34/29 Realization of the right to work - Report of the United Nations High Commissioner for Human Rights

GE.16-23165(E)



Human Rights Council Thirty-fourth session

27 February-24 March 2017

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of

the High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Realization of the right to work

Report of the United Nations High Commissioner for Human Rights

Summary

The present report, prepared pursuant to Human Rights Council resolution 31/15,

gives an overview of the normative content of women’s right to work, and the main

challenges involved and good practices as regards the implementation of that right, on the

basis of international human rights law and international labour law and of its interpretation

by United Nations treaty bodies and the International Labour Organization. It also contains

examples drawn from national experiences.

United Nations A/HRC/34/29

I. Introduction

1. In its resolution 31/15, the Human Rights Council requested the United Nations

High Commissioner for Human Rights to prepare an analytical report, in consultation with

States, United Nations agencies, funds and programmes, particularly the International

Labour Organization, and the treaty bodies, special procedures, civil society and other

relevant stakeholders, on the relationship between the realization of the right to work and

the enjoyment of all human rights by women, with a particular emphasis on the

empowerment of women, in accordance with States’ respective obligations under

international human rights law and the relevant major challenges and best practices in that

regard, and to submit the report to the Human Rights Council prior to its thirty-fourth

session.

2. The Office of the United Nations High Commissioner for Human Rights (OHCHR)

solicited submissions from States, United Nations agencies and non-governmental

organizations, and as at 28 November 2016, 32 responses had been received, from States,1

the International Labour Office, the United Nations Entity for Gender Equality and the

Empowerment of Women (UN-Women), the United Nations Research Institute for Social

Development, and non-governmental organizations.

3. The present report offers an overview of the scope and content of women’s right to

work, drawing on applicable human rights instruments, on the work of United Nations

human rights mechanisms, including treaty bodies, special procedures and the universal

periodic review, on international labour standards and the principles of the International

Labour Organization (ILO), and on the submissions received. It identifies challenges and

refers to good practices implemented by States to move towards full realization of the right

of work for women, underscoring the connection between this right and other human rights.

In order to analyse the main issues, the report focuses on three matters in particular: (a)

women’s right to decent work; (b) non-discrimination in working conditions; and (c)

women’s unpaid work. It does not elaborate on the specific elements of the right to work,

which have already been the subject of a report of the United Nations High Commissioner

for Human Rights on the realization of the right to work (A/HRC/31/32). Rather, it analyses

their implications for women, and the concomitant obligations on States for the elimination

of discrimination in the exercise of the right to work.

II. Normative recognition of women’s human right to work

4. The right to work is a universal human right, which finds ample recognition in

international human rights law and international labour instruments.2 Gender equality and

non-discrimination are fundamental human rights guarantees which fully apply to the right

to work. Women’s exercise of the right to work is a prerequisite for their enjoyment of

several other human rights, including the right to an adequate standard of living and the

right to social security. Women’s equal exercise of the right to work also depends on the

extent of their enjoyment of other rights, including the right to education.

1 Algeria, Argentina, Azerbaijan, Bahrain, Bulgaria, Burkina Faso, Cuba, Egypt, El Salvador, Georgia,

Germany, Greece, Italy, Jamaica, Kyrgyzstan, Madagascar, Mozambique, Oman, Paraguay, Portugal,

Republic of Moldova, Romania, Saudi Arabia, Serbia, South Africa, State of Palestine, Turkey and

United Arab Emirates. Submissions are available from

www.ohchr.org/EN/Issues/ESCR/Pages/RightWorkReport.aspx.

2 See A/HRC/31/32.

5. The right to work is enshrined in the Universal Declaration of Human Rights, in its

article 23.1, in which it is stated that “everyone has the right to work, to free choice of

employment, to just and favourable conditions of work and to protection against

unemployment”. In its article 2, the prohibition of discrimination is made applicable to all

the rights recognized in the Universal Declaration, including to the right to work, without

distinction of any kind, such as race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth or other status. The right to work is also

recognized in the International Covenant on Economic, Social and Cultural Rights, in its

article 6, and a general non-discrimination clause, applicable to all the rights set forth in the

Covenant, is incorporated in its article 2.2, in which discrimination on the grounds of “sex”

is proscribed. Furthermore, a specific gender equality clause is included in article 3 of the

Covenant, according to which “the States Parties ... undertake to ensure the equal right of

men and women to the enjoyment of all economic, social and cultural rights set forth in the

present Covenant”.

6. Discrimination against women is defined in article 1 of the Convention on the

Elimination of All Forms of Discrimination against Women, and in article 11 of the

Convention the right of women to be free of discrimination in the field of employment is

reaffirmed, including the right to equal remuneration for work of equal value, the right to

social security and the right to safe conditions of work safeguarding women’s reproduction

function. According to article 11, “States Parties shall take all appropriate measures to

eliminate discrimination against women in the field of employment in order to ensure, on a

basis of equality of men and women, the same rights.”

7. In the International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families, the right to work is referred to in articles 11, 25,

26, 40, 52 and 54, and prohibition of discrimination, including on the basis of sex, is made

applicable to the Convention by virtue of its article 1. Similarly, the right to work is

referred to in the Convention on the Rights of Persons with Disabilities in its article 27,

non-discrimination and equality between men and women are included as principles in its

article 3, these principles are further developed in its article 5 and there is a specific focus

on discrimination against women with disabilities in its article 6.

8. Regional human rights instruments also provide for recognition of the right to work

and the application of the principles of gender equality and non-discrimination to this right.

For instance, the European Social Charter of 1961 and the revised Charter of 1996 devote

considerable attention to the right to work, and pay specific attention to equal pay for equal

work and protection for women workers, including in the case of maternity. The Charter of

Fundamental Rights of the European Union addresses the right to work in its article 15.

Article 23, on equality between men and women, explicitly refers to employment, work and

pay, while article 33 mentions maternity protection and maternal and paternal leave as

measures for reconciling family and professional life. Articles 20 and 21 are devoted to

equality and non-discrimination.

9. The American Declaration of the Rights and Duties of Man, of the Organization of

American States, refers to the right to work in its article 14, and to the principles of equality

and non-discrimination in its article 2, including on the basis of sex. The Additional

Protocol to the American Convention on Human Rights in the Area of Economic, Social

and Cultural Rights (Protocol of San Salvador) protects the right to work in its article 6, and

makes specific mention of women’s work. Furthermore, the Additional Protocol enshrines

the prohibition of discrimination, including on the basis of sex, in its article 3.

10. The African Charter on Human and Peoples’ Rights enshrines the right to work in its

article 15, and the prohibition of discrimination, including on the basis of sex, in its article

2. The Arab Charter on Human Rights, as revised in 2004, provides for the right to work, in

its article 34. It also includes a non-discrimination provision, in its article 3, that refers

specifically to discrimination on the grounds of sex and to equality between men and

women.

11. Several ILO texts are aimed at protecting and realizing women’s equal right to work.

In its article II (a), the Declaration concerning the aims and purposes of the International

Labour Organization (Declaration of Philadelphia), of 1944, specifies that “all human

beings, irrespective of race, creed or sex, have the right to pursue both their material well-

being and their spiritual development in conditions of freedom and dignity, of economic

security and equal opportunity”. Equality and non-discrimination, including on the basis of

sex, are also among the fundamental rights of workers identified in the ILO Declaration on

Fundamental Principles and Rights at Work, and are the subject of the Equal Remuneration

Convention, 1951 (No. 100) and the Discrimination (Employment and Occupation)

Convention, 1958 (No. 111), both of which are fundamental ILO conventions.

12. Of particular importance is the more recent Domestic Workers Convention, 2011

(No. 189), as women carry out most domestic work. The ILO Employment Policy

(Supplementary Provisions) Recommendation, 1984 (No. 169), in paragraph 15, specifies

women among the categories of persons who may frequently have difficulties in finding

lasting employment and for which States are required to adopt measures to respond to their

needs in the context of an overall employment policy.

13. Many States have ratified the above-mentioned instruments. Most States have

enshrined the principle of equality between men and women in their constitutions. Many

have promulgated gender equality legislation to operationalize these convention-based and

constitutional commitments. Nonetheless, discrimination against women in the labour

market is pervasive, as reflected by the “glass ceiling”, the “gender pay gap” and the

“sticky floor”, which indicate the restrictions encountered by women in realizing their right

to work and in exercising opportunities at work. As such, the realization of women’s equal

enjoyment of the right to work warrants consideration of the gender-specific dimensions of

every aspect of that right.

III. Women’s right to decent work

14. The right to decent work entails the right to productive and freely chosen and

accepted work that ensures a dignified life without discrimination. For women, this

involves the freedom to choose work and to practise a profession, and equal access to work

opportunities and decent jobs.

15. Notwithstanding women’s growing involvement in paid work worldwide, significant

gender disparities persist in regard to labour force participation and employment. A 2016

ILO report on women’s employment estimates women’s labour force participation in 2015

at 49.6 per cent globally, compared to 76.1 per cent for men.3 While the rate in developed

countries stood at 71.0 per cent, figures ranged between 61.9 per cent and 18.8 per cent in

other regions in 2015.4 Securing decent work and staying in it also remains a challenge for

many women. Indeed, with the exception of a few subregions, unemployment rates among

women in the workforce are higher than among men worldwide. 5 Moreover, women

workers are disproportionately numerous in non-standard forms of employment such as

part-time and temporary contracts or self-employment, which tend to be more precarious.

Women are also overrepresented in the informal economy, which is characterized by poor

working conditions as well as a lack of job security and of social protection. The gender

3 ILO, Women at Work: Trends 2016 (Geneva, 2016).

4 ILO, World Employment and Social Outlook: Trends 2016 (Geneva, 2016).

5 ILO, Women at Work: Trends 2016.

gap in employment in the informal economy reaches a peak of 13 percentage points in sub-

Saharan Africa.6 These statistical data signal de facto discrimination as regards access by

women to decent work opportunities, which States have an immediate duty to eliminate.

A. Freedom to choose a profession and an occupation

16. Women’s right to freedom to choose a profession is frequently compromised by

discriminatory legal provisions.

17. Laws in some countries prohibit women from performing certain tasks, exercising

certain professions or entering particular industries, on the basis of gendered perceptions of

unsuitable work for women. Such prohibitions often concern night work, jobs in sectors

such as mining, or participation in the armed forces. Treaty bodies have called upon States

to remove these prohibitions.7

18. Subjecting women’s engagement in work to authorization from their spouse or a

male guardian, as is found in some family laws, is another form of formal discrimination.8

In some countries, where the laws do not provide for such prior authorization, it may

nevertheless be practised. In other situations, women’s right to freely chosen work is

impeded by restrictions on the exercise of other rights, such as their freedom of movement

or their right to legal autonomy. The Committee on the Elimination of Discrimination

against Women has on several occasions challenged States that have maintained such

systems.9

19. Freedom to choose work also means freedom from forced labour. Many women are

trapped in slavery-like situations or engaged in forced labour, including as a result of

trafficking. As part of its duty to protect, States must take specific measures to prevent

actions by third parties that would put women in situations of forced labour. States should

also tackle the root causes of women’s vulnerability to forced labour and trafficking, such

as poverty or a lack of employment in the home country, that compel women to seek

migration opportunities.

20. Domestic work notably exposes girls and women, especially migrant domestic

workers, to risks of forced labour. Combating this situation necessitates raising awareness

around women’s dignity and equal rights, both in countries of origin and countries of

destination. Awareness of legal protections for women’s rights in receiving countries,

including with regard to the conditions of work, is also essential, in order to enable

domestic workers to assert their rights.

21. Treaty bodies have recommended that States discontinue arrangements such as the

sponsorship system and the live-in setting, which render domestic workers particularly

vulnerable to severe labour exploitation.10 States should also take measures to ensure the

release of women in situations of forced labour. This involves setting up accessible systems

that allow victims to seek effective assistance, and subjecting to labour inspection those

sectors where women are likely to be held in forced labour, such as domestic work and

agriculture.

6 Ibid.

7 See, for example, CEDAW/C/KAZ/CO/3-4, para. 28; CEDAW/C/GIN/CO/7-8, para. 47; and

CEDAW/C/TKM/CO/3-4, para. 32.

8 See, for example, CEDAW/C/CMR/CO/4-5, para. 28; CEDAW/C/TCD/CO/1-4, para. 32; and

CEDAW/C/QAT/CO/1, para. 35.

9 See, for example, CEDAW/C/ARE/CO/1, para. 45; and CEDAW/C/IDN/CO/6-7, para. 17.

10 See, for example, CEDAW/C/OMN/CO/1, para. 42; and CERD/C/LBN/CO/18-22, para. 42.

B. Equal access to work opportunities

22. Equality in the exercise of the right to work involves non-discrimination in

accessing work opportunities. Women’s higher unemployment rates, as well as

occupational segregation, are symptomatic of discrimination in access to work

opportunities. To achieve substantive equality, States should adopt supportive policies,

combat discriminatory practices, and change cultural or religious expectations about

women’s roles at home and in the family that hinder their transition from school to work.

1. Unemployment

23. While the right to work is not construed as an absolute right to obtain employment,

States have an obligation to ensure equal access to work opportunities. A State in which a

significantly higher number of women are unemployed is failing to discharge its obligations

to fulfil the right to work and to ensure non-discrimination in the exercise of the right to

work. The principle of progressive realization also entails the gradual reduction of women’s

unemployment. To that end, States have an obligation to implement effective and targeted

measures, to the maximum of their available resources.

24. Research converges on the importance of adequate economic policies to effect

change in women’s employment opportunities. Economic policies that do not lead to the

creation of jobs have a detrimental effect on women’s equal access to employment. In fact,

policies targeting women’s employment in the context of jobless growth will have only a

limited redistributive effect, reallocating some jobs from men to women.11 Consequently, in

a 2016 report, UN-Women stresses the importance of creating additional decent jobs for

women, as well as improving their access to them. Specifically, it is recommended in the

report that macroeconomic policies depart from traditional goals of deflation, and instead

stimulate economic activity and increase demand for labour. In the report, UN-Women also

calls for increased social spending so as to create decent jobs in sectors such as health,

education, and care.12

25. Employment policies should provide for employment services that cater to the

specific challenges faced by women, to ensure that they do not leave the workforce or

resort to precarious jobs after childbirth and to facilitate their re-employment after career

interruptions. This could include specialized placement assistance, as well as training

programmes linked with prospective employment opportunities. Some States have put in

place incentives for companies to recruit women who return to the workforce after career

breaks.

26. Because of the criterion of sex intersecting with other factors such as race, ethnicity,

colour, religion, national or social origin and disability, many women experience multiple

forms of discrimination and face serious hurdles in exercising their right to work. For

example, women with disabilities face greater difficulty in securing employment. In this

regard, laws should require employers to ensure an accessible work environment and the

provision of reasonable accommodation.

27. Discriminatory legal provisions and policies such as those on access to certain

positions on the basis of ways of dressing,13 different mandatory retirement ages for men

and women, and provisions for revoking the work permit of migrant women upon

11 José Antonio Ocampo and Jomo Kwame Sundaram, Towards Full and Decent Employment (2008), p.

70.

12 UN-Women, Transforming Economies, Realizing Rights (New York, 2015), p. 9.

13 See, for example, CEDAW/C/NOR/CO/8, para. 29.

childbirth or marriage14 should also be amended, so that women enjoy the right to work on

an equal basis with men.

2. Discrimination in recruitment

28. Women are often refused job offers on account of their sex, in spite of labour laws

against discrimination. Structural biases have led to practices of appointing men to perform

certain jobs and not hiring women, including due to social assumptions that motherhood is

irreconcilable with the demands of employment. In some cases, the prospect of pregnancy

and motherhood discourages employers from recruiting women at all. In this regard, some

employers have imposed pregnancy tests as a condition of recruitment or for maintaining

employment, which is discriminatory and should be prohibited. 15 In fact, women’s

situations in the labour market often belie their educational attainment, due to

discrimination in recruitment.

29. States have an obligation to remove conditions that are likely to lead to women’s

disadvantage in recruitment, through sound labour laws and monitoring institutions,

especially as women rarely have the opportunity to challenge hiring decisions. For

example, it is important to transfer the coverage of paid maternity leave to the social

security system or public funds, in order to combat the preferential recruitment of men on

the basis of the perceived cost of recruiting women of childbearing age.

3. Occupational segregation

30. Stereotypes about women’s roles in the family and society have resulted in

horizontal segregation, whereby women are overrepresented in sectors such as

manufacturing and in professions related to familial and service functions in the public and

private sectors. Moreover, women occupy primarily clerical and support positions, which

creates a horizontal segregation in the labour market.16 More concerning is the practice of

employing women with disabilities in sheltered workshops, without adequate support for

their transitioning to the open labour market.17 States have an obligation to take effective

measures to remove these discriminatory situations, with a view to fulfilling women’s equal

right to work opportunities.

31. While girls’ and women’s right to education is beyond the scope of the present

report, it is important to stress that it is a critical determinant of equality in employment.

Therefore, States should take measures to diversify girls’ and women’s educational choices.

States should also introduce quotas, where necessary, in areas of study in technical,

vocational and tertiary education in which women are underrepresented. Some countries

have implemented specific projects to encourage girls to pursue education in fields

traditionally associated with the other sex. Sexual harassment and bullying that are

obstacles to girls’ and women’s educational achievement, especially when they are in the

minority, should also be addressed.

32. As stereotypes are often reproduced in school textbooks and conveyed by the media,

sustained communication campaigns about equality of opportunities and outcomes are

necessary. In particular, article 8 of the Convention on the Rights of Persons with

Disabilities calls on States to combat stereotypes and prejudices relating to persons with

disabilities.

14 See, for example, CEDAW/C/ISR/CO/5, para. 42.

15 See, for example, CEDAW/C/MEX/CO/7-8, para. 28.

16 UN-Women, Transforming Economies, Realizing Rights, p. 10.

17 See, for example, CRPD/C/AUT/CO/1, para. 44; E/C.12/JPN/CO/3, para. 12; and

CRPD/C/KOR/CO/1, para. 49.

33. Temporary special measures are the most effective means to address occupational

segregation, both horizontal and vertical, and to achieve substantive equality. They should

be codified in laws specifying the circumstances under which employers are required to

implement them. Special measures should be designed to support the principle of equality,

so as to comply with convention-based and constitutional stipulations thereon. 18 The

Committee on the Elimination of Discrimination against Women regularly highlights the

importance of defining numerical goals to be achieved within a certain period of time.

Special measures should be discontinued when the objectives of equality of opportunity and

treatment have been achieved.

34. Temporary special measures can be implemented in recruitment, for example by

giving preference to a woman when candidates are equally qualified, or by providing

training to women candidates so that they can meet the qualifying criteria for the positions

that are subject to temporary special measures. Some countries have introduced mandatory

quotas for the representation of women on the boards of companies.

35. Governments have a greater responsibility to eliminate occupational segregation in

public organizations, where they have more direct control of human resources policies.

Targets in the public sector could include appointments to decision-making positions or in

professional groups where women are traditionally underrepresented.

C. Access to decent work

36. When there are no legal restrictions on one’s choice of work, women are not always

fully free to engage in the work of their preference. Indeed, unpaid domestic and care

responsibilities often restrict their employment options. On the one hand, many countries

face a shortfall in affordable infrastructure and services and related social security schemes

that would free women from care responsibilities. On the other hand, inflexible hours in the

workplace are often incompatible with household and care roles that women continue to

carry out. As a result, women take on part-time or temporary employment involuntarily;

accordingly, in some regions, they face a 25 to 35 per cent higher risk of being in

precarious employment than men.19

37. The discriminatory ramifications of women’s overrepresentation in non-standard

forms of employment are numerous. In addition to the repercussions on earnings, women’s

right to work is also at risk, as non-standard jobs generally lack security. Moreover, while

work should enable individuals’ personal fulfilment, women frequently experience

discrimination in part-time and temporary jobs that tend to be low-skilled, have few career

prospects and often do not correspond to their educational and professional qualifications or

aspirations.

38. The lack of possibilities to work part-time or with other flexible working options is

equally discriminatory. When flexibility is not afforded, female workers with care

responsibilities may be forced to forego employment. This holds particularly true when

economic considerations favour withdrawal from work by women who earn less than male

household members.

39. The ILO Workers with Family Responsibilities Recommendation, 1981 (No. 165)

provides detailed guidance on national policies to enable persons with family

responsibilities to exercise their right to work. In particular, States should develop systems

18 Committee on the Elimination of Discrimination against Women general recommendation No. 23

(1997) on political and public life, para. 15.

19 ILO, World Employment and Social Outlook: Trends 2016, summary.

of care that are affordable and accessible and change society’s perception of women’s roles.

Some countries have made it compulsory for companies of a certain size to provide

childcare services.20 Moreover, the Committee on Economic, Social and Cultural Rights

states that the development of flexibility in the workplace should be part of these national

policies. To this end, it is important to ensure that the arrangements put in place are

premised on the equitable sharing of care responsibilities between men and women.

40. The right to decent work also implies work opportunities in the formal economy. In

many regions, women are primarily employed in the informal economy. 21 The ILO

Transition from the Informal to the Formal Economy Recommendation, 2015 (No. 204)

outlines 12 guiding principles informed by country experiences. In addition to measures

taken to progressively bring employment and businesses into the formal economy, States

should implement macroeconomic policies aimed at creating decent jobs. Indeed, women

work in the informal economy owing to a lack of opportunities in the formal economy.22

D. Entrepreneurship

41. Entrepreneurship is another way of exercising one’s right to work, where the right of

women to equal opportunities also applies. Data showing that women are less likely to be

involved in entrepreneurial activity than men reveals patterns of inequality.23 Closing this

gap requires tackling the root causes of women’s disadvantages in entrepreneurial

participation and business ownership, as well as implementing targeted measures.

42. Firstly, formal discrimination should be eliminated where it exists. States should

guarantee women’s legal autonomy, thus eliminating any legal barriers to their ability to

conclude contracts, own and administer properties, or hold bank accounts without needing

the prior authorization of another person. Discriminatory practices, such as those related to

inheritance and the registration of households’ lands in men’s names, should also be

abolished.

43. Financial inclusion is critical for promoting women’s access to means of production,

as either women lack the necessary collateral for accessing loans or the informality of their

businesses is incompatible with procedures in traditional financial institutions. Several

countries have attempted to overcome this barrier through initiatives establishing special

credit lines at banks or by setting up specific funds or more accessible banking and payment

services. Other countries have coupled these measures with initiatives aimed at improving

women’s literacy, and their business, economic, financial and legal skills, and at narrowing

the gender gap in access to information and communication technology. Temporary special

measures can also be implemented to support women’s entrepreneurship, for example by

prioritizing women in land redistribution programmes or granting women-led businesses

preferential treatment in public procurement processes.

44. Several States have implemented projects and programmes promoting the

development of income-generating activities for women. These initiatives should be

accompanied by measures to facilitate access to markets, including through investment in

transport infrastructure and in marketing facilities. A human rights-based approach to such

efforts should seek to develop activities in the formal economy, in businesses that would lift

20 See, for example, CEDAW/C/PRY/CO/6, para. 28.

21 ILO, Women at Work: Trends 2016, p. 11.

22 Ocampo and Jomo K.S., Towards Full and Decent Employment, p. 77. See also the ILO Transition

from the Informal to the Formal Economy Recommendation, 2015 (No. 204).

23 United Nations Development Programme (UNDP), Human Development Report 2015 (New York,

2015), p. 111.

women and their families out of poverty, and to support their inclusion in sectors

traditionally associated with men.

IV. Non-discrimination in the enjoyment of the right to just and favourable working conditions

45. Beyond equal access to opportunities, women’s equal right to work encompasses

equality of opportunity and treatment in the workplace. The right to just and favourable

conditions is the necessary corollary of the right to work that is freely chosen and

accepted.24 In its general comment No. 23 (2016) on the right to just and favourable

conditions of work, the Committee on Economic, Social and Cultural Rights recalls that

States have an obligation to guarantee that women enjoy conditions of work not inferior to

those of men and receive equal pay for work of equal value.25

A. Non-discrimination in working conditions

46. For women, non-discrimination encompasses the right to equal working conditions

as well as the right to differential treatment due to biological differences.

1. Right to equal working conditions

47. The right to equal working conditions is undermined for certain categories of female

workers, including due to the sectors they belong to. Domestic workers, the majority of

whom are girls or women, are among those most at risk of abuse, harassment and violence.

Their living and working conditions may be akin to slavery when they live with their

employers. Domestic work also falls outside the scope of the labour law in several

countries. Therefore there are no standards, at the country level, that spell out their working

conditions.

48. The ILO Domestic Workers Convention, 2011 (No. 189) and Domestic Workers

Recommendation, 2011 (No. 201) provide guidance to States on measures to be taken to

protect the rights of domestic workers. On the basis of these instruments, several States

have started regulating domestic work and the operations of recruitment agencies. However

violations continue to be observed, as victims are often isolated and unable to seek

assistance. Treaty-monitoring bodies have expressed the view that domestic workers should

enjoy the same labour rights as other workers, in terms of health and safety at work, rest

and remuneration. 26 Any separate legislation should solely address their increased

vulnerability to abuses and not set specific conditions of work.

49. Women working in manufacturing and other sectors in export-processing zones are

also vulnerable to violations of their labour rights. Often, in order to attract investors, States

adopt specific regimes for export-processing zones whereby labour law does not apply,

either partially or fully. Reports of low wages, long working hours, unpaid overtime, sexual

harassment and other forms of violence in export-processing zones are rife. States enforcing

such regimes fail in their obligation to protect the right to just and favourable conditions of

work and the right to non-discrimination.

24 See Committee on Economic, Social and Cultural Rights general comment No. 23 (2016) on the right

to just and favourable conditions of work, para. 1.

25 Ibid., para. 54.

26 See, for example, CEDAW/C/BRA/CO/7, para. 12; and CEDAW/C/AND/CO/2-3, para. 30.

50. Women migrant workers, especially undocumented and irregular migrant workers,

are likely to face violations of labour rights.27 Often, they lack employment contracts and

are thus vulnerable to exploitation. 28 Also, legal protections may not reach the large

majority of women engaged in the informal economy.

51. In order to meet their obligation to protect the right to equal working conditions,

States should expand the mandate of compliance institutions so that it covers the informal

economy and domestic work, including in private residences. Moreover, they should

monitor the working conditions of both regular and irregular migrant workers. Regulations

and policies should take into account the difficulties encountered by these women workers

in seeking assistance or remedies when their rights are violated. States should also ensure

that these categories of workers are able to exercise their right to organize so that they can

advocate for their labour rights.

2. Differential treatment due to biological differences

52. Due to biological differences, female workers require differential treatment at work,

including in relation to pregnancy, childbirth and breastfeeding. These should be specified

and protected by domestic laws and should not be considered as discriminatory. The lack

thereof would have adverse consequences not only on the right of women to just and

favourable conditions of work and on their right to health but also on their ability to

exercise the right to work altogether.

53. Article 11 of the Convention on the Elimination of All Forms of Discrimination

against Women and the ILO Maternity Protection Convention, 2000 (No. 183) and

Maternity Protection Recommendation, 2000 (No. 191) provide the main direction for a

maternity protection framework in the workplace, with minimum standards in respect of

access to health care, health protection, and maternity leave entitlements.

54. According to the ILO Maternity Protection Convention, 2000 (No. 183), working

women should have access to prenatal, childbirth and postnatal medical care. When such

services are not provided free of charge, the costs should be covered by health insurance

schemes. Conditions in the workplace for safeguarding the health of pregnant or nursing

women and that of their child include prohibition of the performance of certain tasks that

may pose risks to the health of expectant women, protection against their exposure to

harmful environmental conditions, and the granting of rest periods during working hours.

To the extent possible, appropriate accommodation should be provided so that women can

perform their work responsibilities during pregnancy. If necessary, they may be reassigned

to different tasks. Such a decision should be made in consultation with the person

concerned, with the guarantee that she can return to her previous position when conditions

allow it. Pregnant workers should be protected against exposure to harmful chemicals that

can result in illnesses, pregnancy complications or fetal disorders. Article 11 (3) of the

Convention on the Elimination of All Forms of Discrimination against Women advises

periodic reviews of legislation relating to maternity protection in the light of scientific and

technological advances.

55. In the context of its examination of State party reports, the Committee on the

Elimination of Discrimination against Women has recommended that States accord the

minimum of 14 weeks of paid maternity leave to women, with at least two thirds of

previous or insured earnings, in accordance with the ILO Maternity Protection Convention,

2000 (No. 183) which also prescribes one daily break with pay for breastfeeding. The

Committee on the Elimination of Discrimination against Women has also called upon

27 See, for example, CMW/C/URY/CO/1, para. 23; and CMW/C/BFA/CO/1, para. 20.

28 See, for example, CMW/C/KGZ/CO/1, para. 38.

States to remove undue restrictions on the right to paid maternity leave. 29 Pay during

maternity leave — guaranteeing continued income — is central to ensuring that maternity

does not affect women’s economic situation and that women have the means to meet the

additional expenses engendered by childbirth. With regard to migrant women, it is essential

to ensure that they retain their legal status during maternity leave.30

56. Maternity benefits should be made available to all women, including female migrant

workers, unwed mothers,31 domestic workers, self-employed women and part-time workers,

as well as women employed in sectors where such protection is not traditionally afforded,

such as in agriculture. In this regard, setting up non-contributory cash benefits for women

who do not meet the qualifying conditions is a good practice.

57. Notwithstanding the recommendation in article 4 of the ILO Maternity Protection

Convention, 2000 (No. 183) of a minimum of six weeks of postnatal maternity leave,

several States have allowed women to decide when they start maternity leave.

Overprotective regulations imposing long maternity leave may not be desirable, when they

reinforce gender-stereotyped roles. 32 Instead, provisions for non-transferable paternity

leave, parental leave and leave for family reasons are recommended.33 Some States have

extended parental leave to parents adopting children.

58. Workplaces should have water and sanitation facilities that meet women’s specific

hygiene needs. A lack of adequate facilities is discriminatory, as it often compels women to

avoid work during menstruation. Leave policies should also accommodate menstruation-

related needs, as required. States should combat stigma and taboos around menstruation,

where they exist, so that they do not hamper women’s right to work. Some industries may

also need to establish specific standards for the protection of women’s health. For instance,

attention should be paid to women’s exposure to chemicals that may have adverse effects

on their reproductive health.

B. Equal opportunities in the workplace

59. The right to equal opportunities at work concerns women’s equal right to be

promoted, freedom from harassment — especially sexual harassment, and protection

against unfair dismissal. Several countries have made it illegal for employers to

discriminate against a person on the grounds of sex and have adopted equal employment

opportunity laws. And yet, women are routinely discriminated against in the workplace, as

evidenced by women’s underrepresentation in managerial and decision-making

occupations 34 and by the numerous cases of sexual harassment and of gender-based

discrimination when such data are collected.35

60. According to article 7 of the International Covenant on Economic, Social and

Cultural Rights, all workers have the right to equal opportunity to be promoted to an

appropriate higher level, subject to no considerations other than those of seniority and

competence. Under their obligation to protect, States should adopt laws requiring

employers to apply merit-based and transparent promotion processes and to outline in their

29 See, for example, CEDAW/C/GRD/CO/1-5, para. 31; CEDAW/C/MUS/CO/6-7, para. 31; and

CEDAW/C/BHS/CO/1-5, para. 34.

30 See, for example, CEDAW/C/CZE/CO/5, para. 33.

31 See, for example, CEDAW/C/SGP/CO/4/Rev.1, para. 29.

32 See, for example, CEDAW/C/MDA/CO/4-5, para. 27.

33 See Committee on Economic, Social and Cultural Rights general comment No. 23 (2016), para. 44.

34 UN-Women, Transforming Economies, Realizing Rights, p. 10.

35 See, for example, CEDAW/C/BEL/CO/7, para. 32; and CEDAW/C/MEX/CO/7-8, para. 28.

internal human resources policies and procedures the safeguards against discrimination in

promotion.

61. Non-discrimination against women at work also entails pregnancy and maternity —

and the prospect thereof — not leading to disadvantages in the workplace nor affecting job

security. Maternity should not impede women’s opportunity for promotion. In some

countries maternity leave is counted in time accrued, for the purposes of seniority and

promotion. Adjustments made to accommodate expectant and nursing workers should not

lead to the downgrading of their position, or to the risk thereof. The practice of demoting

women upon their return from maternity leave should be proscribed.36

62. Violence, including sexual harassment, is an impediment to women’s equal

opportunities in the workplace. Furthermore, sexual harassment is discriminatory, as

rejection of advances often results in victims being denied recruitment and promotion and

in some cases has led them to resign from their positions. As such, States should enact

legislation outlawing sexual harassment, with the broadest definition possible. Legislation

should also prescribe specific duties on employers to prevent sexual harassment, and

procedures, based on confidentiality, for the notification and reporting of claims of sexual

harassment and for their resolution.37

63. Women workers should enjoy protection against unfair dismissal. Due to their

overrepresentation in pink-collar jobs and among those who are on short-term and

precarious contracts, women are more likely to be made redundant. It follows that, in

addition to promoting women’s access to higher-level positions, States should take

measures to prevent the abuse of short-term and other precarious contracts by employers,

which often occurs in order to circumvent the right of women to maternity leave and to

avoid paying social contributions.38

64. Lastly, dismissal due to pregnancy or maternity should also be prohibited. Standards

on this matter ban the termination of women’s employment contracts for a certain period of

time before and after childbirth. Yet, the practice of terminating women’s contracts during

or after the protection period is widely reported. The penalties for such unfair practices are

often not enough of a deterrent, with employers opting to pay the fines.

65. As part of their duty to protect, States should monitor the effectiveness of regulatory

provisions aimed at protecting women against unfair treatment on account of sex,

pregnancy or childbirth, ensuring that they have a dissuasive effect and that aggrieved

workers have access to effective remedies. Trade unions also play a key role in promoting

women’s equal rights at work, by guaranteeing, among other things, that collective

agreements do not lead to discrimination. As such, States should maintain a legal and

political environment that enables workers to exercise freely their trade union rights. It is

equally important that women are adequately represented in the decision-making bodies of

trade unions.39

C. Equal pay for work of equal value

66. The right to equal pay for work of equal value is enshrined in article 7 of the

International Covenant on Economic, Social and Cultural Rights and in the ILO Equal

36 See, for example, CEDAW/C/GRC/CO/7, para. 28.

37 See Committee on Economic, Social and Cultural Rights general comment No. 23 (2016), para. 48.

38 See, for example, CEDAW/C/MNE/CO/1, para. 28.

39 See, for example, CEDAW/C/SRB/CO/2-3, para. 26; CEDAW/C/TUN/CO/6, para. 36; and

CEDAW/C/ZAF/CO/4, para. 29.

Remuneration Convention, 1951 (No. 100). This entails equal remuneration for the

performance of similar jobs and of jobs that are “completely different but nonetheless of

equal value when assessed by objective criteria”.40 In this regard, treaty-monitoring bodies

have often drawn the attention of States parties to the fact that provisions on equal pay for

equal work fall short of the requirement of the principle of equal pay for work of equal

value.41

67. Studies show that discrimination in remuneration accounts for a large part of the

gender pay gap. Women are overwhelmingly paid less for the same work, but also, the

wages in sectors that predominantly employ women are lower than in other sectors. Indeed,

wages tend to diminish when more women enter a particular occupation, which

demonstrates the devaluation of work that is performed by women. 42 This systemic

discrimination in remuneration is one of the reasons why women’s educational

achievements have not generated commensurate economic returns.

68. The Committee on Economic, Social and Cultural Rights recommends that States set

time-bound targets for achieving gender equality in remuneration.43 Measures to be taken in

this regard include adopting legislation that guarantees the right to equal remuneration for

work of equal value, and mandating labour inspectorates to investigate claims of unequal

remuneration. Moreover, States should promote objective appraisals of jobs on the basis of

the work to be performed and require employers to progressively decrease the differentials

between rates of remuneration for men and rates of remuneration for women for work of

equal value.44 The Committee on Economic, Social and Cultural Rights clarifies that “the

extent to which equality is being achieved requires an ongoing objective evaluation of

whether the work is of equal value and whether the remuneration received is equal.”45

Discriminatory practices, such as the payment of larger wage bonuses to men, based on

social norms of men as breadwinners, should also be abandoned. 46 Some States have

enacted laws providing for mandatory gender equality plans and mandatory reporting by

employers, for example on the transparency of salary policies and mechanisms for reporting

instances of discrimination.

69. Evaluation of jobs across industries and professions should be conducted by States,

with a view to narrowing gender pay gaps. In its general recommendation No. 13 (1989) on

equal remuneration for work of equal value, the Committee on the Elimination of

Discrimination against Women recommends that States consider adopting “job evaluation

systems based on gender-neutral criteria” to assess the value of jobs across organizations,

professions and industries. The Committee on Economic, Social and Cultural Rights has

further developed this concept, stating that such criteria should include “skills,

responsibilities and effort required by the worker, as well as working conditions”.47 In

practice, States should provide support to social partners so that collective bargaining in

sectors where women are predominant could lead to re-evaluation of wages in those

40 See Committee on Economic, Social and Cultural Rights general comment No. 23 (2016) on the right

to just and favourable conditions of work, para. 11.

41 See, for example, E/C.12/JAM/CO/3-4, para. 14; E/C.12/NZL/CO/3, para. 14; and

CEDAW/C/CPV/CO/7-8, para. 26.

42 Asaf Levanon and others, “Occupational feminization and pay: assessing causal dynamics using

1950-2000 U.S. census data”, Social Forces, vol. 88, No. 2 (December 2009), pp. 865-892.

43 See Committee on Economic, Social and Cultural Rights general comment No. 23 (2016), para. 15.

44 ILO, Equal Remuneration Recommendation, 1951 (No. 90), arts. 4 and 5.

45 See Committee on Economic, Social and Cultural Rights general comment No. 23 (2016), para. 12.

46 See, for example, CEDAW/C/BLR/CO/7, para. 32.

47 See Committee on Economic, Social and Cultural Rights general comment No. 23 (2016), para. 12.

sectors. 48 Some States have also undertaken nationwide equal pay campaigns, raising

awareness of the illegality of discrimination in remuneration.

V. Women’s unpaid work

70. Women carry out the bulk of unpaid caregiving and household work in society,

which keeps them out of the workforce and public life. In addition to social norms, the lack

of affordable care services and the gender remuneration gap perpetuate women’s

disproportionate engagement in unpaid care work.

71. The gender disparities in the allocation of unpaid work impedes girls’ and women’s

equal enjoyment of their rights to education, work and an adequate standard of living, and

of other rights, and impedes their social and economic empowerment. While men engage in

remunerative and productive activities, women, who are often burdened by unpaid work,

have limited options to participate in public life and to seek decent employment. Often,

they are compelled to resort to precarious part-time and temporary employment. The

cumulative impact of unpaid work on the situation of the rights of older women is also

considerable. With little to no pension and retirement savings, some older women who have

spent a significant part of their life in unremunerated work may be denied a large range of

their rights, including the right to an adequate standard of living, the right to health, and the

right to be protected against abuse. Moreover, the rights of persons receiving support may

also be affected, in that caregivers may not always be able or qualified to provide adequate

care.

72. The social and economic contributions of unpaid work have remained largely

invisible and undervalued. Yet, in essence, women’s unpaid work “subsidizes” the

provision of care, by filling unmet demands for public or affordable services. It is estimated

that women’s unremunerated work could amount to between 10 and 39 per cent of a given

country’s gross domestic product.49 Most national economic and social policies have failed

to accord due consideration to this barrier to women’s equal participation in the labour

market and public life.

73. States’ policies affect the extent of women’s engagement in unpaid care. In her 2013

report, the Special Rapporteur on extreme poverty and human rights underlines that State

policies determine who has access to care services and also who does not50 and is thus

obliged to fill the gaps through unpaid care work — this is usually girls and women.

Moreover, the availability of social, household and public infrastructure influences the

amount of time that women spend on household work. Consequently, in addition to

mending the gender-based division of work, the core of public policies that are aimed at

addressing women’s unpaid work should be anchored in social protection, recognition of

the value of unpaid work, and the availability of time-saving domestic technologies and

public infrastructure. Part of this approach has been framed by Diane Elson as the “triple

R”: recognize, reduce and redistribute.51

74. Any effort to effect change on women’s burden of unpaid work should start with

recognition of the social and economic value of the work. This entails acknowledging that

48 See, for example, CEDAW/C/NOR/CO/8, para. 30.

49 Debbie Budlender, The Statistical Evidence of Care and Non-Care Work Across Six Countries,

(Geneva, United Nations Research Institute for Social Development, 2008), p. 38.

50 See A/68/293, para. 8.

51 Diane Elson, “The three R’s of unpaid work: recognition, reduction and redistribution”, paper

presented at the Expert Group Meeting on Unpaid Work, Economic Development and Human

Well-being (UNDP, 2008).

care, hitherto performed primarily by women, enables other members of society to enjoy

their human rights at the expense of those women’s enjoyment of their own human rights.

Such recognition should inform States’ social, economic and fiscal policies. In order to

measure the economic worth of the unpaid work done by women, States could collect

statistical data, embark on a valuation process, and incorporate unpaid work in the gross

national product. This exercise could also lead to a better valuation of wages in care-related

industries.

75. Posited on the principle that care is a collective responsibility, the social protection

system is a critical tool for redistributing the burden of unpaid care on women and for

mitigating its impact on older women. In its general comment No. 19 (2007) on the right to

social security, the Committee on Economic, Social and Cultural Rights recommends that

States develop schemes for covering, among other things, family and child support, and

sickness and disability, to meet the needs for assistance and other related expenses and to

enable carers to fulfil their responsibilities. These benefits, which could be in the form of

cash entitlements and social services, should be available and accessible, especially for

disadvantaged and marginalized individuals and households, including those working in the

informal economy. Taking into account the resources and circumstances of the

beneficiaries, they should also be adequate in amount, form and duration, so that care can

be outsourced, for example. In this regard, the inclusion of care in social protection floors is

of critical importance. Other good practices include allowing for care expenses to be

deductible from income tax.52

76. States should alleviate the effect of career interruptions for unpaid care on older

women’s income, through social protection. States could, for instance, design non-

contributory pensions to ensure older women’s right to social security and to offset losses

of earnings due to periods of unpaid care work. Another good practice is factoring women’s

involvement in unpaid care into the determination of benefits under contributory schemes,

by considering periods of child-rearing or care of dependents in the calculation of pension

entitlements.

77. States should be mindful of the impact of economic policies on women’s unpaid

work. Reductions in public social services, prompted by funding cuts in the context of

austerity measures, could result in additional demands for unpaid care work on families,

compelling some women to give up remunerated work.53 At the same time, those who

remain in employment end up carrying a heavier burden. Although the Committee on

Economic, Social and Cultural Rights and many other human rights mechanisms

recommend that austerity measures should not disproportionately affect the rights of

disadvantaged and marginalized individuals and groups, the gendered effect of budgetary

cuts on unpaid care work is often overlooked by impact assessments.54

VI. Conclusions

78. The commitments made with the recent adoption of the Sustainable

Development Goals — especially goal 8 (target 8.5, under goal 8, “Promote sustained,

inclusive and sustainable economic growth, full and productive employment and

decent work for all”) and goal 5 (“Achieve gender equality and empower all women

and girls”), together with the requirement contained in the 2030 Agenda that the goals

52 See, for example, CEDAW/C/MLT/CO/4, para. 20.

53 Francesca Bettio and others. The Impact of the Economic Crisis on the Situation of Women and Men

and on Gender Equality Policies (Luxembourg, European Commission, 2013).

54 See, for example, A/HRC/26/39.

be implemented in a manner consistent with the obligations of States under

international law — should give a political impetus to advancing women’s equal right

to work worldwide.

79. Equality and non-discrimination are fundamental human rights guarantees

which apply to the right to work. They also give rise to an immediate obligation for

States to eliminate discrimination against women in the exercise of the right to work,

in terms of equal opportunities and equality of outcomes. In this vein, addressing the

gender-related dimensions of the right to work is crucial, as the labour market reflects

the social prejudices and disadvantages that undermine equality and dignity.

80. The close nexuses between the right to work and other human rights warrant a

life cycle and rights-based approach as well as multisectoral interventions. To achieve

substantive equality, macroeconomic policies should promote the creation of decent

jobs for women, and targeted measures should be integrated into employment policies

to strengthen women’s employability and reduce their engagement in precarious jobs.

81. Labour regulations and policies should provide for specific tools for combating

discrimination in the workplace such as wage disparities and sexual harassment. Such

regulations and policies should pay particular attention to domestic workers, migrant

workers and women with disabilities, whose labour rights are often violated. They

should also provide for conditions and treatment that take into account biological

differences between men and women. At the same time, laws and regulations would be

of limited utility without access to effective remedies by victims and without

monitoring and enforcement mechanisms that are sensitive to violations of women’s

labour rights in the workplace.

82. Sustained efforts are needed to correct the deeply entrenched gender

stereotypes that obstruct women’s equal access to opportunities. Adjustments in social

protection systems and investment in infrastructure are also necessary in order to

alleviate women’s burden of unpaid care. More generally, greater involvement by

women in policymaking and law-making processes and in trade union leadership is

called for so that their experiences and views are taken into account.

83. The impact of all measures taken should be monitored against time-bound

goals, on the basis of process and outcome indicators, 55 in the light of States’

obligation to progressively realize the right to work. States are also bound by their

obligation to use their maximum available resources in this process.

55 OHCHR, Human Rights Indicators: A Guide to Measurement and Implementation (Geneva, 2012).