https://doi.org/10.37815/rte.v34n1.907
Original paper - English
Migrant workers and discrimination: realities, threats, and remedie=
s
Trabajadores
migrantes y discriminación: realidades, amenazas y remedios
August
Gächter1
1
Sent: = 2022/01/11<= o:p>
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 ne= arly 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 visibili= ty of their situation. The rights-based approach, developed over a period of m= ore 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 wor= kers 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 treat= ment 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 nati= onal 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, Definiti=
ons
of Discrimination and Facts, International legal norms, Forms, remedie=
s,
and proof of discrimination and Conclusions. How
to cite: Gächter, A. (2022).=
Migrant
workers and discrimination: realities, threats, and remedies. <=
i>Revista Tecnológica - Espol, 34(1), 92-112. http://www.rte.espol.e=
du.ec/index.php/tecnologica/article/view/907
Resumen
Los trabajadores migrantes
realizan trabajos esenciales, pero a menudo lo hacen en condiciones deficie=
ntes
o incluso abusivas. Las mujeres constituyen casi la mitad de la fuerza labo=
ral
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 má=
s de
60 años, ofrece soluciones coherentes a toda la gama de cuestiones relacion=
adas
con el empleo de los trabajadores migrantes internacionales. Abarca la
contratación, la admisión, el empleo, el desempleo, la formación, la seguri=
dad
en el trabajo, la atención de la salud, la seguridad social, la organizació=
n,
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 inhere=
ntes
a ellas. Mediante ejemplos, este artículo describe el riesgo de trato
discriminatorio no solo por parte de los individuos, sino también por la le=
y 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 l=
os
trabajadores migrantes sufren discriminación. Examina de cerca la definició=
n de
discriminación en los convenios internacionales adoptados como respuesta. E=
ntre
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 prope=
nsas
a la discriminación.
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 occupation=
s,
in jobs offering little or no opportunity for advancement, in economically
unattractive or remote areas, or in enterprises offering below-standard wag=
es
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 associat=
ion
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 expen=
sive
or both (Taran and Gächter=
,
2005; Taran and Kadysheva<=
/span>,
2022).
In the Intern=
ational
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 internat=
ional
community,” and “the impact of the flows of migrant workers on States and
people concerned” (United Nations, 2005:21).
Succinctly pu=
t, “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 count=
ries
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 amo=
ng
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 a=
buse 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 b= elow intends to provide a framework for intensified research into the discrimina= tion of migrant workers in all situations. In particular, it= s focus is on advancing research that wishes to combine an improved understan= ding of processes of discrimination with an intention to remedy injustices, inequalities, and inefficiencies. It therefore presents and discusses, at t= imes 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 speci= al emphasis on female migrant workers, and that of discrimination with an emph= asis on analysing its form, content, and functioning= , and including consideration of specificities relating to migrant workers, to indirect and to positive discrimination. The articl= e also discusses aspects of the language used in prohibitions of discrimination. To these ends it cites the relevant provisions from the human rights instrumen= ts and from accompanying commentary.
The state of debate about migrant workers and discrimination<=
/a>
An o=
utline 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 t=
he early
stages of the pandemic it became unusually evident that migrant workers are
“carrying out essential jobs in health care, transport, services, construct=
ion,
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, charact=
erized
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 hea=
lth and
care sectors this situation led to calls for a revaluation of work and work=
ers.
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 th=
ese
seasonal migrant workers. Existing approaches in the law and practice of
Secondly, it =
became no
less evident that “Migrant workers are among the most vulnerable. Reports
document rising levels of discrimination and xenophobia against migrants an=
d 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 deportatio=
n,
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 l=
abour
law does not regard them as workers. In some cases, travel restrictions have
trapped migrants in countries of destination with few options to return hom=
e.
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 wor=
kers
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 2=
010 Qatar
was selected to host the World Cup 2022 finals. The ensuing building boom w=
as
heavily dependent on migrant workers from South Asia, the Philippines, Kenya and other places. In 2014, workers’ groups lodge=
d 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 10=
3rd
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, Qa=
tar entered into a three-year (2018-2020) Technical Cooper=
ation 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 e=
nd 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 wage=
s,
work excessively long hours, and struggle to access justice. The impact of =
the
COVID=
-19 pandemic is also placing new stresse=
s on
employers and employees alike. For migrant workers this has only exacerbated
their acute vulnerabilities, including heavy debts from high recruitment fe=
es,
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, acces=
s 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 numb=
er
of deaths among construction workers and on whether the causes given for th=
em
were correct (Amnesty International 2021a, 2021b; The Guardian 2021). It sh=
ould
be noted that Qatar’s unreformed system had similarities with that in other
Gulf States and elsewhere in Asia (Baruah 2020).
Both the pand=
emic and
the Qatar experience prompted renewed emphasis on the need for adequate
If having par=
t of the
population in deplorable conditions is undesirable, not only for the afflic=
ted
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 develope= d 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.<= o:p>
The core inte=
rnational
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 yea=
rs
that ended more than 30 years ago. Directly involved were not only governme=
nts
but also employer organisations and trade union=
s.
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, ad=
opted 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.
Migr=
ant
workers
Although used=
in many different ways, the term migrant worker has a pre=
cise
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 bei=
ng
employed otherwise than on his own account and includes any person regularly
admitted as a migrant worker.” It thus does not include persons not regular=
ly
admitted.
Similarly, th=
e 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 Stat=
e 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; season=
al
worker; seafarer including fisherman; project-tied worker; worker on an
offshore installation; itinerant worker; and specified-employment worker
(‘posted worker’).
The ICRMW exc=
epts
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 def=
inition is
considerably wider than the ILO Convention’s. It neither requires the perso=
n to
have migrated nor to have been “regularly admitted”. It thus includes perso=
ns
in an irregular situation/unauthorized status and persons born in the count=
ry
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 measureme=
nt
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 th= e problems and challenges mentioned apply to internal migrants, too, as do the solutio= ns offered by the rights-based approach, but the article below will only deal = with international migrant workers.
Disc=
rimination
In the UN’s a=
nalysis,
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 we=
re
taken into consideration when the ICRMW was drawn up and adopted.
“Discriminati=
on 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 standa=
rds
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 advantage=
s”
(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 ci=
ted of
legal and administrative rules which force migrants to remain in certain
occupations and specific regions, as well as of inequalities in pay and gra=
ding
for identical jobs. Migrant workers are known to have been excluded from the
scope of regulations covering working conditions, and to have been denied t=
he
right to take part in trade union activities” (United Nations, 1996:6).
“Although mig=
rant
workers contribute to social security schemes, they and their families do n=
ot
always enjoy the same benefits and access to social services as nationals of
the host State” (United Nations, 1996:6).
“Living condi=
tions for
migrant workers are often unsatisfactory. Low incomes, high rents, housing
shortages, the size of migrants’ families, and local prejudice against fore=
ign
elements in the community are the main factors which combine to cause a ser=
ious
accommodation problem” (United Nations, 1996:6).
“Migrant work=
ers 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 oblig=
ed
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 for=
mulations
carefully avoid laying the blame for discrimination on =
anybody
in particular. Evidently, though, they envisage discrimination to ar=
ise
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 lawmak=
ers
the legislative and administrative practices of states get particular
attention. This also includes the states of which migrant workers are citiz=
ens
(Abella, 1997).
Efforts to de=
ny
discrimination or to belittle its importance sometimes focus on the migrant=
s’
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 le=
ast-favoured groups in the society of the host State” (Un=
ited
Nations, 1996:5). Thus, the treatment received by migrant workers sometimes=
is
a more intense symptom of wider patterns of discrimination in a society.
Wome=
n 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 a=
nd
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 oft=
en 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, 2020=
b:5;
see also ILO, 2019).
The United Na=
tions
Committee on the Elimination of Discrimination against Women issued a Gener=
al
Recommendation in 2008 on the situation and issues facing migrant women (CE=
DAW,
2009). The following passages from it highlight risks of women migrants to
multiple discrimination (Taran and Gächter, 2005):
“(13) Once th=
ey 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 haza=
rds
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 f=
or
women result in job opportunities that reflect familial and service functio=
ns
ascribed to women or that are in the informal sector. Under such circumstan=
ces,
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, paymen=
ts
that are delayed until departure, or transfer of wages into accounts that a=
re
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 mig=
rant
workers appear to be compounded as they are over-represented in the informal
economy and among undocumented workers in many countries. Women migrant wor=
kers
employed as front-line health and care workers are in a particularly high-r=
isk
group for COVID-19. Further, those who experience increased levels of viole=
nce
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 addres=
sing
violence against women have been forced to downscale, close, or are
online/phone-only models” (ILO, 2020a:2; see also Spotlight Initiative, 202=
0).
Multiple disc=
rimination
may result in cumulative effects (Sheppard, 2011;=
Taran and Kadysheva, 2022) and=
may
make anti-discrimination activity ineffective unless it takes a broad appro=
ach,
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 worke=
rs 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 a=
bout
when migrant workers are in a legally or otherwise disadvantageous situation
that makes them accept lower wages or in other ways poorer conditions or ev=
en
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 “th=
at
workers who are non-documented or in an irregular situation are frequently
employed under less favourable conditions of wo=
rk
than other workers and that certain employers find this an inducement to se=
ek
such labour in order to reap the benefits of un=
fair
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 co= mmentary 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 stand= ards protecting native workers” (Abella et al., 2014= ).
One step on i=
n the
process migrant workers may themselves become dissatisfied with their
situation. Böhning expressed the “conviction th=
at
workers who are badly or unfairly treated will become frustrated, may contr=
act
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 downwa=
rd
spiral is set in motion that ultimately benefits no one.
Defi=
nitions of
Discrimination and Factss=
Three components: content, effect, and cr=
iteria
Discrimination is defined in the ILO Discrimination
(Employment and Occupation) Convention, 1958 (No. 111) as “(a) any distinct=
ion,
exclusion or preference made on the basis of race, col=
our,
sex, religion, political opinion, national extraction or social origin, whi=
ch
has the effect of nullifying or impairing equality of opportunity or treatm=
ent
in employment or occupation, (b) such other distinction, exclusion or prefe=
rence
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’
In 1965 the International Convention on the Eliminati=
on 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, economi=
c,
social, cultural or any other field of public life.” One notes the parallel=
s 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 ki=
nd 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-e=
nded.
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 bas=
es
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 n=
amed
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 w=
as
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 a=
nd
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 Convent=
ion. 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 carefu=
lly
planned and executed evaluation.
Baring individuals and enterprises from discriminatin=
g on the basis of citizenship has the effect of transfer=
ring
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 curt=
ail
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 discriminat=
ion.
This is of course not so. The cause of any discrimination always lies in the
characteristics of the discriminators, in the circumstances of their existe=
nce,
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 discrimina=
tion
to the items explicitly mentioned in any of the listings would miss the poi=
nt,
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 ideologi=
cal
beliefs, sexual orientation, age, wealth, civil status, political beliefs,
trade union beliefs, health status, physical or genetic characteristics, bi=
rth,
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 e=
ntitled
to equal treatment the list would ultimately have to include every
particularity of everybody who ever lived. This is being acknowledged by ma=
king
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 averte=
d.
Behavioural content
The behaviour in question=
–
“distinction, exclusion, or preference” – in itself is<=
/span>
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 abstai=
ned
from no matter whether the behaviour and its ef=
fects
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 b=
e an
algorithm making it that has learned it from analysing=
millions of previous decisions so that no particular pe=
rson
was involved in bringing it about. The algorithm’s decision would reflect t=
he
rules, regulations, practices, traditions, habits, social norms etc. that w=
ere
being adhered to during the time the decisions were made that it learned fr=
om.
The decisions may have been made in an office, an orga=
nisation,
a society. In other words, whether the behaviour
emanates from named individuals, from anonymous individuals, from organisations, social structures or other such entiti=
es is
of no concern.
Behaviour is shaped by structure and there may thus be no choi=
ce
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 lega=
lly
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 i=
s 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 t=
he
country the migrant workers are not citizens of but act=
ually
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 eff=
ect
definitions become more explicitly inclusive of unintentional behaviour, of regulations, conditions and circumstanc=
es
that could result in the same effects without anybody intending them knowin=
gly
or consciously.
Areas or fields in which discrimination c=
an
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 conta=
in 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 emp= loyment 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 oth= er fields is not also kept in check. The necessary holistic approach to the ri= ghts 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 rig=
hts,
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:
-= = Uni= versal Declaration of Human Rights, Article 2
-= = Int= ernational Covenant on Civil and Political Rights, Article 2
-= = Int= ernational Covenant on Economic, Social and Cultural Rights, Article 7
-= = Int= ernational Convention on the Elimination of All Forms of Racial Discrimination<= /span>
-= = Int= ernational Convention on the Elimination of All Forms of Discrimination Against Women.=
-= = Int= ernational Convention on the Protection of the Rights of All Migrant Workers and Membe= rs of Their Families (that incorporated nationality to the list of prohibited grounds)
-= = Con= vention 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 a=
pply
to the world of work. Additionally, three specific instruments address equa=
lity
of treatment and non-discrimination for migrants: ILO Conventions No. 97 and
No. 143 and the 1990 International Convention on the Protection of the Righ=
ts
of All Migrant Workers and Members of Their Families. It is said that these
instruments comprise an international charter on migration by providing a b=
road
normative framework covering both treatment of migrants – including
non-discrimination – and inter-state cooperation on regulating migration. T=
hey
provide definitions and legal text for national law. They also articulate an
agenda for national policy and for consultation and cooperation among State=
s 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 I=
LO
Migration for Employment Convention (Revised), 1949 (No. 97), the ILO Migra=
nt
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 prote=
ction
of the rights of migrant workers are contained in the ILO Equality of Treat=
ment
(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 internationa=
l and
regional human rights instruments have been interpreted to outlaw unjustifi=
able
distinctions between persons based on nationality. These include:
-= = Art= icle 2 of the Universal Declaration of Human Rights,
-= = Art= icles 2 and 26 of the International Covenant on Civil and Political Rights,<= /span>
-= = Art= icles 1 and 24 of the American Convention on Human Rights and
-= = Art= icle 2 of the African Charter on Human and Peoples’ Rights.
-= = Art= icle 14 of the European Convention on Human Rights (ECHR), while not explicitly referring to nationality, has been interpreted by the European Court of Hum= an Rights as prohibiting discrimination based on nationality.
-= = The International Convention on the Protection of the Rights of All Migrant Wor= kers and Members of Their Families formally recognized nationality as a prohibit= ed 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 i=
n a
country with authorization for employment, there should be no difference in
treatment between migrant workers and national workers, either in general o=
r in
terms and conditions of employment such as wages, benefits, opportunities f=
or
advancement, occupational safety and health, etc=
.
While this is evident regarding migrants with authori=
zed
entry, residence, and employment, the ILO Committee of Experts and internat=
ional
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 advi=
sory
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 regardles=
s 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 guara=
ntee
the labour human rights of all workers, includi=
ng
those of undocumented migrant workers. The Court clarifies that ‘the migrat=
ory
status of a person cannot constitute a justification to deprive [her or] hi=
m of
the enjoyment and exercise of human rights, including those of a labour-related nature’ and that ‘States may not subor=
dinate
or condition observance of the principle of equality before the law and
non-discrimination to achieving their public policy goals, whatever these m=
ay
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 pos= e a well-documented instance of the cumulative discrimination referred to earli= er. “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 beli= eved to be particularly acute if the migrant domestic workers are in an irregular situation. In connection with forced labour “do= mestic 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 dipl=
omatic
households. In particular, where this has not be=
en the
case the country’s labour laws should be extend=
ed to
domestic workers. For migrant workers this would entail access to other
employers and occupations. The Convention has found relatively rapid approv=
al
by Member States and by the end of 2021 was ratified by 35 of them.
Inferior rights, insufficient protection<= o:p>
If States have not ratified international human rights
instruments or labour standards, they may be le=
ss
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-discriminat=
ion,
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 depe=
nding
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 cultur=
al
rights protection.
In any case, if national legislation and administrati=
ve
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 al=
low 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 occu=
r 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 t=
he
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 a=
ny 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). Ra=
ther
they cite (unspecified) specificities of their labour<=
/span>
market, the lack of infrastructure, of personnel capacity, of funds, untowa=
rd
economic or political conditions, uncertainties about how much their laws a=
nd
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 mu=
ch
(ILO, 1999:236-240, 242-243). The point they mean to make is not always exa=
ctly
clear.
There were and are instances where employers or landl= ords are obliged by law to treat non-citizens differently from citizens and in f= act 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 i=
s no need
for the definitions in the Conventions to do so, there are many different <=
span
class=3DSpellE>categorisations, classifications<=
/span>
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 guaran=
tee
at all against discriminating.
Much discrimi=
nation
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 nor=
ms,
regulations, rules, traditions, or habits regardless of whether they may be
deemed discriminatory or not.
In the Conven=
tions 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 ari=
ses
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.
Dire=
ct and
indirect
These concern=
s were in
the main dealt with above when discussing the behaviou=
ral
content of the definition of discrimination in ILO C111. Nonetheless it may
serve well to establish an understanding of the now widely accepted distinc=
tion
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 discr= imination 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 t= o occur where an apparently neutral provision, criterion or practice would put pers= ons 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 neces= sary, or (ii) …”[5]
Here indirect
discrimination is not distinguished by any particular effects but by the
effects arising out of a, for instance, selection beha=
viour
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, a=
nd
faith.
In the framew=
ork of the
rights-based approach to migrant workers such accommodation is not explicit=
ly
provided for.
Affi=
rmative
Action and “Positive discrimination”
Discriminatio=
n against
one kind of persons is tantamount to discrimination in favour
of other kinds of persons. For this reason, so called ‘positive discriminat=
ion’
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 unt=
il a
certain goal has been achieved when a category of persons is shown or belie=
ved
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 a= gainst Women (CEDAW), adopted on 18 December 1979 by UN General Assembly Resolution 34/180, for instance, authorises “temporary spe= cial 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 b= e an example to follow in regard to other criteria of discrimination.
Outlawing pos=
itive
discrimination may not also prohibit ‘positive action’, meaning the targeti=
ng
of particular kinds of persons for the improveme=
nt 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 betw= een positive action and discrimination is a fine one, though. Excluding somebody from participation in positive action courses on grounds of not belonging t= o a designated group could result in a discrimination charge. Admission to posi= tive 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 act=
ors
have at times advocated against the admission of foreigners to the labour market, to employment, to integration and
settlement, or to the country.
Prov=
ing the
existence of discrimination against migrant workers
Individual ca=
ses
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 c=
arry
them out judiciously and with up-to-date methodology and to actually
cover the situation of migrant workers, including recently arrived o=
nes,
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 arou=
nd
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-200= 0s seven European countries used the opportunity and in two more the methodolo= gy was copied. The results were remarkably similar showing that labour market entrants whose parents were migrant wor= kers had to try between two and four times more often in ord= er to get a job interview than others (Zegers de Beijl, 1999; ILO, 2007).
Conclusions
The rights-ba=
sed
approach calls for and, where applied, strengthens the protection of rights=
. It
includes legislation, policy and practice to pro=
tect
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 admiss=
ion
and employment of migrant workers. This may not always be immediately evide=
nt
in the very short run but arises as an incontrovertible conclusion from
observing the evolution of national labour poli=
cies
over the past 200 years, where the replacement of largely repressive with m=
ore
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 regi=
onal
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 temptati=
on
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 tak=
es 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 (<=
span
class=3DSpellE>Abella et al., 2014; Taran and Gächter, 2004; Gächter, 2=
017).
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 free=
dom
to react to changes and to decisions by either seeking other employment,
Laws also pro=
vide 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 evide=
nt
once again during the COVID-19 pandemic, an=
d 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, a=
nd
empowered labour inspection cannot be emphasized
enough, but crucially needs to be complemented by facilitation of workers’
self-organisation and easily accessible, effect=
ive
complaints bodies and recourse to justice by individual workers for there a=
re
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 ac= tion 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 impro= ve 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/docume=
nts/meetingdocument/wcms_348745.pdf
[2] See the text of the agreement at: = https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/docume= nts/meetingdocument/wcms_586479.pdf
[3] This whole section dra=
ws
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 righ=
ts
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).
5
Migrant workers and discrimination: realities,
threats, and remedies