Convention No. 190 and Recommendation No. 206 recognize that the right to be free from violence and harassment in the world of work is inseparable and closely interrelated with all fundamental principles and rights at work and, more broadly, with decent work. Violence and harassment and decent work deficits often act as contributing causes and consequences of one another, as research has shown (ILO 2016b; de Bruijn 2020; Reuter et al. 2020; Cassino and Besen-Cassino 2019). After recognizing in its Preamble that violence and harassment in the world of work is incompatible with decent work, Convention No. 190 calls on States to respect, promote and realize the fundamental principles and rights at work, and to promote decent work, in order to prevent and eliminate violence and harassment (Art. 5).
Freedom of association and of the effective recognition of the right to collective bargaining are key means to both prevent and address situations of violence and harassment at work. Conversely, the denial of such rights is a significant factor in increasing the risk of experiencing violence and harassment (ILO 2017a).16 In this regard, Recommendation No. 206 recommends that these fundamental rights should be ensured to “all workers and employers, including those in sectors, occupations and work arrangements that are more exposed to violence and harassment” (Para. 3).
Box 9. Extending the scope of application of freedom of association and the right to collective bargaining as a pathway towards effective protection against violence and harassment
In recent years, initiatives at different levels have been put in place to extend these fundamental rights to all workers, irrespective of their sectors of activity or nationality (IOE 2019; Jesnes, Ilsøe, and Hotvedt 2019). These are important steps, as they open the door to more effective protection, including against violence and harassment through collective agreements.
France: Article 60 of the Law of 8 August 2016 introduced a separate category of self-employed who work for online platforms. This law grants platform workers the right to constitute and to join a trade union, as well as the right to assert their collective interests through its intermediary.
Samoa: Article 3 of the 2013 Labour and Employment Relations Act states: “This Act applies to: (a) every public body as defined under the Public Bodies (Performance and Accountability) Act 2001, whether or not duly incorporated by an Act of Parliament; and (b) all private or non-government business entities, including but not limited to business involving the agricultural and fisheries sector.” Articles 21 and 22 recognize the right to bargain collectively and to freedom of association, respectively.
Spain: The Self-employed Workers’ Statute (Act 201 of 11 July 2017) introduced a third category of workers in between employees and self-employed workers, known as “economically dependent self-employed”. In particular, article 11 defines these economically dependent self-employed as those who, in return for remuneration, carry out an economic activity or a profession personally, directly and predominantly for an individual or an organization on whom they are financially dependent, as granting them at least 75 percent of their income. The dependent self-employed can form their own professional organizations (such as trade unions) and negotiate working conditions by means of collective agreement.
Social partners’ initiatives
Canada: The workers’ organization Justice for Foodora Couriers was organized by a group of Foodora delivery riders in Canada to improve their fellow food riders’ working conditions. They are mainly campaigning for fair compensation for dangerous work, paid sick leave, and a respectful workplace free from harassment and intimidation. They are preparing to join the Canadian Union of Postal Workers, and once this trade union is certified as their bargaining agent, Foodora will be legally required to negotiate with them as one group. They have also started developing relationships internationally with other riders who work for Foodora and other platforms, with an aim of improving working conditions for all delivery workers around the world (Eurofound 2021).
Italy: In 2018 in Bologna, following negotiations between the Riders Union Bologna; the Italian trade unions CGIL, CISL and UIL; the Municipality of Bologna; and the platforms Mymenu and Sgnam (and later followed by Domino’s pizza), the Charter of Fundamental Rights of Digital Labour in the Urban Context was signed. The Charter is organized around four chapters covering general provisions, including the right not to be discriminated against, the right to be informed, the right to protection – including to a fair wage, health and safety, protection of personal data – and the right to disconnect. The charter is not binding and only those who sign it (on a voluntary basis) must observe it (Bologna Municipality 2018).
Malawi: The Malawi Congress of Trade Unions has endeavoured to establish trade unions in the informal economy. The Malawi Government has registered these trade unions in recognition of the right to organize and to collective bargaining (ILO 2019f).
Respecting, promoting and realizing the right of everyone to a world of work free from violence and harassment cannot be achieved unless forced or compulsory labour and child labour, including its worst forms, which are inherently related to violence, are eliminated. In recent years, historic milestones have been achieved in this regard. In 2021, the ILO Protocol of 2014 to the Forced Labour Convention, 1930, reached 50 ratifications. The Protocol commits governments to taking effective measures to prevent forced labour, protect its victims and ensure their access to justice and remedies. In 2020, the ILO Worst Forms of Child Labour Convention, 2000 (No. 182), achieved its universal ratification. This confirms a global commitment that the worst forms of child labour – such as slavery, commercial sexual exploitation, and the use of children in armed conflict or other illicit or hazardous work that compromises children’s health, morals or psychological well-being – have no place in our society. While ratification by itself is not enough and implementation is vital if people’s lives are to change for the better, these ground-breaking achievements are positive and long-awaited developments, and represent a move towards the creation of a world of work free from violence and harassment.
The principle of equality and non-discrimination is intrinsically linked with violence and harassment (ILO 2012; 2017a; ILO CEACR 2019). This is evident not only by the fact that violence and harassment based on prohibited grounds is to be considered discrimination, but also by the fact that discriminatory laws and practices can contribute to perpetuate harmful social norms or gender stereotypes that can lead to violence and harassment (ILO 2019g). Recommendation No. 206 reminds ratifying countries that efforts to protect women and other groups from high risk of violence and harassment should not result in any forms of direct or indirect discrimination, such as the “restriction of their participation in specific jobs, sectors or occupations, or their exclusion therefrom, of women and groups referred to in Article 6 of the Convention” (Para. 12). Recent research shows that reforming discriminatory laws that, for instance, limit women’s ability to work, manage or inherit property, contribute to reducing violence (Htun and Jensenius 2020). Another study on the incidence of sexual harassment over the last two decades shows that as the gender gap in the labour market closes, sexual harassment reduces (Cassino and Besen- Cassino 2019). 17
3.2.1 Ensuring equality and non-discrimination for women and groups in vulnerable situations
Promoting equality at work and tackling intersecting and multiple discrimination are key elements of any approach to prevent and end violence and harassment.18 In this regard, Article 6 of Convention No. 190 requires Members “to adopt laws, regulations and policies that ensure the right to equality and non-discrimination in employment and occupation, including for women workers, as well as for persons belonging to one or more vulnerable groups or groups in situations of vulnerability that are disproportionately affected by violence and harassment in the world of work”. Research shows that personal characteristics, such as race or ethnicity, disability, sexual orientation and gender identity, HIV/AIDS status or family responsibilities may make individuals or groups more exposed to the risk of violence and harassment (ILO CEACR 2019; ILO 2020e; 2020f).
Box 10. Ensuring equality and non-discrimination for all
Sex, gender and family responsibilities
Estonia: According to paragraph 21 of the Strategy for Preventing Violence for 2015–2020, violence prevention is guided by a number of principles, including, inter alia, the following: “Fostering gender equality is an important part of violence prevention. By reducing gender inequality, it is possible to prevent violence and reduce the harm resulting from it. Gender equality concerns both men and women, therefore violence prevention and reduction measures must be directed towards both genders in order to change stereotypical thinking, behaviour and gender roles at home, at work, at school and in the community.”
Japan: From 1 June 2020, under the Law to Prevent Harassment in the Workplace, companies with more than 50 employees must put in place measures to prevent both sexual harassment and harassment related to pregnancy, maternity, and childcare leave. Companies must also take steps to punish harassers. Under the amended Child and Family Care Leave Act and Equal Opportunity Act, companies must establish measures to prevent superiors or colleagues from creating working environments that are hostile to employee pregnancy, childbirth or the taking of childcare or caregiver leave (Library of Congress 2020).
Disability
Austria: Per section 7(d) of the Employment of Persons with Disabilities Act, as amended: “Harassment exists if in conjunction with a disability, a person is subjected to undesirable, inappropriate or objectionable behaviour that is intended as or results in an attack on the dignity of the person concerned and the establishment of an intimidating, hostile, degrading or humiliating environment for the person concerned.”
Azerbaijan: Per article 6(3) of the Law on the rights of persons with disabilities No. 1153-VQ of 2018, discrimination based on disability is defined as “any distinction, exclusion or restriction due to disability, including the denial of reasonable accommodation”. The Law also seeks to ensure the protection of persons with disabilities from torture and other cruel, inhuman or degrading treatment or punishment, all forms of exploitation, violence, insults, and their privacy.
Race, national origin and social origin
UnitedStates(California): In 2018, the California Code of Regulations (sects 11027 and 11028) were amended with a view to broadenthedefinition of national origin and to extend protection from discrimination to new categories of individuals. In particular, unless an employer can demonstrate a business necessity, restrictions concerning the speaking of any particular language are presumed unlawful. In addition, an employer cannot discriminate against a person based on their level of English proficiency or accent unless otherwise required to effectively fulfil job duties. Finally, any discrimination against employees due to their immigration status is prohibited, unless the employer shows “clear and convincing” evidence that its actions were necessary to comply with federal immigration laws.
Hong Kong, China: The 2020 Race Discrimination Ordinance defines racial harassment as, first, “unwelcome conduct” on the ground of race “in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct”; second the creation of a hostile or intimidating environment. The ordinance follows the 2018 launch of the Equal Opportunity Commission’s Racial Diversity and Inclusion Charter for Employers, which provides a checklist of policies and practices for employers to commit to (Hong Kong, China 2018a). 19
Sexual orientation and gender identity
Brazil: In 2020, the Public Labour Prosecution Office’s Committee for the Promotion of Equal Opportunities and the Elimination of Discrimination at Work issued Technical Note 02/2020 to guide the agency in defending the rights of the LGBTQI+ population in the labour context. According to the Technical Note, employers (companies, public agencies, individuals, and professional unions, from all economic sectors and non-profit entities) are required to adopt measures to prevent LGBTQI+ employees, outsourced employees, interns or clients from being directly or indirectly exposed to violence and harassment rooted in LGBTQI- phobia or transphobia or to sexual harassment and cyberbullying based on sexual orientation or gender identity.
Canada: In June 2017, the Canadian Government amended the Human Rights Act to outlaw employment discrimination, including discrimination-based harassment, based on gender identity and expression.
Japan: Government guidance on the law on Harassment at Work states that “outing” an LGBTQI+ person or insulting a person’s sexuality or gender identity will constitute power harassment, and is prohibited (Library of Congress 2020).
UnitedStates: On 15 June 2020, in the case Bostockv.ClaytonCounty, the Supreme Court of the United States ruled that the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation or gender identity.
HIV and AIDS
India: The HIV Prevention and Control Act 2017 states:
No person shall, by words, either spoken or written, publish, propagate, advocate or communicate by signs or by visible representation or otherwise the feelings of hatred against any protected persons or group of protected person in general or specifically or disseminate, broadcast or display any information, advertisement or notice, which may reasonably be construed to demonstrate an intention to propagate hatred or which is likely to expose protected persons to hatred, discrimination or physical violence (chapter 1).
Nicaragua: Article 8(d) of Law on Violence against Women No. 779 of 2012 prohibits any forms of violence that “discriminate against women in public or private workplaces and hinder their access to employment, hiring, decent and equitable salary, promotion, stability or permanence in the same, demanding requirements regarding marital status, maternity, surgical sterilization, age, physical appearance, pregnancy test or Human Immunodeficiency Virus (HIV/AIDS) or any other test on the health status of women”.
Miscellaneous
Albania amended section 9(2) of its Labour Code, which prohibits discrimination in employment and occupation, by adding the grounds of disability, HIV/AIDS or union affiliation (Law No. 136/2015).
France: Over the years, including recently, the list of prohibited grounds of discrimination contained in article L1132-1 of the Labour Code has been extended, and now covers: origin; sex; mores (social habits); sexual orientation; gender identity; age; family situation; pregnancy; genetic characteristics; particular economic vulnerability; real or supposed belonging to an ethnic group, nation or alleged race; political opinions; trade union activities; holding of an elective office; religious beliefs; physical appearance; last name; place of residence; place of bank; health; loss of autonomy; disability; and capacity to express oneself in a language other than French.
Liberia: The 2015 Decent Work Act prohibits direct and indirect discrimination against all persons who work or who seek to work on the grounds protected under Article 1(1)(a) of ILO Convention No. 111, as well as on a range of additional grounds including tribe, indigenous group, economic status, community, immigrant or temporary resident status, age, physical or mental disability, gender orientation, marital status or family responsibilities, pregnancy and health status including HIV or AIDS status (sects 2.4 and 2.7) (ILO CEACR 2016).
Mexico published an Executive Order referred to as “Olimpia Act” (Ley Olimpia) or “Digital Violence Act” that modifies the Criminal Code for Mexico City and the Law on Women’s Access to a Violence-Free Life in Mexico City. The amendments to articles 209 and 236 of the Mexico City Criminal Code provide that penalties are increased if digital violence is committed against senior citizens, disabled, homeless or indigenous people, or if digital or electronic media or any other device of communication are used as a means of committing the offence, as well as in cases where the offence uses images, audio or videos with an intimate sexual content (Mexico, n.d.).
United States (New York State): In 2019, New York State extended its protections against harassment to any protected category, including age, race, creed, colour, national origin, sex, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, lawful source of income, arrest and conviction, sexual and reproductive health, and domestic violence victim status (Zweig 2020).
SaoTomeandPrincipe:Act No. 6/2019 of 16 November 2018 defines and prohibits direct and indirect discrimination based on the grounds of ancestry and social origin, race, colour, age, sex, sexual orientation, marital status, family status, genetic heritage, reduced working capacity, disability or chronic illness, nationality, ethnic origin, religion, political or ideological beliefs and trade union membership (sects 15–17).
In relation to the identification of vulnerable groups and groups in situations of vulnerability, Paragraph 13 of Recommendation No. 206 clarifies that this should be done in accordance with applicable international labour standards and international instruments on human rights. The only group in a vulnerable situation that Recommendation No. 206 specifically mention is “migrant workers, particularly women migrant workers, regardless of migrant status” (Para. 10). Migrant workers, particularly those in an irregular situation, are vulnerable to violence and harassment in the world of work at all stages of the migration cycle (ILO 2016c; 2017a; WHO 2020). 20 The fact that, in many instances, temporary migrant workers or migrants in irregular situations do not enjoy in law or in practice equality of treatment with national workers or may be excluded from the scope of application of individual and collective employment provisions exacerbates this situation and creates a higher degree of threat (ILO 2020g). This threat of violence and harassment is even more present for women migrant workers in these situations. For this reason, Paragraph 10 of Recommendation No. 206 invites Member States to “take legislative or other measures to protect migrant workers, particularly women migrant workers, regardless of migrant status, in origin, transit and destination countries as appropriate, from violence and harassment in the world of work”. Besides ensuring that individual and collective employment and labour law provisions also cover migrant workers, memoranda of understanding and bilateral agreements, when drawn in line with international labour standards, can contribute to ensuring the necessary protection for all concerned.
Box 11. Violence and harassment and protection of migrant workers
Recent bilateral labour agreements contain provisions affirming that migrant workers should be treated in accordance with the laws of the host State or expressing their human rights as migrant workers (ILO 2017a). Recently, the new Agreement between the United States of America, the United Mexican States, and Canada (the successor to the North American Free Trade Agreement) encompasses specific reference to the need to ensure labour rights to migrant workers, including all fundamental principles and rights at work (arts 23.3 and 23.9), and to address any instances of “violence, threats, and intimidation against workers” (art. 23.7). The Nepal–Jordan General Agreement, 2017 1 also includes a specific provision on the need to ensure the right to equality and non-discrimination to migrant workers (Wickramasekara 2018).
1 The full name of the agreement is the General Agreement in the field of Manpower between the Government of the Hashemite Kingdom of Jordan and the Government of Nepal.
16 Although ILO instruments on freedom of association do not include an explicit prohibition of violence against trade union activities, the ILO CEACR has consistently stressed the interdependence between civil liberties and trade union rights, and in particular the importance for trade unions to operate in a climate free from violence, pressure and threats of any kind; see ILO 2012.
17 The study focuses on the United States, and shows that this decline has disproportionately benefited white women, who are now much less likely to experience sexual harassment in the workplace than, for example, African-American women.
18 Social policies that alleviate the burden of unpaid care work and promote a more equal share of family responsibilities are also essential, as they combat discrimination in the workplace and enable workers, particularly women, to combine family and wage work. See ILO 2018d; 2019g.
19 Covering the areas of policy, culture and work environment, the Charter consist of a list of nine guidelines: i) implement racial equality and diversity policies for the organization; ii) establish fair recruitment, appointment, promotion, staff development and dismissal processes and criteria; iii) review the employment processes and policies regularly to remove barriers for people of all races; iv) raise awareness of the policies and principles of racial inclusion among staff; v) proactively encourage engagement with racial minorities from underprivileged and under-represented communities; vi) provide a safe and collaborative work environment for all employees; vii) make employees of all races feel involved and included; viii) have in place a formal grievance process for employees to report and receive redress for any discrimination; and ix) ensure grievances are dealt with swiftly, effectively and confidentially (Hong Kong (China) 2018b).
20 In this regard, the United Nations Committee on the Protection of the Rights of Migrant Workers (CMW) and the Special Rapporteur on the Human Rights of Migrants have expressed the view that irregular entry or stay should not be considered a criminal offence, and that migrants in an irregular situation are not criminals per se and should not be treated as such. The CMW also considered that such criminalization fosters public perceptions that migrant workers and members of their family in an irregular situation are “illegal” or unfair competitors for jobs and social benefits, thereby fuelling discrimination and xenophobia. Building on this, and mindful that such criminalizing may increase the vulnerability of migrant workers to violations of their basic human rights, the ILO CEACR has stressed the particular importance of measures to combat stereotypes and prejudices of migrants as being more susceptible to engaging in crime or violence and to protect all migrant workers from racial discrimination and xenophobia (ILO 2016e, para. 294).