Employment without discrimination: myth or reality?

The concept of discrimination in the world of work

Employment discrimination means treating people differently in the world of work because of characteristics that make them different from others that have nothing to do with merit or performance. For example, religion, skin color, race, gender and more.

The Labor Code does not contain a complete list of discriminatory circumstances, but in addition to those listed above, these include origin, property, family, social status, official position, age, place of residence, beliefs, non-membership, membership in social associations, social groups. These are circumstances that are not related to the business qualities of women or men.

The Russian Federation prohibits discrimination in the world of work, but today this problem is unresolved. This means that any motive other than that specified in Article 3 of the Labor Code of the Russian Federation violates the implementation of equal opportunities in the world of work, provided that this motive does not relate to the professional qualities of the employee.

In the Russian Federation, discrimination against workers' labor rights based on place of residence is daily practice. Failure to register a place of residence cannot become an official reason for refusal to hire; in practice, this often occurs.

Discrimination in labor and employment in Russia

Yatsenko Natalya Aleksandrovna is a student at Kuban State Technological University. (Krasnodar)
Kolesnikova Varvara Gennadievna - student of the Kuban State Technological University. (Krasnodar city)

Abstract: The article examines discrimination in the field of labor and employment and reveals the concept of “discrimination”. Particular attention is paid to ways to eliminate this problem on the part of citizens.

Key words: Discrimination, inequality, violation of rights, elimination of discrimination.

Today, discrimination in the sphere of labor is prohibited in Russia, as evidenced by Chapter 1, Article 3 of the Labor Code of the Russian Federation. The prohibition of discrimination in the world of work is aimed at ensuring that all citizens have equal opportunities to exercise their abilities to work. Unfortunately, real practice is still far from these requirements. Discriminatory practices in the field of labor relations are very diverse, and situations of violation of rights are numerous. Every day, thousands of workers in Russia face discrimination in the labor sphere. For example, opening any newspaper with job advertisements, it is not difficult to notice that the employer indicates the desired age of the candidate. Young people and people over 45 years of age are subject to age restrictions.

The current labor legislation contains a direct prohibition of refusal to hire for reasons not related to a person’s business qualities, i.e. including by gender, if this is not related to the nature of the work performed. A separate provision is made for the prohibition of refusing to hire or dismissing pregnant women and women with children under three years of age.

So what is employment discrimination? Discrimination in labor and employment means treating people differently and less favorably because of characteristics that are unrelated to their merit or the requirements of the job. Such characteristics include political views, people’s belonging to a particular race, gender, skin color, attitude to religion, nationality, social and official status, age. But it is worth considering that differences in treatment and remuneration cannot be considered discriminatory if they are based on differences in labor productivity.

Why is discrimination in the world of work a problem and why does it need to be eradicated? Let's answer this question. Both the development of human potential and human dignity depend on non-discrimination in the world of work. Eliminating discrimination is an essential prerequisite for people to be able to freely choose their career paths, develop their talents and abilities, and be rewarded in accordance with their merits and achievements. Discrimination leads to labor market inequality and unfair advantages. The fair and honest nature of labor relations helps to strengthen the employee's sense of self-esteem, morale and motivation.

Regulations prohibiting discrimination and affirming the principles of equality are a necessary but not sufficient condition. How can citizens protect themselves from discrimination in the world of work? First, if you are in doubt about the requirements for hiring, then ask the employer to point out the law that establishes certain additional requirements for hiring. Secondly, persons who have been discriminated against have the right to go to court with a statement of violation of the equality of citizens and appeal to a trade union. Citizens need to fight for their rights in all possible legal ways.

Unfortunately, discrimination in the world of work has existed and will continue to exist, changing its forms, methods of influence, acquiring a new essence. Therefore, it is necessary to formulate anti-discrimination legislation in Russia. It is also necessary, with the help of the media, to carry out explanatory work to protect the labor rights and freedoms of workers from discrimination and take other measures to eliminate discrimination in the field of labor and employment.

Bibliography:

1. Labor Code of the Russian Federation [Text]: // dated December 30, 2001 No. 197-FZ (as amended on July 28, 2012).
- Russian newspaper; Federal issue No. 256 dated December 31, 2001. 2. Gvozditskikh A. Prohibition of discrimination in the sphere of labor: general characteristics / A. Gvozditskikh // Issues of labor law. – 2010. – No. 6.- P.109-114. 3. Lyutov, N.L. Discrimination in the field of labor and occupation: problems of definition / N.L. Lyutov // Labor law in Russia and abroad. – 2011. – No. 4. – 20-24. 4. Demeneva, N.A. Discrimination in the world of work: problems of methodology / N.A. Demeneva // Labor law in Russia and abroad. – 2011.- No. 2. – p.19-22. Interesting article? Share it with others:

Types of discrimination in the labor sphere

There are several types of discrimination in labor law:

Wage discrimination. This problem is familiar to the economy of every country, when workers of equal qualifications and knowledge are differentiated in wages. This often happens in market economies where there is a significant influx of labor migrants, usually men. It is against such an unprotected part of the population that discrimination is carried out. Such discriminated groups of the population include visitors against locals, women against men.
Discrimination in hiring and firing. This type of discrimination concerns, first of all, young people with education but no work experience, disabled people, former prisoners, people of pre-retirement age and other workers.
Discrimination in career advancement. This type applies more to women, immigrants, and national minorities. In this type of discrimination, one can separately distinguish professional segregation - the division of professions of women and men.
Discrimination in education and training. This type of discrimination is based on material and financial differences and is latent (it is difficult to trace, because discrimination occurs unintentionally; people from low-income families are simply less likely to receive a good education).

What is not discrimination

Differences in treatment or remuneration are not discrimination, but only if such differences are based on differences in labor productivity.

This is due to the fact that some professions and specialties have different productivity compared to others. Also, different levels of communication and remuneration can be explained by differences in knowledge, education, qualifications, and abilities of workers. The higher all these levels, the higher the wages. After all, the higher these levels, the higher the productivity.

It is also worth noting that on the basis of the talent, knowledge, abilities, skills of a person, no matter women or men, a professional opinion about him and, therefore, treatment is formed. Different treatment is not discriminatory. After all, this subjective assessment of a face is formed by natural differences between people.

The most important thing is that, despite being treated differently, people are provided with equal opportunities in the labor sphere to realize their professional qualities.

Then the treatment is not considered discriminatory. For example, it is not considered discrimination to treat a disabled employee specially or provide him with special machinery or tools to work. It is also not discrimination against women to refuse to work in hazardous conditions; this also applies to pregnant women. As for men, we are talking, for example, about passing a medical examination as a pilot.

Protection of certain categories of citizens

The Labor Code of the Russian Federation has norms. The purpose of which is not to discriminate, but to protect certain categories of citizens. Their purpose is to ensure labor and health protection for persons who need increased legal and social protection. The law takes into account objective differences in physical characteristics, and therefore makes restrictions on the types of work. This often applies to women in professions with difficult working conditions, and pregnant women.

These standards include rules that prohibit employment for certain types of work without a medical certificate. Or regulations that impose additional requirements for occupying a certain position. Most often these are the professions of men - pilot, driver, etc.

The legislator's special attitude is expressed in the quotas for jobs for people with disabilities.

The law of the Russian Federation additionally established that differences, as well as preferences and exceptions and restrictions on the rights of workers, are also determined by the legal status of citizens in the Russian Federation. That is, there will be a different attitude towards people who work under a quota and those who work under a work permit. Specific requirements for hiring employees - foreign citizens. They must know Russian. But this is not discrimination. This just maintains the balance of the normal functioning of the country and is not a problem.

Controversial issues

Restrictions on hiring based on qualities not related to business characteristics are not classified as labor discrimination if:

the measure is dictated by the characteristics of work in a particular position;
when performing the designated range of responsibilities, the employer will not be able, for objective reasons, to provide increased social protection (if this is required in a particular case);
national security interests are affected.

A striking example of a controversial situation in identifying the composition of discriminatory actions can be the employment of a woman as a doctor in a company engaged in mining activities in underground mines. The employer refused to hire a woman for a vacant position as a medical employee, citing the Labor Code of the Russian Federation (Article 253) and Resolution No. 162 of February 25, 2000, which imply a ban on engaging women in hard work with harmful and dangerous working conditions.

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The employer is confident that he is right. A dispute may arise if we pay attention to the exception for women, whose work will not be associated with constant physical labor, but will be aimed at sanitary and domestic services. That is, women can be employed as doctors at enterprises carrying out underground work - the refusal in court will be considered unmotivated and discriminatory.

Discriminatory restrictions

The problem of separating the concept of discrimination in its pure form and restrictions of a discriminatory nature is clearly visible. If according to Art. 5.62 of the Code of Administrative Offenses of the Russian Federation, discrimination is a violation of the rights, freedoms and legitimate interests of a person depending on his gender, skin color, nationality, race, language, origin, etc., then restrictions of a discriminatory nature in the labor sphere are restrictions that entail discrimination .

Such restrictions include, for example, advertisements for hiring workers indicating age and gender. At the same time, indicating the quality of education is not considered a discriminatory restriction. It can affect work productivity. But indicating gender or marital status, or the number of children, or affiliation with a particular political party are fully discriminatory. However, this problem has not yet been resolved, despite the fact that administrative responsibility is provided for it.

Most often, discriminatory restrictions in the labor sphere are associated with certain stereotypes in people’s minds. This may be due to prejudice in the inability of people of a certain gender, education, or race to perform their work efficiently and productively, to religious intolerance. This applies to women and men of a certain age and nationality.

On the issue of discrimination in employment and employment of young women

UDC 349.2

Burtseva Svetlana Sergeevna – master’s student at the Law School of the Far Eastern Federal University.

Shcherban Artemy Vitalievich – master’s student at the Law School of the Far Eastern Federal University.

Abstract: The article is devoted to the problem of violation of the principle of equal rights and opportunities for men and women in the field of labor relations. Based on the analysis of judicial practice and statistics, the authors examined the reasons for the emergence of labor discrimination against women, the forms of its manifestation and ways of avoiding it by employers. At the end of the work, the authors proposed options for solving these problems.

Key words: Discrimination, differentiation, restrictions, employment contract, employment.

The provision prohibiting discrimination in the world of work is contained in Art. 3 of the Labor Code of the Russian Federation dated December 30, 2001 N197-FZ: “Everyone has equal opportunities to exercise their labor rights. No one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, beliefs, belonging or not belonging to public associations or any social groups, as well as other circumstances not related to the employee’s business qualities.” [8] However, despite the prohibition established by law, in practice employers somehow avoid complying with it, especially, according to many researchers, this applies to women of childbearing age (up to 28-33 years).

In relation to young women, this situation is due to their being forced to combine work with the birth and upbringing of children, which gives rise to many problems for the employer: the impossibility of attracting a woman to work overtime, work during irregular working hours, or send her on a business trip; a woman’s lack of time for additional training and advanced training. In addition, Chapter 41 of the Labor Code of the Russian Federation establishes a number of additional guarantees in relation to pregnant women and women with children under a certain age (one and a half, three years): maternity leave, child care, sick leave, guarantees for transfer to another job etc., which contribute to the loss of women’s skills and abilities, and also entail unnecessary costs for the employer. All these circumstances determine the unattractive attitude of employers towards young specialists.

In reality, there are various manifestations of discrimination against women and ways to overcome it, as evidenced by judicial practice.

Firstly, some employers avoid concluding an employment contract, replacing it with a contract agreement. Practice includes cases where citizens file a lawsuit against an employer to force them to enter into an employment contract and to recover moral damages. They motivate their demands by the fact that for a certain time the plaintiffs have been working for the defendants, who have not concluded an employment contract with them, and the relationship between the parties is formalized by a contract. The plaintiffs believe that the reason for avoiding concluding an employment contract is their pregnancy. Such requirements are fully satisfied. [2]

Secondly, there are often situations when employers generally avoid concluding an employment contract with a woman. For example, in one of the court disputes about reinstatement at work, it was established that the plaintiff was allowed by the defendant to perform work without drawing up an employment contract. In response to the plaintiff’s demands to conclude an employment contract in writing and to make an entry in the work book, the defendant, citing employment and problems, delayed satisfying the plaintiff’s legal demands, which lasted from the fall of 2010 until April 11, 2011. On this day, the defendant did not allow the plaintiff to perform work duties, having learned from the plaintiff about the fact of her pregnancy and returned the work book without a record of continuous work for a year with insults in the presence of employees and clients. However, the court established the fact of an employment relationship between them and partially satisfied the plaintiff’s demands. [4]

Thirdly, there are also cases when pregnant women, due to their situation, are forced to resign, because based on the provisions of Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur. An analysis of judicial practice has shown that coercion mainly occurs through threats, insults, creating stressful situations, and exerting psychological pressure, as a result of which women cannot stand such an attitude towards themselves and quit. [5]

Fourthly, women’s inequality also manifests itself in terms of pay. The ILO report, Global Wages 2016–17: Pay Inequality in Businesses, notes that the gender pay gap—the difference in average wages between men and women—remains a problem around the world. [1] Russia ranked 53rd out of 145 participating countries in terms of wage inequality between men and women. As experts from recruiting agencies told Vedomosti, women in Russia, although they occupy high positions in large companies, still lag far behind their male colleagues in the same positions in terms of salaries. [7]

Using the Primorsky Territory as an example, we note that as of 2012, women on average in the region received wages 1.4 times less than men. Young people, and in particular young women, are almost 2 times smaller than people belonging to the middle age group. [6, p.152]

Finally, the last type of discriminatory behavior in the employment and employment of women that I would like to talk about is the working conditions of women. It is worth noting that in the Russian Federation a differentiated approach is used in admission and employment, which seems correct. However, employers often replace the essence of differentiation and discrimination, and especially such situations arise when they refuse to hire women, allegedly on the basis of Article 253 of the Labor Code of the Russian Federation, which provides for limiting the use of women’s labor in jobs with harmful and (or) dangerous working conditions.

Complaints on this issue were considered not only by Russian courts, but also by the UN Committee on the Elimination of Discrimination against Women in terms of violations of the Convention on the Elimination of All Forms of Discrimination against Women. After considering such complaints, the UN Committee ordered Russia to revise the Labor Code (Article 253) and work more actively to ensure gender equality in employment. This position was explained by the fact that it is wrong to follow the path of restriction; it is necessary to create favorable conditions for women to work in hazardous working conditions by improving them and taking appropriate measures. [3]

Thus, an analysis of the employment and employment of women has shown that today there are many problems in this area that require resolution. In our opinion, the optimal solutions to these problems are the following:

Revise the provisions of Art. 253 of the Labor Code of the Russian Federation and Government Resolution No. 162 of February 25, 2000 “On approval of the list of heavy work and work with harmful and dangerous working conditions, during which the use of women’s labor is prohibited” in terms of obliging employers to take all possible measures to create favorable working conditions for women, and only if such a possibility objectively does not exist, refuse employment;
Develop a system of social partnership, which implies the proactive inclusion of trade union organizations, collective bargaining with the participation of female workers on issues of working conditions, including wages, rationing and tariffs;
Finally, the state should guarantee the economic stability and growth of enterprises and companies so that they have the opportunity to support a young employee who is pregnant or on maternity leave. Because The state itself is interested in increasing the birth rate; it should develop various social programs aimed not only at supporting young mothers, but also at encouraging employers.

Bibliography

Global wages 2016–2017: Wage inequality in enterprises / Decent Work Technical Support Unit and ILO Office for Eastern Europe and Central Asia. M.: ILO, 2021. P. 22.
Cassation ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan dated August 30, 2010. URL: https://rospravosudie.com/court-verxovnyj-sud-respubliki-bashkortostan-respublika-bashkortostan-s/act-103634150/. (date of access: 02.11.2018).
Review of judicial practice of the Supreme Court of the Russian Federation (approved by the Presidium of the Supreme Court of the Russian Federation on July 6, 2016), No. 2 (16). URL: https://supcourt.ru/Show_pdf.php?Id=10934 (access date: 11/04/2018).
Decision of the Kirovsky District Court of Ufa dated June 17, 2011 in case No. 2-3259/2011. URL: https://sudact.ru/regular/doc/Ppd5NY9IGex8/. (date of access: 03.11.2018).
Decision of the Odintsovo City Court of the Moscow Region dated June 15, 2017 in case No. 2-2202/2017. URL: https://sudact.ru/regular/doc/rsbTAFwXsxbn/. (date of access: 03.11.2018).
Rodionova I.V., Reznichenko V.D. Differentiation of income of the population: regional aspect // Russian Entrepreneurship. 2014. No. 23 (269). pp. 147-153.
Russian women are paid 30% less than men. URL: https://www.vedomosti.ru/management/articles/2015/11/24/618007-rossiiskim-zhenschinam-platyat-30-menshe-chem-muzhchinam. (date of access: 04.11.2018).
Labor Code of the Russian Federation: federal. Russian law Federation of December 30, 2001 No. 197-FZ: adopted by the State. Duma Feder. Collection Ross. Federation December 21, 2001: approved. Federation Council Feder. Collection Ross. Federation December 26, 2001 // Ross. gas. – 2001. – December 31.

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When restrictions of a discriminatory nature arise

Restrictions of a discriminatory nature can arise both in relation to a specific person and in relation to an unknown group of persons. Thus, if an employer issued an advertisement for a vacant position in which, among the requirements for the candidate, he indicated points that constitute a restriction of a discriminatory nature, then such restrictions are not directed against a specific person.

If an employer does not promote employees up the career ladder or slows down such advancement of employees due to restrictions of a discriminatory nature, then, as a rule, such a restriction is directed against a specific person.

Of course, from the point of view of consequences and motives, discrimination against an existing employee is worse. After all, primary discrimination is possible due to the fact that the employer needs to rely on some information when hiring an employee, so he hires women or men, this is his right.

But if the employer already knows about the employee’s abilities and skills, but neglects them due to prejudice and relies on discriminatory restrictions, then such actions are more dangerous and should be punished accordingly by the legislator. Moreover, the Russian Federation prohibits discrimination in the world of work. However, at the moment this is the problem.

Employment without discrimination: myth or reality?

The prohibition of discrimination in employment is one of the most important principles of modern labor law. The rules prohibiting discrimination are contained in Art. 2 of the Universal Declaration of Human Rights and numerous Conventions of the International Labor Organization1. In Russian legislation, provisions on the inadmissibility of discrimination in the sphere of labor are established in the Labor Code of the Russian Federation. Yes, Art. 2 of the Labor Code of the Russian Federation includes among the basic principles of legal regulation of labor relations the principle of ensuring equality of opportunity for workers without any discrimination for promotion at work, taking into account labor productivity, qualifications and work experience in the specialty, as well as for training and additional professional education. And in Art. 3 of the Labor Code of the Russian Federation lists types of discrimination: by gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, beliefs, membership or non-membership of public associations or any or social groups. In addition, certain norms of the labor code establish a prohibition of discrimination when concluding an employment contract (Article 64 of the Labor Code of the Russian Federation) and when paying for labor (Article 132 of the Labor Code of the Russian Federation).

What is discrimination

An employer must take into account only the professional and business qualities of an employee when hiring. The business qualities of an employee are understood as the ability of an individual to perform a certain job function, taking into account his existing professional qualifications (for example, the presence of a certain profession, specialty, qualification) and personal qualities. In addition, the employer has the right to present to the person applying for a vacant position other requirements directly established by the current legislation of Russia or necessary due to the specifics of a particular job (clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On application by the courts of the Russian Federation of the Labor Code of the Russian Federation"). For example, when applying for a job, special requirements are imposed on teachers (Article 331 of the Labor Code of the Russian Federation), transport workers (Article 328 of the Labor Code of the Russian Federation), persons hired for underground work (Article 330.2 of the Labor Code of the Russian Federation), etc.

Unfortunately, these standards are not always observed, and their violation often begins right from the moment of searching for a suitable vacancy. A little over a year ago – on July 14, 2013 – clause 6 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation” (hereinafter referred to as Law No. 1032-1), according to which job advertisements contain information about any direct or indirect restriction of rights or the establishment of direct or indirect advantages depending on gender, race, skin color, nationality, language, origin and other circumstances not related to the business qualities of employees is prohibited , except in cases in which the right or obligation to establish such restrictions or advantages is provided federal laws.

Persons and organizations disseminating such information are subject to administrative liability under Art. 13.11.1 Code of Administrative Offenses of the Russian Federation and are punishable by a fine of 500 rubles. up to 1000 rub. for citizens; from 3000 rub. up to 5000 rub. for officials; from 10,000 rub. up to 15,000 rub. for legal entities. At the same time, according to information from the Ministry of Labor of Russia dated July 24, 2013, the dissemination of information about vacancies containing restrictions of a discriminatory nature should be understood as the publication of such information in print and online publications, their broadcast on radio and television.

Despite the rather strict prohibitions and established liability, employers, especially those placing advertisements in local newspapers and on dubious websites, do not hesitate to indicate age, gender, marital status, nationality, religion, etc. among the requirements for the applicant. The Internet is teeming with advertisements such as “we are inviting an Orthodox girl to work in the candle shop of a church”, “we are looking for general workers, Slavs”, “we are looking for a single woman to work as a nanny in a private house with accommodation.” Often, advertisements even describe the type of appearance that a future employee should have (“highly paid work for pretty girls”). And sometimes the job titles already contain requirements for the desired employee: “a restaurant needs a kitchen worker,” “office work for a pensioner,” “an organization is looking for a cleaner,” which is an infringement of the rights of those who do not belong to the specified category (for example, men, those who want to work with a rag in their hands).

Monitoring of the most popular job search portals showed that everyone implemented clause 6 of Art. in different ways. 25 of Law No. 1032-1: on the portals hh.ru and Vakansiya.ru they even posted reminders for employers about the inadmissibility of discrimination when publishing vacancies; the portal Rabota.Ru contains the fields “gender” and “age”, but warns that filling them out by the employer does not entail publication for a wide range of people, but only helps set up the automatic selection of resumes; the JOB.RU portal contains the fields “gender” and “age”; The Superjob.ru portal allows the employer to add not only the fields “gender” and “age”, but also “marital status” and “children”.

Immediately after entry into force of clause 6 of Art. 25 of Law No. 1032-1, many employers were afraid that they would have to spend additional time on persons with whom they were obviously not ready to sign an employment contract. However, all fears turned out to be in vain. Galina Vasilenko , HR manager at FAM-S LLC, comments on the current situation: “This norm [clause 6 tbsp. 25 of Law No. 1032-1. – Ed.] had almost no effect on the search for candidates in our company and did not lead to an increase in “empty” interviews. In the past, very motivated candidates often ignored some points in the job description and signed up for interviews, knowing that they were not suitable based on gender, age or other parameters. A potential employee may have all the professional qualities, but if the employer wants to see a man of a certain age in a certain position, then there will always be a reason for an official refusal.”

Some employers offer candidates to take a test, complete a test task, or otherwise confirm their business qualities. This action does not constitute discrimination, but remember that the employee does not have to pay for such a test.

EXAMPLE

Trunov V.I. filed a lawsuit against the State Unitary Enterprise "Mosgortrans" (branch - 4th bus depot) to recognize the refusal to hire as contrary to labor legislation, to recover testing costs, and compensation for moral damages. These demands are motivated by the fact that the plaintiff contacted the personnel department of the State Unitary Enterprise Mosgortrans (branch - 4th bus depot) regarding employment. An employee of the employer explained that when applying for a job, the applicant must, at his own expense, undergo a test for knowledge of the traffic rules at the defendant’s organization. Despite the plaintiff passing the said testing and successfully passing the final exams, no employment contract was concluded between him and the defendant.

Having considered the circumstances of the case, the Basmanny District Court of Moscow on December 7, 2010 decided to reject the claims.

Disagreeing with this decision, the plaintiff filed a cassation appeal with the Moscow City Court. Having considered the circumstances of the case, the cassation court came to the conclusion that the plaintiff did not provide evidence of filing an application for employment, which means that he was not denied employment. In terms of recovery of testing costs, the court found that since the referral for testing was issued by the defendant’s employee during negotiations on employment, these actions were not related to the provision of educational services. Labor legislation does not provide for the possibility of charging a fee for testing an applicant. By the ruling of the judicial panel for civil cases of the Moscow City Court dated May 24, 2011 in case No. 33-13212, the decision of the Basmanny District Court of Moscow dated December 7, 2010 regarding the refusal to satisfy the claim for recovery of testing costs was canceled with the issuance of a new decision - to recover from the defendant to the plaintiff the costs of testing. The rest of the decision of the Basmanny District Court of Moscow was left unchanged.

During the employment process, job applicants are often asked to provide various types of medical certificates and other documents that are not specified as mandatory when concluding an employment contract. Remember that a person applying for work must present to the employer:

passport or other identity document;
work book, with the exception of cases when an employment contract is concluded for the first time or the employee starts working on a part-time basis;
insurance certificate of state pension insurance.

In some cases (if a person is liable for military service or is subject to conscription for military service), including taking into account the specifics of the work (when applying for a job that requires special knowledge or special training, or related to activities that are not permitted to persons with or have a criminal record, are or have been subject to criminal prosecution), regulatory legal acts may require the presentation of additional documents when concluding an employment contract. For example, when applying for a job, municipal employees must provide information about income for the year, about property and property-related obligations (Clause 10, Part 3, Article 16 of the Federal Law of March 2, 2007 No. 25-FZ “On Municipal Service in the Russian Federation”). Federation").

What types of discrimination exist?

According to a survey conducted by JOB.RU specifically for our portal, age discrimination is the most common in employment. 61.7% answered this way (70.6% of whom are residents of the Siberian Federal District, 67% of the Central Federal Circle, 65.4% of the Crimean Federal Circle). At risk are young people, people of pre-retirement and retirement age. 11.6% of respondents noted gender discrimination as the most common in employment. Moreover, the largest number of people who indicated this type of discrimination are residents of the Southern Federal District (17.8%), Far Eastern Federal District (16.4%), and Volga Federal District (13.6%). 8.8% of interviewees expressed the opinion that discrimination based on marital status is widespread (13.7% - representatives of the Southern Federal District, 11.3% - the Volga Federal District, 9.8% - the North Caucasus Federal District). 2.4% of JOB.RU portal users noted discrimination based on trade union membership. Practice shows that employers often fire or put pressure on trade union activists. The majority of those who spoke in favor of this factor were residents of the North Caucasus Federal District (9.8%), Far Eastern Federal District (7.3%), and Crimean Federal Circle (5.1%).

Let's look at the most common types of discrimination - by age and gender.

Age discrimination

Both young people and people of pre-retirement and retirement age are subject to age discrimination. According to employers, young specialists do not have enough experience and knowledge, they are too frivolous and fickle. As for people of pre-retirement age, people over 45 years of age are at risk. There are other complaints about such people: “Employers believe that at this age people are already too rigid, have limited mobility, and are more difficult to train, although this is not always true,” says Anna Gulimova. “Older employees, as a rule, are less able to learn new technologies and have health problems. At the same time, their qualifications often turn out to be higher than those of the potential boss - and not everyone will like this. Here are the most common reasons why an employer is not willing to consider older candidates. I certainly support age discrimination in those areas of activity that are related to public safety (police, fire service), and also justify it in companies for which selection is not based on professional competencies, but on potential for future development (like, for example, in companies operating in the FMCG sector). In other cases, age discrimination is inappropriate,” notes Galina Vasilenko.

EXAMPLE

A pensioner from Irkutsk filed a lawsuit against the employer in the Leninsky District Court to declare his dismissal illegal, reinstate him at work, recover average earnings for the period of forced absence, and compensate for moral damages. In support of the stated requirements, the plaintiff indicated that an employment contract for an indefinite period was concluded between him and the defendant. The plaintiff performed his work duties properly and had no disciplinary or other penalties. Despite this, the pensioner was forced to sign an additional agreement to the employment contract, which contained the condition that only persons from 18 to 70 years old could be hired for the specified job. The plaintiff signed a document explaining that he was hired over the age of 70, so these restrictions did not apply to him. The defendant then announced that the employment contract with the plaintiff was terminated by agreement of the parties. The main reason for terminating the employment relationship was the employee’s age exceeding 70 years.

By the decision of the Leninsky District Court of Irkutsk dated January 31, 2008, the claims were rejected on the basis that the employment contract with the plaintiff was terminated by agreement of the parties, which reflects the contractual nature of the work and the principle of freedom of the employment contract, and the age restrictions introduced by the defendant were themselves themselves cannot serve as a basis for recognizing the dismissal of an employee as illegal due to discrimination and misrepresentation.

By ruling of the judicial panel of the Irkutsk Regional Court dated April 25, 2008 No. 33-13071/2011 , the decision of the first instance court was canceled and the case was sent for a new trial to the same court. The panel of judges indicated that the conclusions of the court of first instance that the age restrictions introduced by the defendant cannot serve as a basis for satisfying the stated requirements were made without taking into account the factual circumstances of the case, and the court’s judgments regarding age restrictions do not meet the requirements of Art. 244 Labor Code of the Russian Federation.

Anna Gulimova , management consultant at A-Consulting Group of Companies, believes that it is not always a matter of the candidate’s age: “I regularly encounter situations when a person thinks that he is being discriminated against by age, although in reality he simply lacks professional skills to perform this or that work. For example, accountants who do not know how to use a computer periodically come to our organization looking for work (naturally, most of them are elderly). When rejected by an employer due to lack of accounting software skills, many candidates assume that the rejection was due to their age.”

Gender discrimination

Gender discrimination usually targets women of childbearing age (up to 28-33 years of age) or those with young or disabled children. This is due to the fact that according to Russian legislation, pregnant women and people with children are provided with additional guarantees and benefits. Elena Gerasimova , Director of the Center for Social and Labor Rights, Ph.D. Sc., associate professor at the National Research University Higher School of Economics, comments on the current situation: “In our country, it has long been the case that more women are involved in raising children than men. Therefore, in addition to sick leave due to pregnancy and maternity leave, girls often remain on maternity leave, which lasts for three whole years. And even when the baby grows up, it is women who continue to take sick leave if the child gets sick, and take him to kindergarten and classes. Therefore, employers do not favor young girls and girls with children. Very often, applicants come to our Center who are refused employment due to pregnancy, the presence of small children, or the prospect of going on maternity leave in the future. At the same time, many of those who find themselves in such a situation do not even consider that this refusal is discriminatory: people are so accustomed to the current practice that they do not understand that discrimination can and should be fought.”

Not wanting to incur additional expenses, employers often ask job seekers questions about the presence of a spouse, her relationship with him and plans for having a child. Galina Vasilenko advises responding to such questions calmly: “In the vast majority of cases, such measures are not caused by idle curiosity, but by the need to create a more complete portrait of the candidate. The main thing is not to behave aggressively. If you are asked about your personal life, it is best to answer sincerely, but if the question is too sensitive, I advise you to politely turn the conversation in a different direction, kindly explaining that you are not ready to discuss this.”

EXAMPLE

Tukhvatullina L.A. filed a lawsuit against Molochnoye Delo-Buraevo LLC to force her to enter into an employment contract and to recover compensation for moral damages. These requirements are motivated by the fact that throughout the entire time that the plaintiff worked for the defendant, the latter never concluded an employment contract with her. The relationship between the parties is formalized by a contract. Tukhvatullina L.A. believes that the reason for avoiding concluding an employment contract is her pregnancy.

The Buraevsky District Court of the Republic of Bashkortostan satisfied the plaintiff's demands in full.

Disagreeing with this decision, LLC “Molochnoye Delo – Buraevo” filed a cassation appeal to the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan.

The cassation court indicated that, according to Part 4 of Art. 11 of the Labor Code of the Russian Federation, labor legislation has priority over civil legislation in relations related to the use of hired labor of workers. Since the court of first instance correctly established that a civil contract actually regulated the labor relations between the plaintiff and the defendant, the provisions of labor legislation and other acts containing labor law standards should be applied to such relations.

The Buraevsky District Court of the Republic of Bashkortostan also correctly established that there was discrimination related to the plaintiff’s pregnancy. Since the defendant’s unlawful avoidance of concluding an employment contract, as well as labor discrimination by Tukhvatullina L.A. moral suffering was caused, the court rightfully ordered the defendant to pay the plaintiff compensation for moral damage.

By the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan dated June 8, 2010 No. 33-7691/2010, the decision of the court of first instance was left unchanged, and the defendant’s cassation appeal was not satisfied.

Remember that sometimes an outwardly discriminatory measure is not aimed at the woman, but at protecting her interests. Thus, according to the List of heavy work and work with harmful or dangerous working conditions, during which the use of women’s labor is prohibited, women’s performance of smelting and stamping of lead products, uprooting stumps, work as a press operator, bulldozer driver, electric train driver and in some other positions is not allowed . Refusal to hire due to the presence of legally established requirements for the gender of an employee is legal and justified2.

OPINION

Anna Gulimova, management consultant at A-Consulting Group of Companies:

“To be frank, neither our employees nor our employers are fully protected. “I myself have repeatedly witnessed how a job seeker tried to manipulate the employer using pregnancy as an argument.”

How to fight discrimination

Until October 2006, persons who believed that they had been discriminated against in the world of work could apply to the federal labor inspectorate and (or) the court with an application for restoration of violated rights, compensation for material damage and compensation for moral damage (Article 3 of the Labor Code of the Russian Federation in edition dated May 9, 2005), in addition to self-defense of their rights. Federal Law No. 90-FZ of June 30, 2006 amended the Labor Code of the Russian Federation, according to which recognition of the grounds for refusal to hire as discriminatory is possible only in court (Article 3 of the Labor Code of the Russian Federation as amended).

If an employee is refused to conclude an employment contract, he has the right to demand that the employer inform him in writing of the reason for the refusal (Article 64 of the Labor Code of the Russian Federation). By virtue of the provisions of Art. 237 of the Labor Code of the Russian Federation, failure to provide a written indication of the reason for refusal of employment is the basis for imposing on the employer the obligation to compensate for moral damage. An example of the assignment of such compensation is the ruling of the St. Petersburg City Court dated July 12, 2010 No. 33-9315/2010 on the claim of Shorokhova A.S. to Avangard LLC, according to which the employer had to pay for moral damage caused to him in the amount of 3,000 rubles.

OPINION

Elena Gerasimova, Director of the Center for Social and Labor Rights, Ph.D. Sc., Associate Professor, National Research University Higher School of Economics:

“In the practice of our Center, there was a case when a person was refused a job, having written to the Federal Service for Labor and Employment that the refusal was due to the non-Slavic appearance of the applicant. Fortunately, the victim immediately realized that this was a discriminatory basis and contacted us. After long legal battles, our Center managed to achieve a decision according to which the refusal to hire was discriminatory. The court ordered to hire this person and pay him compensation for moral damage in the amount of about 30 thousand rubles. After this decision was made, we helped the applicant bring the employees of the organization who made a record of non-Slavic appearance to administrative and criminal liability [Responsibility for violating the equality of rights and freedoms of man and citizen is established by Art. 5.62 Code of Administrative Offenses of the Russian Federation and Art. 136 of the Criminal Code of the Russian Federation. – Ed.]. Despite all the evidence we have of the guilt of these individuals, law enforcement agencies did not initiate criminal proceedings.”

If the employer has communicated in writing the reasons for refusal to hire and such reasons are discriminatory in nature, the employee has the right, on the basis of Art. 3 Labor Code of the Russian Federation, art. 64 Labor Code of the Russian Federation, art. 237 of the Labor Code of the Russian Federation, paragraph 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2) to apply to the court with a demand for recognition of the fact of discrimination when refusing admission to work, declaring illegal refusal to hire, hiring and compensation for moral damage.

Elena Gerasimova characterizes the current situation with the protection of violated labor rights: “There is a rather controversial issue as to what form of restoration of the violated right should be. There are two approaches. According to the first, if the court recognizes that discrimination was committed during hiring, then it must make a decision on the employer’s obligation to conclude an employment contract. The second position boils down to the fact that it is impossible to force an employer to hire someone, since an employment contract must be the result of an agreement between the parties and no one except them has the right to decide on what conditions it is concluded. In recent years, this position has been shared by the Supreme Court of the Russian Federation, which is why lower courts are increasingly refusing to force a person to work. Accordingly, the requirement to pay lost wages that the applicant could have received if he had been hired automatically disappears. In fact, other than compensation for moral damage, no other compensation is due to a person whose rights were violated during employment.”

Remember, the court has the right to satisfy the employee’s claim for compensation for moral damage caused to him by any unlawful actions or inaction of the employer, including in case of violation of his property rights (for example, when a person is obliged to undergo paid testing at his own expense or to pay for document forms required for employment to work; clause 63 of Resolution No. 2).

OPINION

Galina Vasilenko, HR manager at FAM-S LLC:

“The attitude towards an employee who has applied for protection of his violated labor rights to a court or other body will certainly change. Typically, colleagues support such a decision, while management activates all its administrative resources, trying to put pressure on such an employee. Therefore, contacting the authorized bodies is, as a rule, an extreme step when requests and threats no longer have any effect on the employer. Often, citizens go to court or the labor inspectorate only after they have made the final decision to leave A-Consulting”:

“I am sure that the attitude towards an employee who has applied for protection of his violated labor rights will change for the worse. Unfortunately, in Russia it is customary to take offense at a person who “washes dirty laundry in public” and subject him to various repressions. All this greatly interferes with adequate feedback. This can only be avoided if we regularly work to support people in such situations.”

In order to combat discrimination in the world of work, on April 18, 2014, the Standing Commission on Labor Rights and Social Partnership of the Presidential Council for the Development of Civil Society and Human Rights signed Cooperation Agreements with the Russian Ministry of Labor and Rostrud. In addition, the commission presented a report, during the discussion of which the following proposals were made to combat discrimination:

develop and legislate a definition of discrimination, as well as expand the range of issues relating to certain types and manifestations of discrimination;
consolidate the concepts of direct and indirect discrimination in the Labor Code of the Russian Federation. Direct discrimination as the behavior of an employer in which he treats an employee or a candidate for employment less or more favorably for reasons not related to the quality and volume of work duties performed by this employee, with the exception of cases expressly provided for in the Labor Code of the Russian Federation and other regulatory documents. legal acts. Indirect discrimination is the implementation by an employer of outwardly neutral actions, which subsequently lead to adverse consequences for employees, if this is not directly related to the needs of the employer’s business activities;
establish in the Labor Code of the Russian Federation a direct prohibition of victimization - dismissal or other deterioration of an employee’s position in connection with his attempts to protect his rights;

expand the range of bodies that have the right to consider cases related to discrimination of labor rights. In particular, a possible option for such expansion is the return of the State Labor Inspectorate's powers to consider complaints of discrimination in labor relations. The second option is to create a specialized body that oversees issues of ensuring equality and combating discrimination;

ADVICE

Before concluding an employment contract, we recommend checking the future employer through the territorial body of the State Labor Inspectorate. For example, the Register of employers who are guaranteed to respect the labor rights of employees and the List of employers who have wage arrears to employees are available to residents of Moscow.

include in Chapter 60 of the Labor Code of the Russian Federation “Consideration and resolution of individual labor disputes” and the Code of Civil Procedure of the Russian Federation special rules that facilitate the proof of violations of the labor rights of citizens by recognizing as admissible evidence audio and video recordings obtained without the consent and notification of the party;
consolidate in the Criminal Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, and the Labor Code of the Russian Federation specific examples of actions that are considered discriminatory. Examples of discriminatory actions contained in Art. can be used as a sample. 9 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 implementing the principle of equal opportunity and equal treatment for men and women in matters of employment and access to work;
develop methodological materials for judges on the consideration of cases of protection against discrimination, reflecting that the presence or absence of a discriminatory motive can only be established in relation to specific individuals;
add Art. 64 of the Labor Code of the Russian Federation establishes that a refusal to hire a person entrusted with negotiating employment is equivalent to a refusal by the employer, including in cases where such persons are not entitled to conclude an employment contract;
increase the amount of compensation for moral damage recovered in favor of the victim in cases of labor discrimination. Now the amount of such compensation is determined by the court based on the specific circumstances of each case, taking into account the volume and nature of moral or physical suffering caused to the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and fairness (clause 63 of Resolution No. 2). Judicial practice shows that the amount of compensation for moral damage in labor disputes does not exceed 10,000 rubles.

OPINION

Anna Chukseeva, head of public relations at the JOB.RU portal:

“Trade unions (if they exist) are involved in solving the problem of discrimination in the world of work at a professional level, but every employee can fight discrimination: it is important to know your rights, explore the possibilities of protecting them, be attentive to all documents signed, and do not hesitate to voice your interests . It is unlikely that it will be possible to completely eliminate discrimination in a global sense, but smoothing out its consequences is a feasible task.”

Time will tell whether the Standing Commission on Labor Rights and Social Partnership of the Presidential Council for the Development of Civil Society and Human Rights will be able to solve the problem of labor discrimination or not. However, everyone can avoid it when applying for a job. We hope that this material will help you with this.

Related documents:

Labor Code of the Russian Federation
Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation”
Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”

Protection of rights in court

The rights of citizens affected by discrimination in the world of work are protected in court. Previously, a claim for discrimination could be filed with the labor inspection system of the Russian Federation. However, Article 3 of the Labor Code of the Russian Federation, which is in force, currently does not provide for such a right. These bodies do not today have the jurisdiction that is inherent only in the judiciary. Legal liability for discrimination can only arise in the event of a court decision.

In judicial practice today, there are often cases where work is not paid in accordance with the qualifications of the employee and his professional skills. This is a real problem that entails responsibility for your actions.

After considering the application, the court comes to the conclusion that discrimination was committed against such employees in accordance with the Labor Code of the Russian Federation.

After this, the court orders the recovery of the shortfall in payment by the employee, based on the average salary of such an employee in the same field in the same region for a similar position. This may result in liability in court.

Also, when collecting such an amount, the court may also award compensation for moral damages that arose as a result of discrimination caused to the employee. When determining the degree of discrimination, many factors are taken into account, from the level of qualifications of employees, their level of education, to circumstances relating to the guilt of the person who committed the discrimination and other circumstances important in the case.

Author of the article

Prohibition of discrimination

In Art. 2 of the Labor Code of the Russian Federation, the prohibition of discrimination in the field of labor relations is formulated in several provisions:

Forced labor is considered unacceptable if the influence is determined by race, social or property status, or religious beliefs. The criterion of coercion is assessed by the presence of a threat to the life or health of the employee and his relatives, a promise to apply punitive measures to him if certain instructions are not fulfilled.
Elimination of labor discrimination.
Compliance with the principle of equality of specialists when promoting them up the career ladder. The likelihood of a promotion can only be influenced by indicators of labor productivity, the effectiveness of initiatives introduced, the level of qualifications, and the availability of appropriate education.

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