Discrimination and Equality
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As with the other core labor standards, government policies to eliminate discrimination have negative as well as positive aspects, with the latter usually being more important than the former. The government must not only eliminate all laws or regulations that explicitly or implicitly discriminate among groups, but it must also take proactive steps to ensure that private actors (employers and unions) do not discriminate and that vulnerable groups are given sufficient support to ensure they can take advantage of the opportunities theoretically open to them. As elsewhere in this volume, indicators of compliance with nondiscrimination standards are divided into three areas: legal framework; government performance; and overall outcomes.

The first step is to examine whether there are laws that either explicitly discriminate based on one of the prohibited grounds or could result in de facto discrimination and whether laws provide positive protections to the right of nondiscrimination. Thomas (2002) argues that broad constitutional provisions are often not enough and that statutes explicitly prohibiting discrimination in employment are usually needed. The next step is to examine how vigorously laws are enforced and whether policies to promote nondiscrimination are being effectively implemented. Failures in this area, particularly among developing countries, will often be sins of omission rather than of commission, arising more from a lack of financial and other resources than from intent. Nevertheless, it is useful to examine the level of human and financial resources allocated to discrimination in employment issues and to assess whether a government is doing the best it can with the resources available.

Failure to deal with discrimination, however, often results from the unwillingness of governments to confront powerful groups or deep-seated cultural traditions and to take steps to level the playing field for vulnerable groups. Thus, in addition to having laws, indicators of whether the government is serious in combating discrimination include the implementation of educational campaigns to ensure that people understand their rights and to ensure that employers, unions, and others respect them. Affirmative action programs may be appropriate in cases of long-standing or entrenched discrimination.

Effective grievance procedures are also crucial because nondiscrimination is often subtle and difficult for outside observers to identify. To make such procedures effective, however, certain other policies also have to be in place. First, since the groups most vulnerable to discrimination are often relatively poorer and less educated than other groups, supportive services, such as subsidized or free legal advice, may be necessary. Second, the law has to protect complainants from retaliation.

Since effective grievance procedures are unlikely to exist in countries where discrimination problems are the most severe, some international agencies have either adopted or are considering complaints procedures that allow individuals or groups to bypass their national governments and appeal directly at the international level. Under Article 24 of the ILO constitution, any employer or union group that becomes aware of problems can file a complaint regarding violations of the discrimination conventions against any government that has ratified them. The U.N.'s Convention on the Elimination of Racial Discrimination provides for complaints by either individuals or groups to be submitted directly to the committee overseeing the convention. In 1999, the Convention on the Elimination of Discrimination Against Women added an optional protocol creating a similar procedure, but fewer than 50 countries had accepted it as of the end of 2002. Though they are little known or used today, these mechanisms could eventually become an important source of evidence on compliance.

Finally, when available, quantitative indicators can be helpful in assessing how well antidiscrimination policies are working and in identifying areas in need of particular attention. Differences in literacy rates or school enrollment rates for different groups are likely to be a sign of problems because this will affect the opportunities available when members of the disadvantaged group enter the labor force. As with the other core labor rights, however, caution has to be used in interpreting some of the quantitative indicators. High numbers of complaints under grievance procedures or prosecutions for discriminatory practices, for example, can indicate a system that works well rather than one that works poorly. Small numbers of complaints could simply mean that citizens view the system as costly, ineffective, or too risky to use.

Labor market data must also be interpreted with caution. Lower labor force participation rates for women, for example, could reflect voluntary decisions by families to have mothers withdraw from the (paid) labor force while children are young; the same might be the case if more women than men are in part-time work because of family choices. In such cases, however, it is also necessary to look at whether there are such national policies as parental leave and adequate child care so that outcomes reflect the family's true preferences and not external constraints. Relative wages are an obvious indicator of potential discrimination. But, again, it is difficult to control for everything that affects wages, and family constraints or preferences may result in women's wages being on average lower than men's for legitimate reasons. Nevertheless, the larger the wage gap, the more likely that it is an indicator of a problem.

Other indicators are also relatively more likely to indicate discrimination problems that need to be addressed. For example, disproportionately small numbers of women or ethnic, racial, religious, or other minorities in certain types of jobs or in certain sectors may be an indicator of problems. Low numbers of women or other minorities in management positions may reflect not intentional discrimination by employers but could indicate a failure by society to provide equal opportunities to some groups, such as an adequate basic education. If public schools do not exist or are of low quality in poor neighborhoods that are populated disproportionately by ethnic or racial minorities, children from those families will find it far more difficult than other children to get, retain, and move up the ladder in jobs with management potential.

Although individual indicators are the most important sources for assessing compliance with nondiscrimination standards, the U.N. Development Programme’s "gender development index," added to the Human Development Report in 1995, may also be useful to flag cases of particular concern and, as the series grows longer, to assess trends. The index includes several indicators of inequality: differences in life expectancy (adjusted for the fact that women, on average, have a longer life expectancy than men); differences in adult literacy and combined school enrollment (primary, secondary, and tertiary); and a measure of women's earned income relative to men's (U.N. Development Programme, 1995).

Some of the individual components of this index are included in the list of the committee's indicators. In addition, the difference between a country's ranking on the human development index, which aims to capture quality of life aspects of development not reflected in national income, and its ranking on the gender development index might be useful in identifying countries with potential problems with gender-based discrimination. Differences between the per capita income and gender development index rankings can also be used to identify both those countries that are doing better than their income level would suggest and those that are doing worse. Such comparisons should only be used as a starting point for further research, however, and should not be taken as definitive. These indices are crude and, by necessity, simplify very complex relationships. As noted in the Human Development Report, they also miss much that is important because they "can capture only what is measurable" and, even then, data gaps mean that heroic assumptions have to be made to fill in the blanks (U.N. Development Programme, 1995, p. 72).

Legal Framework

Ratification of international conventions does not necessarily mean that the legal framework is consistent with international standards. Reporting requirements associated with ratification, however, mean that useful information may be available from ILO and U.N. sources. In addition, a new ratification could signal a commitment to improve conditions. When looking at a country's laws, if they do not cover all the prohibited grounds, one needs to see which are excluded and why. If laws in these areas do not exist, is it because the custom is to treat all groups equally? Or is it because the political will to tackle discrimination is lacking? It is also important to determine whether there are penalties for noncompliance and assess whether those penalties are sufficient to deter discrimination. The committee proposes 10 indicators of the legal framework on eliminating discrimination, 4 on ratification of international conventions, and 6 on laws:

A-1. ratification of ILO Convention No. 100 on equal remuneration;

A-2. ratification of ILO Convention No. 111 on discrimination (employment and occupation);

A-3. ratification of the U.N. International Convention on the Elimination of All Forms of Racial Discrimination;

A-4. ratification of the U.N. Convention on the Elimination of All Forms of Discrimination Against Women;

A-5. whether there are laws that prohibit discrimination in employment on the grounds of race, color, sex (including sexual harassment), religion, political opinion, national extraction, and social origin;

A-6. whether there are laws that cover additional grounds on which employment discrimination is prohibited, for example disability or sexual orientation;

A-7. whether there are laws that also protect migrant workers from discrimination in employment;

A-8. whether there are laws that prohibit discrimination in access to and ownership of assets, including property ownership, inheritance, and access to other assets or credit;

A-9. whether there are laws that make nondiscrimination in employment meaningful in practice with equal access to education, training, vocational guidance, and placement services; maternity protection; and parental leave; and

A-10. whether there are laws or a legally established or recognized machinery for wage determination that ensure equal remuneration for work of equal value.

Government Performance

The ILO supervisory process can be an important source of information about countries' laws, policies, and practices with regard to labor standards. These data should not be used as quantitative indicators (e.g., numbers of complaints or comments), however, since some sources apply only to countries that have ratified conventions, and small numbers of complaints can indicate a system that is repressed rather than one that is working well. Quantitative enforcement measures should be adjusted for income level of country, size of labor force, and magnitude of discrimination problem relative to other standards problems. The committee proposes 11 indicators on government performance:

B-1. whether there is a national mechanism to promote equality and whether it has an employment focus or employment component in a broader policy;

B-2. whether the country has a labor inspectorate;

B-3. the breadth of labor inspections in the country, in terms of number of visits, frequency of visits, number of workers covered, etc.;

B-4. the level of resources devoted to the labor inspectorate in terms of number of personnel and budget, absolute or relative to number of workers or spending;

B-5. whether nondiscrimination issues are explicitly included in labor inspections and inspectors trained in them;

B-6. whether there is a grievance mechanism for airing and investigating discrimination complaints, "whistle-blowers" or complainants are protected from retaliation, and the grievance mechanism is adequately supported and funded;

B-7. measures of utility of grievance procedures, including number of complaints, length of process, penalties imposed if complaints upheld, and annual prosecutions and fines for violations of nondiscrimination laws;

B-8. where applicable, whether there are affirmative action programs aimed at promoting equality and not at elevating one group over another;

B-9. whether there are public education or sensitivity campaigns, both to educate vulnerable citizens about their rights and to change cultural and traditional attitudes that contribute to discrimination;

B-10. whether there are requests for or implementation of international technical assistance programs, which can signal improvements in government efforts and, possibly, effectiveness; and

B-11. whether there are relevant supportive policies, such as child care.

Overall Outcomes

There are two broad categories of outcomes: employment opportunities and employment outcomes and conditions. Widely available international sources are likely to disaggregate many indicators only by gender, if at all. Statistical abstracts and other national sources, when available, may provide additional information on race, religion, or other groups. In looking at educational opportunities, differences in educational attainment that are due to discrimination in turn affect employment opportunities available to different groups. The data on this indicator will be more difficult to get and available largely from national sources but would be a more precise indicator of potential discrimination in labor markets than general educational attainment outcomes.

When employment outcomes and conditions are considered, women are generally more likely to be involved in activities, such as household work, domestic work, or other informal sector activities that are uncounted or undercounted. This should be kept in mind when assessing the proposed indicators. In addition, differences in female work and wage outcomes must be evaluated with care because they typically reflect a mix of individual and family choices, as well as indirect and direct discrimination. (Indicators that are relatively more likely to reflect family or other choices are listed below under "associated factors.") The indicators listed here also reflect complex interactions but are also more likely to involve an element of direct discrimination. For racial and other groups, it seems relatively more likely that differences in the indicators reflect discrimination and are less likely to be the result of personal choice.

In general, women are more likely than men to be unpaid family workers and less likely to be self-employed; when self-employed, women are less likely than men to employ others. In addition to cultural norms possibly restricting women's activities, various combinations of cultural or legal impediments may result in women having less access to credit, land, and other assets. However, differences in reporting on men's and women's activities may result in women's work that is qualitatively similar to men's being classified as unpaid family work rather than self-employment (International Labour Organization, 1999).

Women are more likely to be employed in agriculture in developing countries and in the services sector generally, which explains at least some of the persistent wage gap between men and women (International Labour Organization, 1999).

The informal sector is often a fallback for women or other groups that confront cultural or other discrimination in the formal sector; thus, data showing disproportionate numbers of women or minorities in the informal sector may be an indicator of discrimination elsewhere in the economy, rather than in this sector. At the same time, however, women may be undercounted in the informal sector because the international definition excludes household production activities exclusively for the household's use, paid domestic service in private households, and homework carried out for an employer in the formal sector (International Labour Organization, 1999). Data on the distribution of employment in the urban informal sector are available for only 35 countries.

Higher unemployment rates for women could in part be the result of more frequent exit from and reentry into the labor market for personal reasons but it could also reflect more constrained educational and occupational opportunities (International Labour Organization, 1999). Where it exists in disaggregated form, data on wages for most countries also will not be detailed enough to assess equality of remuneration because that requires controlling for a large number of factors, many of which will not be directly observable (International Labour Organization, 2003). The committee offers 10 indicators on overall outcomes on eliminating discrimination:

C-1. differences in illiteracy rates between men and women and among different ethnic, racial, religious, or other groups;

C-2. differences in school enrollment rates (primary, secondary, and tertiary, or combined) between men and women and among different ethnic, racial, religious, or other groups;

C-3. differences in vocational training enrollment rates between men and women and among different ethnic, racial, religious, or other vulnerable groups;

C-4. documented discriminatory practices, such as widespread sexual harassment or pregnancy testing for job applicants;

C-5. employment status -- wage or salaried worker, self-employed, or contributing family worker;

C-6. distribution of women and other potentially vulnerable groups by sector;

C-7. distribution of employment in the urban informal sector;

C-8. distribution of women and other potentially vulnerable groups by occupation within sectors, including in administrative and management positions;

C-9. relative unemployment rates, especially changes over time and during adjustments; and

C-10. relative wage data could be an indirect indicators of occupational or sectoral discrimination that channels women and minorities into lower paid types of jobs, but they are not available for large numbers of countries or consistently over time.

Associated Factors

There are four other indicators that can be helpful in assessing a country's compliance to eliminate discrimination. One is a country's ranking on the U.N.'s human development index minus its ranking on the gender development index: large differences between the rankings on this index and the human development index could indicate a particular problem with gender discrimination issues. The second is fertility rates, which are highly correlated with higher illiteracy and lower primary and secondary school enrollment rates for females relative to males. This associated factor, however, is available for more countries than are data on illiteracy and school enrollment.

The third factor is the labor force participation rate by gender and by other relevant classifications: very low labor force participation rates by women or minorities could be a sign of restricted opportunities. For example, in some Middle Eastern countries, where gender segregation is strictly enforced it may be significant. However, high female labor force participation rates, for example in sub-Saharan Africa, where many women work in agriculture, are not necessarily an indicator that discrimination does not exist. Low levels of female labor force participation may also be due to undercounting. These data should be used in conjunction with other indicators (International Labour Organization, 1999).

The fourth associated indicator to consider is the distribution of part time work. It is not clear why ethnic or other minorities would disproportionately choose part-time work, and large differences between these groups and others could be a sign of indirect or direct discrimination. Higher rates of part-time female workers could also be due to choices related to family responsibilities and thus are more difficult to assess (International Labour Organization, 1999).

The discussion of indicators draws on (and additional discussion of issues relating to collection and interpretation of the data may be found in) International Labour Organization (1999).