Equality and non-discrimination are core human rights concepts. When related to the field of employment, non-discrimination and equal opportunity are rooted in the principle that all decisions made at the workplace are based on the ability of the individual to do the job in question without regard to personal characteristics that are unrelated to the inherent requirements of the work.
The International Labour Organization’s (ILO) 111 Convention on Discrimination (Employment and Occupation Convention) calls for a national policy to eliminate discrimination in access to employment, training and working conditions, on grounds of: race, colour, sex, religion, political opinion, national extraction or social origin, and to promote equality of opportunity and treatment.
A wide range of international human rights instruments contain strong equal treatment and non-discrimination provisions, including, among many others:
- the Universal Declaration of Human Rights (1948),
- the ILO 97 Migration for Employment Convention (1949),
- the ILO 100 Equal Remuneration Convention (1951),
- the ILO 111 Discrimination (Employment and Occupation Convention) (1958),
- the UN International Convention on the Elimination of All Forms of Racial Discrimination (1965),
- the International Covenant on Economic, Social and Cultural Rights (1966),
- the UN Convention on the Elimination of All Forms of Discrimination against Women (1979),
- the International Convention on the Protection of the Rights of All Migrant Workers and Their Families (1990),
- the ILO Declaration on Fundamental Principles and Rights at Work (1998),
- the ILO 183 Maternity Protection Convention (2000),
- the ILO Code of Practice for Managing Disability in the Workplace (2002),
- the Convention on the Rights of Persons with Disabilities (2006), and
- the UN Declaration on the Rights of Indigenous Peoples (2007).
Discrimination can take many forms and can affect both access to employment and the treatment of employees once they are employed. It can arise in a variety of work-related situations, including access to employment and to particular occupations, and access to training and vocational guidance and support. It can also occur with respect to the terms and conditions of the employment, such as remuneration, hours of work and rest, paid holidays, maternity leave, security of tenure, social security, and occupational health and safety.
Discrimination can be direct or indirect. Discrimination is direct when rules, practices and policies exclude or give preference to a certain individual just because they belong to a particular group, while discrimination is indirect when apparently neutral norms and practices have a disproportionate and unjustifiable effect on one or more identifiable groups. Discrimination can also be multiple, when more than two grounds of discrimination co-exists, or intersectional discrimination, when two or more grounds operate and interact in such a way that they are inseparable. For example, women can experience disadvantage and discrimination based on their sex and gender, which can be inextricably linked to other identities, factors, and experiences such as a race and poverty.
The ILO recognises that:
“to achieve full freedom from discrimination in employment and occupation, the mere removal of discriminatory practices does not suffice. It is also necessary to promote equality of opportunity and treatment in the workplace at all stages of the employment relationship, including recruitment, retention, promotion and termination practices, remuneration, access to vocational training and skills development”.
As highlighted in the UN Guiding Principle on Business and Human Rights, Commentary to Guiding Principle 12:
“enterprises should respect the human rights of individuals belonging to specific groups or populations that require particular attention, where they may have adverse human rights impacts on them. In this connection, United Nations instruments have elaborated further on the rights of indigenous peoples; women; national or ethnic, religious, linguistic minorities; children; persons with disabilities; and migrant workers and their families.”
The International Finance Corporation recognises that businesses serving particular markets frequently find that having a diverse workforce increases their penetration in those markets based on the image their workforce projected to potential and actual customers. Such companies also tend to benefit as a result of having a wide range of experiences, perspectives, and cultural understandings within the organisation. A 2014 McKinsey research on 366 companies found that the positive relation between diversity and financial business performance was clear. Enterprises with female representation at executive teams and boards had a 15% increased likelihood of having financial performance above industry average, while companies with good ethnic/racial diversity increased that likelihood to 35%. A 2017 study conducted by the consultancy firm Cloverpop analysed 600 business decisions made by 200 different business teams in a wide variety of companies and found that inclusive teams made better business decisions up to 87% of the time. Teams that followed an inclusive process made decisions twice as fast as the others and, finally, decisions made and executed by diverse teams delivered 60% better results.
The ILO has noted that preventing discrimination in practice contributes to the retention of knowledgeable and high performing staff.
Various measures have been taken at the international level to address discrimination in employment and occupation. In 2001 the ILO established a Code of Practice on HIV/AIDS and the world of work and in 2009 Guidelines for Promoting Equity: gender-neutral job evaluation for equal pay. The International Finance Corporation Performance Standard 2 on Labor and Working Conditions states that IFC clients shall not make employment decisions on the basis of personal characteristics unrelated to inherent job requirements. The European Union has approved a wide range of binding directives including one on Equal Treatment in Employment and Occupation, and another one that implements the Principle of Equal Treatment between Persons irrespective of Racial or Ethnic Origin. In addition to that, the European Union has developed Diversity Charters; voluntary initiatives that encourage companies to implement and develop diversity policies.
In terms of national legislation and policies, the ILO reported in 2011 that race and sex continued to be the two grounds of discrimination specifically included in almost all legislation for equality and against discrimination at work. New laws have been introduced or existing legislation amended worldwide to eliminate discrimination based on age, maternity and marital status, disabilities, lifestyle (smoking and obesity) and genetic predisposition. In relation to sexual orientation, as of 2015, 76 countries still criminalised same-sex sexual relations, and legislation protecting the rights of LGBT workers was absent in the vast majority of ILO member states. Many countries have also created mechanisms to monitor and assess the implementation of anti-discrimination legislation. Argentina, for example, established a Federal Council for Anti-Discriminatory Public Policies with the mandate to implement, monitor and supervise the National Plan against Discrimination. In Sweden, the Equality Ombudsman is responsible for supervising the pay surveys to determine whether any unjustified wage differentials exist between the sexes.
Various multi-stakeholder initiatives have addressed the issue of equality and non-discrimination at the workplace. The Ethical Trading Initiative (ETI) has developed a Base Code which provides that ETI members ensure that there should be no discrimination in hiring, compensation, access to training, promotion, termination or retirement based on race, caste, national origin, religion, age, disability, gender, marital status, sexual orientation, union membership or political affiliation.
A large number of business enterprises have successfully turned diversity into an asset and have adopted policies embracing considerations of non-discrimination. The vast majority of Fortune 500 companies, for example, prohibit discrimination based on sexual orientation and gender identity in particular. The Responsible Business Alliance has adopted a Code of Conduct by which it commits, among others, to a workforce free of harassment and unlawful discrimination. Heineken has adopted an HIV/AIDS non-discrimination policy stating that persons living with HIV/AIDS status will not affect job security, terms of employment or any other element of human resource policy. Additionally, it commits not to oblige anyone to undergo an HIV test or treatment. BHP Billiton has introduced an Employment Equity Policy in South Africa, which is aimed at improving labour market access and mobility for people in designated groups: black people, women, and people with disabilities.
Civil Society Organisations have also been supporting measures to address discrimination at the workplace. The International Trade Union Confederation, through its Decent Work Decent Life Campaign, gives priority to defending the rights of workers who are most vulnerable to discrimination, including women, migrants, and racial or ethnic minorities.
- Cloverpop, White Paper, Hacking Diversity with Inclusive Decision Making, 2017:
- University of Oxford, Oxford Human Rights Hub, CEDAW and Women’s Intersection Identities: A Pioneering approach to intersectional discrimination, 2016:
- ILO, Discrimination at work on the basis of sexual orientation and gender identity, results of the ILO’s Pride Project, 2015:
- European Commission, Does Diversity really Matter?, 2015:
- McKinsey & Company, Diversity Matters, 2015:
- ILO, Equality at Work, The continuing challenge, Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, 2011:
- ILO, Guidelines for Promoting Equity: gender-neutral job evaluation for equal pay, 2009:
- IFC, Good Practice Note: Non-Discrimination and Equal Opportunity, 2006: