What Is Employment Discrimination?

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Attorney
Pepeliaev, Goltsblat & Partners


Everyone should have equal opportunities to exercise their labor rights. Nobody may be subject to restrictions in their labor rights and liberties or gain any advantages, irrespective of sex, race, colour, nationality, language, origins, property, family, social status or occupational position, age, place of residence, attitude to religion, political views, affiliation or failure to affiliate with public associations, or other circumstances not pertaining to the professional features of the employee.

Equal Opportunity in Sex and Age. While the Russian courts will treat any employee as equal, employers can establish almost any criteria they wish for positions. For example, it is very common to see ads for secretarial positions advertising specifically for a "woman, aged 18-24" or for a construction worker advertising for a "man, aged 18-34," etc.

Equal Opportunity in Race and Nationality. It is legally forbidden to discriminate on the basis of race and nationality in Russia, where there are hundreds of such differentiations and several cosmopolitan centers. One never sees job advertisements for "Russians only." Unofficially, however, this type of discrimination is apparently still fairly commonly practiced.

Discrimination is a major problem in Russia.

The result is more pernicious than perpetuation of an often dismal existence for minority groups. Nondiscrimination is a fundamental human right, as numerous human rights treaties testify -- its absence impacts basically upon the rule of law. When groups and individuals are treated arbitrarily and when such behavior is not only tolerated but often condoned and/or conducted by state law enforcement agencies, the primary victim is the law itself and the credibility of individual rights in the eyes of the public. In Russia today, the fight against discrimination is part of a broader struggle to consolidate the rule of law and the reality of rights for everyone.

What instruments exist to better the situation? The Russian constitution states that "any restrictions of the rights of citizens on social, racial, national, linguistic or religious grounds shall be forbidden." This and other general constitutional provisions are repeated elsewhere in the Russian legislation and supplemented by anti-discrimination provisions in the Labor Code in particular. Yet participants were not aware of any successful cases challenging discrimination on grounds of race or gender in Russia's courts. The Constitutional Court has not developed jurisprudence on discrimination issues. Constitutional provisions can be invoked in ordinary courts -- and it has been demonstrated in other jurisdictions that judicial practice can be impacted by dedicated lawyers employing proven public interest strategies, such as compilation of statistical evidence of discrimination.

International law provides another possible resource. Russia is a signatory to most major human rights treaties outlawing discrimination. International treaties duly ratified by the Russian government are directly applicable in domestic courts, yet in practice international legal sources are rarely cited by lawyers or judges in domestic litigation.

The Labor Code of the Russian Federation forbids employers to turn down a job applicant without having due grounds for doing so and regards as discrimination any direct or indirect restriction of rights or demonstration of direct or indirect preference when hiring on the grounds of gender or anything else unrelated to the applicant's professional qualities. Moreover, the Labor Code expressly forbids employers to refuse to offer jobs to women on the grounds of their being pregnant or having children.

In my opinion, there is one serious barrier in the Russian legal system, which significantly reduces the possibility of effectively defending the rights and legal interests of individuals who have suffered from discrimination -- the miserly compensation for moral harm awarded by the courts. The principle of good sense and justice to which courts ought to adhere when deciding the amount of compensation to be paid is not used these days in the interests of the victim. Yet it seems to me that compensation cases brought against discriminatory hiring or firing of employees or against sexual harassment could be one of the main legal defenses for equal rights of men and women.