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.

The right to be free from discrimination is firmly secured in international human rights instruments, including the UDHR, ICCPR 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 four fundamental principles and rights at work recognized by ILO Member States and 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:

• ILO Discrimination (in Employment and Occupation) Convention, No. 111 (1958) requires ratifying countries to enforce national policies to promote respect and equal opportunities in the workplace and identifies race, colour, sex, religion, political opinion, national extraction and social origin as bases of discrimination.
• ILO Equal Remuneration Convention, No. 100 (1951) promotes the principle of equal pay for work of equal value.

Other relevant ILO instruments include:

• Part-time Work Convention, No.175 (1994) and Recommendation, No.182 (1994)
• Maternity Protection Convention, No.183 (2000) and Recommendation, No.191 (2000)
• Workers with Family Responsibilities Convention, No.156 (1981) and Recommendation, No.165 (1981)
• Vocational Rehabilitation and Employment (Disabled Persons) Convention, No. 159 (1983) and Recommendation, No. 168 (1983)
• Older Workers Recommendation, No. 162 (1980)
• Migration for Employment Convention (Revised), No. 97 (1949)
• Indigenous and Tribal Peoples Convention, No. 169 (1989)
• Violence and Harassment Convention, No. 190 (2019) and Recommendation, No. 206 (2019)

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.