When applying for a job, you probably expect that the employer will pay attention only to skills and experience, that only the desire to work in this position, enthusiasm and energy will give you an advantage. But no one is immune from leaving the interview morally humiliated, crushed and insulted. If you are hired and continue to show this attitude, then you should not just tolerate it.
In our article we will talk about discrimination, which is now quite common. And it doesn’t matter on what grounds it is used – first of all, it is an insult and humiliation of another person. So what to do if there is discrimination at work in your life, where to complain and what to do? More on this later.
Discrimination is a negative and prejudiced attitude towards people because of their membership in a social group. It is expressed both in the deprivation of certain rights and privileges, and in grossly unfair treatment in general.
Are there exceptions to discrimination at work?
Not all restrictions constitute discrimination on a particular basis. According to Part 3 of Art. 3 of the Labor Code of the Russian Federation, it is not discrimination to restrict rights, establish privileges, exceptions and preferences that are characteristic of this type of work.
In addition to the type of work, all this may be regulated by federal law or be a way of supporting individuals who need it. Special legal and social protection may be assigned due to deprivation of full working capacity or another situation that falls under a category prescribed by law.
However, you should not assume that certain working conditions and lack of privileges may be a reason for a violation of your rights. If a conflict or belittlement on the part of the employer arises, it is necessary. It should indicate possible restrictions on the position. In addition to them, study the responsibilities of both parties to the contract.
Discrimination in hiring – what to do?
Today it is extremely common to see job advertisements that specify the gender, exact age, preferences and even race of the employee. That is, characteristics that have nothing to do with his business abilities. Even taking into account that this is not a fact of discrimination at work, because you are not yet an employee, such an attitude of the employer will be illegal.
According to Part 6 of Art. 25 of the Labor Code of the Russian Federation, it is prohibited to disseminate information about vacancies or available places of similar content. If a job advertisement contains information about restrictions on rights based on gender, age, race, religious beliefs and other distinctive features of social groups not related to work, then it is a violation. The only exceptions are the parameters established by federal legislation.
If you encounter discrimination during an interview, try to record this fact. You can record the dialogue using a voice recorder using your mobile phone or even on video. These materials will help you achieve justice and punish your employer in the future. Regardless of whether they hire you or not.
Where to complain about discrimination?
According to the Labor Code, persons who have been discriminated against can go to court. However, there are other options. Before moving directly to the trial, we will consider other ways to solve the problem.
Contacting the labor inspectorate
The Federal Labor Inspectorate is obliged to monitor the implementation of the labor rights of citizens, as well as the recording of such violations. That is, it will not help you resolve the conflict on an individual basis, but the fact of discrimination itself will be officially indicated.
Such an appeal will also be useful in cases where an advertisement with violations is published during the hiring process. If there are clear signs of discrimination in it, then you can rightfully right away. When such violations are recorded, Labor Inspectorate employees file a complaint with the prosecutor's office. However, you can do this yourself.
Contacting the prosecutor's office
Facts of violation of labor rights also fall under the jurisdiction of the prosecutor’s office, because this body monitors compliance with all laws, including the Labor Code of the Russian Federation. At try to present as much evidence as possible of discrimination.
Plus, you can always file a collective complaint if there are other victims. Employees of the prosecutor's office must conduct inspections, as a result of which they can issue an order for the employer to eliminate violations and restore the labor rights of citizens.
It is also worth considering the fact that the prosecutor’s office can limit itself only to recommendations on other ways to restore one’s rights. They may recommend contacting the labor inspectorate or court for compensation for the damage caused.
Appeal to the Federal Antimonopoly Service
FAS considers complaints about non-compliance with advertising laws. Job advertisements that contain discriminatory requirements are a violation of such laws. In this case, the advertisement can be placed on the Internet, print media or other media.
Trial
The most effective way to achieve justice in this matter - Everything will depend on the subject of the dispute, of course. Therefore, you should decide on the specific actions of the employer that you are challenging. To successfully resolve the problem you will need:
- Correctly describe the violations committed;
- Correctly formulate your requirement;
- Provide good evidence(recorded facts, acts or other documents);
- Confidently defend your own position.
In order to defend your position well, you. Remember that the law is on your side, and we will help you achieve justice. Take advantage of a free consultation on your issue right now online or order a call.
Discrimination is unequal opportunities in the labor market for a group of workers identified on a certain basis and having the same productivity as other workers (group discrimination), or unequal opportunities for individual workers compared to workers who have similar characteristics of the quality of the labor force (individual discrimination). The basis for discrimination in the labor market are racial, ethnic, gender, age and other characteristics of the workforce.
Several types of discrimination in the labor market can be distinguished by scope or results.
1. Discrimination in hiring (or, conversely, in dismissal from work). It occurs when a particular group of the population, other things being equal, is the last to be hired and the first to be fired.
2. Discrimination in access to certain professions or positions. It occurs when a group of the population is prohibited or limited access to certain types of activities, professions, positions, despite the fact that they are capable of performing these jobs. This type of discrimination is also called occupational segregation.
3. Discrimination in wages. It occurs when some workers are paid lower than others for performing the same work. That is, in the case when differences in wages are not associated with differences in labor efficiency.
4. Discrimination in promotions and professional careers. It occurs when employees of a discriminated group are limited in vertical mobility. This type of discrimination is similar to occupational segregation, but in this case, segregation occurs vertically, in the job hierarchy.
Discrimination is a complex phenomenon that combines discriminatory differences in wages and other unequal opportunities in the labor market. Therefore, models that analyze discriminatory wage differences include assumptions about other types of discrimination as antecedents or consequences, and vice versa. It must be kept in mind that unequal pay for work of comparable value is not necessarily discrimination, while equal pay for work of equal value does not necessarily mean non-discrimination.
There are also different types of discrimination depending on the reasons that give rise to it.
1. Discrimination on the part of workers occurs when the majority of workers avoid cooperation in the work collective with discriminated workers.
2. Discrimination on the part of consumers is generated by the unequal attitude of consumers towards employees who provide them with the same type of given service.
3. Discrimination on the part of the employer is expressed in the unequal treatment of the employer towards different groups of workers, identical in productivity, but different in characteristics for which the employer prefers one group to another.
4. Discrimination on the labor supply side occurs as a reaction of employers to different characteristics of the labor supply of workers who have the same productivity. A typical example of supply-side discrimination is monopsonistic discrimination in the labor market.
5. Statistical discrimination - discrimination against workers in the case where the employer, in conditions of imperfect information, judges workers on the basis of average characteristics of productivity inherent in the group.
The relationship between supply and demand in the labor market is the leading economic factor that determines the level of wages. However, many other factors (not only economic, but also political, administrative, and psychological) also influence the real amount of wages.
Scheme 3.1 - Wage differentiation
Differentiation in wages is an integral (and at the same time, leading) part of the broader concept of “differentiation in living standards.”
Reducing discrimination in the labor market.
Over the past 25 years, many governments have repeatedly taken action to end the practice of labor discrimination. But even today, the United States has failed to eradicate discrimination based on race, gender, and other characteristics.
What approach to take to suppress discrimination? Major steps include the passage of legislation such as the Civil Rights Act of 1964 (which made it illegal to discriminate in hiring or firing) and the Equal Pay Act (which required employers to pay men and women the same wages for the same jobs). ) .
Differentiation in wages is an objective phenomenon, since the professional composition of workers is expanding, and migration between groups of people of different professions cannot be absolutely unhindered.
Thus, discrimination is a complex phenomenon that combines discriminatory differences in wages and other unequal opportunities in the labor market. Therefore, models that analyze discriminatory wage differences include assumptions about other types of discrimination as antecedents or consequences, and vice versa.
Discrimination in labor is a fairly common practice in Russia. But in fact, proving its presence is a rather labor-intensive process, and in some cases impossible. Therefore, it is important to understand what discrimination at work is and what to do about it.
Regulatory regulation
The inadmissibility of various types of discrimination in general in the Russian Federation is enshrined in a number of laws. International legal acts also play a role. Among them are:
- Article 2-4 of the Labor Code of the Russian Federation;
- Universal Declaration of Human Rights of 12/10/48;
- ILO Declaration of June 19, 1998;
- Article 37 of the Constitution of the Russian Federation;
- Art. 132 Labor Code of the Russian Federation.
All of these laws and regulations spell out types of discrimination. But in fact, the list is not just broad, but quite often applicable to employees of various organizations.
The Labor Code of the Russian Federation states that every person has the right to work and its implementation. No one is limited in such a right, their freedoms, in receiving any benefits with other advantages, regardless of specific subjective factors: age, language, gender, nationality, and so on.
Accordingly, according to the law, work should be assessed only by the business qualities of the employee performing it. Therefore, violation of these statements is referred to as discrimination. Discriminatory criteria include:
- Place of residence;
- Origin;
- Employee race;
- Family status;
- Religious and political beliefs;
- Language;
- Age;
- Property status.
If, during an interview or in the process of performing work, the employer puts forward these points as criteria for selection, we will already be talking about discrimination in the labor sphere. But another type of discrimination that is often kept silent is when you compare it with the pay of other employees in the same position as the employee for biased reasons - a young employee, refusal of corporate events, and so on.
Important! It is considered a fairly common practice in relation to HIV-infected people. In fact, the diagnosis is not a factor influencing the business type of a person’s qualities. The legislation has introduced a ban on this - Law No. 38-FZ of March 30, 1995.
Today, the most common types of discrimination in the labor sphere in the Russian Federation are restrictions on gender, age or disability. Next, religious affiliation, a person’s appearance, and trade union activity play a role. Discrimination is divided into three types:
- Straight- that is, if there is a specific list of criteria-requirements for applicants, which may indicate the age range, gender, the employee does not have a car, and many other factors.
- Indirect type can be discerned, for example, in the underpayment of homeworkers compared to office workers under the pretext of the employer’s lack of control over the presence of a subordinate in the workplace, or understatement of wages under the pretext of labor flow.
- Gender type– refusal to hire women and girls who may have children or already have them, but of a small age.
Thus, discrimination can be considered to be a young mother (Article 64 of the Labor Code of the Russian Federation), applicants. Often, even if they are able to perform duties on an equal basis with healthy people. Moreover, for some employers it is easier to pay a small fine for this than to re-equip the workplace and the approach to it in accordance with legal requirements.
What to do if you have it
If such discrimination is detected, you can contact any of the following authorities:
- Prosecutor's office.
But the problem often comes down to collecting the evidence base. The application must be accompanied by evidence of the manager’s misconduct, which was discriminatory in nature according to all required criteria, that is, it was a purely subjective opinion of the employer. The arguments used are an audio recording of the conversation, a written explanation of the refusal to the desired position, containing signs of infringement of the right to work.
An example of a court application is available for download.
Sample claim for employment discrimination
Liability for discrimination
If we start talking about responsibility, then in general the concept is relative. In reality, the employer has the right to select employees at his own discretion, but he also cannot refuse people based on subjective characteristics. According to the Code of Administrative Offenses of the Russian Federation Article 5.62, there are two types of fines for a violation of this type:
- For civilians– 1000-3000 rubles;
- – 50,000-100,000 rub.
If refused, the applicant or employee is quite capable of relying in court on the payment of funds that fall under the ““ category. The amount will depend on the specific offense. But forced recruitment cannot be arranged, since the selection of specific candidates for the proposed positions is the prerogative of organizations and is more a right than an obligation.
Helpful information
- According to the characteristics of work in the proposed position;
- If increased social protection is necessary, if a specific range of responsibilities is required that is incompatible with it;
- When national security interests are affected.
Judicial practice has shown that it is quite difficult to prove discrimination. In fact, a written, even verbal refusal by employers is not always motivated or explained by anything. At most they say that there is no required vacancy or there is a lack of qualifications, experience, and so on. Statistics show that in domestic courts such cases are most often decided in favor of the defendant.
How to combat discrimination in the labor market? Watch the video below:
In connection with the increase in the retirement age, the problem of discrimination in the labor market, especially for citizens over 45 years of age, has again become actively discussed. Formally, labor legislation (and the Constitution of the Russian Federation) prohibits any form of discrimination, including age discrimination. In practice, not everything is rosy. A weak understanding of employers about what discrimination in labor relations is plays a significant role in this. But, for example, the inability to competently refuse a job application can result in dire consequences, including losing in court.
Is discrimination an elastic concept?
Regulatory legal acts at various levels are aimed at combating discrimination - from international to regional. First of all, the prohibition of discrimination is due to ensuring equal opportunities for everyone to realize their rights. Article 3 of the Labor Code of the Russian Federation, dedicated to discrimination in the sphere of labor, begins like this: everyone has equal opportunities to exercise their labor rights.
The International Labor Organization (ILO) also emphasizes the importance of equality, pointing out that the term “discrimination” includes any difference, exclusion or preference based on race, color, sex, religion, political opinion, national origin or social origin and resulting in elimination or violation of equality of opportunity or treatment in the field of work and occupation.
Discrimination is always an action aimed at infringing on the labor rights and freedoms of a citizen.
But is it enough to say that discrimination is everything that stands in the way of achieving equality? Of course not, such a definition is too vague and unclear. Then what should we do? Carefully read parts 2 and 3 of Art. 3 of the Labor Code of the Russian Federation, where Russian legislators describe their ideas about the content of the concept of discrimination. From this point of view, it consists of two elements:
Discrimination is always a restriction of labor rights and freedoms or the provision of advantages in this regard to someone to the detriment of others.
In Russian, restriction is usually understood as an action aimed at establishing an acceptable limit, a norm for something, reducing, reducing something, constraining (see D. V. Dmitriev’s Explanatory Dictionary of the Russian Language). That is, labor discrimination is an infringement, a curtailment of labor rights, a reduction in a citizen’s ability to realize them. Such infringement also occurs when giving advantages to someone - in order to highlight one, one must, in fact, belittle the other. It turns out that discrimination is always an action aimed at infringing on the labor rights and freedoms of a citizen.
Discrimination is the infringement of human labor rights and freedoms or the establishment of unjustified privileges based on the attitude of a citizen to a certain group of subjects with the same characteristic.
The list of “qualifying” grounds is very extensive. Moreover, in the Labor Code of the Russian Federation such a list is open - preference can be recognized as discrimination on almost any basis, depending on the circumstances of the case (see, for example, the appeal rulings of the Bryansk Regional Court dated 02/07/2017 in case No. 33-738/2017, Udmurt Supreme Court Republic dated August 22, 2016 in case No. 33-3636/2016).
Thus, discrimination is the infringement of human labor rights and freedoms or, on the contrary, the establishment of unjustified privileges based on the attitude of a citizen to a certain group of subjects with the same characteristic.
Discrimination can be done out of thought.
Employers do not always discriminate deliberately; it often occurs through negligence and ignorance. First of all, it manifests itself in the establishment of different conditions for assigning bonuses, additional payments, etc. to employees of the same category. For example, in the wage regulations, the employer provided additional payment to women for child care benefits. And when a man with a child applied for such an additional payment, he was refused. The court considered this to be a manifestation of discrimination, since men and women have equal rights, and the right to receive child care benefits is also granted to men (fathers, guardians). Under such circumstances, the contested provisions of the employer’s local regulations (LNA) are discriminatory.
If employees have the same performance indicators, then selective bonuses are undesirable.
In general, it is dangerous to give bonuses only to selected employees if they and those deprived of bonuses have the same performance indicators (Appeal ruling of the Investigative Committee for civil cases of the Khabarovsk Regional Court dated January 16, 2015 in case No. 33-117/2015), and for employees of the same level with the same labor function to establish different conditions for the appointment of incentive payments (Appeal ruling of the Omsk Regional Court dated August 20, 2014 in case No. 33-5259/2014).
The court also recognizes as discriminatory an increase in wages only for workers of a certain category, for example, those who were not laid off, if the salaries of those who were “hit” remain the same (Cassation ruling of the Khabarovsk Regional Court dated October 7, 2011 in case No. 33-7279), and the payment of financial assistance only to members trade union (Appeal ruling of the Supreme Court of the Komi Republic dated June 20, 2013 in case No. 33-3285/2013).
“Belittling” of part-time workers is also common - they are deprived of the right to receive payments that “main” employees receive (Appeal ruling of the RF Armed Forces dated 04/06/2016 No. 2-APG16-2).
LNA should not be discriminatory and infringe on the rights of workers by abolishing or reducing the guarantees enshrined in labor legislation.
In second place in terms of the number of violations in this area is an incorrect understanding of the scope of the employer’s “legislative” powers and the establishment of working conditions that contradict federal legislation. The employer has the right, within its competence, to issue and adopt labor regulations (Articles 5, 8 of the Labor Code of the Russian Federation), but they should not be discriminatory and infringe on the rights of employees in comparison with what is provided for by labor legislation. For example, the court found the conditions of the LNA to be discriminatory that the day of discovery of a disciplinary offense is the day of listening to recordings of the registrar of official conversations, since this allows the employer to act arbitrarily and puts employees in an unequal position - depending on the discretion of the employer. Conditions are created for discrimination (Appeal ruling of the Supreme Court of the Republic of Khakassia dated 06/09/2015 in case No. 33-1546/2015). In this dispute, the employer would have avoided claims if he had established a clear procedure, terms and criteria for monitoring employees in the LNA (for example, determined when and how recordings were listened to, limited the period for identifying misconduct).
Selection based on business qualities is possible.
It would take a long time to list cases from judicial practice, but even now, after reading all of the above, at least two questions arise. Will it turn out that any action of the employer can be recognized as discrimination? And what about the specific requirements for certain professions and positions?
A visually impaired person cannot be a subway driver, can he? Or even in this case, the refusal to employ him is discrimination in labor relations? The example is, of course, exaggerated, but the question is not theoretical. In practice, a dispute often arises when a citizen - an employee or a job applicant - believes that his rights have been infringed.
It is no coincidence that we discuss the content of the concept of discrimination in such detail - without this it is impossible to separate a simple violation of labor rights from its manifestation, since discrimination in labor relations is formed only when the two characteristics described above are combined. Violation of an employee’s rights in itself is not discrimination at work. (Appeal ruling of the Kamchatka Regional Court dated March 28, 2013 in case No. 33-416/2013) - justifications and evidence of infringement of rights on any grounds are needed, that is, discrimination should not “seem”, but be a real, recognized fact (Definition Moscow City Court dated 09/02/2011 No. 33-27928).
Not every violation of an employee's rights is discrimination.
For example, the court rejected the employee’s arguments about discrimination: the plaintiff referred to the inappropriate tone, reproaches from the director, obstacles in work from management, but was unable to provide evidence that this was discrimination (Appeal ruling of the Nizhny Novgorod Regional Court dated February 20, 2018 to case No. 33-2126/2018).
In addition, the legislator makes an important clarification that actions that are outwardly similar to discrimination can also be dictated by the requirements inherent to this type of work established by federal law (for example, good eyesight for a driver or special education and no criminal record under certain articles of the Criminal Code of the Russian Federation for a teacher) , and the citizen’s business qualities that did not meet the employer’s requirements.
Business qualities are a remedy against discrimination.
In part 2 art. 3 of the Labor Code of the Russian Federation additionally emphasizes that all of the listed “discriminatory” criteria are such only in one case - when they are not related to business qualities, that is, with the ability of a citizen to perform a certain labor function, taking into account the professional qualifications he has (for example, the presence of a certain profession, specialty, qualification), personal qualities (for example, health status, a certain level of education, work experience in a given specialty, in a given industry). In essence, business qualities are what makes a person suitable for performing work with the result that is required by the employer and corresponds to the specifics of the activity and the characteristics of the profession or position.
It is business qualities that should be taken into account when deciding issues of concluding an employment contract, remuneration, assigning production tasks, etc. (Determination of the Moscow City Court dated December 6, 2017 No. 4G-14792/2017, appeal determinations of the St. Petersburg City Court dated 02.21.2017 No. 33-3449/2017 in case No. 2-4697/2016, Supreme Court of the Republic of Bashkortostan dated 10.24.2016 No. 33-21227/2016). Everything else is essentially discrimination. The employers’ mistake in the above examples was that they did not connect the “gradations” of bonuses with the performance indicators and business qualities of the employees. However, if equal conditions for bonuses are established for all employees of the same level, but performance indicators are taken into account, then the courts, as a rule, reject arguments about discrimination (Appeal ruling of the Moscow City Court dated April 2, 2018 in case No. 33-13223/2018). For example, the court did not accept the argument of discrimination in terms of establishing unequal amounts of bonuses for employees with the same position, since they had different amounts of work. The court considered such a bonus to be justified (Appeal ruling of the Supreme Court of the Republic of Bashkortostan dated February 15, 2018 in case No. 33-2993/2018).
“Gradations” of bonuses must be clearly linked to performance indicators and the business qualities of employees.
At the same time, it is permissible to stimulate and support certain categories of workers regardless of their work results, but such stimulation must be a) motivated; b) do not allow discrimination within this category of workers. Thus, the court’s complaint in the example of additional payment for workers with children was not that the additional payment was established at all, but that it took into account only mothers and ignored fathers. It is not considered discrimination to support “young specialists”, retired workers, employees with a certain length of service with a particular employer, etc. The main condition is that such allocation of workers must be justified and not form a “closed caste”, that is, other employees must also have the opportunity to fall into this category (for example, having worked for some time for an employer, having given birth to a child).
The choice of the employee is the right of the employer.
Requirements for business qualities can be established:
a) by law. For example, to teaching staff (Article 331 of the Labor Code of the Russian Federation), accountants (Article 7 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”);
b) by the employer himself.
In any case, the employer must clearly understand what kind of employee he wants to see in a certain position, and it is advisable to document these ideas in a job description (JI). Very often, employers make the mistake of neglecting the development and adoption of operating instructions or considering that such instructions are just a document listing the employee’s responsibilities. Formally, the Labor Code of the Russian Federation does not classify DI as mandatory and does not pay attention to it, does not even contain rules about it, but, as Rostrud correctly noted, DI is an integral tool for regulating labor relations.
Job descriptions for employees with the same job function may differ.
In essence, DI is like a local professional standard that takes into account the specifics of the employer. It can contain not only the content of the job function, but also the requirements for the level of education, experience, skills, etc., that is, it can also describe the desired business qualities of the employee. Of course, this does not give the employer the right to set “exorbitant” requirements; you still need to be guided by the Unified Tariff and Qualification Directory of Works and Professions or professional standards, but as if putting together your own model of requirements. Moreover, the DI for different employees, even with the same job function name, may differ; this is not prohibited - you can develop several DI for similar positions, setting different amounts of work and level of requirements.
The main condition is that the requirements in the DI for the employee must be determined by the specifics of the work function and the activities of the employer himself. For example, it is logical to require the ability of a secretary to quickly type text and work with office applications, but not to prescribe the preparation of concrete mortar in the job description, even if the employer is a construction organization.
The employer evaluates business qualities independently; no one has the right to indicate to him the methods and methods of this assessment, unless they directly contradict the law and otherwise is not established by law (for example, a competitive selection system or an elective one). These qualities can be assessed by personnel service employees, personally by the head of the organization, or by a specially created commission of workers of various profiles. In this case, it is allowed (unless expressly prohibited by law) to conduct a competitive selection, including an offer to undergo special tests. If an employee refuses to undergo such tests or their results are unsatisfactory, this may serve as a basis for refusal to hire (Appeal ruling of the Khabarovsk Regional Court dated 08/06/2014 in case No. 33-4968/2014).
Such actions are not regarded as discrimination at work and the employer (both during competitive selection and during regular selection) has the right to give preference to a candidate whose business qualities better meet the requirements for applicants for a vacant position (Appeal ruling of the St. Petersburg City Court dated 04/20/2017 No. 33-6989/2017 in case No. 2-1541/2017). In confirmation of the declared business qualities, the applicant can present any documents of his choice (certificates of advanced training, certificates, awards, commendations, letters of recommendation, etc.). The employer himself has the right to draw up a list of such documents. But it is prohibited to demand documents other than those specified in Art. 65 Labor Code of the Russian Federation.
If a candidate does not appear for an interview or does not provide documents for employment, then the refusal to hire will be justified (Determination of the Moscow Regional Court dated December 7, 2010 in case No. 33-23713). By the way, an already hired employee also bears the risk of failure to provide documents and other evidence of his business qualities. For example, the court did not see discrimination in the refusal to transfer to another position, since the employee herself did not provide the employer with a certificate of advanced training (Appeal ruling of the Moscow City Court dated May 26, 2017 in case No. 33-20399/2017).
This is due to the fact that the employer is independent in making personnel decisions, including hiring or refusing to hire an applicant. Concluding an employment contract with a specific person is a right, not an obligation, of the employer. In this regard, even budgetary organizations, unless the procedure for hiring employees of certain categories is directly prescribed by law, have very wide limits of freedom.
An employer may well look for candidates through various sources of information - newspapers, social networks, specialized websites, etc. - and at the same time not wait for responses from all candidates for an open vacancy if he liked the first applicant (provided that the law itself or local regulations the employer has not established otherwise - for example, a competitive selection procedure).
Refusal to employ or transfer to a vacant position must be motivated only by reference to the applicant’s business qualities.
Thus, a refusal to hire or transfer to a vacant position should be motivated only by reference to the applicant’s business qualities - insufficient work experience in the field of the position, slower typing speed, insufficient qualifications or level of education, etc. Moreover, if the employee requires a written reasoned response about the reason for the refusal, then the specific reason for the refusal must be indicated, otherwise the court may order compensation for moral damages to be paid to the applicant (see, for example, the Appeal ruling of the Moscow City Court dated February 14, 2017 in case No. 33-5687/2017).
It turns out that discrimination is a situation when an employer ignores the business qualities of employees and creates unequal conditions for the implementation of labor rights. For discrimination, the employer may be held administratively liable, for example, under Art. 5.62 Code of Administrative Offenses of the Russian Federation – fine up to 100,000 rubles. on .
Discrimination is a violation of the labor rights and freedoms of a citizen, but not a simple violation, but on the basis of classifying a person into a certain category of persons (for example, a pensioner, a believer, no registration, etc.). In this case, the fact of discrimination must be confirmed by evidence, and not be imaginary. An employer may be held liable for discrimination in labor rights; by a court decision, he will have to pay the plaintiff compensation for moral damage. However, selection based on business qualities, for example, payment of bonuses for work results, or hiring the candidate with the most work experience, is not considered discrimination. The employer has the right to determine who to hire, but is obliged to justify his refusal if the applicant requests an explanation.
Article 1 of the International Labor Organization Convention No. 111 “Concerning Discrimination in Employment and Occupation” (adopted in Geneva on June 25, 1958 at the 42nd session of the ILO General Conference).
Appeal ruling of the Chelyabinsk Regional Court dated December 16, 2014 in case No. 11-13367/2014.
Appeal ruling of the Moscow City Court dated December 4, 2017 in case No. 33-45444/2017.
Determination of the Moscow City Court dated March 25, 2014 No. 4g-2201/14.
Appeal ruling of the Court of the Jewish Autonomous Region dated July 13, 2012 in case No. 33-335/2012.
Clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”
Letter dated October 31, 2007 No. 4412-6.
Appeal rulings of the St. Petersburg City Court dated June 09, 2015 No. 33-9028/2015 in case No. 2-54/2015, Oryol Regional Court dated September 21, 2012 in case No. 33-1667, Supreme Court of the Republic of Bashkortostan dated November 28, 2013 No. 33- 14505/13, Determination of the Altai Regional Court dated March 26, 2014 No. 33-2530-14.
Clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2.
Discrimination in the world of work in the 21st century is the ugliest manifestation of violation of labor rights. It humiliates the human dignity of workers, negatively affects their consciousness, and creates tension in the sphere of labor relations. As defined by the ILO in Discrimination (Employment and Occupation) Convention 111, discrimination means “any distinction, exclusion or preference made on grounds of race, colour, sex, religion, political opinion, foreign nationality or social origin, resulting in to the destruction or violation of equality of opportunity or treatment in the field of labor and occupation." Russian labor legislation prohibits wage discrimination and establishes the employer's obligation to provide equal pay for work of equal value. The employer’s task is to individually set wages and other payments included in the incentive system in such an amount that they motivate the employee and correspond to the value of the work he or she produces, while preventing unreasonable differences in its level and discrimination against other employees. In Art. 129 of the Labor Code of the Russian Federation establishes objective criteria on the basis of which the remuneration of employees should be determined and these are: the qualifications of the employee; complexity, quantity, quality and conditions of the work performed. Article 132 of the Labor Code of the Russian Federation on wages repeats the same provisions, adding that wages are not limited to the maximum amount, and prohibits any discrimination in setting and changing wages. A Art. 21 and 22 of the Labor Code of the Russian Federation contain corresponding rights and obligations of the employee and the employer, when the first has the right to timely payment in full, in accordance with his qualifications, quantity and quality of work performed, and the second is obliged to provide timely and equal payment for work of equal value. Thus, the Labor Code of the Russian Federation contains basic provisions establishing the essence of remuneration, the grounds and methods of its calculation, the prohibition of discrimination and indicating the employer’s obligation to establish equal salaries for equal positions (the difference in pay, which corresponds to the difference arising from an objective assessment of the work performed work, is not discriminatory) When indicating the prohibition of discrimination, its subjects are not specified, but this gap is filled by the ILO Convention No. 100 “On equal remuneration for men and women for work of equal value”, ratified by Russia, which obliges states at the national level to take measures supporting concept of work of equal value: equal pay for work of equal value. Its essence is that when determining pay for workers, in order to prevent discrimination, the employer must not only compare the characteristics of workers and the scope of their job responsibilities, and justify the difference in wages based on formal differences, but objectively assess the productivity and efficiency of their work . Moreover, based on judicial practice, we can conclude that if a claim is filed, the court also determines whether the employer created obstacles by giving part of the separately paid work to other employees, thereby allowing them to earn more, and depriving the plaintiff of this opportunity. Despite the legal framework based on the principle of equal pay for equal work, the actual average wage of women is lower than that of men. In modern society, where the majority of the economically active population are hired workers, whose wages directly determine the level and quality of life, more effective measures to eliminate discrimination are required. Pay discrimination can be viewed through three levels: 1. Comparison of average salaries of men and women at the country level. This approach is due to the close connection of the issue with horizontal and vertical gender segregation, when the largest number of women are concentrated in feminized areas characterized by low professional status and earnings, or do not have access to the most paid leadership positions. 2. Comparison of wages within each professional complex. 3. Selective comparison of the gender pay balance in specific organizations, which makes it possible to explore the causes and mechanisms of discrimination at the micro levels of “internal markets”. According to Rosstat data for 2013, the share of citizens employed with low wages was 19.5% - men and 36.5% - women, and the gender wage gap reached 29%, also in favor of men. It is worth noting that the phenomenon of gender asymmetry in wages is inherent in almost all countries of the world. It is extremely difficult to explain, because a set of legislative acts and government projects to overcome discrimination should have eradicated this inequality long ago. It should be noted that gender asymmetries in pay have an impact on labor productivity, which falls if some individuals receive more compensation than their value as workers implies, and others are not motivated to work productively without fair pay. In foreign countries, the reason for the difference in wages is a direct consequence of female unemployment, lower levels of education, qualifications and experience, the priority of family obligations, the fulfillment of which reduces labor efficiency. In Russia, the main obstacle to receiving equal wages with men is the employer, due to statistical prejudices and biases, who refuses to hire a woman, to promote her to a better paid position, or to establish gender-fair wages in the organization. There are two opposing opinions of researchers who justify gender asymmetry in wages by legislative regulation of women’s labor. Thus, the former believe that the difference is compensatory, because women generally work in more comfortable conditions, the use of their labor is limited in heavy and underground work, work with harmful and dangerous working conditions; availability of guarantees and compensation related to pregnancy and maternity. The latter, on the contrary, call such measures forced humanism and, referring to Article 37 of the Constitution of the Russian Federation, propose that the legislator allow women to freely manage their ability to work, choosing any areas of activity, including those in which women’s work is currently limited, and receive equal remuneration for working in them. If we take the experience of combating wage discrimination in foreign countries, we can cite the legislation of the Scandinavian countries as an example. The Equal Opportunities Act in Sweden requires employers with more than ten employees to draw up and annually submit a report to government agencies that includes data on the job function, employee characteristics and wage differentials. Such measures make it possible to objectively assess gender asymmetry in wages, identify unjustified differences in its amount, and, if the latter are detected, order the employer to pay compensation to the employee who has been discriminated against. The difficulties with implementing such measures in Russia lie in the secrecy of the private sector of the economy. Because the analysis will be carried out solely on the basis of the employee’s official salary, fixed in the employment contract and the wage regulations, and accordingly the so-called “black” part will remain unknown, which the employer pays “in hand” without documentary recording, to reduce tax loads. The solution to the problem of wage discrimination in our country can be the improvement of the tariff system of wages, and the classification of types of work and positions according to the required education, qualifications, experience, additional skills, working conditions, etc. There is also a need to develop a list of objective criteria, based on which more precise provisions should be developed for constructing the amount of remuneration for work.
