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Definition & Legal Instruments


Discrimination in employment and occupation is defined by the ILO as “any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”. In other words, this means treating people differently or less favourably because of characteristics that are not related to their competency or the inherent requirements of the job.

Discrimination can stem from both direct and indirect actions by employers:

  • Direct discrimination is straightforward; for example, excluding a job applicant due to their ethnic, religious, national, linguistic, disability or cultural background.
  • Indirect discrimination involves an apparently neutral requirement or practice that has a disproportionate impact on a particular group, and which is not necessary and appropriate to achieve a legitimate, job-related objective.

Affirmative action (also known as ‘positive action’) may be permissible if its objective is to overcome past discrimination or address persisting inequalities. When operating in a country that has such measures in place, companies may be required to analyze their operations and supply chains to identify conditions that cause or maintain discrimination against relevant disadvantaged groups. They may then be required to take action to actively promote equality or to grant preferential treatment to certain groups, so long as there are no automatic and rigid quotas.

Legal Instruments

The right to be free from discrimination is firmly secured in international human rights instruments, including the UDHRICCPR and ICESCR. The right to equality and non-discrimination is also affirmed in relation to specific groups, such as women (CEDAW, article 11.1), migrant workers (CMW, article 7) or persons with disabilities (CRPD, article 27).

The elimination of discrimination in employment and occupation is one of five fundamental principles and rights at work by the ILO which Member States must promote, irrespective of whether or not they have ratified the respective conventions listed below, and it is the focus of Principle 6, one of the Ten Principles of the UN Global Compact.

Relevant ILO conventions include two core ILO Conventions on Discrimination:

Other relevant ILO instruments include:

While most States have ratified the first two fundamental ILO conventions on non-discrimination, their implementation in national laws and enforcement of such laws vary greatly. In practice, the provision of legal protection against discrimination in respect of employment and occupation is not consistent across countries.

Non-discrimination is included as one of the Ten Principles of the UN Global Compact: Principle 6: Businesses should uphold the elimination of discrimination in respect of employment and occupation”. The four labour principles of the UN Global Compact are derived from the ILO Declaration on Fundamental Principles and Rights at Work.

These fundamental principles and rights at work have been affirmed and developed in the form of specific rights and obligations in International Labour Conventions and Recommendations and cover issues related to child labour, discrimination at work, forced labour and freedom of association and the right to collective bargaining.

Member States of the ILO have an obligation to promote non-discrimination, even if they have not ratified the Conventions in question.

Regional and National Legislation

Companies are increasingly subject to non-financial reporting and due diligence obligations in the jurisdictions in which they operate, which often include disclosures on their performance. There are several high-profile examples of national legislation that specifically mandate human rights-related reporting and other positive legal duties, including the French Corporate Duty of Vigilance Law 2017, the German Act on Corporate Due Diligence Obligations in Supply Chains and the Norwegian Transparency Act 2022.

Also, in 2021 the Netherlands submitted a Bill for Responsible and Sustainable International Business Conduct, and the European Commission announced its Corporate Sustainability Due Diligence Directive (CSDDD). This Directive is likely to come into force between 2025 and 2027 and will make human rights and environmental due diligence mandatory for larger companies.

These mandatory due diligence and disclosure laws require companies to publicly communicate their efforts to address actual and potential human rights impacts, including violations in relation to discrimination in the workplace. Failure to comply with these obligations leads to real legal risk for companies.

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