Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Uzbekistan (Ratification: 1992)

The Committee notes the observations of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), received on 30 August 2021.  The Committee requests the Government to provide its comments in this regard.

Article 1(1) of the Convention. Protection against discrimination in employment and occupation. Prohibition and definition of direct and indirect discrimination. Prohibited grounds of discrimination. Legislation. The Committee recalls that, in its previous comment, it requested the Government to consider amending section 6 of the Labour Code, which contains an open list of discrimination grounds, in order to include an explicit reference to the grounds of “colour” and “political opinion” and a prohibition of indirect discrimination. The Committee notes the Government’s indication that a draft revised Labour Code is currently at the final stage of adoption. It notes in particular that draft section 4, which is reproduced by the Government in its report, includes: (1) an open list of prohibited discrimination grounds as follows: “sex, age, race, nationality, skin colour, language, social origin, material and employment status, place of residence, attitude towards religion, beliefs, membership of public associations, and any other circumstances unrelated to the qualifications of the worker or the results of his/her work”; (2) an explicit prohibition of discrimination; (3) a definition of discrimination that is not in line with Article 1(1) of the Convention; and (4) no definition of indirect discrimination. The Committee further notes the Government’s indication that Presidential Decree No. 6012 of 22 June 2020 adopted the National Human Rights Strategy and the Roadmap for its implementation. The Government adds that, pursuant to the Roadmap, a draft law on equality and the prohibition of discrimination, which was originally scheduled for completion by April 2021, will provide for the introduction into law of the concepts of “discrimination”, “direct, indirect and multiple discrimination” and “basis of discrimination”, and full protection for citizens against possible discrimination in various areas of public life on the basis of race, sex, language, religion, political beliefs, national or social origin, and material, class or other status.

The Committee notes that, in its observations, the IUF describes the national legal framework respecting discrimination in employment (the Labour Code of 1995, the Law on Employment of 2020 and the Law on the Guarantees of Equal Rights for Women and Men of 2019) and emphasizes that this legislation does not: (1) provide a general definition of discrimination; (2) define the terms “direct discrimination” and “indirect discrimination” on grounds other than gender; (3) refer to “multiple discrimination”; (4) provide any specific examples of actions that are considered discriminatory; and (5) provide any efficient measures of legal protection for victims of discrimination through judicial and administrative litigation procedures. The IUF adds that, in this context, the general prohibition of discrimination is of declarative nature and protection against discrimination remains insufficiently effective. Therefore, there is no clarity for employers and the judiciary of what discrimination is about, what actions are considered discriminatory and how discrimination can and must be prevented, while for employees it is not clear in which cases they should seek protection against discrimination and what to do about it. The Committee wishes to recall that direct discrimination occurs when less favourable treatment is explicitly or implicitly based on one or more prohibited grounds and that it includes sexual harassment and other forms of harassment. It also recalls that indirect discrimination refers to apparently neutral situations, regulations, or practices which in fact result in unequal treatment of persons with certain characteristics. It occurs when the same condition, treatment or criterion is applied to everyone, but results in a disproportionately harsh impact on some persons on the basis of characteristics such as race, colour, sex or religion, and is not closely related to the inherent requirements of the job (General Survey on the fundamental Conventions, 2012, paragraphs 744 and 745).

In light of the above, the Committee asks the Government to seize the opportunity of the revision of the Labour Code, currently before Parliament, to ensure that it includes a definition of “direct discrimination” and “indirect discrimination” and a clear prohibition of both, in all aspects of employment, including recruitment, and an explicit reference to the grounds of “political opinion” and “national extraction” in addition to the grounds already explicitly covered. In the meantime, the Committee asks the Government to indicate how the expression “any other circumstances unrelated to the qualifications of the worker or the results of his/her work” in section 6 of the Labour Code has been interpreted by the courts, indicating in particular if it has ever been used to address discrimination based on “political opinion” or “national extraction”. The Committee also asks the Government to indicate the progress made regarding the draft law on equality and the prohibition of discrimination envisaged in the Roadmap for the implementation of the Human Rights Strategy.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. In its previous comment, the Committee asked the Government to: (1) take steps to include provisions in the legislation defining and prohibiting both quid pro quo and hostile working environment sexual harassment; and (2) provide information on any practical steps taken to raise awareness and address the issue of sexual harassment in employment and occupation and any related collaboration with the workers’ and employers’ organizations. In this regard, the Committee notes that the Government refers to section 121 of the Criminal Code, which criminalizes forced sexual intercourse, physically and verbally, and to section 3 of Law No. ZRU-562 of 2 September 2019 on Guarantees of Equal Rights and Opportunities for Women and Men, which includes “sexual harassment” in the definition of “discrimination based on sex”. The Government also refers to Law No. ZRU-561 of 2 September 2019 on the Protection of Women against Harassment and Abuse, which does not define “sexual harassment” as such. The Committee observes however that section 3 of Law No. ZRU-561 contains various definitions, including: (1) “sexual abuse” defined as “a form of abuse of a woman that impinges upon her sexual integrity and sexual freedom through the commencement of acts of a sexual nature without her consent, as well as the compulsion to engage in sexual intercourse with a third party, or female child molestation”; (2) “abuse” defined as “illegal action (or inaction) against a woman that impinges upon her life, health, sexual integrity, honour, dignity and other rights and freedoms protected by law through the use or threat of other kinds of physical, psychological, sexual or economic coercion”; and (3) “harassment” defined as “action (or inaction) humiliating the honour and dignity of a woman or any repetitive act which does not presuppose administrative or legal liability”. The Committee further observes that Law No. ZRU-561 only applies to women, whereas provisions regarding sexual harassment must apply to both men and women, and that the definitions in the Criminal Code and Law No. ZRU-561 do not cover the whole range of behaviours that can constitute quid pro quo and hostile work environment sexual harassment. In that regard, the Committee recalls that addressing sexual harassment through criminal proceedings only is often not sufficient (due to the sensitivity of the issue, the more onerous burden of proof, and the limited range of behaviours addressed) and that all forms of sexual harassment (criminal offences or not) should be covered by national legislation. With regard to practical steps taken to raise awareness and address the issue of sexual harassment in employment and occupation and any related collaboration with workers’ and employers’ organizations, the Committee notes that, according to Law No. ZRU-561, the main objectives of the State policy shall be: (1) the creation of an atmosphere of zero tolerance to harassment and abuse of women in the society; (2) the enhancement of legal awareness and legal culture in the society and the strengthening of the rule of law; and (3) the cooperation between state bodies, self-governing bodies of citizens, non-governmental non-profit organizations and other civil society institutions in order to prevent harassment and abuse (section 5). Moreover, authorized bodies and organizations shall interact in the following areas: exchange of information on the verified facts of harassment and abuse; coordination of response measures and provision of effective assistance to victims of harassment and abuse; joint implementation of measures to exchange experiences; training and advanced training of specialists; monitoring compliance with legislation; and development of proposals for improving the legislation and its application (section 14). Recalling that addressing sexual harassment through criminal proceedings only is not sufficient to combat all forms of sexual harassment, the Committee urges the Government to take steps to formally prohibit in the civil or labour law both quid pro quo and hostile environment sexual harassment and to provide dissuasive sanctions and appropriate remedies. In this regard, the Committee asks the Government to provide information on the number of cases of sexual harassment dealt with by the competent authorities.

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