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GOVERNMENT RESPONSE

Although Human Rights Watch research found that discrimination against women during the hiring process is widespread, the Ukrainian government has failed to take appropriate measures to prevent employers from engaging in such practices or to provide women with recourse for violations of their rights. The response at all levels of the Ministry of Labor to the particular problem of gender discrimination in job hiring was highly individualized and unsystematic, reflecting the absence of a clear policy and a coordinated response to ensure equality of opportunity at all stages of the employment process. The Ministry of Labor and its State Department on Supervision of Labor Legislation Observance, as well as the State Employment Service, have done little to recognize or acknowledge gender discrimination, let alone investigate and take legal action against employers practicing discrimination. The State Employment Service also has adopted policies and practices that actively perpetuate employer discrimination against women. Finally, mechanisms available to women who feel that they have been discriminated against are wholly undeveloped.

Lack of Effective Mechanisms

By law, women who experience discrimination in the hiring process have the right to appeal to one of three institutions to seek redress: the Ministry of Labor, the National Ombudsperson, or the Ukrainian courts of general jurisdiction. The State Department on Supervision of Labor Legislation Observance, a semi-autonomous body under the authority of the Ministry of Labor, exists as the primary body responsible for oversight and enforcement of the labor code, including article 2(1) concerning nondiscrimination.²⁶² Any person has the right to appeal to a local labor inspectorate representative with a claim against an employer for a violation of the labor code. The inspector is obligated to investigate the employer’s actions, and the complainant will receive a written response as to the decision of the inspection. Upon finding a violation, labor inspectors can issue recommendations to the employer and, in the case of serious violations, recommend materials to the prosecutor.²⁶³ The inspector can perform a second inspection to verify improvements in the employer’s practices and then has the authority to issue a nominal fine. ²⁶⁴

According to article 55 of the Ukrainian constitution, “Everyone has the right to appeal for the protection of his or her rights to the Plenipotentiary Human Rights Representative of the Verkhovna Rada of Ukraine [Ombudsman].²⁶⁵ The Ombudsman’s office can advise victims of their rights and possible courses of action for redress, namely the labor inspectorate or the courts, but has no independent authority to inspect potential violations, issue penalties, or enforce court decisions.²⁶⁶ Women also have the right to sue an employer for discrimination through the courts of general jurisdiction. There are no specialized labor courts in Ukraine.

Human Rights Watch interviewed several experts who stated that women rarely seek to defend their rights through any existing mechanisms. According to NGO experts, most women are unaware of many of their fundamental rights and are equally uninformed about the national mechanisms in place for them to seek redress.²⁶⁷ Sveta Biliaeva, director of a psychological help hotline for women in Lviv, told Human Rights Watch, “If you speak of gender equality, knowledge of rights,…then women can be totally illiterate as far as their rights are concerned.”²⁶⁸ Halyna Fedkovich, a lawyer in Lviv, confirmed, “As a lawyer, I do not see cases on the specific question of… discrimination. Women don’t see their rights implicated in these experiences.”²⁶⁹ The Deputy Chief State Labor Inspector Volodymyr Los told Human Rights Watch, “In five years working at the oblast level, I don’t remember any complaints related to [discrimination]” and attributed this to the fact that “the level of knowledge is very low. People are just happy someone throws a meager salary at them.”²⁷⁰ When asked if they had ever considered approaching the Labor Inspectorate with a complaint about unfair labor practices, two women interviewed by Human Rights Watch offered blank stares in response. One replied, “I’ve never heard of that.”²⁷¹

A low level of trust in the efficacy and transparency of official structures, and in particular the national courts, limits the number of women seeking redress.²⁷² Valentina Bondarovska, Director of the Women’s NGO Rozrada, believes that one of the biggest challenges facing women is “a lack of belief that you can fight for your rights.”²⁷³ Olga Pishchulina, a sociologist and expert on gender in labor, stated similar views. “I think the main problem is that average women don’t think about going to court. They don’t trust them,” she said. “They won’t go [to the courts] in cases of discrimination.”²⁷⁴ Raissa R. said that she would not complain to any official source about discrimination she had faced in being hired to work as a dispatcher. She elaborated, “It’s fruitless, there wouldn’t be any result.”²⁷⁵ Viktoria V. told Human Rights Watch, “We don’t make such complaints [about discrimination]…. I think no one goes to do that, [defend] the rights of women, because it is not accepted as common.”²⁷⁶ The cost of bringing a court case is also prohibitive for most women.

Even when women are aware of the possibility of pursuing a claim through one of these bodies and choose to engage in a complaint procedure, the efficacy of any of any of these institutions in addressing discrimination is questionable. According to international and domestic experts, the Ukrainian court system remains “corrupt and inefficient.”²⁷⁷ Some legal experts have stated that the concept of discrimination is underdeveloped in national law such that “no judge or lawyer will ever use the word discrimination.”²⁷⁸ A lawyer who regularly consults women on labor and other cases doubted the effectiveness of the Ministry of Labor’s complaint mechanism. She told Human Rights Watch, “I have never heard about a successful implementation of this practice. I never advise clients to pursue this.”²⁷⁹ The Ombudsman’s office admitted that their ability to assist claimants is limited only to referrals to one of these two mechanisms, since they lack any independent adjudication or enforcement mandate or capacity.²⁸⁰

Lack of Due Diligence

Labor Inspectorates

Under the Ministry of Labor, the oversight and inspection functions of the State Department on Supervision of Labor Legislation Observance are organized at the oblast level under the State Territorial Labor Inspectorates.²⁸¹ Inspectors are responsible for investigating individual claims of labor violations submitted by employees and may conduct investigations into industries or according to thematic topics related to specific aspects of the labor code. ²⁸² In 2001 the inspectorates received a total of 10,111 “applications, appeals, and complaints,” and in 2002, 11,669, the vast majority of which were investigated.²⁸³ According to the chief state labor inspector of Ukraine, Volodymyr Tyotkin, and several local inspectors, the most common complaints received by labor inspectorates concern the non-payment of wages and salaries. As a result, inspectors have prioritized non-payment in their work. ²⁸⁴ Natalia Ivanova, head of the State Employment Service, noted, “non-payment creates social and political instability [and] affects poverty. That’s why it’s a priority.”²⁸⁵ Officials also stated that the most frequently received complaints varied by region, but generally included illegal dismissal, employers’ refusal to provide employees with an accurate labor record, denial of disability payments, and failure to fulfill collective agreements.²⁸⁶ Some complaints are related to women’s labor rights, such as failure to pay pregnancy or maternity benefits.²⁸⁷ Ludmila Plastun, director of the State Territorial Labor Inspectorate for Kharkiv Oblast, stated that her inspectorate encountered “shocking incidents of firing pregnant women.”²⁸⁸ In its data on the number of violations by particular types, the Ministry of Labor did not record investigations relating to complaints of discrimination of any kind.²⁸⁹

Extensive interviews with officials from the Ministry of Labor regarding their approach to gender discrimination in the hiring process revealed widely varying levels of acknowledgement and understanding. When asked about discrimination against women, some officials within the labor inspectorate categorically denied that discrimination existed at all. Some officials present as evidence of the absence of discrimination the fact that labor inspectorates rarely if ever receive official complaints of discrimination in the hiring process. However, as described above, the absence of cases is illusory, since women are unaware or mistrustful of official systems and reluctant to file claims. The chief labor inspector for Kyiv, Vladislav Andrienko, told Human Rights Watch that the Kyiv inspectorate has “never had a complaint from a woman who couldn’t be hired.”²⁹⁰ He believes, simply, “There is no discrimination in Ukraine.”²⁹¹ Similarly, a well-placed official in the Ministry of Labor said, “We don’t have discrimination here,” citing her professional success as evidence of the fact.²⁹² Many of these same officials, however, also described employer practices, including hiring practices, which clearly constituted discrimination.

Other officials acknowledged that discriminatory job advertising and hiring practices exist, but either did not view these practices as illegal or expressed resignation about how to confront them. In other cases, officials defended the unlawful actions of employers or deflected responsibility for oversight and inspection to other agencies. Officials from different levels of the State Department on Supervision of Labor Legislation Observance and at the Territorial Labor Inspectorates consistently told Human Rights Watch that they did not conduct inspections of discriminatory practices in job advertising or hiring. Inspectors claimed that it was impossible to investigate gender based discrimination claims. They also disclaimed having the competency and tools to do so.

The chief state labor inspector, Volodymyr Tyotkin, acknowledged discriminatory practices and stated, “Employers are not interested in hiring women because they have to give benefits and guarantees…. If there are two candidates [for a job], a man will receive preference.”²⁹³ Tyotkin recognized these hiring practices as illegal, but he saw his office as incapable of confronting this issue, since “in the hiring process, the employer can find other reasons to decline [a woman candidate] that don’t violate the law.”²⁹⁴ This attitude of resignation permeates the functional Territorial Inspectorates as well. Inspector Plastun stated that it was impossible for the labor inspectorate to investigate effectively potential cases of discrimination because, “If someone refuses work to a woman because she is a woman, [that employer] will find some other way to refuse her on professional faults.”²⁹⁵ Andrienko stated that if the Kyiv inspectorate received a complaint of hiring practice discrimination, his office would be powerless to address it. He told Human Rights Watch, “How can it be proved? When a woman is turned down for a job, they often give other reasons, what can we do? How can we prove it?”²⁹⁶

Labor inspectors also showed a clear unwillingness to address the issue of gender-specific advertising. Kyiv Inspector Andrienko said that because “there is no [specific] law that limits employers from placing discriminatory ads” his office need not address the issue.²⁹⁷ He said his office enforces the labor law, but he made no mention of article 2(1) of the labor law prohibiting discrimination.²⁹⁸ Inspector Andrienko further tried to deflect responsibility for discriminatory advertising by stating that investigations into advertising practices fell under the competency of the State Employment Service employment law inspectors. Chief Inspector Tyotkin said that his office never confronted employers directly about discriminatory advertising, but had approached media publications “to inform the media that those ads are a violation of constitutional rights and there should be no limits on age or sex.”²⁹⁹ He admitted, however, that it is employers, and not the press that is violating the law, since “this is free speech. It’s a paid advertisement.”³⁰⁰ An inspector with the State Territorial Labor Inspectorate for Lviv Oblast similarly tried to describe discriminatory advertising as primarily a media issue, beyond the purview of the labor inspectors. He told Human Rights Watch, “We have no such problems in our work. If you would like to explore this issue, get a newspaper…. You want to know why we don’t [investigate discriminatory advertising]? We don’t control the mass media, and we are not responsible for what they print. And it is not within our responsibility.”³⁰¹ He did not explain which agency would have accountability, and explained that the inspectorate only works with “[company] documents that concern workers, [where] there is no division between men and women.”³⁰²

According to Inspector Plastun, the Kharkiv inspectorate will not investigate gender restrictions in job advertising, but will confront employers who issue age specifications, since, “if by law the working potential for women is through fifty and for men through fifty-five, no one has the right to reduce this to an artificial level.”³⁰³ In contrast, Plastun did not regard gender specifications in advertising as similarly arbitrary, but offered extensive justifications to validate such practices by employers. She told Human Rights Watch,

There is work that women simply execute better, [although] there are no such specifications in the labor code. For example, in a bank teller window, a woman always works better because her fingers are long and slender. This helps her count money. In this way, her physical features are a key aspect of her ability to do her work.³⁰⁴

And on specifications on a woman’s appearance,

In new enterprises, for successful work of the enterprise, they need attractive advertising, so they look for attractive secretaries or sales people…. Some people think it’s easier to close a deal with a beautiful woman near by. From a psychological standpoint, it is impossible to take away this element of successful business making.³⁰⁵

She conceded that gender specifications in advertising “are not legal” but again justified the practice, saying, “Life dictates different things.”³⁰⁶ Like Andrienko, Inspector Plastun stated that, ultimately, not her office, but the State Employment Service employment law inspectors “have discretion over advertisements.”³⁰⁷ This did not explain why her office would confront employers on age restrictions in advertising, but not gender restrictions.

State Employment Service

The State Employment Service, through its numerous state employment centers, is responsible for collecting and analyzing data on the labor market, registering the unemployed, compiling vacancy announcements, assisting employers and the unemployed with job placement and job training, and distributing unemployment benefits. State employment centers are organized at city, district, and oblast levels throughout the country and always work closely with both job seekers and local and regional employers. The agency also maintains its own inspectors responsible for investigating violations of the law on employment.³⁰⁸ For its part, the State Employment Service also has failed to recognize discrimination in job advertising and hiring practices and does notconfront employers about these practices. Furthermore, the state employment centers’ public listings of job vacancy announcements consistently include gender specifications, and the official vacancies form issued to employers requests that they specify the number of openings available to women.³⁰⁹

State employment center officials cited high unemployment among women and the large discrepancy between the number of women seeking jobs and the number of jobs available to them. However, they did not readily accept that gender-specific job advertising is discriminatory, or acknowledge the role of discriminatory job advertising or employment center practices in contributing to women’s unemployment. The director of the Lviv City Employment Center told Human Rights Watch that although 73 percent of the unemployed in the city of Lviv are women only about 20 percent of the job announcements posted at the center were open to women. The positions advertised specifically for women were mainly for seamstresses, waitresses, cooks and accountants. “Most managerial positions are for men,” she told Human Rights Watch.³¹⁰ An official at a Regional Employment Center in Kharkiv noted similar statistics at that center. Sixty-five percent of the newly unemployed registered at the center are women, yet most job advertising is for men, since “the demand on the market is for men.”³¹¹ “Every month the center posts 600-700 vacancies, and most of them are for men. Less than twenty-percent of the jobs advertised at the center specify women, and they are mostly for seamstresses. Thirty to 40 percent specify men, and the remainder, usually, about 50 percent, do not specify.”³¹²

Like their colleagues in the labor inspectorates, officials at various levels of the State Employment Service widely denied the problem of discrimination and refused to acknowledge discriminatory advertising practices as illegal. Petro Vasylenko, deputy director of the State Employment Service told Human Rights Watch, “There is no problem here. Discrimination is non-existent. Employers hire women.”³¹³ Similarly, a high-ranking female official at the State Employment Service and a former labor inspector said, “There is no discrimination here.”³¹⁴ An employment law investigator in Lviv told Human Rights Watch, “There is no discrimination here,” but subsequently claimed that during inspections she had no authority to address the discrimination that she encountered. “When I face discrimination here or there, all I can do is inform the labor inspector… It is not within my competency,” she told Human Rights Watch.³¹⁵ This practice raises serious questions and suggests that neither the labor inspectors nor the employment law inspectors addresses the issue of discrimination in employment advertising, because each assumes the issue to falls within the others’ competency.

Employment center officials also demonstrated varied opinions about the illegality of discriminatory job advertising and frequently placed employers’ preferences above the law. They also disavowed any role in confronting discriminatory practices that might help diminish the large gap between the number of women seeking jobs and the number of jobs advertised for women. A prominent official at the Lviv Oblast Employment Center demonstrated a lack of understanding about what constitutes discrimination in job advertising. She said that, as far as she knew, gender specific vacancy announcements, including the ones at employment centers, are “not a violation of the law. But, on the other hand, the constitution says that everyone has equal rights.”³¹⁶ A state employment inspector from Lviv was more categorical about the legitimacy of gender specific job advertising and claimed, “Sex can be stated because there are many jobs which women are not permitted to hold.”³¹⁷ She attempted to diminish the employment center’s role to one of a simple intermediary, simply distributing employers’ specifications to the public. “If a list of vacancies is provided, we put the advertisements on a public board,” she said. “The employer has a free right to employ people, and we have no right to make instructions to employers, he decides by him or herself who to hire…. The employers provide specifications.”³¹⁸

One official at the Regional Employment Center in Kharkiv recognized the illegality of discriminatory job advertising, but saw no conflict in the divergence between law and actual practice. She told Human Rights Watch, “Gender specifications are not right, not legal anymore,” but also stated, “If I were a firm director I would set requirements. I think this system is accepted everywhere.”³¹⁹ In response to a question regarding whether employers’ requests for a specific gender have a legal basis, the director of the Lviv City Employment Center replied, “No. It’s because of the manufacturing needs. Their needs. The employer has the last word.”³²⁰ She denied that gender specifications in employment center advertisements contribute to discrimination. She explained, “It doesn’t play a direct role. It isn’t a problem at all if the job advertises for a man and there are no women who want to do those jobs.”³²¹ And if there are jobs that women do want, nevertheless, the employer has the final authority. “Employers [who advertise ‘men only’] are more interested in men because they don’t take maternity leave,” she said.³²²

Confronted with gender requirements from employers, some employment center officials readily complied with these requests. The Kharkiv employment official said that in matching potential employees with employers advertising vacancies, she was as thoughtful about requirements for age, good looks, and height as she was for computer skills or educational qualifications. When asked how her center responds to vacancies such as those specifying “Tall, beautiful girls,” she stated that, “Of course we will help them find pretty girls.”³²³ The center also directs employees to training in fields where there is a surplus demand for labor. Because vacancy announcements open to women appear in a limited number of fields, unemployed women in Kharkiv are encouraged to enroll in courses on sewing, hairstyling, secretarial work, and accounting.³²⁴

Some employment center employees did discuss practices that sought to rectify the discrepancy between vacancy announcements and employee profiles. An official at the Lviv Oblast Employment Center said, “In the employment centers, we face a problem when employers want a man. We can offer a larger choice of women…. We point out that women do not smoke, they more often stay in one place, they are more attentive, accurate, and correct, so we try to convince them that a woman would be just as good.”³²⁵ Although these efforts sometimes result in women being hired, they nevertheless reflect the willingness of employment center officials to perpetuate gender stereotypes.