The case of Svetlana Medvedeva v. the Russian Federation. Opinions of the Committee on the Elimination of Discrimination against Women dated February 25, 2016. Communication No. 60/2013.
In 2013, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Russian Federation.
The Committee recognized that the refusal to hire the author of the communication as a motorist-helmsman in compliance with the Decree of the Government of the Russian Federation of February 25, 2000 No. 162 "On approval of the list of heavy work and work with harmful or dangerous working conditions in which the use of women's labor is prohibited" constituted a violation of the provisions of articles 2, 11 The Convention on the Elimination of All Forms of Discrimination against Women.
As seen from the text of the Opinions, the author believed that the company refused her employment on the basis of gender on the basis of a prohibition expressly provided for by law. She argued that such a difference in treatment was discriminatory and did not comply with the Convention, and that neither article 253 of the Labor Code of the Russian Federation (hereinafter also the Labor Code of the Russian Federation) nor the Decree of the Government of the Russian Federation dated February 25, 2000 No. 162 "On approval of the list of heavy work and work with harmful or dangerous working conditions in the performance of which the use of women's labor is prohibited, " they do not explain the motives underlying the complete ban. The ban in question is aimed at protecting women's reproductive health. However, it applies to all women regardless of age, marital status, ability and desire to have children or personal circumstances.
The Committee's legal position: paragraphs "d" and "f" of article 2 of the Convention on the Elimination of All Forms of Discrimination against Women establish the obligation of States parties to repeal or amend discriminatory laws and regulations, to refrain from committing any acts or actions that constitute direct or indirect discrimination against women, and to ensure the abolition of any laws that result in discrimination or lead to its generation. The Committee notes that provisions concerning the protection of persons working in dangerous or difficult conditions should be aimed at protecting the health and safety of both men and women in the workplace, taking into account gender differences that lead to specific health risks (paragraph 11.3 of the Opinion).
In accordance with article 2, paragraph (c), of the Convention on the Elimination of All Forms of Discrimination against Women, States parties must ensure that the courts necessarily apply the principle of equality enshrined in the Convention and, when interpreting the law, proceed as far as possible from the obligations of States parties under the Convention. The Committee recalls that article 2 (e) of the Convention establishes the obligation of States parties to seek the elimination of discrimination by any public or private entity and requires them to establish legal protection of women's rights on an equal basis with men, to ensure, through competent national courts and other State institutions, effective protection of women from any act of discrimination and to take All appropriate measures to eliminate discrimination against women by any person, organization or enterprise (paragraph 11.4 of the Opinions).
Subparagraph "f" of paragraph 1 of article 11 of the Convention should be considered together with articles 2 and 3. In accordance with these provisions, the State party undertakes to ensure equal measures for men and women to protect reproductive functions and create safe working conditions in all areas of professional activity, instead of imposing prohibitions on the use of women's labor in certain types of work and leaving the issue of creating safe working conditions to the discretion of the employer. In cases where the State party needs to deviate from the principle described above, it needs to have serious medical and social data indicating the need to ensure the protection of pregnancy and motherhood or other gender factors (paragraph 11.7 of the Opinion).
The Committee's assessment of the factual circumstances of the case: Article 253 of the Labor Code of the Russian Federation (hereinafter also referred to as the Labor Code of the Russian Federation) and Resolution of the Government of the Russian Federation No. 162 of February 25, 2000 (Resolution of the Government of the Russian Federation No. 162 of February 25, 2000 "On approval of the list of heavy work and work with harmful or dangerous working conditions, when performing which prohibit the use of women's labor.") prohibit the use of women's labor in 456 specialties and in 38 areas of professional activity. The Committee has not received any evidence indicating that the inclusion of the position of a motorist-helmsman in the list of jobs in which the use of women's labor is prohibited is justified by scientific data on the harmful effects of this type of activity on a woman's reproductive health. The Committee noted that the State party refers to high noise levels, but has not provided any evidence that such noise levels may adversely affect a woman's reproductive health (paragraph 11.3 of the Opinion).
The Committee was of the opinion that the introduction of such a legislative norm reflects persistent stereotypes regarding the roles and responsibilities of women and men in the family and society, which preserve traditional ideas about a woman as a wife and mother and undermine her social status and educational and career prospects. The Committee recalled that, in its Concluding observations on the State party's eighth periodic report, it expressed concern about the existence of an excessively restrictive list of professions and professional fields to which women are denied access, and recommended that the State party revise this list so that it includes only restrictions necessary for the protection of maternity in the strict sense this concept, and to encourage and facilitate the employment of women in previously prohibited fields of professional activity by improving working conditions and taking appropriate temporary special measures (CEDAW/C/RUS/CO/8, paras. 33-34). The Committee concluded that the above-mentioned legislative provisions prevent the State party from fulfilling its obligations under paragraphs "d" and "f" of article 2 of the Convention (paragraph 11.3 of the Opinions).
We are talking about the above-mentioned Article 253 of the Labor Code of the Russian Federation and the decree of the Government of the Russian Federation dated February 25, 2000 No. 162 "On approval of the list of heavy work and work with harmful or dangerous working conditions, in which the use of women's labor is prohibited." The said decree of the Government of the Russian Federation became invalid on January 1, 2021 in connection with the adoption of the Decree of the Government of the Russian Federation dated August 4, 2020 No. 1181 "On the Invalidation of Certain Acts and Certain Provisions of Certain Acts of the Government of the Russian Federation and on the cancellation of acts and certain Provisions of acts of federal executive authorities containing mandatory requirements, compliance with which is assessed during control measures in the implementation of federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, and federal state control (supervision) in the field of social services."
The Committee took into account the author's claim that her rights under article 1, paragraphs "c", "d", "e" and "f" of article 2, and subparagraphs "b", "c" and "f" of paragraph 1 of article 11 of the Convention were violated because, firstly, despite the fact that she was initially selected to fill the position of a motorist-helmsman, she was subsequently denied employment on the basis of gender on the basis of the prohibition established by Article 253 of the Labor Code of the Russian Federation and Resolution No. 162, and, secondly, the State party did not oblige the employer to take reasonable measures to changes in working conditions in this way, to make them suitable for women. The Committee noted that the State party did not deny the fact of differential treatment based on gender, but argued that such treatment was prescribed by national legislation and related to special measures taken to protect women in certain types of work, taking into account the physiological characteristics of their body, including the ability to procreate, and therefore could not be considered discriminatory. The State party indicated that the employer's refusal to hire a woman to perform the jobs listed in the list could not be considered discrimination if the employer did not create safe working conditions for these jobs, as confirmed by the results of a special workplace certification (paragraph 11.2 of the Opinion).
The Committee noted that in the present case, the courts of the State party recognized as lawful the refusal to hire the author as a motorist, leaving without consideration her claim that this refusal was discriminatory towards her and infringed on her interests on the basis of gender, and did not find legitimate grounds to oblige the employer to create safe conditions for the employment of women. The Committee considered that the courts of the State party had turned a blind eye to the discriminatory actions of a private company. In these circumstances, the Committee concluded that the State party had violated its obligations under article 2, paragraphs (c) and (e), read in conjunction with article 1 of the Convention, by failing to ensure the practical application of the principle of equal treatment provided for in the Convention and the Constitution and the effective protection of women from any acts of gender discrimination (paragraph 11.4 of the Opinion).
With regard to the author's claim of a violation by the State party of her rights under article 11, paragraph 1 (b), (c) of the Convention, the Committee took into account her arguments that the refusal to hire as a motorist and the confirmation of this decision by the courts de facto means that she is prohibited from exercising the right to employment in accordance with the education received, since the profession of a boatmaster technician in any case automatically implies the author's work in conditions that are determined by the State party as dangerous for women. The Committee drew attention to the fact that the State party had done almost nothing to challenge this allegation. The Committee stressed that the refusal of employment put the author in a position where she was unable to earn a living in the profession she studied for, which had adverse economic consequences for her. The Committee concluded that the legislation did not ensure, on the basis of equality of men and women, the right to the same employment opportunities, including the application of the same selection criteria for recruitment. The Committee noted that, within the framework of current legislation, the author was unable to obtain equal employment opportunities for those positions for which she is entitled to apply by virtue of her education, unless employers decide to create safe working conditions; however, only employers themselves can decide to implement additional measures to create safe working conditions for women and pass the necessary certification. In the light of the above, the Committee considered that the refusal of employment to the author on the basis of a general provision of the law constituted a violation of her rights to equal opportunities with men in employment and free choice of profession and type of work in accordance with subparagraphs "b" and "c" of paragraph 1 of article 11 of the Convention, and consequently, the author's rights under these provisions were violations have been committed, and the judicial authorities of the State party have not taken measures to remedy the violation. With regard to the author's claim of a violation by the State party of her rights under article 11, paragraph 1 (f), of the Convention, the Committee took note of the State party's argument that the list of industries, professions and positions with harmful or dangerous working conditions in which the employment of women is restricted was approved in accordance with the procedure, determined by the Government of the Russian Federation, taking into account the opinion of the Russian Trilateral Commission on Regulation of Social and Labor Relations. The Committee took note of the State party's contention that the psychophysiological characteristics of the body of workers were taken into account when setting specific restrictions on the use of women's labor, and that these restrictions were imposed in connection with the need to provide women with special protection from harmful factors of production that adversely affect the female body, in particular its reproductive function. According to the State party, when establishing the list of heavy work and work with harmful or dangerous working conditions, in which the use of women's labor is prohibited, it proceeded from the results of the certification of working conditions and the degree of influence of these conditions on the body of a working woman and its reproductive function. The Committee further took note of the State party's explanation that, in accordance with paragraph 1 of the notes to the list, an employer may decide to employ women in prohibited jobs, provided that safe working conditions are created (paragraph 11.6 Opinions).
The Committee noted that the adoption of a list of 456 specialties and 38 industries was contrary to the State party's obligations under the Convention, as it establishes different treatment for men and women, did not in any way promote the employment of women and is based on discriminatory stereotypes. Moreover, the recruitment procedure, in which individual employers have the right, at their own discretion, to decide on the employment of women in these jobs, subject to a guarantee of safety, did not comply with the requirements of the Convention, since the employer is not obliged to create safe working conditions or hire women even if they have the most highly qualified candidates for the position. The Committee stressed that the existing extensive list may affect the selection of staff by the employer. The Committee considered that article 253 of the Labor Code of the Russian Federation and Decree of the Government of the Russian Federation No. 162 of February 25, 2000, in the form in which they were applied in the author's case, did not comply with the obligations of the State party under subparagraph "f" of paragraph 1 of article 11 of the Convention. In the Committee's opinion, the refusal to employ the author on the basis of the above-mentioned provisions of the legislation was a violation of her rights to health and safe working conditions on an equal basis with men in accordance with subparagraph "f" of paragraph 1 of article 11 of the Convention (paragraph 11.7 of the Opinions).
The Committee's conclusions: The State party violated the author's rights under articles 2 and 11 of the Convention in the aspects studied (paragraph 12 of the Opinion).