Eliminating Sex Discrimination at Work: Recent Court Decisions since Beijing+20

This contribution is published as part of the Think Piece Series Let's Talk about Women's Rights: 20 Years after the Beijing Platform for Action. In this series, leading feminist thinkers discuss achievements in the field of women’s rights and gender equality; identify the challenges faced in implementing the Beijing Platform for Action; and consider ways of moving forward. They offer both critical insights and highlight opportunities for realizing women’s rights after 2015. Please share your thoughts on this article in the comments space below.

A fresh way of assessing outcomes of Section F. of the Beijing Platform for Action on Women and the economy is to track how national judicial systems are enforcing the new generation of labour laws, not only labour courts and employment tribunals but also the highest domestic judicial authorities in the form of Supreme or Constitutional Courts. This think piece asks: How have courts reacted to the profound changes of the past years concerning sex discrimination at work? Are complaints being lodged relating to one particular area of employment discrimination law? Have courts received challenges to austerity programmes—a marked characteristic of state responses to the financial and economic crisis of the late 2000s—and have their decisions strengthened or weakened worker rights to gender equality? Are international labour standards (ILS) informing judges as they assess the facts and evidence within domestic legal frameworks? And if so, which ILS influence the final outcome? What can be done to improve matters in the future?

Jane Aeberhard-Hodges is the former Director of the ILO’s Bureau for Gender Equality and currently an UNRISD Senior Research Associate.

Eliminating sex discrimination at work

The 1995 Beijing Platform for Action (BPfA), under Strategic Objectives and Actions “F. Women and the economy”, requires action to be taken, among other goals, to promote women’s access to employment with appropriate working conditions, eliminate occupational segregation and all forms of employment discrimination, and promote harmonization of work and family responsibilities for women and men. One year on from its adoption a comparative study (covering 10 countries across Africa, Asia, North America and Europe) was published on how courts and specialized tribunals were supporting these objectives in decisions concerning the world of work, in particular sex discrimination in the form of workplace harassment and stereotyping.¹ It was a time of genuine attention to gender equality at work, and some courts were courageous in their reasoning and in the remedies decided in favour of workers (usually women) who won their cases. Some jurisdictions were liberally interpreting both old laws as well as newly passed laws on workplace equality between women and men, others were more conservative. The findings were instructive, and much training has subsequently been undertaken to ensure that the judiciary at all levels and across specializations understands and applies the international framework for workplace gender equality.

Now as we celebrate Beijing+20, and conscious of the findings of 20 years ago, it is timely to track whether national judicial systems—especially the highest domestic judicial authorities in the form of Supreme or Constitutional Courts but also labour courts—continue to play a key role in enforcing sex discrimination provisions in constitutions, labour regulations and employment statutes.² This think piece does not engage in an in-depth comparison of the decisions analysed in the 1996 study, when the BPfA was a fresh step forward, but—interestingly—sheds light on some issues that simply have not gone away, despite 20 years’ worth of strong words and action on the part of policy makers and civil society to eliminate sex discrimination through access to justice.³

It is hoped that the following short comments will spark an interest in further tracking the enforcement of provisions to advance Section F. of the Beijing Platform for Action on Women and the economy, as well as assist judges, national gender equality institutions, human resource managers, legal practitioners, including both corporate counsel and trade union legal officers, and gender equality experts in evaluating complaints.

Trends

A number of current trends in court cases related to sex discrimination at the workplace are identified in the think piece. They are grouped below under two characteristics: procedural issues, and substantive outcomes. While these trends have been identified specifically in sex discrimination cases, some researchers may find them common across other areas of the law.

A. Process
a) Trade unions are bringing sex discrimination cases on behalf of their members, and appear to win when they do; but do workers’ organizations reserve such action only for lead cases rather than spreading (often limited) legal resources thinly across every case that might be brought to them by members or on behalf of the workforce? (for example in Australia, Canada and Spain).

b) Few cases are brought by men claiming their work/family rights (for example in Spain) or non-retaliation in sexual harassment situations (for example in the USA).

c) Workers in sex discrimination cases seem to win if they can hold out (meaning if they can afford, in the broadest sense, the time, money and stress) to the highest level of appeal. Stated conversely, employers—in the majority of cases examined they lost at first instance and immediately brought appeals—lose if the original complainants continue to the highest level of appeal (in most jurisdictions). Given the asymmetry of power between workers and employers, this trend becomes notable. The trend raises the need to develop new measures or make better use of existing procedures that empower third parties to bring suit for justice against workplace discrimination. Having equality or human rights commissions (such as in Canada) who champion sex discrimination cases has a number of advantages:

1. their staff prepare the case;
2. they can access a wider range of experts for evidence;
3. they can represent the alleged victims;
4. they bear the entire costs, and
5. they give the complainants moral support.

Another process by-passing costly litigation can be the arbitration route where the claim becomes a union case, with the workers’ organization (assuming it is not a disinterested male-dominated union) providing moral and financial support and bearing the legal and other associated costs (see a) above), and where a range of remedies can be included in collective agreements that may not be available through the common law or statutory procedure routes. The judgments analysed for this think piece show a lingering weakness in most court and tribunal proceedings as well as human rights investigations, namely, as was found in the 1996 study, proceedings continue to take considerable time, and the public scrutiny can wear down a complainant’s pursuit of justice.

d) The quality of the evidence presented and getting empirical data is essential for success (for example in Australia, Canada, Finland, Japan, Kenya, Spain and the USA).

e) Remedies, financial compensation and monetary damages are not getting higher, for example in France (although there have been exceptions in some equal pay cases in Australia and the UK, and cases of general sex discrimination such as in Kenya). This may be a frustrating trend for working women who believe they have suffered discrimination and today expect large compensation awards including the accepted judicial theory of restitution (that is, being placed back in the situation in place prior to the discrimination in terms of employment status and lost pay), but also additional large financial amounts recognizing the injury and harm they endured. Conservatism instead of awarding significant penalties against guilty employers may send a mixed message about the importance of public policy in the area of equal treatment of women and men. Remedies are used not only to compensate victims and punish guilty parties, but also to lend strength and visibility to the national policy against sex discrimination.

f) Class actions are a particularly powerful tool in combatting sex discrimination at work, but notoriously difficult to bring in some jurisdictions (for example in the USA) while in others, such as Spain, they have seen success.

g) In EU Member States, reliance on EU Directives clinches the decision, and national courts are examining their content at length even where domestic legislation is clear (for example in Finland and Spain).

B. Substance
h) International equality law and ILO labour standards are rarely used, even where the state has ratified the relevant instrument (for example ILO Conventions 100 and 111 in a Kenyan case, and ILO Convention 103 in a Spanish case).

i) No cases appear to have reached superior courts complaining of the discriminatory effects on women of austerity programmes—a singularly marked characteristic of challenges to women’s employment in the world of work following the financial and economic crisis of the late 2000s. Yet some of the conservatism in the award of remedies—where discrimination is proven—noted in e) above, in particular monetary damages, is being justified by courts accepting evidence and applying judicial tests relating to proportionality and undue hardship in favour of the guilty party based on employers’ claims to have been hit hard by the economic crisis.

j) On sex discrimination generally, linking claims to occupational safety and health is a successful strategy (for example in France and Spain); court comments on stereotyping claims are increasing, with judges criticizing employers whose evidence reflects a bias against women working rather than carrying out a home-maker role, or whose discriminatory measure amounts to sexism (for example in Spain and the USA).

k) Equal remuneration—there are many, often technically intricate cases with workers usually winning (for example in Canada, Japan, Kenya, Spain and the UK; the Australian cases are split).

l) Sexual harassment—interestingly all jurisdictions appear to be finding against employers and upholding worker demands that the employer is vicariously liable for the wrongdoings of its employees. This echoes the findings of the 1996 study (for example in France, the UK and the USA—but note a 2013 decision by the USA Supreme Court in 2013 restricting employer liability).

m) Protection against retaliation in sexual harassment/sex discrimination cases is being interpreted widely so as to allow worker claims (for example in the USA).

Future cases?

If 20 years ago, flush with enthusiasm for BPfA-inspired gender equality, courts were increasingly attentive to gender aspects in world of work rulings, and if the more recent evidence presented here shows mixed results despite an increase in the number of anti-discrimination laws plus better trained judges, what does this tell us about enforcing sex discrimination provisions for the next 20 years? This admittedly brief analysis shows that to successfully challenge discriminatory workplace action it is crucial to:

(i) amass the data and factual background in detail to the highest possible standard and present it using experts if possible;

(ii) encourage greater involvement of workers’ organizations where possible as their weight seems to count;

(iii) have judges well trained on the relevant international law such as ILO’s labour standards, as well as regional norms (note that the study does not cover decisions of regional courts although they are emanating an increasing number of decisions on workplace sex discrimination);

(iv) use statutory frameworks that permit commissions to bring complaints on behalf of individuals (as this route often brings positive results);

(v) be prepared to wait several years for a final decision, thus requiring financial resources (where is legal aid in this decade?) and tenacity; and

(vi) empower women to understand and seek out their labour rights, so that cases concerning sex discrimination are not rarified instances and so that employers—including states as employers—receive strong dissuasive messages.

FOOTNOTES
¹Aeberhard-Hodges, J. (1996) Sexual harassment in employment: Recent judicial and arbitral trends, International Labour Review, 135 (5) (ILO, Geneva).

²Beijing+20 reports all agree that one major achievement of the past 20 years has been the inclusion of sex discrimination prohibitions in national laws, and labour laws are no exception. A series of recent high profile cases and the accompanying media coverage show how these legal provisions are making a difference to workplace justice today. For example, after a four-year investigation, the US Department of Education's Office for Civil Rights ruled that Harvard Law School violated Title IX in how it handled sexual violence and harassment complaints. In a American suit set for trial in February 2015, a jury will decide whether one woman working in male-dominated Silicon Valley suffered sexism and harassment. The New York Times reported that proceedings could resonate widely: A guilty verdict will be billed as a sweeping indictment of the high-tech world, while a dismissal might supply ammunition to those who feel gender issues are being overplayed.

³Sources used in the think piece include government reports lodged with various United Nations system treaty bodies, observations issued by the International Labour Organization’s supervisory bodies in relation to the main gender equality Conventions, web searches (Lexis/Nexis, the Southern African Legal Information Institute SAFLII, Wikipedia) and official national court websites that publish full text or extracts of decisions (if English translations available). The ILO Conventions covered are the Equal Remuneration Convention, 1951 (No. 100), Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Workers with Family Responsibilities Convention, 1981 (No. 156) and Maternity Protection Convention, 2000 (No. 183). A principal source was the International Labour Law Reports (Brill/Nijhoff Publishers: Leiden, Boston), a series of annual publications of labour law judgements by influential, often the highest, courts across the world. This study draws from Volumes 26-33 covering the years 2006-13.

CASES

Australia:	High Court NSW v. Amery (2006) 226 Australian Law Reports 196. Fair Work Australia Equal Remuneration Case [2012] FWAFB 1000 of 1 February 2012.
Canada:	Supreme Court Canada Human Rights Commission v. Canadian Airlines International ([2006] 1 S.C.R. 3). Ontario Superior Court of Justice CUPE Local 1999 v. Lakeridge Health Corporation (2012 ONSC 2051, dated 31 May 2012).
Finland:	Supreme Court 2009:78 of 9 October 2009 (T 1927).
France:	Court of Cassation decision Mme Margotin v. Société Stratorg 3 February 2010, Bulletin of Judgements No 08-44.019, FP-P+B+R.
Japan:	Supreme Court (First Petty Bench) Showa Shell Petroleum Ltd. v. Mitsue Nozaki.
Kenya:	Industrial Court of Kenya Veronica Muthio Kioka v. Catholic University of Eastern Africa, Cause No.1161 of 2010, dated 8 November 2013.
Spain:	Supreme Court (Social Chamber) Decision of 19 April 2011. Supreme Court (Social Chamber) Decision 152/2011 of 29 September 2011. Supreme Court (Social Chamber) Decision 506 of 21 June 2012. Constitutional Court (Plenary Court) Decision 61/2013 of 14 March 2013. National Court (Social Chamber) Decision of 30 September 2013.
UK:	Supreme Court North & Ots. v. Dumfries and Galloway Council ([2013] UKSC 45).
US:	Supreme Court Crawford v. Nashville (129 S.Ct. 846 of 26 January 2009). Supreme Court Burlington Northern & Santa Fe railway v. White (126 S. Ct. 2405 of 22 June 2006). Supreme Court Thompson v. North American Stainless Corp. (131 S.Ct. 865 of 24 January 2011). Supreme Court Vance v. Ball State University (133 S.Ct. 2434 of 24 June 2013). Supreme Court Wal-Mart Stores v. Dukes (131 S. Ct. 2541 of 20 June 2011).

ABOUT THE AUTHOR

Jane Aeberhard-Hodges is the former Director of ILO’s Bureau for Gender Equality and currently an UNRISD Senior Research Associate. She also edits the International Labour Law Reports (Brill/Nijhoff Publishers). She has broad experience in international and comparative human rights law, with the specialization of international labour law, and has designed and delivered training programmes in the area of fundamental principles and rights at work, in particular gender equality, human rights and HIV/AIDS. Her research into the impact of international labour standards in the delivery of justice had led Ms. Hodges to work extensively with judges from across a range of jurisdictions.