Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Georgia (Ratification: 1993)

The Committee takes note of the observations of the Georgian Trade Union Confederation (GTUC) received on 6 October 2020, reiterating its observations received on 30 September 2019, which address issues related to the application of the Convention. The Committee requests the Government to provide its comments in this respect.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. In its previous comment, the Committee asked the Government to take steps to: (1) prevent, together with workers’ and employers’ organizations, sexual harassment in the workplace; and (2) ensure that section 6(1)(b) of the Law on Gender Equality is effectively enforced (and to provide information on any cases of sexual harassment and their outcomes). It also asked the Government to consider including in the Labour Code a provision explicitly defining and prohibiting sexual harassment in the workplace. In this regard, the Committee notes the GTUC’s repeated observation that sexual harassment remains one of the most under-reported forms of discrimination at work. It notes the Government’s indication concerning the adoption in 2017 of Ordinance No. 200 defining general rules of ethics and conduct in the public service, which prohibits sexual harassment and establishes the requirement for public officials to be aware of this phenomenon and the prohibition of such practices, both in the workplace and in the public domain, and to remain informed of internal and general reporting procedures. The Committee also notes the Government’s reference to the 2019 legislative amendments introducing a definition and prohibition of sexual harassment in the Law on the Elimination of All Forms of Discrimination, as "any unwanted verbal, non-verbal or physical behaviour of a sexual nature with the purpose of violating the dignity of a person or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person”. The Committee further notes that the Labour Code was amended in September 2020 to define sexual harassment as “the direct or indirect harassment of a person aimed at or resulting in impairing the dignity of that person, or at creating an intimidating, hostile, humiliating, degrading or abusive environment for him/her, and/or creating the circumstances for a person directly or indirectly causing their condition to deteriorate as compared to other persons in similar circumstances”. The Committee notes with interest the introduction of a definition and prohibition of sexual harassment in the Labour Code, but notes that this definition does not cover the full range of forms of behaviour that constitute sexual harassment in employment and occupation (2012 General Survey on the fundamental Conventions, paragraphs 789 and 792). The Government also indicates that, between 2014 and 2018, the Public Defender reviewed 15 cases of sexual harassment and issued recommendations in four cases, and that the courts only dealt with two cases. In light of the limited number of infringements identified by the courts and the Public Defender, the Committee recalls that the absence or a low number of complaints regarding sexual harassment does not necessarily indicate that this form of sex discrimination does not exist; rather, it is likely to reflect the lack of an appropriate legal framework, the lack of awareness, understanding and recognition of this form of sex discrimination among government officials, and workers and employers and their organizations, as well as the lack of access to or the inadequacy of complaints mechanisms and means of redress, or fear of reprisals (see 2012 General Survey, paragraph 790). The Committee therefore asks the Government to take the necessary steps to ensure that the prohibition of sexual harassment is effectively enforced by the courts and the Public Defender, and to continue providing information on any cases of sexual harassment dealt with by the courts or any other competent authorities, including information on the sanctions imposed and remedies granted. It also asks the Government to take steps to include in the labour legislation a complete definition of sexual harassment, including both quid pro quo and hostile work environment, and to provide information on any progress made in this regard. Noting that the Government’s report is silent on the subject, the Committee again asks the Government to take practical measures, together with workers’ and employers’ organizations, to prevent sexual harassment at work, including through the development of workplace policies and awareness-raising among workers and employers, and to report on the progress made in this regard.

Discrimination based on sexual orientation and gender identity. The Committee recalls that section 2 of the Labour Code prohibits discrimination on the basis of sexual orientation and gender identity and expression. In this regard, it notes from the 2019 report of the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, that discrimination based on sexual orientation and gender identity is pervasive in Georgia: beatings are commonplace, harassment and bullying constant, and exclusion from education, work and health settings appear to be the norm. According to the findings of the Independent Expert, discrimination based on sexual orientation remains common in the workplace and a study has found that, in the lesbian, gay, bisexual, trans and gender diverse community, one person out of four has been denied employment due to their sexual orientation or gender identity (A/HRC/41/45/Add.1, 15 May 2019, paragraphs 31 and 72). The Committee asks the Government to provide information on: (i) any steps taken or envisaged to prevent and address discrimination based on sexual orientation and gender identity in employment and occupation, including statutory and awareness-raising measures; and (ii) prosecutions brought and penalties imposed for violations of section 2 of the Labour Code.

Article 1(3) of the Convention. Discrimination in recruitment. The Committee recalls that, according to the GTUC’s observations, although section 2(3) of the Labour Code prohibits discrimination in recruitment, such cases of discrimination remain common practice and are often under-reported because the employer is not legally required to give reasons for a decision not to hire a candidate (section 5(8) of the Labour Code). The Committee notes from the Special Report of the Public Defender on the Fight Against Discrimination, its Prevention and the Situation of Equality (2018), that there is no express prohibition of discriminatory criteria in job advertisements and that such criteria are commonly used. The Public Defender proposes the introduction of legislative regulations expressly prohibiting discriminatory requirements in pre-contractual relations. The Committee notes the Government’s statement in its report that amendments were made to the Labour Code in February 2019 and notes with interest that an employer can no longer ask a candidate for information that is not related to the performance of the job or to the evaluation of the candidate’s ability to perform specific work, such as his/her religion, faith, disability, sexual orientation, ethnic affiliation or pregnancy status (section 5(1) of the Labour Code). The Committee also notes the Government’s indication that the Gender Equality Council is drafting further amendments to the Labour Code to improve women’s rights in relation to employment and occupation. In the framework of this legislative review, it is proposed that an employer should be required to substantiate his/her decision not to hire when there is an assumption of discrimination. The Committee notes the Government’s statement that eight cases have been investigated by the Public Defender’s Office on the basis of alleged discrimination in pre-contractual relations during the period 2015–18, but no indication is given as to the outcomes of these cases. The Committee asks the Government to provide information on any developments regarding the adoption of the draft legislative amendments proposed by the Gender Equality Council. The Committee also asks the Government to: (i) provide information on the application of new section 5(1) of the Labour Code in practice; (ii) continue taking steps to eliminate discriminatory practices in recruitment, including in job advertisements; and (iii) provide information on the number and nature of cases handled by the courts or the Office of the Public Defender regarding discrimination in pre-contractual relations, including the sanctions imposed and remedies granted.

Article 2. Equality of opportunity and treatment for men and women. The Committee previously asked the Government to step up its efforts to promote gender equality specifically in the field of employment and occupation and to take steps to address the barriers to women’s access to the broadest possible range of sectors and industries and to promote a more equitable sharing of family responsibilities between men and women. It requested information on the implementation of the outstanding activities of the 2014–16 National Action Plan on Gender Equality, as well as on any specific activities carried out by the Gender Equality Council in the field of employment and occupation. The Committee notes the Government’s indication that the Ministry of Economy and Sustainable Development, in partnership with the public agencies Enterprise Georgia and the Georgian Innovation and Technology Agency, is implementing projects to promote women’s entrepreneurship and their role in managerial positions by: (1) financially supporting start-ups and/or helping the expansion of existing businesses; and (2) providing training courses and individual consultancy on business management. The Government states that the Gender Equality Council identified the “economic empowerment of women” as a priority for 2019 and initiated two thematic enquiries focusing on the barriers women face when participating in state economic programmes and in access to vocational education. The Committee also takes note of the Gender Equality Council’s Action Plan for 2018–2020. However, the Committee notes from the GTUC’s observations that, despite positive steps to improve the labour regulations, the issues of women’s promotion (occupational gender segregation), women’s economic empowerment and equal participation in economic development, as well as proper pay, remain problematic. The GTUC alleges that gender inequalities are most challenging in rural areas and that gender stereotypes, the unequal division of unpaid agricultural and domestic work and a lack of gender-responsive services and programmes limit women’s abilities to acquire new skills, develop agricultural or other businesses and earn a sustainable income. In addition, the GTUC states that women entrepreneurs continue to face challenges in access to finance, information, training, access to business networks, as well as the reconciliation of work and family responsibilities. Referring to the official statistical data, the GTUC indicates that women comprise only 29 per cent of public service employees and only 21.8 per cent of managerial positions in the public sector. The Committee asks the Government to pursue its efforts to promote gender equality in employment and occupation, including through measures to address directly stereotypes regarding women’s professional aspirations, preferences and capabilities, and their role in the family. The Committee again urges the Government to take steps to address the legal and practical barriers to women’s access to the broadest possible range of sectors and industries, at all levels of responsibility, and to promote a more equitable sharing of family responsibilities between men and women, and to report on the results achieved in this regard. The Committee further asks the Government to provide information on the conclusions and recommendations of the Gender Equality Council following its 2019 thematic enquiries, as well as on the results of its Action Plan 2018–2020 in the field of gender equality in employment and occupation. The Committee asks the Government to provide statistics on the situation of men and women in different occupations, including at the decision-making level, and in all sectors of the economy.

The Committee is raising other matters in a request addressed directly to the Government.