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

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Nicaragua (Ratification: 1967)

The Committee notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will contain full information on the matters raised in its previous comments.

Article 1(1)(a) of the Convention. Discrimination on the basis of sex. Sexual harassment. In its previous comments, the Committee asked the Government to take the necessary measures to include in the Labour Code a definition of sexual harassment that explicitly covers both quid pro quo and hostile work environment sexual harassment covering all aspects of employment and occupation, as well as a mechanism that provides remedies for victims and imposes penalties on offenders, whether they are employers, work colleagues or clients. The Committee notes the Government’s indication in its report that the Ministry of Labour guarantees immediate attention for complaints of violations of the labour conditions, safety and dignity of women workers, and reinstates labour rights, without prejudice to the right to take criminal action with the competent authorities for the criminalization and punishment of sexual harassment. The Government adds that, in accordance with the Labour Code, employers are required to ensure that women workers are not subject to sexual harassment or blackmail and that they are not subject to offers of advantages or threats in order to compel them to have sexual relations. While noting this information, the Committee recalls that in its 2012 General Survey on the fundamental Conventions it emphasized that without a clear definition and prohibition of both quid pro quo and hostile work environment sexual harassment, it remains doubtful whether the legislation effectively addresses all forms of sexual harassment and that addressing sexual harassment only through criminal proceedings is normally not sufficient, due to the sensitivity of the issue, the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case), and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not the full range of behaviour that constitutes sexual harassment in employment and occupation (paragraphs 791 and 792). The Committee also recalls that it asked the Government to provide information on the measures adopted to raise awareness and to prevent sexual harassment in the public and private sectors. In this regard, the Committee notes the Government’s information on the training and awareness-raising programmes for the prevention of sexual harassment and on labour rights undertaken between 2016 and May 2017 for men and women, with the participation of 1,487 women and the delivery during the training sessions of 16,000 manuals on labour rights, freedom of association and occupational safety and health. The Government also refers to the application by labour inspectors of the Labour Inspection Guide, which contains section 7 on equality and non-discrimination. The Committee firmly hopes that the Government will take the necessary measures to define sexual harassment (quid pro quo and hostile work environment) and asks it to provide information in this regard. The Committee also asks the Government to provide information on: (i) the operation of the administrative mechanisms for the examination of complaints; (ii) the procedure for the compensation of victims and the punishment of those responsible, whether they are employers, work colleagues or clients; and (iii) any complaints of sexual harassment at work made to the labour inspection services and the judicial authorities and their outcome. The Committee also asks the Government to continue taking awareness-raising and prevention measures in relation to sexual harassment and to provide information in this regard.

Discrimination on the basis of political opinion. The Committee refers to its previous comments in which it asked the Government to provide specific information on the measures taken in the context of the national equality policy, including awareness-raising measures, to prevent discrimination based on political opinion and to guarantee adequate protection for workers in the event of such discrimination. The Committee also asked the Government to report any complaints in this regard made to the administrative or judicial authorities. Noting that the Government has not provided comments on this subject, the Committee recalls that the protection afforded by the Convention against discrimination on the basis of political opinion implies protection in respect of the activities of expressing or demonstrating opposition to established political principles and opinions, but does not apply where violent methods are used. The general obligation to conform to an established ideology or to sign an oath of political allegiance is discriminatory. Cases where political opinion is taken into consideration as a prerequisite for a given job should be objectively examined under judicial scrutiny to determine whether this prerequisite is actually justified by the inherent requirements of the particular job (see General Survey of 2012, paragraph 805). In this regard, the Committee notes that the Inter-American Commission on Human Rights, in its 2018 report on Gross Human Rights Violations in the Context of Social Protests in Nicaragua indicated that it “received testimony from many persons regarding state officials from different institutions said to have been forced to participate in activities in support of the government under the threat of dismissal” (OEA/Ser.L/V/II, Doc. 86, 21 June 2018, paragraph 252). The Committee once again asks the Government to provide specific information on the measures taken under the national equality policy to prevent discrimination based on political opinion and to guarantee adequate protection for workers in the event of discrimination on the basis of political opinion. It also asks the Government to provide information on any complaints made in this regard to the administrative or judicial authorities.

General observation of 2018. The Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 2. National policy of equality of opportunity and treatment. In its previous comments, the Committee asked the Government to take specific measures to assess the results of the implementation of national equality policy and the equality programmes adopted and to provide information on their impact on the various sectors of the population and on the difficulties encountered in giving full effect to the Convention in respect of, in particular, the grounds of discrimination set out in Article 1(1)(a) of the Convention, including information on workers in export processing zones. In this regard, the Committee notes the information provided by the Government on the organization between 2012 and May 2017 of 15 meetings between the various departments of the country, state institutions and organizations of persons with disabilities, which benefited 508 workers. In this context, the Government places emphasis on Act No. 763, which provides that enterprises and institutions with over 50 workers shall include at least 2 per cent of persons with disabilities, and that enterprises with between ten and 50 workers shall include at least one person with disabilities. It notes that, in relation to workers in export processing zones, the Government confines itself to indicating that the system of access to employment in export processing zones is based on the technical qualities of the applicant without any discrimination of any type. In this regard, the Committee recalls that discrimination in employment and occupation is a universal phenomenon and is constantly evolving, and that some manifestations of discrimination have acquired more subtle and less visible forms. In this respect, it is essential to acknowledge that no society is free from discrimination and that continuous action is required to address it. The Committee once again emphasizes the importance of constant awareness of the need for continuous action, which can always be improved, in the areas in which effect has to be given to the national policy on equality of opportunity and treatment in respect of employment and occupation. Statements that the application of the Convention does not give rise to any difficulties in practice, or that it is fully applied, without providing further information on the content of, or the means by which the national policy is applied, are difficult to accept. The promotion of equality of opportunity and treatment is not aimed at a stable and definitive situation, but is an ongoing process requiring a continual cycle of assessment, action, monitoring, further assessment and adjustment, including to address new issues and difficulties (see General Survey of 2012, paragraph 671). Under these conditions, while noting the information provided by the Government, the Committee asks the Government to: (i) take specific measures with a view to assessing the results of the implementation of the national equality policy and the equality programmes adopted; (ii) provide information on their impact on the various sectors of the population, and particularly the most vulnerable population groups, such as the rural population, indigenous and Afro-descendent peoples, and to take into account the aggravating effects of discrimination in relation to women; and (iii) provide information on the difficulties encountered in giving full effect to the Convention in practice, including in respect of men and women workers in export processing zones.

Equal opportunity and treatment for men and women. Public service. In its previous comments, the Committee asked the Government to continue providing information on the measures adopted to promote gender equality and their impact on the distribution of men and women in the public service, and asked it to include statistical information on this subject. It notes the activities carried out by the judicial authorities in the context of the gender equality policy 2016–20 referred to in its direct request on the Equal Remuneration Convention, 1951 (No. 100). The Committee requests the Government to continue to provide information on the measures adopted or envisaged to promote gender equality and on the results achieved in relation to the distribution of men and women in the public service, including relevant statistical data. In this regard, the Committee asks the Government to provide statistical data showing the impact of the affirmative measures adopted under the policy to promote gender equality in the judicial authorities.

Private sector. In its previous comments, the Committee asked the Government to provide information on the specific measures taken, including the measures adopted by the Nicaragua Institute for Women, with a view to increasing the labour market participation of women, and their impact. The Committee also asked the Government to provide further information on the measures taken in relation to access to credit and land ownership for women and their results, as well as on the impact of training and entrepreneurship development activities on the labour market participation of women, including in non-traditional occupations, and to provide statistics in this regard. The Committee notes the information provided by the Government on the training and awareness-raising action undertaken between 2007 and May 2017 covering 138,396 women own-account workers, leaders, cooperative members, heads of small businesses and public officials on personal, family and community development with a view to eradicating inequality and overcoming poverty. The Government adds that the “Zero hunger” and “Micro-credit zero usury” programmes were established. The Government indicates that between 2007 and 2016, the “Zero hunger” programme provided subsidies to 173,154 women in urban and semi-urban areas to fund small businesses and promote the production of food for their own consumption. The “Micro-credit zero usury” programme provided credit to 709,019 women to promote small businesses and facilitated the delivery of 293,476 property titles to women in rural areas and women heads of households in urban areas. The Government adds that a gender policy has been adopted which includes action to ensure equality in personnel recruitment, selection and promotion procedures, training and skills development for women and men, the review of the payroll in public bodies to ensure equitable remuneration, the promotion of the assignment of work free from gender stereotypes and the suppression of discriminatory language in documents and publications. The Committee asks the Government to continue providing information on the measures adopted by the Nicaraguan Institute for Women, and particularly statistical data, with a view to increasing the participation of women in the labour market and their outcome. The Committee also once again asks the Government to provide information on any measures adopted with a view to eliminating stereotypes relating to the roles of women and men in the family and in the world of work, and to ensure that measures to balance work and family responsibility benefit both men and women workers.

Enforcement. Labour inspection. In its previous comments, the Committee asked the Government to continue providing information on the action taken by the labour inspection services in relation to the application of the Convention and, in particular, to provide a copy of the Labour Inspection Guide, and to report on the results of their application and the obstacles encountered. The Committee notes the information provided on the inspection system, which includes 386 inspectors who apply the Labour Inspection Guide within the framework of special equality plans. In this regard, the Government attached the Labour Inspection Guide and referred to section 7 of the Guide, on equality and non-discrimination, through which action is taken to ascertain whether discrimination has occurred in employment on grounds of race, sex, disability, illness, pregnancy or nursing, or sexual harassment. The Committee also notes the awareness-raising measures indicated by the Government in its report, consisting of legal support for 1,657 women who claimed their labour rights in the courts, and the preparation of manuals in 2016 and 2017 on the rights of women workers. The Committee asks the Government to continue providing information on the activities carried out by the labour inspection services in relation to the application of the Convention, including statistical data, and on the obstacles encountered.