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R.K.B. v. Turkey (Communication No. 28/2010)

On 24/02/2012 in

Year: 2012 (Date of Decision: 24 February, 2012)

Forum, Country: UN CEDAW; Turkey

Standards, Rights: Non-discrimination and equal protection of the law; Right to decent work; Women

Summary Background: In this case, the issue at stake was whether the complainant (or “author” of the communication) had been unjustifiably dismissed from her workplace on the basis of gender stereotypes. While she had been fired due to a rumour that she had had an extra-marital affair with a male colleague, her male co-worker’s contract was not terminated. Before leaving, under threat of the spread of rumours of her relationship with other men, she was pressured, but refused, to sign a document that attested that she had benefited from all her rights under contract. Local courts had found in her favour but did not reference gender discrimination.

Holding: The Committee found that the local Turkish courts [State institutions] failed to give due consideration to the clear, prima facie indication of infringement of equal treatment in the field of employment [para. 8.6]. By scrutinizing in the course of the case, the moral integrity of only the author (a female employee) but not that of male employees, the courts revealed their lack of gender sensitivity in breach of Committee observations in General Recommendation No. 28 (2010) [paras. 8.6-8.7]. The Committee emphasized that full implementation of the Convention imposes an obligation on States parties not only to take steps to eliminate direct and indirect discrimination and improve the de facto position of women, but also to modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and consequence of discrimination against women. The Committee was of the view that gender stereotypes are perpetuated through a variety of means and institutions including laws and legal systems and that they may be perpetuated by State actors in all branches and levels of government and by private actors. In this case, the courts had helped perpetuate gender stereotyping [para. 8.8].

The Committee concluded that the author’s rights against gender stereotyping and gender discrimination as guaranteed under ICEDAW had been violated. Accordingly the Committee held that appropriate reparation should be provided to the author; that the State should take measures to implement laws on gender equality in the workplace; and that the State should provide training to judges, lawyers and law enforcement personnel on the Convention and women’s rights so as to ensure that stereotypical prejudices and values do not affect decision-making [para. 8.10].

Additional Comments: The decision highlights that merely adopting Comments: legislation protecting rights is never sufficient. Proper enforcement is key to the effective realization of rights.

Link to Full Case: http://www2.ohchr.org/english/law/jurisprudence.htm, direct link: http://www2.ohchr.org/english/law/docs/CEDAW/CEDAW-C-51-D-28-2010_en.doc

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Public Service Alliance of Canada v. Canada Post Corporation and Canadian Human Rights Commission

On 17/11/2011 in

Year: 2011 (Date of Decision: 17 November, 2011)

Forum, Country: Supreme Court; Canada

Standards, Rights: Non-discrimination and equal protection of the law; Reasonableness; Right to decent work; Women

Summary Background: The Canadian Supreme Court reviewed a decision of the Canadian Human Rights Tribunal (CHRT) regarding a claim by the Public Service Alliance of Canada (PSA) that employees in the male-dominated Postal Operations Group were paid more than employees in the female-dominated Clerical and Regulatory Group for work of equal value, contrary to section 11

(1) Where a complaint alleging a difference in wages is filed by or on behalf of an individual who is a member of an identifiable occupational group, the composition of the group according to sex is a factor in determining whether the practice complained of is discriminatory on the ground of sex. (2) In the case of a complaint by an individual, where at least two other employees of the establishment perform work of equal value, the weighted average wage paid to those employees shall be used to calculate the adjustment to the complainant’s wages.
of the Canadian Human Rights Act (“equal wages” provision.) Using job evaluations to determine the comparability of the work of the two groups of employees, the CHRT had determined that there was sufficient evidence of wage discrimination between 1982 and 2002. Canada Post commenced judicial review proceedings in the Federal Court, where the CHRT’s decision was overturned.

On appeal to the Federal Court of Appeal, the majority agreed with Canada Post that the CHRT decision was unreasonable, as the use of job evaluations did not meet the requisite standard of proof to support a finding that wage discrimination had taken place. The PSA appealed to the Supreme Court of Canada.

Holding: The Supreme Court endorsed the reasons of the dissenting Evans J.A from the Federal Court in support of the initial decision by the CHRT. This was based on the arguments that the CHRT was reasonable in using the Postal Operators group as the male-dominated comparator, even though this group included a large number of highly paid women [para. 5]. Justice Evans reaffirmed that this did not preclude the existence of systemic gender discrimination elsewhere in the corporation [para. 69]. Secondly, Evans J.A. supported the CHRT’s reliance on the job evaluations and its application of the “balance of probabilities” standard of proof in finding that a wage gap existed between the two groups [para. 68]. He reiterated the Tribunal’s discretion in choosing a methodology to determine the existence and extent of a wage gap, and that it did not act “unreasonably” in adopting one proposed by the CHRC. Finally, Evans J.A and the Supreme Court emphasized the high degree of discretion awarded to specialized tribunals in their determination of appropriate remedies. The Tribunal at first instance did thus not err in awarding compensation to “make the victims whole,” while reducing the cost of the damages where the magnitude of the damage was uncertain.

The decision of the CHRT was subsequently restored, requiring Canada Post to compensate 50 per cent of the wage gap between the two groups over the twenty-year period.

Link to Full Case: Public Service Alliance of Canada v. Canada Post Corp., 2011 SCC 57, [2011] 3 S.C.R. 572, available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7975/index.do

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Decision T-841

On 03/11/2011 in

Year: 2011 (Date of Decision: 3 November, 2011)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Children; Women

Summary Background: An injunction was filed in this case to safeguard a juvenile’s human right to health, in particular, her mental health. The girl’s doctor had ascertained that her pregnancy posed a risk to her mental health, which qualifies as one of the circumstances under which a legal abortion can be performed in Colombia. However, a particular health administrator that was part of the Colombian social insurance system was said to have unreasonably created so many administrative obstacles that the girl was compelled to continue her pregnancy even thought this was detrimentalto her health.

Holding: The Court, citing applicable international human rights instruments including the ICESCR, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, strongly affirmed women’s rights to reproductive autonomy and access to health services without discrimination [para. 22], especially in cases where the reproductive rights of juveniles are at stake.

The Court emphasized that the health administrators operating as part of the social insurance system have an obligation to provide adequate and timely access to health services including abortion [paras. 17. III and 35]. In this case, the administrator ignored this obligation and posed a grave risk to the child’s health, on the basis of a mere technicality [para. 21].

The Court ordered the health administrator in question to pay appropriate compensation and prohibited the imposition of additional conditions that unreasonably delay access to abortion services in future cases, for example requiring a waiting period or requiring necessary certification from only an affiliated doctor.

Link to Full Case: http://www.corteconstitucional.gov.co/relatoria/2011/t-841-11.htm

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Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, W.P.(C) No. 8853 of 2008

On 06/04/2010 in

Year: 2010 (Date of Decision: 6 April, 2010)

Forum, Country: High Court; India

Standards, Rights: Right to life; Right to health; Right to adequate food; Women; Children

Summary Background: This case addressed separate petitions dealing with the violation of the constitutional and reproductive rights of two women below the poverty line who were denied access to adequate maternal care, both during and immediately after their pregnancies. Lack of access to health services resulted in the death of one of the women.

Holding: The Court ruled that there had been a complete and systemic failure on the part of the Government to effectively implement the pre- and post-natal services available under State-sponsored schemes to reduce maternal and infant mortality. This severely affected not just the two women on whose behalf the petitions were brought, but also a large number of women and children placed in similar positions across the country [paras. 1, 2 and 40].

The Court underscored how the petition focused on two inalienable survival rights that form part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother. The other right, calling for immediate protection and enforcement in the context of the poor, was the right to food [paras. 2 and 19]. Drawing on international human rights law and national jurisprudence, the Court illustrated how all these rights are interrelated and indivisible. The legal basis on which the Court determined this case and found violations of core constitutional rights was essentially the need to preserve, protect and enforce the different facets of the human right to life protected under article 21 of the Constitution [paras. 19-27].

The judgement considered that the onerous burden on the poor to prove their eligibility for health services, exemplified by the requirement to show a valid ration card to access services, constituted a major barrier for them to access services; and emphasized that the Government had an obligation to create easier access to these essential services and ensure coverage of as much of the target population as possible [para. 48].

The Court declared that: “when it comes to the question of public health, no woman, more so a pregnant woman should be denied the treatment at any stage irrespective of her social and economic background. This is where the inalienable right to health which is so inherent to the right to life gets enforced” [para. 48].

Additional to compensation for the claimants [paras. 55 and 56-61], the Court determined that maternal health schemes themselves needed reform; that access to health services should be available across the State; that clarification be made regarding overlapping provisions and gaps in the various schemes; and that the administration of these schemes be overhauled [para. 62 (i), (ii), (iii), (iv)].

Additional Comments: This case is particularly interesting in relation to the remedies and orders decided by the Court.

Link to Full Case: http://www.escr-net.org/sites/default/files/Mandal_Court_Decision.pdf

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