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Projects for engaging duty-bearers

FRANCE – Liaison Committee with Employment Intermediaries (CLAIE)

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Description

Upon assessing the current state of antidiscrimination and equality action in France, it is clear that employment remains at the forefront. Indeed, employment discrimination remains prevalent in French society today. Of the 82 416 complaints filed with the Defender of Rights in 2012, 51.5 % of these were concerning discrimination on the job. In a recent opinion poll, 87% of French job seekers said that discrimination is commonplace while job hunting, with 81% stating that the current economic crisis will increase the risk of discrimination regarding employment access.

Given this information, the participation of employment actors in the fight against discrimination and the promotion of equality is particularly crucial. For this reason, the Defender of Rights has led the Liaison Committee with Employment Intermediaries (CLAIE), created in 2007 by the HALDE. The committee consists of the following employment intermediaries: Pôle Emploi, A competence Égale, CNML, CHEOPS, APEC, PRISME, and SYNTEC Conseil, chosen for their representativeness and legitimacy in the field. These actors, who play an important role in job recruitment as they act as an interface between job seekers and potential employers, confront challenges in their obligations to respect equal opportunity measures and legislation. Currently, employment intermediaries must face two major challenges;

  • Discriminatory requests coming from the part of employers
  • Employers seeking to diversify their workforce, but unable to explicitly target minority candidates

The committee aims to foster dialogue and exchange between employment intermediaries and the Defender of Rights, the objective being collaboration on tools aimed at promoting good practices as well as the establishment of preventative actions for those on the job market most vulnerable to discrimination.

The work of the committee has led to several advancements in the fight against discrimination during the recruitment process, most notably the Together for More Recruitment Equality commitment agreement, signed in October of 2013. The agreement requires that employment intermediaries put in place an active policy of equal opportunity and non-discriminatory practices. This commitment consists of the following components:

  • The implementation of non-discrimination and equality awareness campaigns and actions both within and outside of the organization
  • The refusal of all discriminatory requests and the application of equal treatment in recruiting procedures
  • Recruiting transparency and objectivity
  • Promotion of equal opportunity amongst candidates
  • Informing the Defender of Rights of all measures taken regarding the commitment and sharing examples of good practices in this domain
  • Communicating the organization’s commitment to all those involved in the recruitment process (recruiting agencies, employers)

Furthermore, the committee has led the Defender of Rights to elaborate a number of different tools aimed at guiding employment intermediaries in ensuring equal opportunity and eradicate discriminatory practices. Among these tools are

  • A newsletter focused on equal opportunity in the work place and during the recruiting process
  • The Framework for Action (Cadre pour agir et rendre compte -CARC) an auditing tool allowing to evaluate the practices of employ intermediaries
  • A question and answer internet platform dealing with employment access for the handicapped
  • Pamphlets on different aspects concerning employment discrimination (e.g. pregnancy and maternity)
  • The publication of jurisdictional decisions as well as decisions made by the Defender of Rights in the domain of employment discrimination

In addition to the commitment agreement and tools developed, the committee highlighted the need to examine risks of discrimination through the use of new technologies in recruitment procedures. During the pre-selection phase of recruitment, the use of the internet (social networks, search engines) and of software allowing for elaborate search criteria has greatly increased over the past few years. This technology runs the risk of facilitating discriminatory selections by using key words related to age, gender or ethnic origins. Discriminatory risks are also inherent on professional networks, as these profiles show the photo, age, and conjugal status of interested parties. In order to better understand these possible risks, the committee decided it to launch a study, consulting software publishers on the selection criteria requested by clients as well as their own knowledge of equal opportunity and antidiscrimination legislation. This study will allow for a better understanding of the techniques developed in this domain and help prevent discriminatory practices when using new technologies in the recruiting process.

Finally, the work of the committee has led to the implementation of a working group on “paradoxical injunctions”, that it is to say public policy initiatives inciting employers to diversify their work force but which restrict them from implementing quotas in the work place. The work group aimed at bringing to light the specific challenges that employment intermediaries face in this domain, namely their uncertainty as to what constitutes discriminatory practices when it comes to recruiting employees belonging to minority groups. The group decided to consult with those concerned by these problems (experts, employer representatives, actors in the field) in order to make an assessment of the difficulties in this domain and identify good practices likely to ensure the recruiting process from discriminatory practices./]

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Projects for engaging duty-bearers

FRANCE – Discrimination and measuring diversity

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Description

In May 2012, the Defender of Rights and the French Data Protection Authority (CNIL), after extensive consultation of experts, published a methodological guide to measuring diversity. It is called “Measuring progress towards equal opportunities” (“Mesurer pour progresser vers l’égalité des chances”). This project was funded by the European Commission within the PROGRESS programme. This publication is primarily intended for employers and HR managers.

Duty bearers targeted, and their specific obligations (if any)

The targeted duty bearers are employers, HR managers, trade unions, diversity managers and workers.

This is the situation in terms of obligations:

  • Article 6 bis and article 6 of the Le Pors Law refers to employment of civil servants and public agents. They respectively provide that no distinction, whether direct or indirect, may be drawn between civil servants or public agents on the ground of sex, opinions on political, unionist, philosophical or religious subjects, origin, sexual orientation, age, surname, state of health, physical appearance, disability, membership or non-membership – true or supposed – of a given ethnic group, nation, race or religion.
  • Article L. 1132-1 of the Labour Code prohibits discrimination within the field of private employment when hiring or dismissing an employee, or for any other measure adopted during the course of an employment contract. According to this provision, no one may be denied access to a recruitment process or training period, no employee may be punished, dismissed, or discriminated against, either directly or indirectly, as far as his/her remuneration, classification, promotion is concerned in particular, on certain grounds specifically provided for by law.

Prohibited grounds covered by Article L. 1132-1 are the following: origin, sex, mores, sexual orientation, age, family status, pregnancy, genetic characteristics, membership or non-membership – true or supposed – of a given ethnic group, nation, race or religion, political opinions, trade union activity, religious convictions, sexual identity, physical appearance, surname, state of health or disability. This list is the broadest in French law.

  • Article 225-2 of the Penal Code punishes discrimination committed against a natural or a legal person, by three years’ imprisonment and a fine of EUR 45,000. The discrimination may consist of the following:
    1. the refusal to supply goods or services;
    2. obstructing the normal exercise of any given economic activity;
    3. the refusal to hire, to sanction or to dismiss a person;
    4. subjecting the supply of goods or services to a condition based on one of the prohibited grounds;
    5. subjecting an offer of employment, an application for a course or a training period to a condition based on one of the prohibited grounds;
    6. refusing to accept a person onto one of the specific courses referred to in Social Security Code.

Article 225-1 states that discrimination is understood as any distinction applied between legal persons by reason of origin, sex, family situation, physical appearance, surname, state of health, disability, genetic characteristics, mores, sexual orientation, age, political opinions, union activities, membership or non-membership, true or supposed, of a given ethnic group, nation, race or religion of one or more members of these legal persons.

French legislation prohibits the collection of sensitive data such as “personal data that reveal, directly or indirectly, the racial or ethnic origins, the political, philosophical or religious opinions, or the trade union membership of persons” (article 8 of Law no. 78-17 of 6 January 1978, on files, data processing and individual liberties, as amended by Law no. 2004-801 of 6 August 2004, on the protection of individuals in the processing of personal data).

In spring 2009, the Commissioner for Diversity and Equal Opportunities, Yazid Sabeg, set up a committee to measure and evaluate discrimination and diversity (COMEDD), chaired by the director of the National Institute for Demographic Research (INED), to study statistical tools in this area. In a report dated February 2010[[COMEDD Report dated February 3, 2010 on inequality and discrimination ; http://www.scribd.com/doc/26484593/Inegalites-et-discriminations-COMEDD-2010]], the committee argued that statistical methods currently permitted under French law – such as the assessment of persons’ origins on the basis of their nationality, parents’ nationality or country of birth – was sufficient in order to measure diversity and discrimination.
Moreover, the 1978 law governing the use of ethnic and racial statistics allows for exceptions to the general prohibition on the use of such criteria, insisting on conditions such as individual consent to the gathering of such information, as well as a requirement of public interest, subject to review by the National Council for Information Technology and Liberties. Researchers can thus use them, under supervision, in targeted surveys.

The report rejects the need to further extend this domain of intervention to include a thematic derogation on data related to origin. However, it further proposes that the HALDE (now the Defender of Rights) be designated as an observatory on discrimination in order to develop indicators, coordinate studies, and receive a mandate to publish an annual report on the national situation on discrimination.

Moreover, neither general procedural rules nor the implementing provisions of EU directives refer to the use of statistical evidence. However, pursuant to general principles of interpretation of EU law, nothing will prevent national courts from using statistics, as a legal means of evidence. Incidentally, article 8 II paragraph 5 of the Law 78-17 of January 6, 1978 relating to information systems, data, and the protection of freedom recognises that personal data can be used in the context of any administrative and judicial proceeding pursuant to the defence or the exercise of a legal right.

Statistics resulting from the comparative situation of employees of a common employer are now commonly used in labour law based on the comparative approach developed by the ECJ in discrimination cases, and repeatedly recognized by the Court of Cassation. In a judgment Airbus Operations SAS n° K 10-15873 dated 15 December 2011, the Court of cassation explicitly referred to the HALDE’s (now Defender of Rights) conclusions.

The decision concerned a candidate of North African descent who was hired a number of times as short term employee with very favorable evaluations. When applying for an indefinite term contract, the application of another short term worker with less favorable evaluations and less experience, but of French descent, was chosen.

The Halde’s enquiries as regards the list of persons employed indicated that among recruited staff between 2000 and 2006, all were of French citizenship, and only two had a last name of North African origin. Moreover, for the period between January 2005 and July 2006, on the 43 employees hired under indefinite term contracts, none had a last name of North African origin. As regards justifications presented by the employer, the Court concluded that the sole fact that the hired employee had a higher degree is insufficient to provide a satisfactory justification given Airbus’ non transparent hiring practices. The Cour de Cassation concluded that discrimination on the ground of ethnic origin had taken place.

Nevertheless, the use of statistics by tribunals remains rather exceptional.

Main objective of the project

This extensive booklet of 106 pages aims at answering questions employers may have such as “To which extent does my company respect the principle of equality and diversity? How to identify discrimination based on origin if it is prohibited to collect racial data? What action can I take in favour of one particular group?” etc.

Employers and HR and diversity managers wonder how to measure diversity in their companies without breaching the law on ethnic statistics.

Tools

  • Raising awareness
  • Twenty-five practical information sheets give in detail the actions to be taken by the companies. For example, the third and fourth parts of the guide describe the relevant methodology to analyse the HR management files and to conduct monitoring (protocol, categories of useful data etc). It also provides for specific templates (e.g. to obtain the consent of the workers to collect specific data).
  • Staff of the Defender of Rights and the CNIL went on a road show in June and July 2012 to present this guide locally in three big cities (Marseille, Paris, Lyon). They coordinated workshops based on case-study for HR and diversity managers, representatives of associations and consultants.

Key achievements

This methodological document is used as a reference tool by the employment actors. It provides clear and accessible instructions. Thanks to its 25 templates, the guide is used “à la carte” which is handy. Feedbacks are positive.

It is also the result of the cooperation between the Equality Body and the Personal Data Supervisory Authority./]

Categories
Projects for engaging duty-bearers

FRANCE – Discrimination against disabled people

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Description

On 13 September 2012, the Defender of Rights published on his website a FAQ document of 48 pages. It aims at informing and counselling the intermediaries of employment, the companies and the disabled persons in order to promote the access of disabled persons to employment and to prevent discrimination against them.

Duty bearers targeted, and their specific obligations (if any)

This tool is the result of hearings with the employment stakeholders, members of associations of disabled persons, trade unions’ representatives, occupational physicians, experts etc.

The Law no 2005-102 of 11 February 2005 on equal rights and opportunities, participation and citizenship of people with disabilities provides for a unified legal protection of disabled persons [[It reviews former laws such as la loi 75-534 d’orientation du 30 juin 1975 en faveur des personnes handicapées (Vocational guidance, sheltered work, guaranteed income), la loi 87-517, du 10 juillet 1987, en faveur de l’emploi des travailleurs handicapés (Compulsory employment (quota) for private and public sectors) ; la loi 90-602, du 12 juillet 1990, relative à la protection des personnes contre les discriminations en raison de leur état de santé ou de leur handicap (Non discrimination) or la loi 91-663 du 13 juillet 1991, portant diverses mesures destinées diverses mesures destinées à favoriser l’accessibilité aux personnes handicapées (accessibility)]].

A similar obligation relating to the annual negotiation concerning gender equality (and senior age) is applicable to disability for companies of more than 50 people or 300 people.

Companies employing more than 20 people shall respect a quota of 6% of disabled people of their total workforce.

The Law no 2005-102 of 11 February 2005 provides for the right to reasonable accommodation issue of the 2000/78 EU Directive.

The Decree no. 2009-1272 of 21 October 2009 requires the accessibility of all disabled people to their workplace in new buildings or in new parts of existing buildings.


Main objective of the project

This tool is the result of a mid-term process. It started with the HALDE decision no. 2010-126 of 14 June 2010 which had already clarified the legal concepts applicable concerning the access to employment of disabled persons within the private sector (available here). It was followed by the creation of work group, coordinated by the Defender of Rights and gathering diverse associations and the National employment agency. The private consultant on disability, Ariane, also actively contributed to this project.

Tools

Awareness raising (a FAQ document of 48 pages added now with a brochure). It is a tool which is simple, practical and accessible to a maximum of persons.

Key achievements

This document is used as a reference tool by the employment actors.

Key challenges

  • Technical problems of presentation of this FAQ document because there were too many questions (including accessibility of the document to disabled people); therefore, the document seems a bit dry. The PDF version is appreciated as it can be read as a reference document too.
  • The length of the validation process of a tool decided earlier together with external partners as well as the words chosen in the brochure (e.g. visible disabilities, disabled worker/person etc). The organisation of different meetings including also the associations and the national employment Agency (Pôle Emploi) has been successful to overcome potential difficulties./]
Categories
Projects for engaging duty-bearers

CROATIA – “Equally Diverse” Project

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Description

The “Equally Diverse” project was supported through the Progress Programme of the EU and was implemented in 2012 by the Croatian Office of the Ombudsman in partnership with the Croatian Employment Service and Governmental Office for Human Rights and Rights of National Minorities.

The project had 3 components and the first one involved the election of 5 regionally based NGOs with whom an “agreement on cooperation” was signed and they were formally established as regional antidiscrimination contact points of the Ombudsman. Representatives from these 5 NGOs were then trained not only on antidiscrimination legislation but on specific diversity management concepts so that they become competent in giving relevant information to the employers who are interested in introducing specific equality measures and actions in their working environments.

The second component encompassed the election of 10 companies/employers who underwent a basic antidiscrimination training and for whom internal tools for combating discrimination and promoting equality in different business processes were developed with the professional guidance of HR experts subcontracted through this project. These antidiscrimination tools were developed after a “needs analysis” was done for each of the companies and in cooperation with company representatives, but also with the representatives from NGO contact points who participated at the workshops where these tools were discussed and defined. All of these processes (i.e. election of companies, development of anti-discrimination tools etc.) were described as good practice examples in a brochure developed through this project to serve as a guide for employers in promoting antidiscrimination and equality in the work place. To make these activities more visible to regional actors in the field of work and employment (i.e. employers and organizations of employers as well as state employment services) regional round table discussions were organized by the regional antidiscrimination contact points.

The third component was focused on awareness raising, targeting the public in general and employers as well. Within the framework of the campaign promotional posters were developed and displayed in the means of public transportation across Croatia, as well as web banners (displayed on 2 web portals for employers and potential employees). A TV spot was broadcasted both on the national and private TV channels, and leaflets and various promotional materials specifically targeting employers were distributed.

Finally, in cooperation with the Human Rights Film Festival, a movie was broadcasted, open to the public, and which tackled problems of social crisis, unemployment, and discrimination in the workplace.

The project as a whole was focused on the fight against discrimination in the area of work and working relations. This focus was chosen based on the fact that discrimination is most widespread in these areas. Both statistical data on discrimination complaints received by the Ombudsman’s Office and survey results from the survey conducted to find out what is the perception of the majority of citizens about discrimination occurrences had shown that people experience either discrimination or some kind of ill treatment which they perceive as discrimination, in these areas. This is why giving information on what discrimination is and how it can manifest itself as well as on who are the actors, who have the mandate to fight it, was necessary both in relation to the citizens and the employers.

Duty bearers targeted, and their specific obligations (if any)

Employers and labor market agents, on the regional level, were the targeted duty bearers for this project.

The employers and regional labor market actors, as duty bearers, do not have any specific duties under the Antidiscrimination act. However, they have a few general duties (i.e. prescribed to all of the actors to whom the prohibition of discrimination is referring to, namely, all state bodies, bodies of local and regional self-government units, legal persons vested with public authority, legal persons and all natural persons) besides the general duty not to discriminate, which they were not familiar with.

Since respecting these duties can bring about significant improvements in antidiscrimination protection it was important to point these duties out and to inform these actors about them. These duties are to report reasonable suspicion of discrimination to the Ombudsman when one witnesses discrimination and the duty to provide the Ombudsman with all relevant information and documentation about discrimination case/incident when the Ombudsman asks for it.

In addition, employers have other specific duties under the Labour Act concerning protection of workers’ dignity. Namely, employers who have more than 20 employees are obliged to draft and adopt internal regulation that defines salaries, organization of work, procedure and measures for protection of workers’ dignity, measures concerning protection against discrimination as well and to appoint a person responsible for handling complaints in cases when a worker’s dignity is violated. Although this obligation does not arise from the Antidiscrimination Act it is in close connection with the fight against discrimination. If known and respected by the employers, this can become an important tool in creating working environments where employees are better protected against arbitrary conducts of the employer which may sometimes amount to discrimination.

Main objective of the project

The main objective of the project was to further support the implementation of national legislation on antidiscrimination through promoting antidiscrimination and equal treatment in the field of work and working relations and through enhancing the visibility of the Ombudsman as the central equality body among the wider public, especially on regional and local level.

Tools

  • Information and awareness raising: awareness raising tools were used since results of different surveys on discrimination have shown that the level of acquaintance with the prohibition of discrimination, the existence of Anti-discrimination Act and the Ombudsman’s role as the central equality body were very low among the general public, employers and unemployed persons. In this context, dissemination of informational materials which included relevant information concerning means of protection was used as a tool for filling in the gap at the level of awareness and familiarity with the prohibition of discrimination.
  • Research: research was used as a tool in this project only for supporting the awareness raising component, i.e. for measuring the change of perception and attitudes before and after the national antidiscrimination campaign was implemented
  • Training
  • Advice and guidance
  • Engagement and provision of practical support

The last three tool were used because these types of activities are the most suitable ones in terms of the impact they have on the target groups (they have sustainable and long term results), and because their use enables getting feedback from target group representatives participating in the activities, which can then be used as a basis for planning further actions concerning the specific target group.

Key achievements

The most important achievement of this project was introducing the Ombudsman into the regions through the establishment of regional antidiscrimination contact points. Since the Ombudsman does not have regional offices these 5 NGOs – contact points will provide the Ombudsman with relevant information about discrimination occurrences and discrimination cases in their region and serve as a direct link between the Ombudsman and citizens who want to report discrimination.

This is the most valuable achievement since it enables the Ombudsman to stay present in the regions, familiar with local problems and well informed and to continue her/his work with target groups, which altogether broadens the effects and results of the project outside the scope of the project itself./]