Gender-based violence & Sexual Harassment at work: definitions, prevention, remedies, penalties, recent cases ILO Gender, Equality & Diversity Branch Jane Hodges
A new Convention & Recommendation on violence against women and men at work? (GB.319/INS/2, Appendix IV, originally framed as “gender-based violence” but broadened in light of comments made in November 2012) 319 th Session (October 2013) - FOR: Workers (2016), Canada (2016), India (2016), ); Italy( the proposal should be retained) - OTHER: Nordic countries + Netherlands + Switzerland (important topic to be approached from a broader perspective; ILO to propose a strategy on how to eliminate abuses and violence at work); USA (inclined to support, including violence against trade unionists and others involved in labour related activities) 317th Session (March 2013) - FOR: Workers (2015); Australia (2014); Canada, India (for future agenda), Italy ( 2015) - OTHER: Mexico (a recommendation) 316 th Session (November 2012) - FOR: Workers (2015), Africa group, India (for future agenda), Italy (for 2015) - AGAINST: Employers unless broadened away from GBV - OTHER: IMEC, Canada + UK (for a general discussion with a wider focus on workplace violence)
Governing Body will have to decide for 2015 (or 2016) in March 2014…do workers of the world really want new ILS? IF SO, WE NEED TO WORK ON GETTING THE VIOLENCE AT WORK MESSAGE OUT …NOW….
What is the difference between “gender-based violence” and “violence against women”? “‘Gender-based violence’ is still an emerging term, but IS the technical wording of the UN. Originally it was used to replace the term “(male) violence against women” (VAW), because the word “woman” in that context refers to both individuals of the female sex and to feminine gender roles in society; confusing. UN’s preference for “GBV” intends to emphasize that violence against women is a phenomenon that is related to the gender of both victim and perpetrator. Many definitions continue to focus solely on the fact that women are victims of violence…. However, the UN texts extending the definition to all forms of violence that are related to:(a) social expectations and social positions based on gender; & (b) not conforming to a socially accepted gender role.
UN Declaration on the Elimination of Violence against Women, 1993 “Violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women and girls, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
Gender-based violence at work: note the recent work proving the spillover of domestic violence! 2011 ILO Working Paper: “Gender-based violence in the world of work: Overview and annotated bibliography” At least 1/3 women worldwide is estimated to have been coerced into sex, physically beaten and/or otherwise abused in her lifetime (WHO 2013 latest data on intimate partner violence; UN questionnaire to men finding that ¼ admit to forced sex) 2009 ILC Resolution strong call to end gender based violence at work Data on productivity losses (e.g. Australian study=$484 million in 2002/03; UK=£2.7 billion in 2006; USA=$6.7 million/year) BUT few up-to-date empirical data for the business case: While costs to some nations have been estimated, most of these calculations are outdated Spill-over of domestic violence to workplace (e.g Australian response through collective bargaining of DV leave clauses etc.)
SEXUAL HARASSMENT-does it really exist? Let’s share the QUIZ MythsFacts Occurrence rare40 – 60% working women Trivial/harmless FlirtationOffensive, insulting Normal Degradation, helpless If ignored,itMisinterpreted will go away Revengeful attitudeRare complaints Fearful to complimentImpact of action, not the intent, matter; when in doubt …desist
To date, SH at work not subject of any binding international convention, but is a recognized form of sex discrimination 1948: Universal Declaration of Human Rights 1966: 2 International Covenants 1979: CEDAW (General Recommendation 19 on SH) ILO’s Discrimination (Employment and Occupation) Convention, 1958 (No 111) – 2003 General Observation & observations addressed to 16 States in 2013 Indigenous and Tribal Peoples’ Convention, 1989 (No 169) – Art.10(3) Domestic Workers Convention, 2011 (No 189) – Art.5 HIV Recommendation, 2010 (No 200) – Para. 14(c) Council of Europe Convention & EU Directives; African & InterAmerican texts SADC Gender Protocol; CARICOM “Model legislation on SH” International standards & regional approaches
Example of regional soft law- CARICOM examples Model legislation relating to Sexual Harassment –Useful provisions: hearings in camera; evidence concerning sexual activity of complainant; anonymity; recommends the establishment of a tribunal to resolve disputes Shortcomings? An important effort, but there are limitations: limited to “quid pro quo” harassment/limited to conduct of a physical sexual nature/excludes non-verbal conduct/unclear whether it is appropriate for the tribunal to only deal with sexual harassment Equality Model legislation: not used even in Caribbean Court of Justice (CCJ)! But clearly states aim=s. 1(a)…“to give effect to ILO C111 [& C100…]”; s. 2= good definition of sexual harassment Jamaican Employers’ Federation w’shop on policy: useful elements to be included are : A. Strong statement on the organization’s attitude to sexual harassment B. Clearly define sexual harassment C. Outline the organization’s objectives for eliminating sexual harassment---any examples from EAC region?
2013 UN Commission on the Status of Women – Agreed Conclusions on the elimination and prevention of all forms of violence against women and girls (Thanks to the ITUC/PSI/EI delegation!) Para. 34 yy Take measures to ensure that all workplaces are free from discrimination and exploitation, violence, and sexual harassment and bullying, and that they address discrimination and violence against women and girls, as appropriate, through measures such as regulatory and oversight frameworks and reforms, collective agreements, codes of conduct, including appropriate disciplinary measures, protocols and procedures, referral of cases of violence to health services for treatment and police for investigation; as well as through awareness-raising and capacity- building, in collaboration with employers, unions and workers, including workplace services and flexibility for victims and survivors Para. 34 The Commission urges Governments, at all levels, and as appropriate, with the relevant entities of the United Nations system, international and regional organizations, within their respective mandates and bearing in mind national priorities, and invites national human rights institutions where they exist, civil society, including non-governmental organizations, the private sector, employer organizations, trade unions, media and other relevant actors, as applicable, to take the following actions: ….
How does national policy/law approach SH? Constitutions, labour or OSH legislation, public service Acts, torts, EEO laws, penal codes, or specific statutes Violation of human rights Violation of fundamental rights of workers Gender discrimination at work Safety and health issue A specific form of violence Offending the personal integrity of workers Human resource management issue Labour issue – potential threat to workers and enterprise Above all, a manifestation of power relations
How is SH defined? Use ILO’s General Observation under C111 (2003, CEACR) 2 categories of SH: Quid pro quo Hostile working environment UNWANTED SEXUALLY ORIENTED CONDUCT Physical,Verbal,Gestural, Emotional,Written or graphic actions Even once How to determine whether indeed unwelcome? Some forms of conduct inherently unwelcome Some dependent on recipient’s perception
Consequences of SH? For Complainant: Emotional stress Physicall illness Loss of work motivation Absences at work Missing out on training and promotions Resignation or dismissal Further humiliation if legal action is pursued For Enterprise : Workplace tension Lower productivity Poor image Payment of damages (2000s judgements= very high!) Absenteeism/loss of valued employees, turnover of staff Inefficient team work and collaboration
Supreme Court Judgement Guidelines (India) 1997 Defined SH in the absence of legislative norm Ordered preventive measures: employees’ and employers’ responsibilities; proposed Complaints committee in firms and redress measures Cooper v Western Area Local Health Network NSWADT 39 (Australia) 2012 Administrative Tribunal decided that employer was not vicariously liable for the actions of one of its male workers who-admitted by all- sexually harassed a female colleague Awarded $10,000 damages payable by the co-worker Satisfied that employer did not authorise Mr Locke to engage in the offending conduct; took “reasonable steps” to prevent Mr Locke from engaging in the offending conduct (required to sign explicit code of conduct & held seminars on SH)
Velez and others v. Novartis Pharmaceuticals, Novartis Corporation & Ebeling. Case No. 04-9194 (SDNY) USA, 2010 NY Federal Court (Manhattan) ordered Novartis to pay US$250 million in punitive damages for discriminating against thousands of female sales representatives over unequal pay, SH and pregnancy. The Court found that the company had engaged in a pattern of discrimination against women employees from 2002 through 2007 Potential awards up to US$30,000 each for 5,600 females Demonstrates success of class action Extremely long litigation
Gender equality at work means ending GBV at work! Thank you for your attention