Message: Svetlana Medvedeva v. the Russian Federation. Message No. 60/2013. The opinion was adopted by the Committee on February 25, 2016.
In 2013, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Russian Federation.
The Committee's legal position: paragraphs (d) and (f) of article 2 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 repeal of any laws that result in discrimination or lead to to her 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. The Committee further notes that article 253 of the Labour Code and Resolution No. 162 of February 25, 2000 (Resolution 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.") prohibit the use of women's labor in 456 specialties and in 38 areas of professional activity, and that the Committee has not received any evidence indicating that the inclusion of the position of a motorist-the helmsman is included in the list of jobs in which the use of women's labor is prohibited, justified by scientific data on the harmful effects of this type of activity on a woman's reproductive health. The Committee notes that the State party refers to high noise levels, but does not provide any evidence that such noise levels may adversely affect a woman's reproductive health (paragraph 11.3 of the Opinion).
The Committee is of the opinion that the introduction of such legislation 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 recalls... 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 the restrictions necessary for the protection of maternity in the strict sense of the term, and to encourage and facilitate the employment of women in previously prohibited areas of professional activity by improving working conditions and taking appropriate temporary special measures (CEDAW/C/RUS/CO/8, paragraphs 33-34). The Committee concludes 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 Opinion).
In accordance with article 2, paragraph (c), 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 paragraph (e) of article 2 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 public institutions, effective protection of women from any act of discrimination and to take all appropriate measures Measures to eliminate discrimination against women by any person, organization or enterprise (paragraph 11.4 of the Opinion).
Paragraph (1) (f) of article 11 of the Convention should be read in conjunction 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. The Committee notes that the adoption of a list of 456 specialties and 38 industries is contrary to the State party's obligations under the Convention, as it establishes different treatment for men and women, does not in any way promote the employment of women and is based on discriminatory stereotypes. Moreover, the employment 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, does 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 highest qualifications among applicants for the position. The Committee further notes that the existing extensive list may affect the selection of staff by the employer (paragraph 11.7 of the Opinion).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that her rights under article 1, paragraphs (c), (d), (e) and (f) of article 2, and paragraphs (1) (b), (c) and (f) of article 11 of the Convention they were violated due to the fact that, 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 and Resolution No. 162, and secondly, The State party has not obliged the employer to take reasonable measures to change working conditions in such a way as to make them suitable for women. The Committee... Notes that the State party does not deny the fact of differential treatment based on gender, but argues that such treatment is prescribed by national legislation and refers 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 cannot be considered discriminatory. The State party... indicates that the employer's refusal to hire a woman to perform the work listed in the list cannot be considered discrimination if the employer has not created safe working conditions for these jobs, which is confirmed by the results of a special certification of workplaces (paragraph 11.2 of the Opinion).
The Committee notes 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 considers that the State party's courts have turned a blind eye to the discriminatory actions of a private company. In these circumstances, the Committee considers that the State party has 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) (See communication No. 28/2010, "R.K.B. v. Turkey", Views adopted on February 24, 2012, paragraph 8.6.).
With regard to the author's claim of a violation by the State party of her rights under article 11, paragraphs (1) (b) and (c), the Committee takes into account her arguments that the refusal to hire as a motorist and the confirmation of this decision by the courts de facto means for her a ban on the exercise of the right to employment in accordance with the education received, since the profession of a boatmaster technician in any case automatically implies working in conditions that are determined by the State party as dangerous for women. The Committee takes into account that the State party has done almost nothing to challenge this allegation. The Committee notes that the refusal of employment puts the author in a position where she cannot earn a living in the profession she studied, which has adverse economic consequences for her... The Committee concludes that the current legislation does not ensure, on the basis of equality of men and women, the rights to the same employment opportunities, including the application of the same selection criteria for recruitment. The Committee... Notes that, within the framework of current legislation, the author will not be able to get equal opportunities when hiring for those positions for which she is entitled to apply by virtue of her education, unless employers decide[e] on the creation of safe working conditions; however, only employers themselves can decide on the implementation of additional measures to create safe working conditions for women and pass the necessary certification. In the light of the above, the Committee considers that the refusal of employment to the author on the basis of a general provision of the law constitutes a violation of her rights to equal employment opportunities and free choice of profession and type of work in accordance with paragraphs (1) (b) and (c) of article 11 [of the Convention], and consequently, the author's rights under these provisions, violations were committed, and the judicial authorities of the State party did not take 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), 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, taking into account the opinion of the Russian Trilateral Commission on the Regulation of Social and Labor Relations. He... Took into account 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 introduced 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 considers that article 253 of the Labour Code and Resolution No. 162 of 25 February 2000, as applied in the author's case, do not comply with the State party's obligations under article 11, paragraph (1) (f), 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 is a violation of her rights to health and safe working conditions on an equal basis with men in accordance with paragraph (1) (f) of article 11 of the Convention (paragraph 11.7 of the Opinion).
The Committee's conclusions: The State party violated the author's rights under paragraphs (c), (d), (e) and (f) of article 2 and paragraphs (1) (b), (c) and (f) of article 11 of the Convention (paragraph 12 of the Opinion).
The Committee makes the following recommendations to the State party:
(a) With regard to the author of the communication: to compensate the author for the damage suffered and to pay appropriate compensation commensurate with the seriousness of the violation of the author's rights, and to ensure her access to work for which she is appropriately qualified.
- b) In general:
- i) review and amend article 253 of the Labor Code and periodically review and amend the restrictive list of specialties and industries established by Resolution No. 162 so that it includes only the restrictions necessary for the protection of maternity in the strict sense of this concept and the creation of special conditions for pregnant women and nursing mothers, and does not make it difficult women's access to employment and remuneration due to gender stereotypes
(ii) After reducing the restrictive list of professions and industries, 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 (paragraph 13 of the Opinion).