take advantage of this opportunity. Thus equal treatment might lead to unequal results. To address this situation, the concept of indirect or disparate impact discrimination has been developed. According to this conception, equal treatment will be held to be discriminatory if it has a disproportionate effect on women (or men) unless it can be justified as necessary for the proper execution of the job in hand. The equal treatment principle remains the dominant conception of equality in most of the jurisdictions covered here. An example is Botswana, where both the constitution and statute prohibit only direct discrimination. However, there are good examples of highly developed statutory definitions of discrimination in some countries. The Czech Republic, which is bound by EU law, has detailed provision for both direct and indirect discrimination. Kenya’s Employment act 2007 prohibits both direct and indirect discrimination, but indirect discrimination is not defined directly. By contrast, the Kenyan National Cohesion and Integration 2007 has a detailed definition of indirect discrimination on the grounds of race, which largely mirrors that of the EU. (iv) Sexual harassment The recognition of sexual harassment as a species of discrimination has been of real importance in the development of anti-discrimination law. At first, sexual harassment was dealt with as a species of direct discrimination, but like pregnancy, it encountered difficulties in finding an appropriate comparator. More recently, it has been dealt with in its own right. Rather than being regarded as a wrong because a woman is less favourably treated than a man, it is regarded as a wrong because it is an affront to the dignity and self respect of the victim. More developed conceptions of sexual harassment distinguish between two kinds of harassment: quid pro quo harassment, and harassment caused by an intimidating, hostile or humiliating work environment. Both EU law and the ILO recognize both these forms of sexual harassment; and the ILO requires contracting states to include both in their legislation. A prohibition on sexual harassment has not been introduced in some jurisdictions (Zambia and Nepal) and only partially in others. For example, in Botswana, it is only an offence in relation to public employment. On the other hand, there several examples of good practice. The Czech Republic includes a provision on sexual harassment. Based on a transposition of
workers in the unorganised sector. Moreover, there is no express requirement that minimum wages adhere to the principle of equal pay for work of equal value. Thus the danger is that minimum pay rates will replicate gender discrimination. (However, it appears two Indian States (Karnataka and Kerala) have included domestic workers in their minimum wage schedules.) The Contract Labour (Regulation and Abolition) Act 1970 provides certain minimum rights to contract workers, for example a right to a canteen and restrooms. The duties and obligations under the Act lie with the contractor and not the principal employer. A contractor undertakes to produce a given result for an establishment through contract labour which is more than the mere supply of goods. However, the Act does not apply to out-workers which are defined as “a person to whom any articles or materials are given out by or on behalf of the Principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other premises” Nor does the Act apply to establishments in which only intermittent or casual work is performed or where twenty or more people are employed or were employed any time during the past year. In a more express attempt to include irregular workers, the Indian Government promulgated the Unorganised Workers Social Security Act in 2008. The unorganised sector is defined as an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing services of any kind whatsoever; and where the enterprise employs workers, the number of such workers is less than ten. The Act requires the State to formulate welfare schemes for home-based workers, self-employed workers and wage workers employed in the unorganised labour sector, including migrant workers and domestic workers. . The Act requires the Central government and State governments respectively to formulate and notify welfare schemes for unorganised or irregular workers with respect to life and disability cover, health and maternity benefits, old age protection (Central Government) and provident funds, employment injury, housing, educational schemes for children, skill for workers, funeral assistance and old age homes (State Governments). All unorganized workers above 14 years of age are eligible for registration, presumably to qualify them as beneficiaries of the schemes. However, here too there is no provision entitling
remittances were equal to more than 10 percent of GDP in 2006, and in six countries, they constituted more than 20 percent. Domestic work can also have a significant racial dimension. The ILO found evidence of wage discrimination between migrant domestic workers in foreign countries, with Filipinos often paid better than others. South Africa is the obvious case where—under were almost no paid work opportunities for black women outside of domestic work in white households. In Brazil too, domestic workers are predominantly Afro-Brazilians. Of the 6.6 million domestic workers in Brazil in 2008, 94.3 percent were women and 61.8 percent Afro-Brazilian, many of who had no or only partial education at elementary school level. Indeed, domestic work was the single largest occupational category in the workforce and the single largest occupation for women. There are many aspects of domestic workers’ situation that desperately need legal protection. Live-in domestic workers have little control over their hours of work and little protection against verbal, sexual and physical abuse and other forms of exploitation. In Brazil, according to Gomes and Bertolin, domestic workers are the second biggest group of female victims of domestic violence after housewives. Sexual harassment is particularly problematic, aggravated by the fact that workers are afraid to denounce their employers. Living and working in an employer’s home has a major impact on a worker’s personal autonomy and might make it difficult to have their own families, or acquire their own homes. The ILO points out that one consequence is that, on retirement, they may not have children to provide them with personal or financial support. The demand for domestic workers is closely bound up with work-life reconciliation provisions. In Brazil, the high incidence of domestic workers takes place against a backdrop of both a patriarchal society which discouraged women from working in the paid labour market until the 1990s, and the lack of publicly funded social supports such as day care. In order to take up paid work outside the home, many women have delegated their child-care and housework responsibilities to other women, who have fewer resources. Gomes and Bertolin point out that domestic workers often leave home to work in other people’s homes, leaving them no option but to delegate their own child care and domestic tasks to their older children, usually their daughters. At the same time, the employers of domestic workers are often women working in low paid and precarious work themselves. The framing of