https://doi.org/10.37815/rte.v34n1.907

Original paper - English

Migrant workers and discrimination: realities, threats, and remedies

Trabajadores
migrantes y discriminación: realidades, amenazas y remedios

August
Gächter1 https://orcid.org/0000-0001-7061-0427

1Centre for Social Innovation, Vienna, Austria

[email-masked]

Sent:               2022/01/11

Accepted:       2022/03/11

Published:      2022/03/15

Abstract

Migrant workers perform essential work but often have
to do so in substandard or even abusive conditions. Women make up nearly
half the migrant workforce and are exposed to extra dangers to their health and
safety. The COVID-19 pandemic and other events have heightened the visibility
of their situation. The rights-based approach, developed over a period of more
than 60 years, offers coherent solutions to the whole range of issues
pertaining to the employment of international migrant workers. It covers
recruitment, admission, employment, unemployment, training, occupational
safety, health care, social security, organisation,
housing, family, and others, that by minimising the
differences in treatment and opportunities between migrant and national workers
protect not only migrant but also national workers and minimise
social and economic divisions and the risk of political divisions inherent in
them. Using examples, the article outlines the risk of discriminatory treatment
not only by individuals but by law and administrative practice for migrant
workers and the need to control the risk, not least for the benefit of national
workers. It describes the many ways and situations in which migrant workers
have been found to suffer discrimination. It takes a close look at the
definition of discrimination in the international Conventions adopted in
response. Among their implications it highlights the issue of indirect
discrimination and touches on the issue of positive discrimination. Some
reasons given by states for keeping migrant workers in situations prone to
discrimination are mentioned.

Keywords: migration, migrants, rights-based approach, employment, unemployment, labour inspection, domestic work.

Summary: Introduction,
The state of debate about migrant workers and discrimination, Definitions
of Discrimination and Facts, International legal norms, Forms, remedies,
and proof of discrimination and Conclusions.

How
to cite: Gächter, A. (2022). Migrant
workers and discrimination: realities, threats, and remedies. Revista Tecnológica - Espol, 34(1), 92-112. http://www.rte.espol.edu.ec/index.php/tecnologica/article/view/907

Resumen

Los trabajadores migrantes
realizan trabajos esenciales, pero a menudo lo hacen en condiciones deficientes
o incluso abusivas. Las mujeres constituyen casi la mitad de la fuerza laboral
migrante y están expuestas a peligros adicionales para su salud y seguridad. La
pandemia de COVID-19 y otros eventos han aumentado la visibilidad de su
situación. El enfoque basado en los derechos, desarrollado a lo largo de más de
60 años, ofrece soluciones coherentes a toda la gama de cuestiones relacionadas
con el empleo de los trabajadores migrantes internacionales. Abarca la
contratación, la admisión, el empleo, el desempleo, la formación, la seguridad
en el trabajo, la atención de la salud, la seguridad social, la organización,
la vivienda, la familia y otros, que al minimizar las diferencias de trato y
oportunidades entre los trabajadores migrantes y los nacionales protegen no
solo a los trabajadores migrantes sino también a los nacionales y minimizan las
divisiones sociales y económicas y el riesgo de divisiones políticas inherentes
a ellas. Mediante ejemplos, este artículo describe el riesgo de trato
discriminatorio no solo por parte de los individuos, sino también por la ley y
la práctica administrativa para los trabajadores migrantes y la necesidad de
controlar el riesgo, sobre todo en beneficio de los trabajadores nacionales.
Describe las muchas formas y situaciones en las que se ha descubierto que los
trabajadores migrantes sufren discriminación. Examina de cerca la definición de
discriminación en los convenios internacionales adoptados como respuesta. Entre
sus implicaciones destaca el tema de la discriminación indirecta y aborda la
cuestión de la discriminación positiva. Se mencionan algunas razones dadas por
los Estados para mantener a los trabajadores migrantes en situaciones propensas
a la discriminación.

Palabras
clave: migración, migrantes, enfoque de derechos, empleo,
desempleo, inspección del trabajo, trabajo doméstico.

Introduction

Today migrant workers
are ubiquitous around the world, and evidently, they are often employed in
undesirable or even abusive conditions, i.e. in
low-wage industries, services or plantations, in poorly regarded occupations,
in jobs offering little or no opportunity for advancement, in economically
unattractive or remote areas, or in enterprises offering below-standard wages
and working conditions (Böhning, 1996:13). They are
often underpaid, provided with inadequate or no workplace safety and health
protections thus suffering injury and death, and hired and dismissed ‘on a
moment’s notice’. Under these conditions, expression of freedom of association
and collective bargaining rights may be difficult, intimidated or otherwise
rendered impossible. In many places they are also more frequently unemployed
than local workers. In addition, housing conditions are often poor or expensive
or both (Taran and Gächter,
2005; Taran and Kadysheva,
2022).

In the International
Convention on the Protection of the Rights of Migrant Workers and Members of
Their Families (ICRMW), 1990, the preamble highlights the “importance and
extent of the migration phenomenon, which involves millions of people and
affects a large number of States in the international
community,” and “the impact of the flows of migrant workers on States and
people concerned” (United Nations, 2005:21).

Succinctly put, “The
question of migrants’ rights represents a cutting edge of contention between
the consequences of the economic logic of globalization vs the moral values
embodied in human rights concepts and law. This contention is marked most
dramatically by the conditions that many migrant workers face in host countries
around the world. As the 2004 International Labour
Conference observed about migrant workers: “a significant number
face undue hardships and abuse in the form of low wages, poor working
conditions, virtual absence of social protection, denial of freedom of
association and workers’ rights, discrimination and xenophobia, as well as
social exclusion. Gaps in working conditions, wages and treatment exist among
migrant workers and between migrant and national workers. In a significant
number of cases unemployment rates, job security and wages differ between
regular migrant workers and national workers” (ILO, 2004, para 5).

“Widespread abuse and
exploitation of migrant workers – often described in terms of forced labour and slavery-like situations – stand in marked
contrast to the promises that economic globalization will bring better
conditions and social protection to the lives of people around the world” (Taran, 2010). Against this background cooperation on
migration between the UN and other agencies was intensified and became more
closely aligned (ILO/IOM/UNHCR, 2001).

The article below
intends to provide a framework for intensified research into the discrimination
of migrant workers in all situations. In particular, its
focus is on advancing research that wishes to combine an improved understanding
of processes of discrimination with an intention to remedy injustices,
inequalities, and inefficiencies. It therefore presents and discusses, at times
critically, the most relevant concepts in human rights instruments as they
currently stand and how they apply to migrant workers in general and to some
specific kinds of migrant workers in particular. The
concepts the article highlights include that of migrant worker with a special
emphasis on female migrant workers, and that of discrimination with an emphasis
on analysing its form, content, and functioning, and
including consideration of specificities relating to migrant workers, to indirect and to positive discrimination. The article also
discusses aspects of the language used in prohibitions of discrimination. To
these ends it cites the relevant provisions from the human rights instruments
and from accompanying commentary.

The state of debate about migrant workers and discrimination

An outline of
the problem

Two events of the early
2020s brought the issues out in high relief. One was the COVID-19 pandemic that unfolded from the beginning of 2020, the
other the Football World Cup 2022 in Qatar.

Firstly, in the early
stages of the pandemic it became unusually evident that migrant workers are
“carrying out essential jobs in health care, transport, services, construction,
and agriculture and agro-food processing. Yet, most
migrant workers are concentrated in sectors of the economy with high levels of
temporary, informal or unprotected work, characterized
by low wages and lack of social protection, including in care work which in
many countries is largely carried out by women migrant workers” (ILO, 2020a:1).
The disruption of supply chains and severe restrictions on labour
mobility raised the spectre of food insecurity,
especially in Europe. “Amidst this context, agriculture workers have been
re-labelled ‘essential workers’ subject to lifting of travel-bans and other
exceptional measures” (ILO, 2020b:2, 6).

As in the health and
care sectors this situation led to calls for a revaluation of work and workers.
This pandemic shows that for a long time, seasonal agricultural workers have not been fully rewarded for their
contribution to society in terms of earnings, social protection, and
challenging working conditions, including hours of work and occupational and
health protections. This has vast implications for the design of temporary
schemes and also for integration prospects of these
seasonal migrant workers. Existing approaches in the law and practice of a number of countries tend to overlook the real labour market integration needs of these workers. As shown
in ILO research, migrant workers in agriculture and the rural economy often
experience discriminatory treatment (ILO, 2020b:5; see also ILO, 2019).

Secondly, it became no
less evident that “Migrant workers are among the most vulnerable. Reports
document rising levels of discrimination and xenophobia against migrants and in
some cases food insecurity, layoffs, worsening working conditions including
reduction or non-payment of wages, cramped or inadequate living conditions, and
increased restrictions on movements or forced returns (where they may be
stigmatized as carriers of the virus). Migrant workers are often first to be
laid-off but last to gain access to testing or treatment in line with
nationals. They are often excluded from national COVID-19 policy responses,
such as wage subsidies, unemployment benefits or social security and social
protection measures. Where access to COVID-19 testing or medical treatment is
available, they may not come forward due to fear of detention or deportation,
especially those in an irregular status. In the case of domestic workers,
home-based workers, agricultural workers and others in the informal economy,
exclusion in many countries stems from the fact that labour
law does not regard them as workers. In some cases, travel restrictions have
trapped migrants in countries of destination with few options to return home.
Layoffs of migrant workers not only often lead to income losses but also the
expiration of visa or work permits, putting migrants into undocumented or
irregular status. Travel restrictions have also meant that many migrant workers
have been prevented from taking up employment abroad for which they have
contracts, and for which many may have paid high recruitment fees and costs”
(ILO, 2020a:1-2; similarly, also ILO, 2020c; Baruah, 2020; IOM et al., 2020).
Migrant workers are also faced with the ‘work or lose your income dilemma’
meaning that they might still have to work even if the COVID-19 related
workplace security conditions are not put in place (ILO, 2020b:5).

In December 2010 Qatar
was selected to host the World Cup 2022 finals. The ensuing building boom was
heavily dependent on migrant workers from South Asia, the Philippines, Kenya and other places. In 2014, workers’ groups lodged a
complaint against Qatar at the ILO for non-observance of the Forced Labour Convention, 1930 (No. 29) and the Labour Inspection Convention, 1947 (No. 81) at the 103rd
Session of the International Labour Conference.[1]
More evidence of abuses was supplied in the following years that in their
totality outlined systematic discrimination of migrant workers. In 2017, Qatar entered into a three-year (2018-2020) Technical Cooperation Programme with the ILO in which the government agreed to
“align [Qatar’s] laws and practices with international labour
standards and fundamental principles and rights at work”. Reform objectives
covered five areas: improvement in the payment of wages; enhanced labour inspection and health and safety systems;
replacement of the kafala sponsorship system and improvement of labour recruitment procedures; increased prevention, protection and prosecution against forced labour; and promotion of workers’ voice[2] (Amnesty International,
2020:8).

Towards the end of the
Technical Cooperation Programme’s term the legal
situation had improved but the implementation of the law’s stipulations was
said to lag behind: “Today, despite improvements to
the legal framework, these migrants often still face delayed or unpaid wages,
work excessively long hours, and struggle to access justice. The impact of the
COVID-19 pandemic is also placing new stresses on
employers and employees alike. For migrant workers this has only exacerbated
their acute vulnerabilities, including heavy debts from high recruitment fees,
restrictions on movement and obstacles to attaining effective remedies for
their abuse” (Amnesty International, 2020:7). Observers called for “action to
address major weaknesses in key areas including the payment of wages, access to
justice and workers’ voice. Qatar must also give particular attention to the
situation faced by the country’s domestic workers, who face severe and
widespread abuse away from the spotlight of the World Cup” (Amnesty
International, 2020:7).

In 2021, the debate
about Qatar’s treatment of migrant workers increasingly focused on the number
of deaths among construction workers and on whether the causes given for them
were correct (Amnesty International 2021a, 2021b; The Guardian 2021). It should
be noted that Qatar’s unreformed system had similarities with that in other
Gulf States and elsewhere in Asia (Baruah 2020).

Both the pandemic and
the Qatar experience prompted renewed emphasis on the need for adequate labour inspection: “Some abuses can only be detected
through labour inspection, showing how vital these
services have become during the pandemic” (ILO 2020b:5). The important role of
adequate labour inspection was also re-emphasized in
the European Union (EU FRA, 2021).

If having part of the
population in deplorable conditions is undesirable, not only for the afflicted
themselves but for everybody because everybody is suffering in some way from
the social division, then it will be important to understand the conceivable
causes of the situation and to remedy them.

Human rights bodies
have been observing, monitoring, and analysing the situation
of migrant workers since 1919. They have also been developing constructive ways
of dealing with the challenges through legal regulation and governance under
the rule of law as well as policy and practice. The framework they developed is
known as the ‘rights-based approach’ to the movement, employment, and
settlement of migrant workers. Below its provisions regarding discrimination
and how they can help come to terms with the challenges will be discussed.

The core international
legal instruments referred to are far from new. They were in the main
negotiated and adopted between 1930 and 1990, i.e., over a period of 60 years
that ended more than 30 years ago. Directly involved were not only governments
but also employer organisations and trade unions.
Civic organisations provided important inputs. Since
1990, little had to be added which speaks to their completeness and factual
adequacy. The discussion below draws substantially on seminal commentary on the
human rights instruments written soon after their provisional completion in
1990.

The ICRMW, adopted in
1990, came into force in 2003 when 20 Member States had ratified it. At the end
of 2021 ratifications stood at 56, mostly in Latin America, West and North
Africa, with several in Asia and the Caribbean.

Migrant
workers

Although used in many different ways, the term migrant worker has a precise
meaning.

As defined in Article
11 of ILO Convention No. 143 (1975) “the term migrant worker means a person who
migrates or who has migrated from one country to another with a view to being
employed otherwise than on his own account and includes any person regularly
admitted as a migrant worker.” It thus does not include persons not regularly
admitted.

Similarly, the ICRMW
Article 2 says, “The term ‘migrant worker’ refers to a person who is to be
engaged, is engaged or has been engaged in a remunerated activity in a State of
which he or she is not a national.”  The
ICRMW further explicitly includes self-employed workers, as well as other
specified categories of: frontier worker; seasonal
worker; seafarer including fisherman; project-tied worker; worker on an
offshore installation; itinerant worker; and specified-employment worker
(‘posted worker’).

The ICRMW excepts
employees of international/ intergovernmental organizations, of States
(governments) posted abroad, investors, students, refugees and stateless
persons, and seafarers not admitted for residence in the State where their
employment is based.

The ICRMW definition is
considerably wider than the ILO Convention’s. It neither requires the person to
have migrated nor to have been “regularly admitted”. It thus includes persons
in an irregular situation/unauthorized status and persons born in the country
not possessing the country’s citizenship provided they ever entered the
country’s labour force or hope to do so in the
future. In practice, given that the UN statistical definition for measurement
of international migrant counts foreign-born persons, international
migrant workers are usually counted as and among foreign-born, even as some may
have acquired ‘naturalized’ citizenship of the country of residence.  It can be noted that many naturalized
immigrants will have also maintained citizenship of their country of origin
given the increasing recognition of dual citizenship by States.

Several of the problems
and challenges mentioned apply to internal migrants, too, as do the solutions
offered by the rights-based approach, but the article below will only deal with
international migrant workers.

Discrimination

In the UN’s analysis,
discrimination is certainly not the only but clearly the main contributor to
the migrant workers’ disadvantaged situation. “It can
be said that discrimination is unjustified differential treatment” (Taran and Gächter, 2015). The precise UN definition of discrimination will be looked
at in the next chapter. The current section presents in outline the
manifestations of discrimination and the instances of its operation that were
taken into consideration when the ICRMW was drawn up and adopted.

“Discrimination against
migrant workers in the field of employment takes many forms. These include
exclusions or preferences as regards the types of jobs which are open to
migrants, and difficulty of access to vocational training. Different standards
are often applied to nationals, on the one hand, and migrants, on the other, as
regards job tenure, and contracts may deprive migrants of certain advantages”
(United Nations, 1996:5). “A widespread tendency is to regard migrants as a
complementary labour force, and to assign them to the
jobs which have the least attraction for nationals” (United Nations, 1996:6).

“Cases are cited of
legal and administrative rules which force migrants to remain in certain
occupations and specific regions, as well as of inequalities in pay and grading
for identical jobs. Migrant workers are known to have been excluded from the
scope of regulations covering working conditions, and to have been denied the
right to take part in trade union activities” (United Nations, 1996:6).

“Although migrant
workers contribute to social security schemes, they and their families do not
always enjoy the same benefits and access to social services as nationals of
the host State” (United Nations, 1996:6).

“Living conditions for
migrant workers are often unsatisfactory. Low incomes, high rents, housing
shortages, the size of migrants’ families, and local prejudice against foreign
elements in the community are the main factors which combine to cause a serious
accommodation problem” (United Nations, 1996:6).

“Migrant workers face
the gravest risks to their human rights and fundamental freedoms when they are
recruited, transported and employed in defiance of the law.” … They are “a
natural target of exploitation … at the mercy of employers and may be obliged
to accept any kind of job, and any working conditions. In the worst cases, the
situation of migrant workers is akin to slavery or forced labour.”
They “rarely seek justice for fear of exposure and expulsion, and in many
States have no right of appeal against administrative decisions which affect
them” (United Nations, 1996:6-7).

All these formulations
carefully avoid laying the blame for discrimination on anybody
in particular. Evidently, though, they envisage discrimination to arise
from the interplay of private agency, practices of authorities, and state
regulations with the weights and roles between the three components being
distributed differently in different countries and at different times. Given
that human rights instruments are in the first instance addressed to lawmakers
the legislative and administrative practices of states get particular
attention. This also includes the states of which migrant workers are citizens
(Abella, 1997).

Efforts to deny
discrimination or to belittle its importance sometimes focus on the migrants’
cultural rooting and attribute poorer housing standards and poorer working
conditions to it. This appears to follow the common pattern of attributing
blame to the victim. At the UN it was noted that “In most cases financially
poor, they share the handicaps – economic, social, and cultural – of the least-favoured groups in the society of the host State” (United
Nations, 1996:5). Thus, the treatment received by migrant workers sometimes is
a more intense symptom of wider patterns of discrimination in a society.

Women migrant
workers: multiple discrimination

Women make up nearly
half the migrant workers (ILO, 2021) but their work is often less publicly
visible. They provide essential services in private households, in health and
in care, but also in manufacturing, in hospitality, and food services among
others. For instance, in Italy, “women migrant agriculture workers perform key
activities for certain crops and in packaging houses. … [and] are usually
overrepresented in unpaid and seasonal work. Women migrant farm workers often labour under the same harsh conditions as men: 10 or
12-hour days in unsafe and inadequate conditions for a daily wage of EUR 15 to
25. They face an additional risk, because agricultural workers usually live on
the farms, in contexts of isolation and poorly maintained housing. These
conditions are often accompanied by sexual harassment and abuse” (ILO, 2020b:5;
see also ILO, 2019).

The United Nations
Committee on the Elimination of Discrimination against Women issued a General
Recommendation in 2008 on the situation and issues facing migrant women (CEDAW,
2009). The following passages from it highlight risks of women migrants to
multiple discrimination (Taran and Gächter, 2005):

“(13) Once they reach
their destinations, women migrant workers may encounter multiple forms of de
jure and de facto discrimination. There are countries whose governments
sometimes impose restrictions or bans on women’s employment in particular
sectors. Whatever the situation, women migrant workers face additional hazards
compared to men because of gender-insensitive environments that do not allow
mobility for women, and that give them little access to relevant information
about their rights and entitlements. Gendered notions of appropriate work for
women result in job opportunities that reflect familial and service functions
ascribed to women or that are in the informal sector. Under such circumstances,
occupations in which women dominate are, in particular,
domestic work or certain forms of entertainment.”

“(15) Because of
discrimination on the basis of sex and gender, women migrant workers may
receive lower wages than do men, or experience non-payment of wages, payments
that are delayed until departure, or transfer of wages into accounts that are
inaccessible to them.”

In the COVID-19 pandemic, too, over and above the issues mentioned
earlier women migrant workers bore extra burdens: “The impacts on women migrant
workers appear to be compounded as they are over-represented in the informal
economy and among undocumented workers in many countries. Women migrant workers
employed as front-line health and care workers are in a particularly high-risk
group for COVID-19. Further, those who experience increased levels of violence
or harassment – in accommodation, at work, in quarantine facilities, or upon
retrenchment and return home – now have fewer options for support services.
Globally, many support services for migrant workers and particularly addressing
violence against women have been forced to downscale, close, or are
online/phone-only models” (ILO, 2020a:2; see also Spotlight Initiative, 2020).

Multiple discrimination
may result in cumulative effects (Sheppard, 2011; Taran and Kadysheva, 2022) and may
make anti-discrimination activity ineffective unless it takes a broad approach,
i.e. to discrimination in general rather than any
specific kinds or bases of discrimination.

The effects of
discrimination on the non- or less discriminated

Migrant workers were
sometimes viewed as instruments in the hands of employers to undermine or
thwart efforts by local workers for better conditions. This can only come about
when migrant workers are in a legally or otherwise disadvantageous situation
that makes them accept lower wages or in other ways poorer conditions or even
forces them to do so.

Human rights
instruments have been alerting to such dangers, although they tended to
highlight them particularly with respect to workers lacking the right to be in
the country or to be in employment or in this particular
employment. In its preamble the ICRMW contains the consideration “that
workers who are non-documented or in an irregular situation are frequently
employed under less favourable conditions of work
than other workers and that certain employers find this an inducement to seek
such labour in order to reap the benefits of unfair
competition,” and “also that recourse to the employment of migrant workers who
are in an irregular situation will be discouraged if the fundamental human
rights of all migrant workers are more widely recognized and, moreover, that
granting certain additional rights to migrant workers and members of their
families in a regular situation will encourage all migrants and employers to
respect and comply with the laws and procedures established by the States
concerned” (United Nations, 2005:22).

Subsequent commentary
emphasized that “Discriminating against ordinary migrant workers or, worse,
having foreigners work in illegal conditions … runs counter to fundamental
beliefs concerning equity and human rights in the economic and social field,
and it is bound to have a boomerang effect on national workers whose
remuneration and working conditions will sooner or later be undermined by
unlawfully employed migrants” (Böhning, 1996:57).
“Discrimination creates inequality, and inequality is a danger to the standards
protecting native workers” (Abella et al., 2014).

One step on in the
process migrant workers may themselves become dissatisfied with their
situation. Böhning expressed the “conviction that
workers who are badly or unfairly treated will become frustrated, may contract
psychosomatic and other illnesses and, as a result, will be less productive
than satisfied workers” (Böhning, 1996:57). Then
employers may want to replace them with even more pliable workers. A downward
spiral is set in motion that ultimately benefits no one.

Definitions of
Discrimination and Factss

Three components: content, effect, and criteria

Discrimination is defined in the ILO Discrimination
(Employment and Occupation) Convention, 1958 (No. 111) as “(a) any distinction,
exclusion or preference made on the basis of race, colour,
sex, religion, political opinion, national extraction or social origin, which
has the effect of nullifying or impairing equality of opportunity or treatment
in employment or occupation, (b) such other distinction, exclusion or preference
which has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation as may be determined by the Member
concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate
bodies. (2) Any distinction, exclusion or preference
in respect of a particular job based on the inherent requirements thereof shall
not be deemed to be discrimination” (Art. 1(1) and (2)).

In 1965 the International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD) was adopted by the UN Assembly. In
its Article 1 ‘racial discrimination’ is defined as
“any distinction, exclusion or preference based on race, colour,
descent or national or ethnic origin, which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life.” One notes the parallels to
ILO C111.

ILO Convention No. 111, while referring specifically to
employment and occupation, was the first major international instrument
specifically on discrimination. All other international instruments on
discrimination are consistent with its approach (Taran
and Gächter, 2005).

The definition combines three components, namely a kind of behaviour (“distinction, exclusion, or preference”), an
effect on victims (“nullifying or impairing equality of opportunity or
treatment in employment or occupation”), and a list of seven “bases” (“race, colour, sex, religion, political opinion, national
extraction or social origin”) that can be added to individually by Member
States.

The criteria

The ICRMW in its Article 7 contains a more extensive list
of bases than ILO C111 does. The rights provided for in the Convention are to
be ensured by states “without distinction of any kind such as to sex, race, colour, language, religion or conviction, political or
other opinion, national, ethnic or social origin, nationality, age, economic
position, property, marital status, birth or other status.”

Closing the list on “or other status” makes it open-ended.
Contrary to ILO C111 it does not leave it up to Member States to extend the
list but makes it compulsory on them to consider the specifically named bases
as merely illustrative and not exhaustive. Naming them, however, does make them
inescapable priority concerns as was also true of the seven bases named in
C111. Left open to interpretation is the exact meaning of ‘status’ but, of
course, also the meanings of the words used to designate the specifically named
items in the list. Would, for instance, a difference in accent be covered by
‘language’? Why is ‘origin’ appended to ‘social’ – does this make
discrimination on current social status less culpable than on social origin?
How is ‘position’ in ‘economic position’ to be understood? What is covered by
‘birth’? These among many other questions can all be answered but it is left
open to legislators and judges in Member States to do so and the results may
vary a great deal between places, over time and according to context.

When the 1990 UN Convention was not yet in force it was
stressed that “… discrimination on the grounds of nationality, a type of
discrimination to which migrants by definition are extremely vulnerable, is not
outlawed by [ICERD]” (ILO, 1999:26). Given that the lack of the country’s
citizenship they reside in is a distinguishing feature of migrant workers and
because in advertisements firms or landlords may state citizenship as a
selection criterion the inclusion of ‘nationality’ in the listing seemed an urgent
matter. There are countries that have taken it on board without becoming a party to the UN Convention. How
much effect it has had is hard to gauge as is always true of preventive
measures when they are taken without embedding the legal change in a carefully
planned and executed evaluation.

Baring individuals and enterprises from discriminating on the basis of citizenship has the effect of transferring
the exclusive right to exclude or to disadvantage non-citizens to state
authorities and to legally defined, suitably transparent processes. States are
extremely hesitant to give up legislation disadvantaging citizens of other
countries. They have done so exceptionally on a mutual basis within regional
economic groupings, but generally left backdoors open allowing them to curtail
the rights of non-citizens at critical moments.

Outside the UN human rights context, the “bases” are
sometimes called “grounds” of discrimination. The use of the word ‘grounds’,
however, may to some falsely suggest causation, i.e.
that characteristics of the discriminated are the causes of the discrimination.
This is of course not so. The cause of any discrimination always lies in the
characteristics of the discriminators, in the circumstances of their existence,
or in the norms they adhere to. The word ‘basis’ is also not entirely free of
ambivalence on this matter. Other words might be more serviceable, such as
perhaps ‘criteria’ or ‘categories’.

Restricting legislation and action against discrimination
to the items explicitly mentioned in any of the listings would miss the point,
even if, as in Belgium, the list is extended to 19 “grounds”: nationality,
national or ethnic origin, ‘race’, skin colour and
cultural background (e.g. Jewish origin), disability, religious or ideological
beliefs, sexual orientation, age, wealth, civil status, political beliefs,
trade union beliefs, health status, physical or genetic characteristics, birth,
social background and language. In addition, there are 13 “grounds” related to
gender (gender, pregnancy, childbirth, breastfeeding, motherhood, adoption,
assisted reproduction, gender identity, gender expression, so-called ‘sex
change’, sex characteristics, fatherhood, co-motherhood) (UNIA, n.d.).

Because everybody wants to be treated fairly and is entitled
to equal treatment the list would ultimately have to include every
particularity of everybody who ever lived. This is being acknowledged by making
the lists open-ended. Conceivably, listings will eventually be abandoned in favour of a more prominent focus on the behaviour
that is to be prohibited and particularly the impacts that are to be averted.

Behavioural content

The behaviour in question –
“distinction, exclusion, or preference” – in itself is
a commonplace activity humans cannot but to engage in incessantly in regard of
other humans. Thus, it is not the behaviour as such
that poses a problem or that needs to be prohibited. Only if the behaviour leads to certain effects is it to be abstained
from no matter whether the behaviour and its effects
are intended or not, conscious or not, on one’s own
accord or not. The definition does not state who or what is making the
“distinction, exclusion, or preference” and who is executing it. It could be an
algorithm making it that has learned it from analysing
millions of previous decisions so that no particular person
was involved in bringing it about. The algorithm’s decision would reflect the
rules, regulations, practices, traditions, habits, social norms etc. that were
being adhered to during the time the decisions were made that it learned from.
The decisions may have been made in an office, an organisation,
a society. In other words, whether the behaviour
emanates from named individuals, from anonymous individuals, from organisations, social structures or other such entities is
of no concern.

Behaviour is shaped by structure and there may thus be no choice
about it. Outlawing certain behaviours, if they have
certain effects, implicitly required the recognition of such structures, and
implicitly outlaws them. Outside the UN this has come to be recognized legally
by including indirect discrimination among the explicit prohibitions. Within
the UN-defined rights-based approach it could be left implicit as agency is
left open and the actual focus is on the effect that is to be averted.

Effect on victims

The key component of a definition of discrimination is its
description of the prohibited impact on victims. It is the injustice that
matters rather more than the kind of behaviour that
inflicted it or the basis on which it was inflicted.

In ILO C111 the prohibited impact is “nullifying or
impairing equality of opportunity or treatment in employment or occupation”.
Both, treatment and opportunity are to be equal.
Treatment is in the here and now, but opportunity projects into the future. It
seems that in general this future was understood to have to take place in the
country the migrant workers are not citizens of but actually
the definition does not require this.

If a definition of discrimination emphasized the behavioural aspect too much, i.e.
the perpetrator’s choice to discriminate or not, it would invite a certain risk
of being interpreted narrowly to only include intentional discrimination. By
deemphasizing behaviour and focusing on the effect
definitions become more explicitly inclusive of unintentional behaviour, of regulations, conditions and circumstances
that could result in the same effects without anybody intending them knowingly
or consciously.

Areas or fields in which discrimination can
occur

The ICERD definition contains an extra component not present in those of the ILO or the UN Convention of
1990, namely the – open ended – listing of “fields of public life.” As the list
is open-ended naming any fields at all is a matter merely of prioritising them. The other conventions do not contain a
reference to fields as part of the definition because they define the areas of
their applicability elsewhere or do so implicitly by referring to ICERD or
other statutes.

The danger of too narrow a
delineation of the fields or areas of applicability would be to miss the
side-effects discrimination in one area can have in another, as for instance
discrimination by school principals or teachers could affect subsequent employment
outcomes of the students, and so could discrimination by landlords or neighbours (Wrench 2007). Protecting workers against
discrimination by employers and by other workers cannot achieve its full
intended effect as long as discrimination in other
fields is not also kept in check. The necessary holistic approach to the rights
of migrant workers is the added value of the 1990 UN Convention mentioned
before.

International legal norms

Fundamentals

Non-discrimination is one of the most fundamental rights,
reiterated in all core International Human Rights
Conventions, and generally in International Labour
Standards.

Non-discrimination provisions are at the start and the
heart of all international human rights instruments, many of these widely
ratified. These include the:

-
Universal
Declaration of Human Rights, Article 2

-
International
Covenant on Civil and Political Rights, Article 2

-
International
Covenant on Economic, Social and Cultural Rights, Article 7

-
International
Convention on the Elimination of All Forms of Racial Discrimination

-
International
Convention on the Elimination of All Forms of Discrimination Against Women.

-
International
Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families (that incorporated nationality to the list of prohibited
grounds)

-
Convention
on the Rights of Persons with Disabilities.

The legal framework for non-discrimination
regarding migrant workers[3]

A coherent and comprehensive legal framework for
non-discrimination and equality of treatment under the rule of law has been
elaborated over the last century. Application of its universal principles to
migrant workers and their families has been progressively recognized. The
international instruments and policy recommendations have been elaborated by
States parties at global and regional levels. Together, they provide the
foundations – and relevant legal texts – for national law, policy
and practice applicable in all countries.

The CERD and ILO Convention No. 111 lay out
anti-discrimination and equality of treatment norms, particularly as they apply
to the world of work. Additionally, three specific instruments address equality
of treatment and non-discrimination for migrants: ILO Conventions No. 97 and
No. 143 and the 1990 International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families. It is said that these
instruments comprise an international charter on migration by providing a broad
normative framework covering both treatment of migrants – including
non-discrimination – and inter-state cooperation on regulating migration. They
provide definitions and legal text for national law. They also articulate an
agenda for national policy and for consultation and cooperation among States on
labour migration policy formulation, exchange of
information, integration, and orderly return.

Special concern for the protection of workers outside their
countries of citizenship was recognized in the Treaty of Versailles of 1919 and
the ILO Constitution. The application of universal principles of
non-discrimination to migrant workers was subsequently spelled out in the ILO
Migration for Employment Convention (Revised), 1949 (No. 97), the ILO Migrant
Workers (Supplementary Provisions) Convention, 1975 (No. 143) and the 1990
International Convention on Protection of the Rights of All Migrant Workers and
Members of Their Families, as well as in the 1998 ILO Declaration on
Fundamental Principles and Rights at Work.

Further provisions directly of relevance to the protection
of the rights of migrant workers are contained in the ILO Equality of Treatment
(Social Security) Convention, 1962 (No. 118), the ILO Maintenance of Social
Security Rights Convention, 1982 (No. 152) (Böhning
1996:4f), and the ILO Convention on Decent Work for Domestic Workers, 2011 (No.
189), as well as in the accompanying ILO Recommendations. The Forced Labour Convention, 1930 (No. 29) and the Labour Inspection Convention, 1947 (No. 81) along with
others are of continued relevance.

Open-ended non-discrimination clauses in international and
regional human rights instruments have been interpreted to outlaw unjustifiable
distinctions between persons based on nationality. These include:

-
Article 2
of the Universal Declaration of Human Rights,

-
Articles 2
and 26 of the International Covenant on Civil and Political Rights,

-
Articles 1
and 24 of the American Convention on Human Rights and

-
Article 2
of the African Charter on Human and Peoples’ Rights.

-
Article 14
of the European Convention on Human Rights (ECHR), while not explicitly
referring to nationality, has been interpreted by the European Court of Human
Rights as prohibiting discrimination based on nationality.

-
The
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families formally recognized nationality as a prohibited
base, explicitly listed in Articles 1 and 7 regarding applicability and
non-discrimination.

Non-discrimination in application of labour standards

International law stipulates that, once established in a
country with authorization for employment, there should be no difference in
treatment between migrant workers and national workers, either in general or in
terms and conditions of employment such as wages, benefits, opportunities for
advancement, occupational safety and health, etc.

While this is evident regarding migrants with authorized
entry, residence, and employment, the ILO Committee of Experts and international
courts have reinforced the notion that application of International Labour Standards in the workplace is universal to all
workers who are in an employment relationship, regardless of immigration
status.

“An important development in this respect is the advisory
opinion that the Inter-American Court of Human Rights issued at the request of
Mexico on the legal status and rights of undocumented migrants.[4] In its
opinion, the Court states that the fundamental principle of equality and
non-discrimination is of a peremptory nature and binds all States regardless of
any circumstance or consideration such as the migratory status of a person. The
Court concludes that the State thus has the obligation to respect and guarantee
the labour human rights of all workers, including
those of undocumented migrant workers. The Court clarifies that ‘the migratory
status of a person cannot constitute a justification to deprive [her or] him of
the enjoyment and exercise of human rights, including those of a labour-related nature’ and that ‘States may not subordinate
or condition observance of the principle of equality before the law and
non-discrimination to achieving their public policy goals, whatever these may
be, including those of a migratory character’” (United Nations, 2005:13).

Migrant domestic workers

Migrant domestic workers have long been recognized as
particularly at risk of discrimination, abuse and exploitative working and
living conditions (Böhning, 1996:63-64) and pose a
well-documented instance of the cumulative discrimination referred to earlier. “Most domestic workers are women and suffer discrimination on the
grounds of their sex and associated gender roles. This is reflected in pay
levels where the work remains undervalued and poorly regulated. Traditional
attitudes and prejudices about women as subordinates also contribute to
wide-spread practices of coercion and violence” (ILO, 2016:3). This is believed
to be particularly acute if the migrant domestic workers are in an irregular
situation. In connection with forced labour “domestic
work is one of the most frequently cited economic sectors” (ILO, 2016:4).

In June 2011, the ILO adopted the first international
standard specifically on domestic workers, Convention No. 189 on Decent Work
for Domestic Workers. It includes a number of
provisions intended to improve protection and ensure equality of treatment for
many domestic workers who are foreigners (migrant workers) in their place of
employment, although it does not cover undocumented migrant domestic workers
nor those under an au-pair programme or in diplomatic
households. In particular, where this has not been the
case the country’s labour laws should be extended to
domestic workers. For migrant workers this would entail access to other
employers and occupations. The Convention has found relatively rapid approval
by Member States and by the end of 2021 was ratified by 35 of them.

Inferior rights, insufficient protection

If States have not ratified international human rights
instruments or labour standards, they may be less
immediately bound by specific provisions.
However, customary international law and jus cogens impose normative obligations on all States for human rights
and labour standards, including non-discrimination,
regardless of ratification of particular instruments.
Applicability remains debated as to the extent of non-discrimination
obligations for non-citizens on the territory of the country – notably depending
on immigration status – but international court and treaty body rulings
generally regard non-discrimination as in effect sina qua non for all persons, including migrants and regardless of
status for labour, economic, social, and cultural
rights protection.

In any case, if national legislation and administrative
practices conform to what in the instruments is defined as discrimination, it
will be discrimination in the light of these instruments.

There are at least three ways in which a state can allow or
facilitate discrimination:

a)
The state
does not outlaw or, if outlawed, it tolerates private discrimination,

b)
the state
itself discriminates in its laws and regulations or in its administrative
practice,

c)
the state
puts an obligation on individuals and organisations
to discriminate.

Any combination of (a), (b) and (c) can and does occur in reality but while there is reasonable knowledge of the
legal regulations in a large number of countries there is little or no
information on actual practices (ILO, 1999).

States offer a variety of reasons for not ratifying the
Conventions. The contents of the Articles do not appear to be the main
obstacle, although states engaged in strict rotation of temporary, posted or seasonal migrant workers do of course view any provisions
establishing equality between migrant and national workers, equality of
opportunity and treatment, the right to change jobs, and any rights in the case
of loss of employment or incapacity to work as anathema (ILO, 1999:239). Rather
they cite (unspecified) specificities of their labour
market, the lack of infrastructure, of personnel capacity, of funds, untoward
economic or political conditions, uncertainties about how much their laws and
practices conform with the norms set in the Conventions, and while they may
agree with equal treatment equal opportunities are held to be asking too much
(ILO, 1999:236-240, 242-243). The point they mean to make is not always exactly
clear.

There were and are instances where employers or landlords
are obliged by law to treat non-citizens differently from citizens and in fact
to discriminate against them, although ‘discrimination’ will not be the term
used in the relevant legal language.

Forms,
remedies, and proof of discrimination

While there is no need
for the definitions in the Conventions to do so, there are many different categorisations, classifications
or typologies of discrimination in the academic literature. The definitions and
names chosen for the categories, types, forms etc. do not matter as much as the
awareness that discrimination comes in many guises and does not depend on
intention. Helpful is also the awareness that good intentions are no guarantee
at all against discriminating.

Much discrimination
arises from an unwillingness to accommodate the needs of others as long as there is neither obligation nor other need or
pressure to do so. In addition, behaviour can be
chosen opportunistically to accommodate third parties. Finally, there is the
whole area of behaviour that follows social norms,
regulations, rules, traditions, or habits regardless of whether they may be
deemed discriminatory or not.

In the Conventions and
Covenants that define the rights-based approach to migrant workers no
distinctions between different kinds of discrimination are drawn. This has the
beneficial effect of avoiding any sense of hierarchy or priority among them and
bears the risk of overlooking discrimination that is indirect. The risk arises
less in cases of complaints and perhaps least when equality of opportunity is
considered because it is almost self-evident that opportunities lie in
structures rather than in individual behaviour but
may be relevant when thinking about preventive measures.

Direct and
indirect

These concerns were in
the main dealt with above when discussing the behavioural
content of the definition of discrimination in ILO C111. Nonetheless it may
serve well to establish an understanding of the now widely accepted distinction
between direct and indirect discrimination that at the start of the century
still posed considerable problems for law makers and judges. The European
Union, in 2000, drew the distinction thus:

(a)   “direct discrimination
shall be taken to occur where one person is treated less favourably
than another is, has been or would be treated in a comparable situation, on any
of the grounds referred to in Article 1;

(b)   indirect discrimination shall be taken to occur
where an apparently neutral provision, criterion or practice would put persons
having a particular [characteristic] at a particular disadvantage compared with
other persons unless: (i) that provision, criterion or practice is objectively justified by a
legitimate aim and the means of achieving the aim are appropriate and necessary,
or (ii) …”[5]

Here indirect
discrimination is not distinguished by any particular effects but by the
effects arising out of a, for instance, selection behaviour
following rules that would not be discriminatory, if people did not differ on characteristics they can either not give up or have a right
to possess. In other words, rules of any kind have to
be adapted sufficiently to accommodate the limitations set by, in the EU’s
specific case, disability, age, sexual orientation, political conviction, and
faith.

In the framework of the
rights-based approach to migrant workers such accommodation is not explicitly
provided for.

Affirmative
Action and “Positive discrimination”

Discrimination against
one kind of persons is tantamount to discrimination in favour
of other kinds of persons. For this reason, so called ‘positive discrimination’
is usually outlawed along with its counterpart. A case can be made, though, for
permitting or even requiring affirmative action (see, for instance, Faundez 1994) as justified differential treatment until a
certain goal has been achieved when a category of persons is shown or believed
to have suffered extensive discrimination in the past. Moderate and widely practised forms of positive action/affirmative action consist in an
obligation to prefer one kind of candidate if there are several equally
qualified ones until a certain balance is achieved or in setting quotas for
certain categories of persons.

Article 4 of the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), adopted on 18 December 1979 by UN General Assembly Resolution
34/180, for instance, authorises “temporary special
measures aimed at accelerating de facto equality between men and women” and
exempts them from being considered discriminatory provided that they are
“discontinued when the objectives of equality of opportunity and treatment have
been achieved.” This, of course, applies to migrant women, too, and could be an
example to follow in regard to other criteria of
discrimination.

Outlawing positive
discrimination may not also prohibit ‘positive action’, meaning the targeting
of particular kinds of persons for the improvement of
professional qualifications, for anti-discrimination training including
training in how to react to being discriminated, or for building resilience to
discriminatory behaviour by others.

The line between
positive action and discrimination is a fine one, though. Excluding somebody
from participation in positive action courses on grounds of not belonging to a
designated group could result in a discrimination charge. Admission to positive
action has to be as free of discrimination as any other kind of admissions
policy, i.e. it has to be based on objective,
verifiable criteria of individual need for positive action.

As discussed earlier,
expectations and claims of employer discrimination in favour
of migrant workers are one reason why workers or trade unions and other actors
have at times advocated against the admission of foreigners to the labour market, to employment, to integration and
settlement, or to the country.

Proving the
existence of discrimination against migrant workers

Individual cases
illustrate the existence of discrimination in society and its widely varying
appearances but provide no measure of its extent. This is particularly true of
court cases but almost equally of complaints to designated organisations
or offices.

If necessary, there are
ways of obtaining data on the extent of discrimination, chiefly situation
testing and surveys of perceptions of discrimination. The challenge is to carry
them out judiciously and with up-to-date methodology and to actually
cover the situation of migrant workers, including recently arrived ones,
or to reach them with a questionnaire.

However, far more data
and research is needed to establish where and how
discrimination is taking place, and thus to enhance the political and social
will to fight against discrimination and promote equality of treatment around
the world.

The issue of
measurement is a complex one with a substantial specialist literature that
cannot be gone into here (but see, for instance, OECD 2008). Suffice it to mention
that, for a period, the ILO itself offered Member States testing of hiring
processes for discrimination and that between the mid-1990s and the mid-2000s
seven European countries used the opportunity and in two more the methodology
was copied. The results were remarkably similar showing that labour market entrants whose parents were migrant workers
had to try between two and four times more often in order to
get a job interview than others (Zegers de Beijl, 1999; ILO, 2007).

Conclusions

The rights-based
approach calls for and, where applied, strengthens the protection of rights. It
includes legislation, policy and practice to protect
migrant workers and their families from discrimination. In its results, the
rights-based approach contributes to a situation in which migrant workers,
national workers, and employers can derive the most benefit from the admission
and employment of migrant workers. This may not always be immediately evident
in the very short run but arises as an incontrovertible conclusion from
observing the evolution of national labour policies
over the past 200 years, where the replacement of largely repressive with more
rights-based regimes has been benefitting employers, shareholders, workers,
government finances, and social cohesion, even if the transition remains
incomplete. The same conclusion arises from the success of policies in regional
groupings such as the European Union, ASEAN or
Mercosur since the middle of the 20th century. Nationally and in
regional groupings this path should therefore be continued and the temptation
to turn the clock back should be resisted by workers, business, and all of
society alike.

Changing laws is the
easy part of the transition from a repressive and divisive to a rights-based
approach. Getting practices on the ground to conform to the law however takes a
sustained effort. This is true both in regard of practices of the public
administration and the courts and of employers whether private or public (Abella et al., 2014; Taran and Gächter, 2004; Gächter, 2017).
Laws set rules, and rules take time to learn, but absent implementation they
will not be learnt even in the long run. There need to be serious efforts to
make the rules known, accessible opportunities to learn them, and incentives
or, if need be, pressure and sanctions. A particularly effective way of
propelling learning on the job for administrators, managers and household
proprietors may be to give workers, including all migrant workers, the freedom
to react to changes and to decisions by either seeking other employment, organising, demonstrating or at least for fielding
complaints anonymously.

Laws also provide or
withhold rights. “The benefits of migration cannot be maximised
unless the migrating workers are made fully aware of their rights and
conditions of employment” (Abella et al., 2014). The
onus for providing such information on rights and responsibilities has often
been placed on the states the migrants are citizens of but, as became evident
once again during the COVID-19 pandemic, and as
emphasized here and elsewhere, it would benefit the states where they work to
disseminate impartial and accurate information and to encourage trade unions
and other bodies such as civil society groups and community associations to do
so (EU FRA, 2021). In addition, the need for adequately staffed, trained, and
empowered labour inspection cannot be emphasized
enough, but crucially needs to be complemented by facilitation of workers’
self-organisation and easily accessible, effective
complaints bodies and recourse to justice by individual workers for there are
large numbers of workplaces inaccessible to or hidden from labour
inspection.

In closing it may be
noted that this bare-bones outline of the conceptual framework international
legal instruments provide for research on and action
against discrimination, especially of migrant workers, largely leaves open the
content of such research. While much of will necessarily have to be local,
regional, or national in focus, attention may also have to be paid to
international and global structures of inequality and the processes of their
perpetuation.

Acknowledgements

I would like to thank one anonymous referee
for a number of suggestions that helped to improve the
text. Considerations of space precluded following all the leads in full.

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[1] See the text of the complaint at: https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_348745.pdf

[2] See the text of the agreement at: https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_586479.pdf

[3] This whole section draws
extensively on Taran/Gächter (2005) and on Taran/Kadysheva (2022).

[4] Corte
Interamericana de Derechos Humanos. Condición Jurídica y Derechos de los
Migrantes Indocumentados Opinion Consultativa OC-18/03 de 17 de Septiembre de
2003, solicitada por los Estados Unidos de Mexico; Inter-American Court of
Human Rights, Advisory Opinion OC-18/03 on the juridical condition and rights
of undocumented migrants, 17 September 2003.

[5] Council Directive 2000/78/EC
of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation, Article 2 (2); likewise, Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin, Article 2 (2).