Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

With reference to its previous comments, the Committee recalls the discussion of the Conference Committee on the Application of Standards which took place in June 2008. The Committee notes with regret that the report of the Government contains no information on the specific points raised by the Conference Committee. The Committee is, therefore, obliged to repeat these points below.

The Committee also notes that a new Constitution was adopted on 26 January 2010, article 39 of which establishes the right to equality without discrimination based on gender, colour, age, disability, nationality, family ties, language, religion, political and philosophical opinion, social and personal situation. The Committee asks the Government to provide information regarding the implementation of the new Constitution as it relates to non-discrimination in employment and occupation.

Discrimination on the grounds of colour, race and national extraction. The Committee recalls that it has been raising concerns for a number of years regarding discrimination against Haitians and dark-skinned Dominicans. The Committee notes that the Conference Committee called on the Government to address the intersection between migration and discrimination, and in particular to ensure that migration laws and policies and their implementation did not result in discrimination based on race, colour or national extraction. It noted in this respect that all migrant workers, including those in an irregular situation, must be protected from discrimination in employment and occupation. The Conference Committee also noted the Government’s intention to establish a tripartite committee to follow up the recommendations made jointly by the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and the Independent Expert on minority issues. The Committee notes the wide range of recommendations of the Special Rapporteur and the Independent Expert, including in particular with respect to developing a national action plan against racism, racial discrimination and xenophobia; establishing an independent institution with authority to combat all forms of discrimination; adopting comprehensive legislation to combat racial discrimination; collecting relevant socio-economic data; ensuring that migration laws and their implementation protect the right to non-discrimination; monitoring sectors such as agriculture and construction, where many Haitians and Dominicans of Haitian descent are employed; targeting multiple discrimination facing minority women, particularly those who are black or of Haitian heritage (A/HRC/7/19/Add.5; A/HRC/7/23/Add.3, 18 March 2008, paragraphs 118–121, 126–128 and 131–132). The Committee urges the Government to take concrete measures without further delay to ensure the effective application of the Convention, in law and in practice, with respect to the grounds of race, colour and national extraction, and in this context to ensure that all migrant workers, including those in an irregular situation, are protected from discrimination in employment and occupation. The Committee requests the Government to indicate whether the tripartite committee to follow up the recommendations of the Special Rapporteur and the Independent Expert has been established, and the progress achieved in implementing the recommendations, in particular those noted above.

Discrimination based on sex. The Committee has been raising concerns regarding the persistence of cases of discrimination based on sex, including pregnancy testing and sexual harassment, and the lack of effective application of the legislation in force, and has raised the issue of pregnancy testing as a requirement to obtain or keep a job in export processing zones. It notes in this regard the Government’s indication to the Conference Committee that the Secretary of State for Labour had created an office responsible for monitoring gender policies in the field of employment, and the Gender Office had submitted a draft amendment to the Labour Code to the Advisory Labour Council with a view to improving labour legislation regarding medical examinations prior to or during employment. Regarding sexual harassment, the Government indicated that the Labour Code was being amended to make sexual harassment a criminal offence carrying a severe penalty. The Conference Committee, while noting this information, questioned the adequacy of the legislation and the complaints mechanisms to address such discrimination, and called on the Government, in collaboration with the workers’ and employers’ organizations, to take additional steps to strengthen protection against discrimination in law and in practice, and in particular to ensure that complaints mechanisms were effective and accessible for men and women working in enterprises where no unions existed. The Committee urges the Government to ensure that the existing anti-discrimination legislation is effectively applied, and in this context to take proactive measures, in collaboration with employers’ and workers’ organizations, to prevent and investigate both sexual harassment, and the requirement of pregnancy testing as a condition for obtaining or maintaining employment. The Committee also asks the Government to take the necessary measures to reinforce the sanctions for sexual harassment and mandatory pregnancy testing as well as the dispute resolution machinery related to discrimination in employment and occupation, to ensure that it is effective and accessible in practice to all workers, including those in export processing zones. The Committee also asks the Government to provide information on the following:

(i)    the status of the adoption of the proposed amendments to the Labour Code regarding sexual harassment and pregnancy testing;

(ii)   measures taken to support and protect victims of sexual harassment and pregnancy testing, including facilitating access to complaints procedures;

(iii)  awareness raising regarding discrimination, including sexual harassment and pregnancy testing, and building the capacity of labour inspectors, relevant government authorities, and the judiciary to detect and address violations in this regard;

(iv)  any specific measures taken to improve the detection of sexual harassment and pregnancy testing in export processing zones; and

(v)   any cases of sexual harassment or pregnancy testing reported to or detected by the labour inspectorate and any relevant administrative or judicial decisions, including the remedies provided and the sanctions imposed.

HIV testing. Regarding its previous comments relating to HIV testing as a condition to be hired or keep a job, and the lack of enforcement of the prohibition of such testing, the Committee notes the Government’s indication to the Conference Committee that involuntary HIV testing is prohibited in all enterprises, there is an HIV/AIDS technical unit within the labour inspectorate, and regular inspections are carried out but no cases concerning discrimination have been reported. The Committee requests the Government to reinforce its efforts to address HIV testing as a condition to be hired or to keep a job in practice, including taking measures to protect workers who lodge complaints, stepping up enforcement by labour inspectors, and building their capacity to detect and address such violations. Please provide detailed information of measures taken in this regard, as well as with respect to any cases of involuntary HIV testing reported to or detected by the labour inspectorate, and any relevant court or administrative decisions.

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