Additional Legislative Guarantees Against Discrimination in Labor Relations

26 February 2018

The Parliament of Georgia is hearing a legislative initiative that envisages amendments to the Labor Code of Georgia and three other normative acts, including to the Law of Georgia on the Elimination of All Forms of Discrimination. The purpose of the amendments is the establishment of additional legislative guarantees related to the elimination of discrimination.

The planned amendments to the Labor Code include the prohibition of improper treatment in pre-contractual relations, such as during vacancy postings and interviews, while the amendments to the Law of Georgia on the Elimination of All Forms of Discrimination envisage the prohibition of discrimination on other stages of labor relations.

The amendments are a result of the commitments taken under the EU Association Agreement, namely the Annex XXX that is related to employment, social policy and equal opportunities. Three years after the adoption of the Agreement (till July 1, 2019), the legislation of Georgia must be harmonized with the EU Directives: 2000/43/EC, 2000/78/EC, 2004/113/EC

The following are the proposed amendments to the Labor Code of Georgia:

  • It is specified in the provisions[1] of the Code related to prohibition of discrimination in contractual and pre-contractual relations that the latter includes vacancy postings and thus anti-discriminatory regulations should be enforced on it.
  • The employer is prohibited from dismissing an employee, or affecting him negatively in any way, if the latter had addressed or cooperated with a respective agency on a matter related to the protection from discrimination. The respective agency includes: Public Defender, Ministry of Internal Affairs, Prosecutor’s Office, etc. The purpose of the norm is to incentivize the effective use of the anti-discrimination regulations in practice and protection from possible retribution by the employer.
  • According to current Labor Code[2], the employer has the right to retrieve information on the candidate, which includes the collection of information from public (for example, information on social networks) as well as private (for example, conviction record) sources. The right to collect this information is retained under the amendments but the employer is prohibited from requesting information that is related to the faith, physical disability, sexual orientation, ethnicity or pregnancy (apart from instances when this is a perquisite for fulfilling the job). This means that if any of these circumstances are not clearly connected to the job, then it will be considered discriminatory even to ask questions about them during an interview.
  • The draft law defines the obligation of the employer to reflect prohibition of discrimination in internal regulations and regulatory documentations and present it to the candidates.

A new provision is added to the Law of Georgia on the Elimination of All Forms of Discrimination, according to which the principle of equal treatment is guaranteed in access to job promotion, terms of termination of a labor contract and remuneration, membership and activity of employer and employee organizations, etc. The general provisions on the prohibition of discrimination naturally cover these type of relations, but the indication of specific sphere of activities can bring about more clarity and thus support the effective implementation of the law in practice.

Discrimination in pre-contractual relations is a problem in Georgia. Particularly notable are the instances of various types of discrimination in vacancy postings. There are instances described in “Avoiding and Fighting Against Discrimination” [3]when a number of vacancy postings on different internet webpages include requirements of specific sex, age, family status, as well as such subjective categories, such as “fully without any hang-ups”, etc.

We consider that the initiated amendments do not create new mechanisms for restoring violated labor rights and the parties to the dispute will take the matter to the court. However, the amendments allow for the establishment of additional legislative guarantees for the development of an environment where labor relations are practiced in a fairer environment. Moreover, the Public Defender will have a clear legal basis to respond within his powers to instances of discrimination. [4]

Transparency International Georgia welcomes the harmonization of anti-discrimination legislation with the European Union law. It is important for the implementation of the law to be carried out in line with the purposes of the law, including a careful in-depth review of instances of types of discrimination and involvement of all parties. This will ensure that the amendments do not serve as unsubstantiated barriers in labor relations. At the same time, it is important that all relevant groups of society, which will be directly impacted by the law, to be fully aware of the stipulations of the new law. It is also important to conduct a Regulatory Impact Assessment on the draft law.

This blog was prepared with the financial support of the USAID Good Governance Initiative in Georgia (GGI), under the project “Enhancing Transparency and Accountability of the Parliament”. TI Georgia is responsible for the content of the blog. The views expressed in the blog do not necessarily reflect the views of the US Agency for International Development (USAID) or the Government of the United States

 USAID

 

[1] Article 2 (5) of the Labor Code of Georgia

[2] Article 5 (1) of Labor Code of Georgia;

[3] The general sentence “Elimination of All Forms of Discrimination “ is a response mechanism conferred on the Public Defender by the law

[4] It is interesting to note the Public Defender’s recommendation, according to which the Public Defender should have the power to reveal a violation and make a record, and later the General Courts will have the right to assess the violation. According to the Public Defender, this mechanism is important in the process of monitoring of vacancy postings and subsequent procedures of imposing legal responsibility on the employers/disseminator. http://www.ombudsman.ge/uploads/other/4/4427.pdf pg. 26

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