the application of concepts of equal opportunity, income and treatment require reappraisal. For example, consideration should be given to facilitating women's access to credit programs bearing in mind their difficulty in furnishing traditional forms of collateral.

 

Table 2.5

Share of Women Employed in the Urban Informal Sector

Country Year %
Ecuador (Quito)

Colombia

 

Bolivia (Santa Cruz)

(Cochabamba)

Chile

 

Costa Rica (San Jose)

Panama

Paraguay

Venezuela (Caracas)

Brazil (Sao Paulo)

1987

1980

1988

1988*

1988*

1985

1990

1985

1985

1990

1985

1985

33.0

23.5

26.1

44.6

64.6

19.7

22.8

13.4

8.4

40.7

12.2

14.9

* Migration and employment surveys

Source: United Nations (1993). The Feminization of the Informal Sector in Latin America and the Caribbean, Chile: Women in Development Series. Table 3, p. 48.

 

Professional and Vocational Training

Professional training is, of course, an educational process. However, education is generally limited to that which is considered productive. Training programs tend to adhere to two underlying assumptions: first, that low and middle income students should train in technical and/or manual skills; and second, that these skills are gender specific. Training is thus biased in both class and gender terms. Women are usually offered training only in traditionally female occupations that offer fewer possibilities for advancement.

Women are also under-represented in certain professions. Chart 1 reveals that while 60-80% of all nurses and 40-70% of all teachers are women, few women are engineers, architects, lawyers or managers. Greater efforts should be made to promote gender balance in these professions by facilitating women's access to advanced education in these fields.

 

Chart 1
Share of Women in Selected Occupations for Selected Countries

Source: Eulalia D. de Conde, Evaluation and High-Level Employment: The Case of Latin American Women, Bulletin of OAS 8 (1-2), 1986.

Gender discrimination practised at home also affects women's possibilities to obtain professional and vocational training. When resources are scarce, parents often choose the male child to receive professional training. This choice has its basis in the perception that it is "useless" to invest in girls, who are expected to marry and be economically sustained by their spouse. Ideally, a choice must not be made. Both children deserve equal opportunity to develop their potential. Furthermore, if choices must be made, they would perhaps be better made on the basis of potential and aptitude as opposed to gender and traditional societal roles.

Finally, domestic responsibilities often impede women's efforts at self-empowerment through training. It is not uncommon that their ability to obtain advanced training is restricted by lack of resources. Furthermore, women are often unable to avail themselves of scholarships and training because studies interfere with their traditionally assigned family responsibilities.

Working Conditions

Once in the labour market, women confront discriminatory conditions in their internal work environment. These relate to worker safety, work time, promotions, remuneration and sexual harassment.

Women face a type of double discrimination with regard to worker safety. On the one hand, women are excluded from some occupations because they are considered too dangerous, either because of the physical conditions required or because of the working hours. On the other hand, women's exposure to dangerous working conditions is often not recognised. For example, some primarily female occupations, such as nursing, are not recognised as dangerous although they require physical endurance and exposure to potentially toxic substances. Rather than excluding women on the grounds of protection, the concept of health in the work place must be revised. The issue must be worker safety for all, not just for men or for women. The issue must be choice, equal choice under safe conditions for any employment irrespective of gender.

Worker safety is a particularly pressing issue in the maquiladora industries. Women comprise 80% of all maquiladora employees in Central America. In general, their ages range from 14-25 years, and most are single mothers. In these factories, women earn only two-thirds the wage rate of men, while hourly wages range from only US$0.26 (Guatemala) to US$0.64 (Mexico). A recent survey revealed that 8.4 of every 1000 children born to women employed in the maquiladoras in Mexico die of anacefalia, a disorder associated with exposure of mothers to toxic substances in the workplace.

Many laws regulate work time. However, regulations for weekly rests and vacations are largely insensitive to the specific conditions of working women. Laws mandating a day of rest apply only to remunerated work largely in the formal sector but ignore completely the unpaid domestic labour to which women dedicate a large portion of their time. Women, on average, spend five times more hours per week on household chores than men.

The way the right to rest is conceived in the formal normative component of the law sustains the cultural belief that domestic work is not "productive" and therefore does not imply the right to rest. It is estimated that the work load of women with children under the age of five increases by an average of 10 hours per week. The formal day of labour rest is usually used to take care of household work that women have not been able to complete for lack of time. In this context, efforts need to be made to raise the value and recognition given to this mostly invisible but fundamental work in benefit of all society. Added vacation days or social security benefits might constitute some methods to compensate for, and formally recognise, the informal contribution. To be non-discriminatory, this provision could be extended to both partners in proportions they mutually request.

For women to be the agents and beneficiaries of change, society must not only value their roles within their households, but must in addition and in recognition, accommodate the rules and structure of the formal workplace to enable them to develop, contribute and be formally recognised for both. This equation must allow for inclusion, not exclusion. Inclusion for better incorporation into the formal work force and better inclusion of women's household responsibilities as part and parcel of their rights and contributions.

With regard to promotions, most current systems discriminate against women. Employees must meet minimal time and training requirements in order to be promoted; these rules are implicitly discriminatory against women. By making years of continuous work the main criteria for advancement, women are at an inherent disadvantage. Domestic work and child care obligations often interrupt women's working career. These obligations produce higher rates of occupational turnover for women, who thus enjoy fewer benefits of seniority.

In addition, social prejudices and stereotypes create an inclination to offer promotions to men. High decision-making positions are offered to people who are not expected to take temporary leaves, as women do during and after pregnancy. Women's economically productive period is considered shorter than men's; women who acquire family responsibilities are expected to retire from remunerated work. Also, the mature woman returning to the labour market faces age discrimination in addition to gender discrimination.

With respect to remuneration, pay scales are often discriminatory against women. An ECLAC study of 13 Latin American and Caribbean countries revealed that women earn one to two thirds less than men, as shown in Chart 2 below. Wage and salary differentials tend to increase in the better remunerated professions, although there is considerable variation within the region. In addition, women are forced into occupations that offer few opportunities for advancement.

Chart 2
Average Incomes, by Occupation and Sex

Source: Interamerican Development Bank (1990). Economic and Social Progress in Latin America 1990 Report. Washington DC: Distributed by John Hopkins University Press. Data are from a sample of 5 cities: Bogota, Caracas, Panama, San Jose, Sao Paolo.

Women suffer a singular form of discrimination in the work place: sexual harassment. Sexual harassment is not only a problem of violence against women, but also one of the greatest obstacles to women in the labour force. Nevertheless, most Latin American and Caribbean countries have neither recognised nor regulated this conduct in any way. It is generally accepted that all people have the right to respect for their physical, emotional, and moral integrity and that no one should be submitted to degrading treatment. Most labour codes oblige employers to protect their employees from verbal and physical abuse. However, few Latin American countries have recognised sexual harassment as a specific category of degrading treatment and even fewer have attempted to prohibit and prosecute this behaviour.

Sexual harassment occurs in all kinds of working environments. Working women often find that offers for promotions are contingent on the provision of sexual services. Young women, fearful of losing their jobs or believing that succumbing to harassment will protect them in the future, are particularly vulnerable to unwelcome sexual advances. In some countries, it is not uncommon that the domestic worker is forced to provide the opportunity to her employer's son to become sexually initiated. Legislation and guidelines on sexual harassment are fundamental to improvement of working conditions.

Social Security

Social security can be understood as the combination of measures that secure a minimum compensation for all men and women when the loss or interruption of their capacity to work impedes their formal employment.

In Latin America and the Caribbean, social security is the responsibility of specific institutes. These institutes provide coverage to only a fraction of the working population and often operate only in the major cities. Furthermore, the proportion of the uninsured is high. Even when the obligation and means exist for insurance, employers are often unwilling to comply with the law. In the tight labour market, both male and female workers consent or are effectively forced to take jobs without social security. However, the situation is worse for women. Few countries extend social security coverage to the primarily female informal categories of work, such as domestic service and microenterprises.

As regards pregnancy and maternity leave, many modern social security measures have paid special attention to women's concerns. There is a movement to protect women workers in their pre and postnatal periods, by prohibiting employers from firing a female employee during or immediately after pregnancy, while providing paid maternity leave. Such measures attempt to protect women's jobs and ensure their income during and after pregnancy.

However, despite its positive intent, even where legislation prohibits firing an employee because of pregnancy, loose enforcement and loopholes leave women unprotected and unable to exercise their rights to maternity leave. First, although the prohibition is made under threat of sanction, mechanisms to apply the sanction do not exist or sanctions are too weak to effectively discourage the practice. Second, employers are prohibited from firing a woman because she is pregnant, not during the time of pregnancy or breastfeeding. Thus, employers may cite a different reason upon firing a pregnant employee. Furthermore, pregnant workers who are afraid of losing their jobs prefer not to take maternity leave. Customarily, they stop working shortly before giving birth, receive no benefits and then return to work shortly after.

The normative acceptance of protection of pregnant and lactating workers does not translate into general practice. Pregnancy is seen as an obstacle to career advancement. While employers should extend legal protection to women, they limit their access to jobs in order to forestall future obligations to women of reproductive age. Until social attitudes change dramatically, the responsibility of child rearing and education falls largely on the mother, affecting her and her employer, not the employer of the father, who traditionally does not exercise direct education and child rearing functions. Unfortunately then, maternity leave provisions, without simultaneous paternity leave, biases employers toward hiring men. Perhaps the most effective means to redress this bias is to institute and implement paternity leave as well as maternity leave.

In addition to maternity/paternity leave policies, breastfeeding options for lactating working mothers are another component of just gender employment practices. However, few countries have explicit policies or mechanisms to institute such rights. Proper implementation would require both a place for breastfeeding and specialised personnel to attend the child while lactating mothers work. In addition, flexible and/or reduced work schedules to allow for breastfeeding are desirable. As long as society expects to reproduce itself, pregnancy and maternal responsibilities must be secured. Effective social security together with just work conditions are imperative, especially if society is to benefit from the best contribution of its female members, as productive agents or beneficiaries of change

Domestic Work

In national labour codes, domestic service is treated as a job with a reduced labour regimen. Consequently, domestic workers, generally women, enjoy fewer rights than other workers. Domestic workers engage in typically "female" tasks, such as cleaning and cooking, and for this reason, their work is socially undervalued. This undervaluation is mirrored at the legislative level: the subject of domestic labour is not addressed by international, regional or national law.

Standards related to working hours, rest, remuneration and social security generally do not apply to domestic workers. Contracts are verbal, making job security uncertain and reducing the possibility to seek redress for unjust firing or abuse. Salaries are paid partly in kind and partly in cash. Benefits such as vacation and severance pay are irregular. The work day is unregulated, leaving little time for leisure, study or rest. Also, sexual harassment takes on a special dimension for domestic workers, when members of the household abuse their position.

Because of their restricted mobility and isolation in the home, domestic workers are rarely able to organise labour unions. These same restrictions isolate them from both expressions of solidarity and from opportunities to train for other occupations.

Domestic workers in practice are neither protected by existing legislation nor formally structured to become sufficiently visible and organised to effect targeted change in their own benefit.

SECTION THREE

RECOMMENDATIONS AND CONCLUSIONS

This chapter has thus far shown that several existing laws still permit gender discrimination in the work place; clearly, these laws must be revised. At the same time, other problems that working women face -- such as, effective maternity and paternity leave, discriminatory pay scales, and sexual harassment -- remain open to legal redress. Labour codes and legislation must, therefore, be created or amended to incorporate engendered perspectives in the work place. To this end, at a minimum, legislation should ensure:

1. Effective application of the Constitutional Equality clause in all occupational and employment situations.

2. Women's right to work free of discriminatory legal limitations (such as articles requiring the permission of a husband or male relative for the woman to work).

3. Equality of opportunity and reward for education and occupational training.

4. Safe working conditions for all employees.

5. Effective definition and creation of legal instruments to prevent and redress sexual harassment.

6. Equal pay for work of equal value.

7. The existence and application of effective maternity and paternity leave and lactancy policies; such policies would ensure job security for expectant and new mothers and encourage greater and more equitable paternal involvement in child rearing beginning at birth.

8. The creation and sustainability of adequate child care provisions for workers.

9. Contractual and non exploitative working conditions covering issues of remuneration, benefits and protection from physical and emotional abuse for domestic workers.

10. Creation of an autonomous body, such as a national commission on gender, to monitor and administer implementation of engendered justice in the work place.


Top of PagePART II

Sexual Harassment - Global Perspectives

Sexual harassment is a pervasive and universal problem affecting a significant proportion of the world’s women. According to ILO between 15 and 30% of working women questioned say they have been subjected to frequent, serious sexual harassment -- repeated unwanted touching, pinching, offensive remarks and unwelcome requests for sexual intercourse. These "offensive and demeaning" experiences often result in emotional and physical stress and related illnesses. One in 12 women who have been sexually harassed at work are forced to leave their jobs. The following section will discuss various legal approaches to the subject of sexual harassment followed by brief descriptions of national legislation. The approach of the UN, the UNDP and other regional organisations like the Organisation of American States (OAS) and the European Union is also considered.

 

II.1 SEXUAL HARASSMENT - TWO DIFFERENT APPROACHES

Several countries and regional organisations have dealt with the problem of sexual harassment in their legislation, using largely two approaches (i) quid pro quo and (ii) hostile environment. Under quid pro quo, sexual harassment occurs when there is a demand by a supervisor, usually but not always a man, directed to a subordinate, usually but not always a woman, that the subordinate grant the supervisor sexual favours as a condition of retention of employment benefits, wage increases, promotions, placement, or the job itself. Under the hostile environment approach, sexual harassment is defined as unwelcome sexual advances, requests for sexual favours or other verbal, non-verbal or physical conduct of sexual nature which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, abusive or offensive working environment.

Some countries such as France have adapted the quid pro quo approach; others such as Australia, Canada, New Zealand, Switzerland, United Kingdom and United States of America follow a combination of both the approaches.

Element of Unwelcomeness

In virtually all countries which have defined sexual harassment by statute or court decision, the essential element of a complaint of sexual harassment is that the conduct was unwelcome. The question that follows is how to determine if certain sexually oriented conduct is unwelcome.

The formulation typically given by statute or court decision (e.g. in the Canadian provinces of Manitoba, Newfoundland and Ontario) is that sexual harassment refers to actions that an individual knows or ought reasonably to know are unwelcome.

The welcome or unwelcome element of the sexual harassment definition deserves some clarification. It is clear that some forms of conduct are unwelcome by their nature, e.g. sexist epithets, physical violence or touching of intimate parts of the body. The welcomeness of other conduct, such as social invitation, is less obvious; the conduct is not inherently offensive and the reaction can be ambiguous. As regards rape and violent sexual assault, the more generally accepted view is that they constitute qualitatively different types of offence, far more dramatic in terms of the violence or threat of violence associated with the act, and also in terms of the consequences to the victim. Aggravated assault and rape are, therefore, a part of the penal laws and are not considered under either of the two approaches taken to sexual harassment.

In the 23 countries examined herein, several differences in approaches exist, both with respect to the legal remedies available against sexual harassment and to the voluntary steps that have been taken. Sexual harassment has been dealt with under such diverse legislation as Equal Opportunity Law, Labour Law, Tort Law, Criminal Law.

 

II.2 EXAMPLES OF NATIONAL LEGISLATION

The following section provides a broad range of examples of national legislation and experience drawn from the cases of the USA, Australia, Austria, Belgium, Canada, France, Germany, Ireland, Israel, Italy, Japan, Netherlands, New Zealand, Spain, Sweden and Switzerland.

 

United States of America

The term "sexual harassment" originated in the United States. After considerable hesitation, federal courts in the United States found sexual harassment to be a violation of the Title VII of the Civil Rights Act of 1964 which forbids sex discrimination in employment. The quid pro quo approach was first approved by the federal courts in 1977. The hostile environment approach was subsequently approved in 1981, largely as a reaction to the sense that the quid pro quo approach alone was inadequate to fully address the realities.

The courts based their rulings on the Guidelines of the Equal Employment Opportunity Commission (EEOC), a body that monitors compliance with the 1964 Civil Rights Act. It is important to note that these Guidelines, in themselves, did not have the force of law. The EEOC Guidelines state that harassment on the basis of sex violates Section 703 of Title VII of the Civil Rights Act and they assist in recognising sexual harassment, defining the term as follows:

Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

As indicated by the EEOC Guidelines, the determination of alleged sexual harassment depends on examination of the totality of the circumstances. The EEOC Guidelines also consider employers responsible under certain circumstances for the conduct of their agents and subordinates, or the conduct between the fellow employees and the conduct of non employees.

Equal opportunity law has been interpreted to prevent indirect sexual harassment in a situation where a female complainant was not herself sexually harassed, but was denied an opportunity to be considered on the merits of her work because her male supervisors granted promotions and salary increases to numerous other female employees because of their voluntary participation in sexual activities.

The situation is less clear when the practice of sexual favouritism is not widespread but isolated. This would be the case if a male supervisor had a consensual relationship with a female subordinate but did not solicit sexual favours or otherwise harass other women employees. If the female subordinate having a special relationship with her supervisor receives certain preferences in promotion or financial treatment in relation to other employees, the EEOC has taken the position that this does not constitute sexual harassment.

Australia

In 1983 some courts interpreted anti-discrimination legislation to include sexual harassment. In 1984, laws specifically mentioning sexual harassment were adopted by the federal government, as well as the states of Victoria and South Australia. As per the ILO survey, sexual harassment complaints accounted for 36% of the total number of sex discrimination complaints filed under the federal Sex Discrimination Act of 1984.

Austria

Legislation is under consideration and the Federal Ministry of Labour and Social Affairs has proposed an amendment to the Equal Opportunities Act to address sexual harassment as a form of sex discrimination. Expansion of the Equality of Treatment Act to public sector employers is also under consideration. In 1987 a case came close to being considered sexual harassment. However, it was dealt with under the right to privacy clause rather than the sexual harassment one.

Belgium

The city of Antwerp included a complaint procedure for sexual harassment in its general disciplinary regulations. A newly promulgated Royal Decree requires the inclusion of measures to prevent sexual harassment in work regulations in the enterprise. By implication, the Economic Reform Act that prohibits sex discrimination could be extended to sexual harassment cases. The Act provides that:

Every worker shall be assured of equality of treatment in all provisions and practices related to conditions of employment and dismissal.

With respect to contract of employment the Act specifies that,

An employer and worker shall show respect and consideration for each other.

Canada

The human rights acts and codes in the provinces of Manitoba, Newfoundland, Ontario and the Yukon Territory specifically prohibit sexual harassment. In 1980, the Supreme Court of Canada ruled that sexual harassment is sex discrimination.

The Canadian Labour Code defines sexual harassment as:

Any conduct, comment, gesture or contact of a sexual nature that (a) is likely to cause offence or humiliation to any employee; and (b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

The Canadian Human Rights Act states:

It is a discriminatory practice ... in matters related to employment, to harass an individual on a prohibited ground of [sex] discrimination.

The Canadian Human Rights Commission defines the term "sexual harassment" as "verbal threats or abuse, unwelcome remarks...leering or other gestures...unnecessary physical contact." While criminal laws may apply in severe cases to sexual harassment, their use in cases of harassment in the work place is unusual.

France

The precedent setting case came up in January 1992 when a supervisor was sentenced to jail for sexually harassing one of his female employees. The Penal Law Article 222-32-1 on which the sentence was based states:

The act, by anyone abusing authority that is conferred by his or her position to pressure [someone] with the intention of obtaining sexual favours, is punishable.

While the heading of above article incorporates the term ‘sexual harassment’, its text contains no specific reference to the term ‘sexual harassment’ or ‘sexual aggression’. This is because the dictionary defines ‘harassment’ as ‘repeated’ behaviour. The legislators wanted to make sure that harassing behaviours could include those that are repeated as well as those that occur only once. However, the Penal law treats sexual harassment within the hierarchical context, covering harassment of subordinates by supervisors, but does not treat sexual harassment by co-workers.

As for the penalties, sexual harassment can include a fine of up to 100,000 francs (about US $18,000) and/or up to one year in prison. The Penal provision relating to indecent behaviour also has been interpreted to include sexual harassment, and allows for punishment by a fine ranging from 6,000 to 60,000 francs and/or three to five years in prison.

Germany

In the absence of federal laws covering sexual harassment at work, trade unions have included the subject in their educational programs. At the state level, the State of Berlin Anti-Discrimination Law dealt with the issue of sexual harassment, defining it as:

particularly unnecessary physical contact, unwelcome comments of a sexual content, unwelcome remarks, suggestive comments or jokes about a person's appearance or body, display of pornographic literature and sexual propositions.

Ireland

Since 1985, sexual harassment has been considered in case law as sex discrimination in terms and conditions of employment under the Employment Equality Act of 1977. The Labour Court that recognised sexual harassment as a form of discrimination ruled that:

Freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect and any denial of that freedom [is] discrimination.

Israel

Israel has taken a quid pro quo approach. The 1988 Equal Opportunities in Employment Law forbids both sexual harassment and discrimination in the work place. The law is applicable to educational settings and to the army as well. Under Israeli law, the victim must show that )a) she suffered injury as a result of the harassment; (b) she was subject to sexual blackmail or coercion with employment benefits conditioned upon her response to the advances; or (c) as a result of rejection of her supervisor's advances, she was fired, demoted, refused raises, given poor job assignments, or passed over for promotion.

Italy

Sexual harassment is not specifically mentioned in Italian law. However, Act 903 in 1977 made equality between men and women legally binding in employment and can be used in sexual harassment cases. The issue has been taken up in the collective bargaining process. Act 903 was strengthened by a 1991 provision that requires affirmative action to promote equal treatment of men and women at work. So far, only a few court cases have interpreted this act to provide protection from sexual harassment.

Japan

No statutory provisions explicitly outlaw sexual harassment in Japan. However, sections of the Civil Code have been used successfully in ruling against this practice. In April 1992, a woman won the first sexual harassment case to be brought in Japan. The court relied on the section of the Code which says that:

A person who intentionally or negligently violates the right of another is bound to make compensation for damages arising therefrom.

Netherlands

In this country, there is neither a legal definition of "sexual harassment" nor has case law developed one. Employers' and workers' organisations, however, are treating the problem seriously: about a third of all workers are covered by a collective agreement that calls for prevention of sexual harassment. The Men and Women (Equal Treatment) Act provides no specific remedies to victims of discrimination other than a declaration of legal nullity, and therefore it has not been applied to sexual harassment cases. The State Civil Servants Regulations requires employees to conduct themselves "in a manner befitting a good civil servant". This proscribes the use of rough or indecent language or other forms of "delinquency" of which sexual harassment could be included.

New Zealand

The Human Rights Commission Act of 1977 does not specifically provide for sexual harassment. However, the Employment Contracts Act of 1991, which replaced the Labour Relations Act of 1987 does provide a definition of sexual harassment:

An employee is sexually harassed ... if that employee's employer or a representative of that employer (a) makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity which contains (i) an implied or overt promise of preferential treatment in that employee's employment; or (ii) an implied or overt threat of detrimental treatment in that employee's employment; or (b) by (i) the use of words (whether written or spoken) of a sexual nature; or (ii) physical behaviour of a sexual nature, subjects the employee to behaviour which is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and which is either repeated or of such a significant nature that it has a detrimental effect on that employee's employment, job performance, or job satisfaction.

Spain

Several legal instruments in Spain protect against sex discrimination and acts of sexual harassment. A provision enacted in 1989 to protect against sexual harassment stated:

All workers shall enjoy [the right] to respect for his privacy and proper consideration of his dignity, including the protection against verbal or physical offence of sexual nature.

The Charter allows the employer to suspend or terminate employees for disciplinary reasons and for employees to request termination of his her contract for such reasons as "substantial alterations to his or her conditions of employment which adversely affect his or her personal dignity." Employees may also be terminated for "offensive behaviour by word or deed towards the employer, [or other] persons working in the undertaking."

The Civil Servants Regulations, moreover, state that:

All civil servants shall enjoy the right to respect for his or her privacy and proper consideration for his or her dignity, including protection against any verbal or physical offence of sexual nature.

Sweden

Although the Equal Opportunities Act of 1991 does not provide a specific definition of sexual harassment, it created a new legal principle in Sweden, obliging employers to take affirmative action to combat sexual harassment in the work place.

 

Switzerland

No Swiss law explicitly defines sexual harassment, but cases have been brought to court. A Geneva court, however, did provide a working definition of sexual harassment in 1991 (Pfleger v. Muhleback S.A.):

Persons who in their position of employer, supervisor, or collaborator, take advantage of their position or influence in an enterprise to harass an employee or a job applicant of the same sex or of the opposite sex, by unwelcome propositions, immoral comments, images, objects, gestures or undesired behaviour...with the goal of directly or indirectly obtaining sexual favours in making understood either verbally or tacitly that the acceptance or refusal of such favours should or could constitute a decisive criterion for the signature, content means of application or the continuation of an employment contract, or ...with the goal, or with the result, of poisoning the existing or future work environment.

The Labour Act is also relevant to issues of sexual harassment. The Act was intended to obligate the employer to provide for health, safety, and morals of women workers, and in that protection, limited the employment of women in certain areas of work. This Act could be applied to sexual harassment where it caused unsafe, unhealthy, or immoral conditions. Article 33 of the Act was used to win a court case against a male supervisor who harassed a female employee.

Latin America and the Caribbean

With the exception of Barbados which has passed a Sexual Harassment Law in 1992, the problem of sexual harassment has been dealt with insufficiently both at the level of national legislation and application in the Latin American and Caribbean countries. However, the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, to which a large majority of Latin American and Caribbean states are party, expressly prohibits sexual harassment. Article 2 of the Convention declares:

Violence against women shall be understood to include physical, sexual and psychological violence:.....(b) that occurs in the community and is perpetrated by any person, including,....sexual harassment in the work place, as well as in educational institutions, health facilities or any other place.

In addition, Article 7 condemns all forms of violence against women and signatory parties agree to pursue, by all appropriate means and without delay, policies to prevent, punish and eradicate such violence. This includes adopting the penal, civil, administrative and any other type of provisions in their domestic legislation as needed to prevent, punish and eradicate violence against women.

Although 23 states have signed the Convention, only 13 have ratified it. Among the 13 ratifying states, only Barbados has commenced a legislative process to eradicate sexual harassment. Four countries have not yet signed the Convention.

II.3 INTERNATIONAL AND REGIONAL ORGANIZATIONS

United Nations

With respect to the United Nations, in 1989 the Committee on the Elimination of All Forms of Discrimination against Women which monitors the implementation of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), expressed concern that violence against women may hamper progress towards the elimination of discrimination. Sexual harassment was discussed in the context of this violence. Article 11 of General Recommendation 19 expressed its concern that ‘Equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the work place’. As per Article 11:

Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.

Further, the Declaration on the Elimination of Violence against Women, the Commission on Human Rights resolution appointing a Special Rapporteur on violence against women and the General Assembly resolution on measures to prevent acts of violence against women migrant workers, expressly prohibit sexual harassment. The preliminary report of the Special Rapporteur on violence against women to the Commission on Human Rights dwelled on various legal and other strategies to combat sexual harassment against women world wide. At both the UN Secretariat and in the specialised agencies, sexual harassment has been expressly prohibited. The common definition found in the UN parlour includes both quid pro quo and hostile work environment approaches. Sexual harassment occurs when:

any unwelcome sexual advance, request for sexual favours or other verbal or physical conduct of a sexual nature, when it interferes with work, is made a condition of employment or creates an intimidating, hostile or offensive work environment. It is particularly serious when behaviour of this kind is engaged in by any official who is in a position to influence the career or employment conditions (including hiring, assignment, contract renewal, performance evaluation, working conditions, promotion) of the recipient of such attentions.

A United Nations Development Program (UNDP) circular further explains that sexual harassment can take many forms and may include, but is not limited to: unwelcome sexual advances, the forcing of sexual attention, verbal or physical, on an unwilling person; or the attempt to punish the refusal to comply. Specific examples are: verbal harassment or abuse, subtle pressure for sexual activities, unnecessary touching, patting, or pinching, leering at a person's body, constant brushing up against a person's body, demanding sexual favours accompanied by implied or overt threats concerning employment or advancement, physical assault including rape. It includes both unwelcome heterosexual and homosexual sexual advances.

The UNDP circular also elaborates the role of supervisors, gender awareness training, procedures dealing with sexual harassment, dealing with perceived harassment, confidential guidance and counselling at headquarters and field offices (Ombudsman Panel, Division of Personnel and Program for Staff Assistance), and both formal and informal approaches to resolve complaints at headquarters and field offices.

The Organisation of American States

The Charter of the Organisation of American States, the General Standards and the Staff Rules prohibit discrimination based on sex. In addition the Secretary General and the General Secretariat recognise the right of every staff member and independent contractor to be treated with dignity and respect and to work in healthy atmosphere which is free of sexual harassment. Staff Rule 101.8 prohibits sexual harassment and provides for the issuance of Administrative Provisions. It states:

(a) Every staff member and independent contractor is entitled to work in an atmosphere which is free of sexual harassment. The General Secretariat will take appropriate steps to promote such a working environment, and it will not tolerate behaviour which is not respectful of that right.

(b) No staff member or independent contractor shall sexually harass another staff member, an independent contractor, or any visitor who comes onto the General Secretariat's premises. Every staff member and independent contractor has the right to object and file a complaint should sexual harassment occur and to expect the Secretary General to deal seriously and promptly with that complaint.

(c) All supervisors, staff, and independent contractors are obligated to comply with the General Secretariat's policy against sexual harassment and shall take appropriate measures to ensure that sexual harassment does not occur. Staff members who violate that policy will be subject to disciplinary action; and independent contractors who violate that policy are subject to termination for cause.

(d) The Secretary General shall issue the Administrative Provisions to implement and enforce this Rule.

Executive order 95-07 of September 29, 1995 prohibits sexual harassment, providing the following definition:

A. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favours, and other or physical conduct of a sexual nature, when it interferes with work, is made condition of employment or creates an intimidating, hostile, or offensive work, is made a condition of employment or creates an intimidating, hostile, or offensive work environment. It is particularly serious when engaged in by an official who is in a position to influence career or employment conditions (including hiring, assignment, contract renewal, performance evaluation or promotion) of the recipient of such behaviour.

B. Actions constitute sexual harassment when:

(1) Submission to the advance, request, or conduct is, or is implied to be, a term or condition of an individual's employment;

(2) Submission to or rejection of the advance, request, or conduct is used as the basis for employment decisions affecting the individual, or

The advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual's work performance or of creating an intimidating, hostile, or offensive working environment.

European Union

On 27 November 1991 the Commission made a recommendation on the protection of the dignity of women and men at work, to which is annexed a code of practice to combat sexual harassment. It recommended that the member states take action to promote awareness that conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work, including conduct of superiors and colleagues, be considered unacceptable if:

(a) such conduct is unwanted, unreasonable and offensive to the recipients;

(b) a person's rejection of, or submission to, such conduct on the part of employers or workers (including superiors or colleagues) is used explicitly or implicitly as a basis for a decision which affects that person's access to vocational training, access to employment, continued employment, promotion, salary or any other employment decisions;

and/or

(c) such conduct creates an intimidating, hostile or humiliating work environment for the recipient.

In certain circumstances, such conduct may be contrary to the principle of equal treatment within the meaning of Articles 3, 4 and 5 of directive 76/207/EEC. Article 2 recommends the implementation of the Commission's Code of Practice in the public sector. While Article 3 encourages employers and employee representatives to develop measures, Article 4 requires member states to inform the Commission within three years of the date of this recommendation of the measures taken.

Conclusion:

Surveys and statistics indicate an alarming prevalence and severity of the problem of sexual harassment. Lately, the issue has drawn significant outcries and was heard through media from advocates and victims alike. However, national legislation to date, especially in the non-industrialised world, is incomplete and inadequate in its treatment of the issue of sexual harassment. This is particularly true of the Latin American and Caribbean region where with few exceptions this subject receives scant mention, if any at all, in the body of existing laws. Much remains to be done to define the problem, verify its scope and frequency, draft and approve comprehensive legislation and finally, to effectively apply such legislation in society. Furthermore, it must be recalled that the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women deals with the issue of sexual harassment and legally binds all member states of the OAS that ratified it, to develop appropriate legislation and to ensure its application.

In several industrialised countries and in international organisations including the UN, the OAS and in the EU, sexual harassment legislation/regulations have been developed and applied. While it would be difficult to use any single law or regulation as a model, several of them could serve as templates for development of new legislation at the national level.

As more and more individuals of both sexes enter the labour force, it becomes imperative that conducive work environments be actively fostered. In a fast growing world economy, it would benefit neither productivity nor human dignity to do otherwise.


Top of PagePART III
GENDER AND EMPLOYMENT: LEGISLATIVE PROPOSAL

III.1 INTRODUCTION

In most countries of Latin America, national labour codes deal with all the various aspects of workers' and employers' rights and obligations together with the prerequisites and conditions for exercising those rights and meeting those obligations. Some suggest that in order to eliminate discrimination in the workplace, new, non-gender-biased labour codes will have to be devised. The size and complexity of this task preclude it from the scope of this book, which does, however, offer some concrete proposals for articles that might either be included in existing codes or serve as a basis for formulating specific laws aimed at eliminating labour discrimination between women and men.

Based on the above considerations, proposals are also put forward for constitutional articles that recognise, without exception, the legal equality of women and men before the law. It also quotes the international instruments that should be ratified - if this has not been done - and implemented. These instruments recognise, in all its scope, equality of the sexes and establish the prohibition of any form of discrimination in any sphere.

The model presented in this section should serve to enable each State to locate and fill in the gaps in its legal system as regards the ratification of international instruments, the content of the Constitution or the adaptation of labour legislation and other specific laws to those treaties and constitutional provisions.

III.2 CONSTITUTIONAL AMENDMENTS

Proposed articles:

"All persons, whether men or women, are equal before the law, without discrimination on grounds of birth, race, sex, religion, opinion or any other personal or social status or circumstance."

"The public authorities have the obligation to guarantee the equality of all citizens and to take the necessary steps to eliminate any form of discrimination, including ratifying and complying with international treaties aimed at eradicating the various forms of discrimination."

"Judges and courts shall interpret the law according to the provisions of the Constitution and of ratified international treaties."

"All persons have the right to work, to choose a profession or occupation freely, to advance themselves through work and to receive sufficient remuneration to meet their needs and those of their families, and in no case may discrimination on grounds of sex be allowed."

"The public authorities shall provide a governmental social security system for all citizens which guarantees sufficient social assistance and benefits in cases of need."

"Trade unions and business associations shall contribute to the protection and promotion of their own economic and social interests. They may be established and exercise their activities freely provided they respect the Constitution and the law. Their internal structure and operation must be democratic, and in no case may discrimination on grounds of sex be allowed."

III.3 RATIFICATION AND APPLICATION OF INTERNATIONAL INSTRUMENTS AND DOCUMENTS

The inadmissibility of any form of discrimination and the obligation of States to ensure equality of men and women in the exercise and enjoyment of all economic, social, cultural, civil and political rights are reaffirmed by numerous international instruments, including:

(i) The Convention on the Elimination of All Forms of Discrimination against Women;

(ii) The International Covenant on Civil and Political Rights;

(iii) The International Covenant on Economic, Social and Cultural Rights;

(iv) The Universal Declaration of Human Rights.

In addition, many conventions have been established under the auspices of the International Labour Organisation, which should be ratified by each State:

Conventions 24 and 25: concerning Sickness Insurance for Workers in Industry, Commerce, Domestic Service and Agriculture, respectively.

Convention 100: concerning Equal Remuneration for Men and Women Workers for Work of Equal Value

Convention 103: concerning Maternity Protection

Convention 111: concerning Discrimination in Respect of Employment and Occupation

Convention 122: concerning Employment Policy

Convention 130: concerning Medical Care and Sickness Benefits

Convention 140: concerning Paid Leave for Studies and Occupational Training

Convention 156: concerning Workers with Family Responsibilities

Convention 171: concerning Night Employment

The following legislative proposals are designed to ensure compliance with and the application of the above-mentioned international instruments, particularly articles 1, 2 ,3, 4, 10, 11 and 12 of CEDAW; articles 2, 3, 22, 23 and 24 of the International Covenant on Civil and Political Rights, articles 2, 3, 6, 7, 8, 9, 10, 11, 12 and 13 of the International Covenant on Economic, Social and Cultural Rights and articles 1, 2, 20, 22, 23, 24, 25 and 26 Universal Declaration of Human Rights.

III.4 AMENDMENTS TO THE CIVIL CODE

Elimination of limitations on women's right to decide to work or hire out their labour

Proposed article:

"All women and all men, irrespective of their marital status, are entitled to gainful employment. No person, including a husband, a partner in a stable union or any other family member, may limit a woman's exercise of this right in the manner and under the conditions stipulated in the Labour Code."

III.5 AMENDMENTS TO THE LABOUR CODE

1. Equality of employment opportunities and income

Proposed articles:

"All workers, irrespective of their gender, are entitled to paid leave for the pursuit of studies and occupational training."

"The duration of such leave shall depend upon the course of study being pursued and upon the needs of the male or female worker, as set forth herein."

"When the course of study requires a full-time commitment, the female or male worker may apply for an educational leave of absence."

"The Ministry of Labour shall take the appropriate steps to prevent discrimination against women in respect of their access to professional, vocational and business training courses and programs."

"The Ministry, in co-ordination with the Commission for the Equality of Women, shall develop professional, vocational and business training programs which take the status, needs and interests of female workers into account."

"No employer may discriminate on grounds of gender in the advertisement or offering of employment opportunities, hiring, remuneration, training, preparation of job classifications, or in promotion, job ratings or the use of services provided to female and male workers."

"Any notice or announcement of a position to be filled, regardless of the qualifications required for that position, shall include an explicit reference to the equality of opportunities for men and women in securing that position."

2. Elimination and prohibition of discrimination

Proposed articles:

"All employers shall forward a report to the labour authorities, in the manner and time periods specified in the relevant regulations, which shall include:

(a) Number of male and female workers contracted.

(b) Job category of positions held by male and female workers.

(c) Wage received for each position.

(d) Steps taken to comply with legislation aimed at eliminating discrimination, including laws for the protection of female workers during pregnancy and during the postnatal period and for the prevention and elimination of sexual harassment.

"Failure to submit such report shall be cause for the imposition of an administrative penalty of the type and in the amount stipulated in article ..."

"All workplaces having more than 100 workers of which at least 25 per cent are women shall form a Labour Equality Committee made up of representatives of employers and of male and female workers. The composition, operation and areas of responsibility of the said Committee shall be governed by regulatory provision."

"All male and female workers have the right, and the duty, to report instances of job discrimination and of sexual harassment to the Labour Equality Committee at their workplace or to the Bureau of Labour Affairs (appropriate agency)."

"The Bureau of Labour Affairs (appropriate agency) shall ensure, in the manner set forth herein and in the relevant regulations, the enforcement of labour legislation in the workplace, including legislation regarding the prevention of gender-based discrimination."

3. Protection of women engaged in special forms of employment: domestic service, outwork, agricultural labour and apprenticeships

Proposed articles:

"The legal relationship between a female or male worker and an employer, in the case of positions subject to special types of labour contracts, including domestic service, outwork, agricultural labour and apprenticeships, is an occupational relationship. The performance of work in any of the forms cited above shall be governed by the generally applicable labour laws."

"All female and male workers occupying positions subject to special types of labour contracts shall enjoy the same rights, and shall have the same obligations, as all other workers. Specifically, they shall have the right to:

(a) A 40-hour work week.

(b) Thirty days of vacation leave.

(c) Safe and hygienic working conditions.

(d) Sick leave.

(e) Unionisation.

(f) A minimum wage.

(g) Overtime pay.

(h) Maternity leave.

(i) Unemployment benefits.

(j) Protection against dismissal without just cause."

"The hiring of a family group as assistants or adjuncts to a single male or female worker is prohibited. Any person having the capacity to offer his or her labour for hire should be regarded as having an individual occupational relationship with the employer."

"The Bureau of Labour Affairs (appropriate agency) shall oversee the fulfilment and application of labour laws under the terms of special types of labour contracts."

"Failure to fulfil the employer's obligations to male and female workers, regardless of the type of labour contract concerned, will give rise to the penalties set forth in article ... of the Labour Code."

"The Ministry of Labour, in collaboration with the Commission for Gender Equality, shall inform female domestic workers, women performing outwork and, in general, all women working under the terms of special arrangements about their rights as workers."

4. Remuneration

Equal pay for equal work

Proposed articles:

"No wage differentials may be established on the basis of gender."

"All men and all women have the same right to equal pay for work of equal value."

Working on holidays and night shifts

Proposed article:

"All women and all men have the right to work on holidays and night shifts provided that the demands of production so require and appropriate wage compensation is forthcoming."

5. Safe and hygienic working conditions

Physical and psychological integrity

Proposed articles:

"An employer may not require a woman applying for employment or a woman who is already employed to submit to medical examinations and/or laboratory tests designed to diagnose pregnancy. Nor may the employer oblige women in his or her employ to use birth control or family planning methods against their will. When a health certificate is required, said certificate shall not contain information regarding pregnancy or the absence thereof unless the female worker or applicant so desires."

"Sexual harassment of female job applicants or employees by an employer is a serious offence and entitles the female worker to declare her contract to be null and void, without incurring any liability on her part, and to due compensation without prejudice to any civil or penal action that may be appropriate."

"Sexual harassment by a worker is just cause for dismissal."

"Labour Equality Committees, where they exist, and Employment Committees, in all other cases, in collaboration with the employer, shall establish internal rules for the workplace designed to prevent and penalise instances of sexual harassment. Any penalties established within the workplace shall not preclude actions before the labour authority or any other appropriate judicial or administrative body."

Hazardous, unhealthy or heavy labour

Proposed article:

"The protection of workers with regard to the performance of hazardous, unhealthy or heavy labour shall be regulated on a general basis, without discrimination on grounds of gender, with the sole exception of pregnant women."

6. Unionisation

Proposed articles:

"The State guarantees the rights of unionisation to all female and male workers, without discrimination on grounds of gender, as well as the right to strike under the terms and conditions stipulated in the Constitution and those specified by law."

"The collegiate organs of government and internal representation of labour unions shall maintain a proportion of women members at least equal to the proportion of women in the overall membership, plus 5 per cent.

"When women's participation in such organisations is less than 30%, unions shall draw up and implement plans for achieving at least that percentage by the year 2000."

"By the date established in the preceding paragraph, the percentage of women in organs of government and internal representation shall in no case be less than 30% of the total number of members of that organ.

"The application of the requirements established in this chapter shall be waived when exceptional circumstances exist that make it manifestly impossible to require that the stipulated minimum percentages be observed."

7. Protection of the family

Bereavement leave

Proposed article:

"All female workers and all male workers shall have the right to take leave upon the death of a spouse or partner in a stable de facto union, or of a descendent, parent or sibling."

Leave for illness in the family

Proposed article:

"All female workers and all male workers shall have the right to take leave when a close family member falls ill. Such leave shall be granted, on the basis of a medical certificate, in cases where the presence of the male or female worker is required in order to accompany the patient to a medical appointment or to care for the patient."

Leave to care for a minor or disabled person

Proposed article:

"A male or female worker may, in order to care for a child under seven years of age or a disabled person not engaged in gainful employment, request a reduction of up to one third of his or her workday."

"As an alternative to the provisions made in the preceding article, the male or female worker may, if he or she so requests, take a full-time leave of absence for a maximum of two years."

Marriage leave

Proposed article:

"All female and all male workers shall be entitled to marriage leave."

8. Protection of reproductive health and maternity

Protection of pregnant workers exposed to hazardous conditions

Proposed article:

"During pregnancy, a woman shall be given a transfer within her workplace when her job duties, working conditions or the locations where those duties are performed pose a hazard to the health of the fetus or the mother."

"The employer has the obligation, upon completion of the postnatal period, to restore the female worker to her original post."

Protection during the prenatal and postnatal periods

Proposed articles:

"A pregnant worker is entitled to a minimum of sixteen weeks of maternity leave of which up to four weeks of leave may be taken prior to the delivery of her child and the remainder weeks following the delivery."

"Maternity leave shall be provided without jeopardy to regular employment remuneration or benefits.

"Remuneration during the period of prenatal leave and during the first eight weeks of postnatal leave shall be paid by the employer. The employer may submit a claim to the Social Security Institute for reimbursement of the sum paid during a maximum of four weeks of postnatal leave."

"The female worker - or male worker, in cases where the father makes use of the leave - may apply to the Social Security Institute for benefits as compensation for postnatal leave for the period between the sixteenth weeks of the leave period and any leave taken without pay."

"Once the period of postnatal leave has ended, the female or male worker, as appropriate, shall be entitled to two hours of paid leave per day for the purpose of feeding the infant during the infant's first year of life."

"The female or male worker taking leave during the postnatal period may add on the vacation leave to which the worker was entitled as of the end of that period."

"Postnatal leave may be taken by the employed male head of the family either separately or together with the mother."

"In any event, the employed male head of the family shall take a minimum of two weeks of postnatal leave."

Adoption leave

Proposed article:

"Maternity/Paternity leave, and all other benefits associated with the birth of a baby, shall be applicable in the case of an adoption, provided that the adopted child is under seven years of age."

Prohibition of dismissal of a woman who is pregnant

Proposed article:

"A female worker who is pregnant or in the postnatal period may not be dismissed except for serious cause. Under no circumstances may she be dismissed for reasons directly or indirectly related to the pregnancy or postnatal period."

Protection of female and male children of male and female workers

Proposed articles:

"Public entities and private enterprises, as well as the State, have the obligation to facilitate the care of the children of female and male workers when those children are under seven years of age."

"All male and female workers are entitled to this service, regardless of their economic status."

"This obligation, in respect of the establishment and maintenance of day-care centres and nurseries, may be fulfilled by means of the following possible schemes:

(a) Company day-care centres, supported by a single employer and his or her male and female employees, for the exclusive use of their children.

(b) Day-care centres shared by a number of firms, supported by the employers owning those firms and their female and male employees.

(c) Payment to male and female workers, by their employer, of a specific allowance to be directly used to pay for private day-care services.

(d) Day-care centres financed in whole or in part by the Ministry of Labour or the appropriate agency.

(e) The State's contribution to the day-care system, as well as the procedures for the establishment, funding, organisation and operation of day-care nurseries, shall be governed by regulatory provision."

Protection of female heads of household

Proposed articles:

"Female head of household" means any woman, irrespective of her marital status, who is the sole source of support for her own or adopted minor children or for family members who are unable to work or who have a disability which prevents them from working and whose incomes are insufficient to support the household."

"The conditions governing the coverage of a female head of household by the social security system, in cases where she was not previously covered by that system, shall be determined by regulatory provision; under no circumstances may she be denied such coverage."

"The protection granted to a female head of household shall in all cases extend to her children and her minor or disabled dependants."

 

III.6 PROPOSED LAW ON INCENTIVES FOR THE RECRUITMENT OF FEMALE WORKERS

This section presents proposed legislation aimed at establishing measures for facilitating the hiring of female workers. The proposal presented here explores, in outline form and on a non-comprehensive basis, some of the existing options for promoting and expanding the hiring of women.

Bearing in mind the unequal position, in both a legal and a practical sense, of women with regard to their access to the labour market, policies need to be designed to promote women's integration into the labour force. The creation of economic incentives for the business sector is but one of many examples that can be offered and applied in order to move towards this goal.

CHAPTER I

Objective and mechanisms

Article 1:

The fundamental objective of this Law is to promote the participation of women in the labour market by providing economic incentives for private-sector employers to hire women.

Article 2:

1. Any employer may apply for a subsidy for each woman hired for a period of at least one year.

2. This subsidy shall be renewable, on a yearly basis, up to a maximum of three years, provided that the female worker's contract is renewed and the work is performed under non-discriminatory conditions.

Article 3:

In cases where the original labour contract has a duration of at least three years, the subsidy referred to in the preceding article shall automatically be extended up to its three-year limit.

Article 4:

The hiring of a female worker to perform the same tasks as those performed by another female worker whose contract has expired shall not entitle the employer to the subsidy described in article 2 above unless the failure to renew the contract of the first female worker is in response to her own wishes or is for just cause, as set forth in the Labour Code or in this Law.

Article 5:

In cases where female workers are recruited for indefinite periods, during the first five years of their contracts one third of the employer's annual social security contributions for the newly hired workers shall be subsidised with public funds.

Article 6:

When investments are to be made in fixed assets or in research and development for the purpose of expanding a company's production capacity in ways that will entail an increase in the number of permanent workers employed, the employer may receive a credit on preferential terms equivalent to up to 30% of the investment if at least 30% of the newly hired workers are women having contracts for terms of no less than one year.

Article 7:

The level of assistance will be 5% if the contracts in question have a term of one year; 15% if they are for terms of between one and three years; and 30% if they are for terms of more than three years. The minimum contract length affording access to such assistance shall be one year.

Article 8:

Without prejudice to any requirements laid down by regulatory provision, in order to apply for and receive the assistance referred to herein, the enterprise making such an application shall submit a report regarding its implementation of internal measures and policies designed to prevent and eliminate gender-based discrimination.

CHAPTER II

Procedures and Penalties

Article 9:

1. Applications for subsidies and preferential credits shall be submitted to the Ministry of Economic Affairs (or appropriate designated institution including the Commission in Gender Equality) using the forms and documentation specified in the relevant regulations for each case.

2. The evaluation and decisions regarding such applications shall be carried out by the Ministry of Economic Affairs (or appropriate designed institution).

Article 10:

1. Any enterprise that is granted the subsidies provided for in article 2 shall, at the end of each period during which the subsidy is received, submit to the Ministry of Economic Affairs a report detailing the occupational status and activities of the female workers hired at the beginning of the period covered by the subsidy, as well as the steps taken to eliminate gender-based discrimination within the workplace.

2. Any enterprise that is granted the subsidies provided for in article 5 shall submit said report at the end of each year in which the subsidy is received.

3. Any enterprise that is granted the assistance referred to in articles 6 and 7 shall, at the end of each period during which the assistance is received, submit to the Ministry a report giving an account of the enterprise's investment program, the assistance received, the occupational status and activities of the female workers hired at the beginning of the period covered by the subsidy, and the steps taken to eliminate gender-based discrimination within the workplace.

Article 11:

At any time during the period in which subsidies or assistance are received, the Ministry of Economic Affairs and/or the Commission on Gender Equality may inspect and verify a beneficiary enterprise's compliance with the conditions established herein and in the regulations governing the use of such subsidies and assistance.

Article 12:

If, following the award of any of the incentives established herein, it is determined that a beneficiary enterprise has not suitably fulfilled or has failed to comply with the conditions required for the use of such assistance, then such assistance shall be withdrawn, with retroactive effect, without prejudice to any legal action that may be appropriate and that may be pursued by the Administration of the State.

III.7 CHALLENGING VIOLENCE IN THE WORKPLACE

Like other forms of violence against women, sexual harassment is a social problem in Latin America and the Caribbean. However, until recently it was not recognised as such either by employers in the public and private sectors or by workers. On the contrary, is it seen as part of a country's "culture" or the "natural" way in which men and women establish relationships.

The term "sexual harassment" has been defined as imposing unwanted sexual demands in the context of an unequal power relationship. Another, similar definition says that sexual harassment is any physical or verbal conduct with sexual connotations directed at a person against his or her will.

There are two types of sexual harassment. The first, which can occur in the workplace and elsewhere, is that engaged in by a person of higher rank than the victim. For instance, the typical "boss/subordinate" relationship. The second is that between people of equal rank, for instance, male and female co-workers.

This conduct is viewed by the victim as unwanted, unreasonable and offensive. It harms the victim's rights, specifically the right to physical and psychological integrity and the right to dignity and privacy.

The following are some types of conduct that are viewed as sexual harassment:

1. Any demand for sexual favours that involves:

(a) An implicit or explicit promise of preferential treatment as regards the recipient's present or future employment or study situation.

(b) Implicit or explicit threats, whether physical or psychological, of harm or punishment as regards the recipient's present or future employment or study situation.

(c) A situation where acceptance or rejection of such conduct implicitly or explicitly becomes a condition of employment or study.

2. The use of words of a sexual nature, whether verbally or in writing, which are hostile, humiliating or offensive to the recipient.

3. Unwanted physical advances and other physical behaviour of a sexual nature that are offensive to the recipient.

Starting from this description of what acts constitute sexual harassment, a model legislative proposal is given below which can serve as a basis for the countries of the region to enact a law on this form of gender violence.

 

III.8 PROPOSED LAW ON SEXUAL HARASSMENT

CHAPTER I

Concept

Article 1:

Sexual harassment is a gender-based discriminatory practice which infringes the constitutional principles of inviolability of freedom of employment, dignity and human life.

Article 2:

For the purposes of this Law, the terms employer and worker shall have the meanings established in the Labour Code.

Article 3:

1. The conducts defined in the second paragraph of this article shall be considered to be sexual harassment when they take place in the context of labour or administrative relations.

2. Sexual harassment means any type of demands, favours, advances, conditions, pressures and/or other unwanted conduct or behaviour, whether verbal, written, symbolic or physical, of an explicitly or implicitly sexual nature, when it occurs in one or more of the following circumstances:

(a) When submitting to such conduct becomes, implicitly or explicitly, a term or condition of a person's employment.

(b) When submitting to or rejecting such conduct becomes an element that directly affects a person's employment circumstances.

(c) When the purpose of the conduct is to interfere unreasonably with the victim's job performance or any other activity or when it gives rise to an intimidating, hostile or offensive working environment.

(d) When, in the context of the relationship between a civil servant and the person served, the civil servant makes the performance of his or her functions conditional on acceptance by that person of any of the conducts described in paragraph 2.

 

CHAPTER II

Duties

Article 4:

All employers have a duty to keep the workplace free of sexual harassment by establishing an internal policy that prevents, discourages, avoids and punishes such conduct. The measures to be developed would include the following:

(a) Including in the company's internal rules, in co-operation with workers' representatives, the corresponding provisions for the prevention and punishment of conduct constituting sexual harassment.

(b) Assigning the necessary resources for informing the staff and making them aware of the problem and of the measures for preventing and punishing sexual harassment in the workplace.

(c) Establishing, by agreement with the Equality Committee or, in its absence, the Employment Committee, an appropriate, effective internal procedure for handling complaints of sexual harassment.

(d) Punishing persons who engage in sexual harassment, in accordance with the recommendations of the report issued by the Committee.

Article 5:

1. Male and female workers have a duty to familiarise themselves with the internal policy against sexual harassment and to respect and comply with that policy.

2. Male and female workers belonging to the Equality Committee or, in its absence, the Employment Committee have a duty to defend the internal policy against sexual harassment, to handle the complaints made and to apply the corresponding penalties, where appropriate. All complaints submitted to the Committee shall be referred to the Bureau of Labour Affairs.

3. Any male or female worker who knows of a situation of harassment must bring it to the attention of the Equality Committee or, in its absence, the Employment Committee.

 

CHAPTER III

LIABILITY

Article 8:

An employer or a worker who engages in sexual harassment is liable under labour law, irrespective of any civil or criminal liability that may exist.

Article 9:

An employer shall be liable under the terms of article 8 for acts of harassment occurring in the enterprise if, knowing of their existence, he or she did not use the means at his or her disposal to avoid and punish them.

Article 10:

An employer shall be liable under the terms of article 8 if he or she takes any action which adversely affects the employment opportunities and conditions of any worker who has opposed sexual harassment practices or has reported, testified, co-operated or participated in any way in an investigation or proceedings related to sexual harassment.

Article 11:

An employer or a male or female worker who, pursuant to the internal rules of the place of work, takes the necessary measures to apply those rules shall not be liable in any way.

 

CHAPTER IV

Labour Penalties

Article 12:

1. The internal rules shall include the penalties applicable to cases of sexual harassment.

2. Independently of any action taken by the Equality Committee or, in its absence, the Employment Committee to determine liability in cases of sexual harassment within the enterprise, the person affected by such conduct may file the corresponding complaint with the labour courts.

3. If the sexual harassment has been committed by a civil servant, as established in article 3.2(d) of this Law, the victim may file an administrative complaint, independently of any civil and criminal proceedings that may be appropriate.

Article 13:

The party found liable for the conduct defined in article 3 of this Law shall pay the lawyers' fees and the costs of the proceedings.

Article 14:

If the employer is found liable for the sexual harassment, he or she shall also cover employment benefits, loss of wages, personal and material damages and both parties' court costs and personal costs related to the proceeding. If the harassment has resulted in loss of employment for the worker, the judge may also order reinstatement and other employment benefits for the offended party if he or she so requests.

Article 15:

1. If the person found liable is a professional, the respective professional association may also suspend his or her license to exercise that profession, depending on the seriousness of the case.

2. A civil servant found liable as established in article 3.2(d) shall be punished as provided in the civil service laws and may be dismissed from the civil service.

Article 16:

Any person found liable for sexual harassment as provided in this Law may, independently of his or her labour liability, incur civil liability and, as appropriate, criminal liability.

Article 17:

The liability of a civil servant for conduct constituting sexual harassment may extend to the administration, in the manner and in the cases established in the administrative legislation.

Additional Provision

Within a period of six months from the publication of this Law, the Government shall adopt a summary procedure for the handling of sexual harassment cases in the labour courts that guarantees respect for the right to privacy and that of simplicity, so that the victim is not left without legal protection.

Repeal Provision

All legal provisions that conflict with the provisions of the Convention on the Elimination of All Forms of Discrimination against Women and with the provisions of this Law are hereby repealed.Top of Page


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