Women and Justice: Keywords

Legislation

Equal Opportunity for Women Act (Legislative Decree 34-2000) (2000)

Employment discrimination, Gender-based violence in general, Property and inheritance rights

The Equal Opportunity for Women Act (the “Act”), enacted by this decree 34-2000, eliminates “all forms of discrimination against women” and guarantees equality in the eyes of the law and in the areas of family, health, education, culture, work, social security, credit, and land ownership. Moreover, the Act promotes participation by women in decision-making within the power structure and expressly states that women are eligible to run for public office. This law is significant because it was intended to create and expand the scope of representation and participation of Honduran women in civil society.

 

La Ley de Igualdad de Oportunidades para la Mujer (la "Ley"), promulgada por este decreto 34-2000, elimina "todas las formas de discriminación contra la mujer" y garantiza la igualdad de género ante la ley y en las áreas de la familia, la salud, la educación, Cultura, trabajo, seguridad social, crédito y propiedad de la tierra. Además, la Ley promueve la participación de las mujeres en la toma de decisiones dentro de la estructura de poder y establece expresamente que las mujeres son elegibles para postularse para cargos públicos. Esta ley es importante porque tiene la intención de crear y ampliar el alcance de la representación y participación de las mujeres hondureñas en la sociedad civil.



Prevention of Trafficking in Persons Act of 2009 (2009)

Trafficking in persons

The Prevention of Trafficking in Persons Act of 2009 (the “PTPA”) defines and prohibits human trafficking and aggravated trafficking.  The PTPA mandates punishment for trafficking in persons, trafficking in children, using the labor of a trafficked person, promoting trafficking, attempts to traffic persons, and aiding and abetting trafficking.  The PTPA also provides for the protection of and non-discrimination against trafficked persons, including that they not be held liable for any crimes committed as a direct result of the trafficking, that survivors be provided with legal advice throughout the proceedings, and that survivors shall be provided with medical care or social services.  The sentences for trafficking in persons, aggravated trafficking, and trafficking in children are, respectively, fifteen years imprisonment, life imprisonment, and death.  



Land Act of 1998 (amended 2004, 2010) (1998)

Property and inheritance rights

The Land Act, after amendments, protects a spouse’s occupancy of family land and requires their consent for any transaction involving the land on which they live or use for sustenance, but does not provide for automatic co-ownership between spouses.  Any decision that unconstitutionally disfavors the property rights of women and children is invalid.  The Act also requires that land management mechanisms have at least 1/3 female members.

2004 Amendments (spousal rights added)

2010 Amendments



Domestic Case Law

J.Y. Interpretation No. 728 Constitutional Court (2015)

Harmful traditional practices

The court petitioner, the eldest daughter of a registered successor of an “ancestor worship guild,” was prohibited from inheriting the status of successor after her father’s death due to internal regulations of the guild, which only allow male heirs .” The lower courts dismissed the petitioner’s claims, and the Constitutional Court affirmed. The court held that the internal regulation of the guild was not a “statute” or “administrative regulation” and was therefore ineligible for a petition of interpretation on constitutionality under the Constitutional Interpretation Procedure Act. The court also found that Article 4 of the Statutes Governing Ancestor Worship Guilds, which stipulates that “for the guilds that existed before the promulgation of the Statutes, whether a person is a qualified successor to a guild should be determined by its internal regulations,” was not unconstitutional because the provision does not provide gender as a criterion for determining the status of the successor, and the objective is to preserve the stability of the law and to uphold the principle of prohibiting retroactive law. Moreover, the enactment of internal regulations for guilds should be respected based on freedom of association, property rights, freedom of contract, and the autonomy of private law. Therefore, even though the disputed provision may constitute differential treatment in substance, because it is not arbitrary it is not in conflict with the principle of gender equity nor does it infringe women’s right to property. However, the Constitutional Court urged relevant government agencies to review the related law to ensure that they are keeping pace with the times, taking into consideration the State’s positive duty to protect women under the Constitution, the principle of stability of law, changes in social conditions, and the adjustment of functions within an ancestor worship guild, so as to conform to the principle of gender equality and the constitutional intent to safeguard the people's freedom of association, property rights, and freedom of contract.



Goren & The Women's Lobby of Israel v. Home Center (Do It Yourself) Ltd. & The National Labor Court in Jerusalem Supreme Court (sitting as the High Court of Justice) (2012)

Employment discrimination

The petitioner received a salary a little over half that of a male employee with the same responsibilities and duties.  She sued respondent under the Equal Pay Act (the “EPA”) and Equal Job Opportunities Act (the “EJOA”) and won because the respondent could not justify the discrepancy, though the district labor court also found that the respondent did not have a policy of paying female employees less than male employees.  The lower court also determined that the petitioner had a legitimate claim under the EJOA because the respondent violated the EPA.  For each violation, the labor court awarded her the difference between her salary and that of her male colleague (NIS 6,944).  Each party appealed the damages to the National Labor Court, which held in a split decision that the right to contract trumps the right to equal pay and that an award under the EPA does not necessarily trigger a claim under the EJOA.  The majority held that the purpose of the EPA is to compensate an employee for discrepancies in pay between herself and a male colleague who performs the same task in the same workplace while the purpose of the EJOA is to combat discrimination; the former does not require any evidence of discrimination while the latter does, although that discrimination need not be intentional.  The High Court of Justice rejected the appellate court’s argument that the right to contract trumps the right to equal pay, calling it “a fig leaf to cover up real discrimination,” but agreed that the EPA and EJOA have different elements, purposes, burdens of proof, and remedies.  The High Court held that an employee has the burden of demonstrating discrimination, but that burden shifts to the employer under certain circumstances, like a pay discrepancy.  A larger pay discrepancy means a more significant burden for the employer.  In this case, the employer had the burden to prove that the petitioner’s lower salary was solely based on her request for a lower salary and not her gender.  The High Court held that an employer cannot justify a 35% difference in pay solely based on an employee’s salary request when hired.  However, due to her delay in filing, the Court voided the respondents’ damages obligation under the EJOA.



B-GBK I/178/16 Equal Treatment Commission (2016)

Employment discrimination

After a restructuring of the Austrian Armed Forces, female civil servants were excluded from the newly created supervisory roles, which were instead awarded to males with comparable experiences to their female counterparts. Representatives from the Austrian Armed Forces claimed that for reasons of efficiency and expediency, the reorganization sought to keep employees who were above age 50 and with presumably the shortest period of service remaining without regard to technical competencies or personal suitability. The Equal Treatment Commission found this to be a violation of Article 4 (5) of Austria’s Federal Equal Treatment Act (Bundesgleichbehandlungsgesetz), which prohibits direct or indirect discrimination on the grounds of sex in the context of professional advancement. 



Kennedy v. Cain Court of Appeals for the Fifth Circuit (2015)

Gender discrimination

Petitioner was convicted of aggravated rape of a child. In his appeal he argued that the state of Alabama had systemic sex discrimination in the selection of jury forepersons. In a ten year period of time, there were nineteen jury forepersons: twelve were male while seven were female. The petitioner brought a habeas corpus claim citing improper jury foreman election. The Fifth Circuit determined that the petitioner had shown substantial underrepresentation of female forepersons and that no specific disparity percentage was sufficient enough to show substantial underrepresentation but that factors such as disparity, population size, demographics of selection population should be taken into account.



Case of Lucia Sandoval Prosecution Appeal Court (Fiscalía apelará del tribunal) (2014)

Domestic and intimate partner violence, Gender discrimination

On August 27, 2014 Lucia Sandoval was acquitted after the court found insufficient evidence of her involvement in her husband’s death. In 2011, Sandoval was charged for the intended homicide of her husband. She subsequently spent over three years in prison awaiting trial. The incident that formed the basis for the charges took place on February 11, 2011, when Lucia Sandoval informed her husband that she had filed a complaint of domestic violence and had obtained a restraining order against him, which required him to leave their home. Sandoval’s husband responded violently and threatened her with a gun. When Sandoval tried to escape, a physical fight ensued and the gun was fired, resulting in her husband’s death. Amnesty International Paraguay, the Committee of Latin America and the Caribbean for the Defense of Women’s Rights (CLADEM) and Catholics for the Right to Decide (CDD Paraguay) helped advocate as to Sandoval’s innocence. These organizations claimed that “the first failure of the judicial system was that protection measures [for] . . . Sandoval were not applied. The court gave the [restraining] order to Sandoval, instead of sending the notice to the Police for it to be given to [her] husband.” The organizations noted that Paraguay had passed a law against domestic violence in 2000 but contended that the law “does not comprehensively address the problem, no[r] does it allow for a coordinated and coherent system in the country to collect data about gendered violence.” It should be noted that in 2013, the Human Rights Commission at the United Nations recommended that Paraguay implement a law to “prevent, punish, and eradicate gender violence, as well as assure that complain[t]s of domestic violence are effectively investigated, with perpetrators being punished appropriately and the survivors receiving attention and compensation.” Background information available at http://blog.amnestyusa.org/americas/victory-in-paraguay-is-a-big-step-fo... http://www.cladem.org/paraguay/Lucia-Sandoval-absuelta.pdf http://www.justice.gov/eoir/vll/country/amnesty_international/2014/Peru.pdf https://www.youtube.com/watch?v=Hk6bjsNKmrM



郭晶与杭州市西湖区东方烹饪职业技能培训学校一般人格权纠纷,杭州市西湖区人民法院 (Guo Jing v. East Cooking Vocational Skills Training School) West Lake District Court of Hangzhou (2014)

Employment discrimination, Gender discrimination

The plaintiff alleged that in June 2014, she saw the recruiting advertisement of the respondent on the Internet, knowing that the respondent want to recruit two copywriters. Guo submitted her resume accordingly. However, Guo has not got reply since then. With the certainty that she is capable of the position, Guo called the School, asking about the job. Guo was told that since the position requires many business trips, only male can be considered. Guo emphasized that she can adjust to those business trips but was still refused by the same reason. Guo therefore brought this lawsuit on the basis that the respondent’s action is in violation of Article 3 of Employment Promotion Law of the People's Republic of China, which requires that “Workers shall be entitled by law to enjoy the right to equal employment and to seek their own employment. No worker seeking employment shall suffer discrimination on the grounds of ethnicity, race, gender or religious belief.” The respondent argues that because of the specialty of the position, the copywriter should live in the same room with the president of the school, all of whom are male, while during the business trips. It is out of the consideration and care to the plaintiff that they did not recruit her. The court finds that since the respondent did not provide any evidence to prove the specialty of the position and the legal reasons for the unsuitability of female worker, it violates the accorded rule: Article 3, 12, 13 of Labor Law, which states “Labourers shall have equal right to employment and choice of occupation”, “Labourers, regardless of their ethnic group, race, sex, or religious belief, shall not be discriminated against in employment”, “Women shall enjoy the equal right, with men, to employment”.

性别歧视,就业歧视

原告称,2014年6月,自己在网上看到被告要招两名文案的招聘信息。原告在网上投递了简历。原告一直没有等来被告的回复。原告认为自己的各项条件均符合其工作所需,于是打电话询问应聘情况。被告工作人员答复说,他们的文案职位仅招男性,因为需要出差。原告告知自己完全可以胜任出差,于是不甘心又到被告招聘现场去应聘,依然被以同样理由拒绝。原告称,依据中华人民共和国就业促进法第三条,劳动者享有平等就业的权利,国家保障妇女享有与男子平等的劳动权利,而被告违反了这项法律。被告称该次招聘的岗位具有特殊性,出差住宿时必须与校长住一间标准间,而被告校长均为男性。基于公序良俗,被告没有录取原告。法院认为,被告未举证证明该岗位属于法律、法规所规定的女职工禁忌从事的工作,被告违反了《中华人民共和国劳动法》第三条、第十二条、第十三条劳动者享有平等就业权利的规定。



Nombuyiselo Siholongonyane v. Mholi Joseph Sihlongonyane High Court of Swaziland (2013)

Gender discrimination

Husband challenged his wife’s capacity to initiate legal proceedings without his consent. The common law permitted a married woman to sue without the consent of her husband only if the woman attained approval from the court first. The High Court held that this common law requirement was unfair discrimination because it applied only to women and not to men, a violation of Sections 20 and 28 of the Constitution, which respectively state that “all persons are equal before and under the law” and that “women have the right to equal treatment with men.”



Attorney General v. Aphane Supreme Court of Swaziland (2010)

Gender discrimination, Property and inheritance rights

Wife and husband married in community of property, where all property of either spouse is combined in a joint estate regardless of whether it was acquired before or during the marriage and regardless of how much each spouse contributed. Despite marrying in community of property, the couple was not permitted to register newly purchased land in both of their names because the wife had continued to use her maiden name. Section 16(3) of the Deeds Registry Act only permitted land to be registered by the husband and wife if the wife used her husband’s name; otherwise, the Act permits the land to be registered in the name of the husband only. Because the Section 16(3) of the Deeds Registry Act only affected the rights of wives and not husbands, the Supreme Court held that is invalid as it amounts to unfair discrimination and a violation of Section 20 and 28 of the Constitution.



Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) Court of Appeals Seventh District (2013)

Gender discrimination, Sexual violence and rape, Trafficking in persons

Cece, a young Albanian woman fled Albania to avoid trafficking and prostitution rings which target young women living alone. While living alone in Korce, Cece caught the attention of one of the leaders of a well-known prostitution ring. He followed, harassed, and threatened Cece. Her reports of the assault to the authorities were perfunctorily dismissed. Thereafter, Cece fled to the United States (“U.S.”) using a fraudulently procured Italian passport, whereupon she filed for asylum and withholding of removal within the one-year statutory period. Her claim was based on fear of returning to Albania as a young woman living alone. The immigration judge granted Cece’s asylum claim finding that her fear of returning to Albania was well founded because she belonged to a particular social group composed of “young Albanian women who are targeted for prostitution by traffickers” and that the government of Albania was unable or unwilling to protect such women. The Board of Immigration Appeals vacated the judge’s decision, holding that the judge erred in finding that Cece had established membership in a particular social group. On appeal, the Seventh Circuit Court of Appeals found that Cece was a member of particular social group cognizable under 8 U.S.C. § 1101(a)(42)(A) and therefore eligible for asylum. Specifically, the Court found that the particular social group identified by the immigration judge – young Albanian women living alone and thus vulnerable to being trafficked – met the immutability requirements of 8 U.S.C. § 1101(a)(42)(a) because it is based on common characteristics that members of the group either cannot change or should not be required to change.



Corneau v. Canada (Minister of Citizenship and Immigration) Refugee Protection Division of the Immigration and Refugee Board (2011)

Domestic and intimate partner violence, Gender discrimination

This case concerns a decision of the Refugee Protection Division of the Immigration and Refugee Board. In response to an application for protection by Ms. Corneau, who sought protection from domestic violence perpetrated by her partner in Saint Lucia, the Board held that authorities in Saint Lucia were “capable of providing the applicant with adequate protection.” The applicant sought review of this determination. The Federal Court held that the Board’s finding was unreasonable, noting that “[t]he good intentions of a state to protect its citizens do not constitute state protection where in practice protection does not exist.” The Court stated that the Board failed to give adequate weight to contrary evidence and further noted that applicants for state protection are “not required to seek protection or assistance from non-governmental organizations or administrative agencies in order to rebut the presumption of state protection.”



Sentencia Numero 740/06 High Court of the Basque Country Contentious-Administrative Chamber (2004)

Employment discrimination, Gender discrimination

During a staff selection process for the Basque Health Service, in particular for the substitution of the chief of psychiatry services in the Santiago de Vitoria Hospital for a period of six (6) months, Mrs. Elena who had had a baby fifteen (15) days before the above mentioned selection process, was obliged by the Basque Health Service authority to renounce to the post she had the right to. The Basque Health Service authority deprived Mrs. Elena from a post that corresponded to her by the position she had in the list of temporary recruitment. The Basque Health Service authority forced Mrs. Elena to renounce to the post because of her recent maternity when she had expressly said that she wanted to accept that job. Art. 48 of the Statute of Workers Right (Estatuto de los Trabajadores) damage the worker depriving them from an appointment that corresponds to the worker. The maternity leave is not equal to a lack of capacity for the performance of their duties for the post under Spanish law. Law 30/1999 of 5th October of selection of temporary workers of the Health Service, does not exclude the recruitment of a person during the maternity leave. The decision of the High Court of the Basque Country was to appoint Mrs. Elena as temporary worker for the Basque Health Service (in particular for the substitution of the chief of psychiatry services in the hospital Santiago de Vitoria) for the remaining period until the fulfillment of the six (6) months period of the vacant position.

Durante un proceso de selección de personal para el Servicio de Salud Vasco, en particular para la sustitución del jefe de servicios de psiquiatría en el Hospital Santiago de Vitoria por un período de seis (6) meses, la Sra. Elena, que había tenido un bebé quince (15) días antes del proceso de selección mencionado anteriormente, fue obligada por la autoridad del Servicio Vasco de Salud a renunciar al cargo al que tenía derecho. La autoridad del Servicio Vasco de Salud privó a la Sra. Elena de un puesto que le correspondía y le otorgó la posición a alguien en la lista de reclutamiento temporal. La autoridad del Servicio Vasco de Salud obligó a la Sra. Elena a renunciar al cargo debido a su reciente maternidad cuando había dicho expresamente que quería aceptar ese trabajo. Artículo 48 del Estatuto de los Trabajadores (Estatuto de los Trabajadores) establece un daño al trabajador que ha sido privado de una cita que le corresponde. La licencia de maternidad no es igual a la falta de capacidad para el desempeño de sus funciones para el puesto bajo la ley española. La Ley 30/1999, de 5 de octubre, de selección de trabajadores temporales del Servicio de Salud, no excluye el reclutamiento de una persona durante la licencia de maternidad. La decisión del Tribunal Superior del País Vasco fue designar a la señora Elena como trabajadora temporal del Servicio Vasco de Salud (en particular para la sustitución del jefe de servicios de psiquiatría en el hospital Santiago de Vitoria) por el período restante hasta el cumplimiento del período de seis (6) meses del puesto vacante.



SIS Forum (Malaysia) v Dato’ Seri Syed Hamid bin Syed Jaafar Albar High Court (Kuala Lumpur) (2010)

Gender-based violence in general

SIS Forum (Malaysia) (“SIS Forum”) sought judicial review of the Minister of Home Affairs’ (“Minister”) decision to ban a book published by it, “Muslim Women and the Challenges of Islamic Extremism”. The book was a compilation of essays submitted during an international roundtable discussing challenges faced by Muslim women, including gender discrimination. The book was in circulation for two years before it was banned by the Minister for violating the Printing Presses and Publications (Control of Undesirable Publications) (No 5) Order 2008 (the “Act”). The Act prohibits publication of materials which are “prejudicial to public order”, among other things, and affords the Minister an absolute discretion to prohibit publication of any material contravening the Act. The High Court found that the Minister was unable to provide examples of how the book implicated public order issues by affecting public safety and tranquility of the community. Moreover, the book had been in circulation for 2 years and had not adversely impacted the safety and tranquility of the public. Accordingly, the High Court granted judicial review application for substantive relief to SIS Forum.



Supreme Court Decision 2005Du13414 Supreme Court of South Korea (2006)

Sexual harassment

The Supreme Court dismissed an appeal by a governor of a province claiming that because he was found not violating the Election of Public Officials Act (the “Election Act”), he should also be found not guilty of sexual harassment charges under the former Prohibition of and Remedies for Gender Discrimination Act (the “Discrimination Act”). The governor sexually harassed the defendant, a president of a vocation association, at meetings to discuss the upcoming general elections for governor. The Supreme Court held that plaintiff’s sexual behavior at such meetings constituted workplace sexual harassment, because their meetings had relevance to work, i.e. meeting to discuss governor’s elections.



1 BvR 774/02 Federal Constitutional Court (Bundesverfassungsgericht) (2005)

Employment discrimination, Gender discrimination

The Court held that it was unconstitutional to require an attorney without earnings to continue to make compulsory pension contributions during time taken out to care for children (up to the age of three years). Requiring such compulsory pension contributions was viewed as in breach of the right to equal treatment enshrined in the German constitution because it disproportionately affects women who are in the vast majority of cases the ones taking time out to care for small children.



Claimant (on her own behalf and on behalf of her minor children) v. the Minister for Immigration and Asylum District Court of the Hague (2010)

Gender violence in conflict, Gender-based violence in general, Harmful traditional practices

The claimant, of Tajik descent, had a high school diploma, was an active member of a left-leaning political organization, and was a volunteer teacher for girls while she lived in Afghanistan. The Taliban arrested a friend of the claimant who worked for UNICEF and had also pressured the claimant’s family to provide details about her whereabouts. Once the Taliban occupied her village, she and her husband hid with a relative before traveling to the Netherlands. In 2008, the claimant filed an application on behalf of herself and her minor children (two daughters and a son) under the Aliens Act 2000, citing Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The claimant argued that they were subject to inhumane treatment if they were forced to return to Afghanistan. The District Court noted that the policy relied upon did not take into account the situation of Westernized women in Afghanistan, who were at risk just having lived in Westernized society. The District Court noted that the evidence showed that not only was security a risk to all in Afghanistan, but that treatment of women and girls had deteriorated even further since the rejection of the 2003 application. Finally, the District Court referred to reports submitted in the case, noting that women returning to Afghanistan from Europe or Iran are perceived as having violated religious and social norms and, as a result, are subject to honor crimes, domestic violence, isolation and other forms of punishment. The District Court found the claimant’s appeal to be well-founded, destroyed the contested decision, and ordered the government to issue a decision taking the District Court’s findings into consideration.



Israel Women’s Network v. Government Supreme Court of Israel (1994)

Employment discrimination

Three men were appointed to the boards of directors of Government corporations when neither board was comprised of any women members at the time of appointments. The court found each appointment unlawful under s. 18A of the Government Corporations Law (Amendment No. 6) (Appointments), which required ministers to appoint, “in so far as it is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.” As a result, the court set aside each of the three appointments without prejudice.



Taha Najar v. State of Israel Supreme Court of Israel (2005)

Harmful traditional practices

The appellant, a Bedouin man, was convicted for murder with malice aforethought for killing his sister after she insisted that she would travel to Egypt alone. The appellant claimed that his charge should be reduced as the killing was the result of provocation. He further argued that the court should take into account that he was defending his family honor, as it was unacceptable in Bedouin culture for unmarried women to travel alone. The court ruled that no argument of “family honor” as a motive for killing someone will be allowed by a court in Israel. The human dignity of the victim and the sanctity of life take precedence over family honor.



Delhi High Court Bar Association v. Govt. of NCT of Delhi Delhi High Court (2013)

Gender discrimination

The court held that the Legislative Assembly of the National Capital Territory of Delhi lacked the power to amend central statutes, thereby declaring the Court Fees (Delhi Amendment) Act of 2012, through which the Delhi government had sought to increase court fees payable in Delhi, as void. The court reaffirmed that only the Parliament is empowered to amend or repeal central statutes by virtue of Article 246(4), and the procedure prescribed under the Constitution for obtaining presidential assent must be strictly followed. In addition, the court observed that the Amendment Act adversely impacts fundamental rights and results in violation of Article 38 and 39A of the Constitution of India on various count, such as reducing women’s access to court.



Kalulu v. Mahirima High Court of Tanzania (2011)

Gender discrimination, Property and inheritance rights

The father of the deceased objected to the appointment of his son’s wife as an administratrix of the will. He claimed that there was no evidence that a customary marriage had taken place between his son and the respondent or that the couple had not been divorced in the interim. He also contended that Chagga customary law on succession and inheritance barred women from administering wills. The Court dismissed his appeal. It noted even if there had not been a customary marriage between the deceased and the respondent, the duration and nature of their relationship satisfied the requirements for a presumed marriage. Furthermore, the Court cited Article 12 and 13 of the Constitution and Article 1 of CEDAW to emphasize its commitment to ending gender-based discrimination. It decided that following Chagga customary law would be discriminatory and that the deceased wife would remain as an administratrix of the will.



Reed & Bull Information Systems v. Stedman (1999, IRLR 299 EAT) Employment Appeal Tribunal (1999)

Employment discrimination

S was employed by Bull as a temporary secretary and was subsequently given a permanent placement responsible to the Marketing Manager, R. S resigned on the ground that she found working with him intolerable as R allegedly sexually harassed her. S never confronted S nor made any identifiable protests about his behavior with the exception of complaint she made about him telling dirty jokes to colleagues in her presence. But she had made complaints to her mother and colleagues at work. Although the tribunal decided that no single incident was serious enough to be capable of constituting sexual harassment, they did find that there had been a series of sexual inferences with a pervading sexual innuendo and sexist stance and that R realized that they were unwanted and were bullying in nature. With regard to the liability of Bull, the tribunal found that colleagues in the personnel department were well aware of the applicant's deteriorating health and that she had made complaints to other members of staff which had been dismissed. In those circumstances there should have been an investigation into the cause of the illness and the complaints that had been made. By failing to implement this, Bull committed a repudiatory breach of contract as they failed to deal with the issue of sexual harassment adequately. The tribunal concluded that the applicant was entitled to compensation for unfair dismissal by reason of sexual discrimination. The Employment Appeal Tribunal dismissed the appeal and added that whilst not “gross: the behavior of R towards S was most inappropriate in the workplace. The EAT placed the burden on the victim to place the harasser on notice that she does not welcome his conduct and endorsed the reasonable person perspective in assessing a victim’s rejection. The question at issue should be was the victim subjected to a detriment on the grounds of her sex. A one-off ace may suffice. The Court also directed tribunals to pay attention to the impact of totality of successive incidents, individually trivial.



Allegheny County v. Wilcox Pennsylvania Commonwealth Court (1983)

Gender discrimination

The defendant-appellant, the Court of Common Pleas, appealed a ruling by the Pennsylvania Human Relations Commission (“PHRC”).  The PHRC had ruled that the defendant discriminated against female secretaries with respect to compensation and directed them to upgrade the secretaries’ wages and to pay them back pay.  The defendant argued that the PHRC could not require it to increase the wages and also that it was not considered an “employer” under 43 P.S. § 954(b).  The defendant argued that the definition of employers does not include a reference to courts and that any application of the Pennsylvania Human Relations Act violates the doctrine of separation of powers by allowing the executive and legislative branches to interfere upon the judicial branch. The court found that the defendant failed to show how its authority was encumbered by the Human Relations Act.  The court also found that compelling the upgrade or equalization of pay was proper where, inversely, a court could compel a legislative body to spend money that is reasonably necessary for the body’s proper operation and administration.  Thus, the court affirmed the PHRC’s finding and ruled that the PHRC could require the defendant to increase the female secretaries’ wages and order back pay.



Allen v. Dep't. of Employment and Training Vermont Supreme Court (1992)

Gender discrimination, Sexual harassment

Plaintiff was denied unemployment benefits by the Employment Security Board because prior to quitting her job, she did not notify her business manager that she was being sexually harassed by her supervisor. The plaintiff appealed. Plaintiff worked as a secretary for housekeeping and maintenance.  For several months during her employment, the plaintiff’s supervisor made repeated sexual advances towards her by grabbing her, kissing her, and apologizing thereafter.  Plaintiff complained once, but otherwise never complained to anyone other than her supervisor, and eventually quit her job out of fear of further unwanted sexual advances.  She testified that she had never received a personnel policy, never knew of the existence of such a policy, and believed that she was to complain to her immediate supervisor.  Notwithstanding, the Board found the plaintiff did not show that she had “good cause” to quit her job, since her business manager had no knowledge of the harassment.  Under 21 V.S.A. § 1344(a)(2)(A), a party may not receive unemployment benefits where she quits voluntarily unless she shows she quit with “good cause.”  On appeal, the court found that if there were a personnel policy in effect, there was no evidence that it was ever made known or available to the defendant’s employees.  The court found that the plaintiff could not adhere to a policy (to notify a manager) that is not “sufficiently disseminated by the employer to employees.”  Thus, the court reversed the Board’s conclusion and remanded the matter.



Motsinger v. Lithia Rose-Ft, Inc. Oregon Court of Appeals (2007)

Employment discrimination, Gender discrimination, Sexual harassment

Plaintiff, who was employed for fourteen months by defendant as a part-time receptionist, alleged that she was subjected to repeated acts of sexual harassment by several male employees. Plaintiff also alleged that her employment was terminated in part as retaliation for reporting this sexual harassment to management. Plaintiff brought a wrongful termination action against the employer, alleging claims of sexual harassment under Or. Rev. Stat. § 659A.030(1)(a), retaliation under Or. Rev. Stat. § 659A.030(1)(f), wrongful discharge, battery, and intentional infliction of emotional distress. The trial court denied defendant's petition to abate the proceeding pending arbitration, ruling that the arbitration clause contained in plaintiff's employment contract with defendant was unenforceable because it constituted an unconscionable contract of adhesion. The appellate court found that the employee did not show that the contract formation carried indicia of procedural and substantive unconscionability other than an unequal bargaining power. Consequently, the Court of Appeals of Oregon reversed and remanded the case.



Roberts v. Dudley Washington Supreme Court (2000)

Employment discrimination, Gender discrimination

Appellant-employer filed an appeal from a decision of the Court of Appeals, which reversed a ruling entered in the Superior Court, granting appellant’s motion for partial summary judgment and dismissing appellee-employee’s wrongful discharge claim. The Supreme Court of Washington affirmed the appellate court’s decision, holding that appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment. When appellee was on unpaid maternity leave, appellant discharged appellee, claiming that the position was no longer available due to a business slowdown. Appellant re-advertized the position one year later, but when appellee applied she was refused reemployment. Appellee claims the reason given for her discharge (i.e., economic slowdown) was pretextual, whereas the real reason for her discharge was that she was pregnant. Appellee filed a claim for common law wrongful discharge in violation of the public policy against sex discrimination. Although an indefinite employment contract is generally terminable at will, an exception to the at-will rule exists in the form of a common law cause of action in tort for wrongful discharge of an employee where the discharge contravenes a clear mandate of public policy. In this case, public policy against gender discrimination is grounded in the constitution, statute, and prior court decisions. Therefore, the Supreme Court of Washington affirmed the judgment of the Court of Appeals, as appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment.



Mackay v. Acorn Custom Cabinetry Washington Supreme Court (1995)

Employment discrimination, Gender discrimination

Plaintiff-ex-employee challenged the jury instruction given by the Superior Court, which directed the jury to find in plaintiff’s favor in a discrimination case brought pursuant to Wash. Rev. Code § 49.60.180(2), only if it concluded, inter alia, that gender was the determining factor in the decision by defendant ex-employer to discharge plaintiff. RCW 49.60.180(2) provides that “[i]t is an unfair practice for any employer . . . (2) [t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained guide dog or service dog by a disabled person.” The Supreme Court of Washington declined to read the “because of” language of the statute, as requiring proof that one of the attributes enumerated in RCW 49.60.180(2) was a “determining factor” in the employer’s adverse employment decision. Rather, the Supreme Court reversed the lower court’s decision, holding that in order to prevail on a discrimination claim brought pursuant to RCW 49.60.180(2), plaintiff only needed to prove that her gender was a “substantial factor” in defendant’s decision to terminate her employment.



Haddad v. Wal-Mart Stores, Inc. Supreme Judicial Court of Massachusetts (2009)

Employment discrimination, Gender discrimination

Here, the plaintiff worked as a staff pharmacist for the defendant for ten years.   At a subsequent point, she became temporary pharmacy manager.  Until the plaintiff was terminated thirteen months later, she was paid at a lower rate as a pharmacy manager than her male counterparts.  She was told by the defendant that she would receive the difference in pay but never did.  She complained numerous times and finally received a check for the pharmacy manager bonus that others received, but never received the thirteen months’ worth of additional pay.  Prior to her termination, the plaintiff was questioned about two prescriptions that were fraudulently written—one while she was on duty and the other was written while a male pharmacist was on duty.  The pharmacy technician immediately admitted that she falsified the prescription from when the plaintiff was on duty.  The plaintiff denied knowledge of the fraud, but she was terminated based on her failure to secure the pharmacy.  The pharmacy technician was also terminated. The male pharmacist however was not fired or disciplined for failing to secure the pharmacy area.  At the time of the plaintiff’s termination, twenty of the twenty-one managers above the pharmacy manager level were male and all pharmacy technicians were female.  The court found that the evidence was sufficient to show that the defendant discriminated against the plaintiff in terminating her.  The court reasoned that a reasonable jury could have disbelieved the defendant’s reason for terminating the plaintiff; that the plaintiff’s base wage was lower than her male counterparts, and that there was discrimination based upon the fact that the male pharmacist on duty when another prescription was falsified was not disciplined or terminated.  The court found an award of compensatory damages was supported by the evidence, but that punitive damages amounting to $1 million were not warranted because the defendant’s conduct was not so outrageous or egregious.



Ephrahim v. Pastory and Kaizingele High Court of Tanzania (1990)

Gender discrimination, Property and inheritance rights

The respondent, Ms. Pastory, inherited clan land from her father by a valid will and sold the land to a man who was not a member of her clan.  The next day, the appellant, Mr. Ephrahim, filed suit seeking a declaration that the sale of land by Ms. Pastory was void under the customary law that a woman has no power to sell clan land. The Court held that the customary law regarding women's property rights discriminated on the ground of sex in violation of CEDAW, the African Charter on Human and Peoples' Rights and the ICCPR as well as the Tanzania Constitution.



Uganda Association of Women Lawyers and 5 Others v. The Attorney General Constitutional Court of Uganda (2004)

Divorce and dissolution of marriage, Gender discrimination

The petitioners sued to have several provisions of the Divorce Act declared void on the grounds that they discriminated on the basis of sex.  The Court held that sections 4, 5, 21, 22, 23, 24 and 26 of the Divorce Act are void in so far as they discriminate on the basis of gender, so the grounds for divorce as listed are available to both sexes and the compensation for adultery, costs against a co-respondent, alimony, and settlement are applicable to both sexes.  



2004 (Ju) No. 1968 Supreme Court of Japan (2006)

Harmful traditional practices, Property and inheritance rights

Two female members of a certain local community which have collective property rights to a common land (called a "common" or a "hamlet") petitioned the court to decide the unconstitutionality of a traditional practice which determined membership and property rights within the community.  The court held that this custom which excludes female descendants who married outside of the community, is "contrary to public order and therefore null and void" under Article 90 of the Civil Code.  The court held that "the male descendant requirement discriminates against female descendants only because they are females" and it is unreasonable and against the constitutional principle of "essential gender equality."



Uke v. Iro Court of Appeal of Nigeria (2002)

Gender discrimination

The Court of Appeal held that the Nnewi Customary Law that precluded a woman from giving evidence in land matters was unconstitutional because it discriminated against women.



Mandal v. Deen Dayal Harinagar Hospital Supreme Court of India (2010)

Gender discrimination

A public interest litigation was initiated to urge the Indian government to address the issue of high levels of maternal mortality in the country. The Court ordered the government to correct discriminatory actions in programs intended to reduce maternal mortality, to report on what corrective steps will be taken to monitor and improve current programs, and to create additional programs if necessary.



Naz Foundation v. Govt. of Delhi Supreme Court of India (2009)

Gender-based violence in general, LGBTIQ

A public interest litigation was initiated to change the definition of non-criminal sex from "hetero-sexual penile-vaginal" to "consensual sex between adults." The court granted the petition finding the criminalization of non-heterosexual sex violative of the constitution.



People's Union for Democratic Rights v. Union of India Supreme Court of India (1982)

Gender violence in conflict

In this public interest litigation, the Court reaffirmed that the equal pay for equal work provision of the constitution is valid, and that the employer, whether public or private, is responsible for enforcing it and taking prompt disciplinary action when violations occur.



C16 427.465-1/2012/7E Asylum Court (2012)

Forced and early marriage, Harmful traditional practices

The Applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, in part because the Federal Asylum Agency failed to adequately investigate and assess the dangers to the Applicant in Afghanistan. The Asylum Court found that the Federal Asylum Agency erred in summarily denying asylum based on the Applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court concluded that the Applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the Applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Specifically, returning to Afghanistan would mean that the Applicant would be raised to be a homemaker despite any wishes to have a career outside the home, would be married to a man chosen by her father or grandfather, and her freedom of movement and educational opportunities would be severely restricted. In granting the Applicant’s asylum claim, Austria’s Asylum Court considered both gender-specific and child-specific factors that were not brought forth by the Applicant but rather gathered from credible investigative sources.



Memoranda

Compilation of Innovative Court Procedures to Protect Vulnerable Adult and Child Victim-Witnesses (2015)

Gender discrimination, Sexual violence and rape, Statutory rape or defilement

This memorandum compiles international and regional best practices guidelines, model laws, and progressive practices of domestic courts to protect adult and child victim-witnesses before, during, and after trials.



Exclusion of women from the legal profession in the United States of America, the United Kingdom and South Africa (2012)

Employment discrimination, Gender discrimination

This memorandum provides a brief overview of the key statutes, cases, and legal arguments that sanctioned the exclusion of women from the bar and, by extension, the bench, in the United States of America, the United Kingdom, and South Africa.



Problems in Prosecuting or Adjudicating Corruption Cases in Tanzania (2012)

Gender discrimination, Gender-based violence in general

This memorandum provides a brief overview of corruption in Tanzania and efforts taken by the government to address the problem. The memorandum also examines the problems that emerge in prosecuting or adjudicating corruption cases in Tanzania and the reasons corruption cases fail.



International Case Law

Driskell v. Peninsula Business Services & Others Employment Appeal Tribunal (2000)

Employment discrimination

D described, amongst others, how her manager suggested the day before her appraisal interview that, at that discussion, she should wear a short skirt and a low-cut or see-through blouse – the inference being that doing so would further her chances of a favorable appraisal. The EAT held that the “lewd words” acted as a detriment. The Court concluded that the correct approach when dealing with a course of conduct of harassment should be to limit judgment to the finding of all facts that are prima facie relevant. The judgment said that the facts of a case in which harassment is alleged “may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow”. The Court confirmed that the ultimate judgment of whether there was sexual discrimination reflects an objective assessment by the tribunal of all the facts, however important the applicant’s subjective perception.



Salmanoglu and Polattas v. Turkey European Court of Human Rights (2009)

Custodial violence

The applicants, 16 and 19 years old at the time, were arrested in the context of a police operation against the PKK (the Workers' Party of Kurdistan). Both girls claimed that, during their police custody, they were blindfolded and beaten. N also alleged that she was sexually harassed and, forced to stand for a long time, was deprived of food, water and sleep. P further alleged that she was anal raped. The applicants were examined during their police custody by three doctors who all noted that there was no sign of physical violence to their bodies. Both applicants also had a "virginity test"; the examinations recorded that the girls were still virgins. A month later, P was given a rectal examination; the doctor noted no sign of intercourse. Following complaints made by the two applicants, an investigation was launched by the prosecution authorities, followed by criminal proceedings against the police officers who had questioned the applicants during their police custody. During the first hearing of the case, the girls further submitted that, when brought before the public prosecutor and judge with a view to their being remanded in custody, they had not made statements about their ill-treatment as they were scared. In particular, they both contended that, during certain medical examinations and when they had made statements to the prosecution, the presence of police officers had intimidated them. The accused police officers denied both ill treatment and presence during their medical examinations or the taking down of their statements. The applicants were subsequently both diagnosed with post-traumatic stress disorder. P was further declared as having a major depressive disorder. The applicants subsequently underwent psychotherapy. The domestic courts ultimately acquitted the police officers on the ground that there was insufficient evidence against them. Subsequently, that judgment was quashed; however, the criminal proceedings against the police officers were terminated as the prosecution had become time-barred. In the meantime, the applicants were convicted of membership of an illegal organization and of throwing alcohol. They were sentenced to terms of imprisonment amounting to more than 12 and 18 years, respectively. The ECtHR took consideration of the circumstances of the case as a whole, and in particular the virginity tests carried out without any medical or legal necessity as well as the post-traumatic stress and depressive disorders suffered, and was persuaded that the applicants had been subjected to severe ill-treatment during their detention in police custody, in violation of Article 3. The Court further concluded that the Turkish authorities had not effectively investigated the applicants' allegations of ill-treatment after seven years, in further violation of Article 3. The Court awarded the applicants non-pecuniary damages and costs and expenses.



L.N.P. v. Argentina Human Rights Committee (2007)

Gender discrimination, Statutory rape or defilement

A 15-year-old girl, P, was allegedly sexually assaulted by three men. She immediately reported the attack to the police, but was kept waiting for hours at the police station and a medical center before being performed anal and vaginal palpations which caused her intense pain and despite complaining the sole anal nature of the attack. A social worker was sent to interview P's neighbors and relatives about her sexual history and morals during the investigation, leasing aside the three accused. The three accused were acquitted following a trial solely in Spanish despite the first language of P and several of the witnesses was Qom, and in which great reliance was placed on P's sexual history by the prosecution and the judge. P was not notified of her rights to participate in the trial nor of the outcome of the trial and she only became aware of the acquittal after two years and was unable to appeal. The Human Rights Committee found violations of Articles 2(3), 3, 7, 14(1), 17, 24, 26 of the Convention. The Committee found that the police, medical examiner and the court did not provide appropriate protections to P's age, discriminated against her in the emphasis that was placed on her sexual history, and denied her right of access to the courts when she was not informed of her legal rights. It also found that the events at the police station and the medical examination constituted inhumane or degrading treatment, and that the investigation had arbitrarily interfered with P's private life. The Committee called on the State to guarantee access for victims, including victims of sexual assault, to the courts in conditions of equality in the future. However the operative gender stereotypes, including that as a young women from a marginalized ethnic minority group, she was sexually promiscuous, which contributed towards the acquittal of the accused of the rape were unnamed, leaving the role of the stereotypes in discriminating against similar victims and their rights unaddressed.

Una niña de 15 años, P, presuntamente fue agredida sexualmente por tres hombres. Ella informó de inmediato del ataque a la policía, pero se mantuvo esperando durante horas en la estación de policía y en un centro médico antes de que se realizaran las palpaciones anales y vaginales, lo que le causó un dolor intenso, además ella especificó la naturaleza anal única del ataque. Se envió a una trabajadora social para entrevistar a los vecinos y familiares de P sobre su historial sexual y su moral durante la investigación, dejando a un lado a los tres acusados. Los tres acusados fueron absueltos después de un juicio únicamente en español a pesar del primer idioma de P y varios de los testigos era Qom, y en los que la fiscalía y el juez depositaron una gran confianza en la historia sexual de P. P no fue notificada de sus derechos a participar en el juicio ni del resultado del juicio y solo se enteró de la absolución después de dos años, cuando ya era muy tarde para apelar. El Comité de Derechos Humanos encontró violaciones de los artículos 2 (3), 3, 7, 14 (1), 17, 24, 26 de la Convención. El Comité determinó que la policía, el médico forense, y el tribunal no proporcionaron las protecciones adecuadas a la edad de P, la discriminaron por el énfasis que le pusieron en su historial sexual y negaron su derecho de acceso a los tribunales cuando no se le informó de sus derechos legales. También encontró que los eventos en la estación de policía y el examen médico constituían un trato inhumano y degradante, y que la investigación había interferido arbitrariamente en la vida privada de P. El Comité pidió al Estado que garantice el acceso de las víctimas, incluidas las víctimas de agresión sexual, a los tribunales en condiciones de igualdad en el futuro. Sin embargo, los estereotipos operativos de género, incluyendo que como mujeres jóvenes de un grupo minoritario étnico marginado, la tacharon como sexualmente promiscua, lo que contribuyó a la absolución de las acusadas de la violación no fue identificado, dejando el papel de los estereotipos en la discriminación contra víctimas similares y sus derechos no defendidos. 



Case 43/75, Defrenne v Sabena [1976] ECR 455 European Court of Justice (1976)

Employment discrimination

D worked as a flight attendant for the airline Sabena. The airline paid her less than her male colleagues who did the same work. The ECJ held that Article 119 of the Treaty of the European Community was of such a character as to have horizontal direct effect, and therefore enforceable not merely between individuals and the government, but also between private parties. Article 157 TFEU (119 TEEC, 141 TEC) was invoked which stated "Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied".



Dekker v Stichting VJV Supreme Court of the Netherlands (1990)

Employment discrimination

D, when pregnant, applied for employment as an instructor in a youth training centre with Stichting Vormingscentrum voor Jong Volwassenen (VJV). VJV considered D to be the best candidate for job, however, as the selection committee had been informed by D that she was pregnant VJV declined to offer her employment. The ECJ held that an employer who acts in the manner VJV did was in breach of the Equal Treatment Directive, and in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC if he refuses to employ a female candidate based solely on the possible adverse consequences of her pregnancy, owing to rules on unfitness for work adopted by the public authorities, which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness. Further, the ECJ held that the application of the Equal Treatment Directive would not differ where in the circumstances described above no male applied for a post. If a woman is refused employment due to matters relating to her sex, for example pregnancy, it is always discriminatory



Case C-136/95, Thibault [1998] ECR I-2011 European Court of Justice (1998)

Employment discrimination

T was employed by the CNAVTS as a “rédacteur juridique” (official responsible for legal drafting). According to a CNAVTS policy, any employee, after six months service, was automatically entitled to assessment of his/her performance in order to evaluate the possibility of promotion. T was on leave for over six months of the year because of both sickness and pregnancy and was denied assessment. However, had she not taken her maternity leave, she would have accumulated the required six months period necessary for the assessment. According to the relevant French legislation in force at that time, an employee was entitled to 16 weeks of maternity leave, which could be extended to 28 weeks, and that this period was “to be treated as period of actual work for the purpose of determining a worker’s rights by virtue of length of service” (L 123-1(c) Code du travail). T brought the case before the Conseil de Prud’hommes (Labor Tribunal) in Paris, which upheld her claim and ordered CNAVTS to compensate her. SNAVTS appealed to the Cour de Cassation (court of Cassation), which set aside the previous judgment and referred the case to the Conseil de Prud’hommes of Melun which reiterated the Paris tribunal’s conclusion. CNAVTS again appealed to the Cour de Cassation which referred the case to the ECJ. The ECJ held that the Equal Treatment Directive allows Member States to guarantee women specific rights on account of pregnancy and maternity. These rights are constructed so as to ensure the implementation of the principle of equal treatment between men and women. The Court stressed that, seen in this light, “the result pursued by the Directive is substantive, not formal equality”. The Court stated that Member States enjoy discretion on how to implement these rights; however, this discretion must be exercised within the boundaries prescribed by the Directive. Thibault marked the return of the pivotal principle that discrimination on grounds of pregnancy and maternity leads to direct discrimination which had been watered down since its establishment in Dekker.



Case C-243/95, Hill and Stapleton v. Revenue Commissioners [1998] ECR I-3739 European Court of Justice (1998)

Employment discrimination

Job-sharing was introduced into the Irish Civil Service in 1984. Job-sharers work half the number of hours of full-time workers and are paid the same hourly rate. The scale of annual incremental salary increases for job-sharers are parallel to that for full-time workers with each point on the job-sharers scale representing 50% of the corresponding point on the full-time scale. 98% of job-sharers in the Irish Civil Service are women. According to the national referring tribunal a job-sharer can acquire the same experience as a full-time worker. When H and S transferred from job-sharing to full-time work they were initially assimilated to the same point on the full-time incremental scale as that which they had occupied on the job-sharers' scale. They were both subsequently reclassified at a lower point on full-time scale on the grounds that two years on the job-sharers' scale represented one year on the full-time scale. The questions posed to the ECJ by the Labor Court in Ireland arose from the decision by H and S to contest their reclassification. The Court took the view that workers who transferred from job-sharing, where they worked 50% of full-time hours and were paid 50% of full-time pay, to full-time work, were entitled to expect both the number of hours that they worked and the level of their pay to increase by 50%, in the same way as workers converting from full-time work to job-sharing would expect these factors to be reduced by 50%, unless a difference of treatment can be justified. Such development did not occur in this case, with the result that, as former job-shares are paid less than twice their job-sharing salary, their hourly rate of pay as full-time workers is reduced. Within the category of full-time workers, therefore, there is unequal treatment, as regards pay, of employees who previously job-shared, and who regress in relation to the position which they already occupied on the pay scale. In so finding, the Court observed that the use of the criterion of actual time worked during the period of job-sharing fails to take account, inter alia, of the fact that job-sharing is a unique category of work, given that it does not involve a break in service, or of the fact that a job-sharer can acquire the same experience as a full-time worker. Furthermore, a disparity is retroactively introduced into the overall pay of employees performing the same functions so far as both the quality and quantity of the work performed is concerned. In such a case, application of provisions of the kind at issue before the national tribunal result in discrimination against female workers which must be treated as contrary to Article 119 of the Treaty. The Court of Justice concluded that it would be otherwise only if the difference of treatment which was found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination on the grounds of sex. It added that it is for the national tribunal to decide if any such objective factors exist.



Case 171/88, Rinner-Kühn [1989] ECR 2743 European Court of Justice (1989)

Employment discrimination

At issue was a challenge to a German statute requiring employers to pay up to six weeks of annual sick leave for employees who worked more than ten hours per week, or more than forty-five hours per month. R-K sued her employer, an office cleaning company for whom she worked ten hours per week, after her request for eight hours of sick pay had been refused. Her claim was that, if Article 141 covered statutory-mandate sick pay provisions, the German legislation discriminated indirectly against women. The ECJ held that Article 141 covered sick pay, and that consequently the statute “must, in principle, be regarded as contrary to the aims of Art.[141]”, unless the German government could muster an argument to the contrary. The Court rejected the government’s submission that compared to full-time workers, part-timers “were not as integrated in, or as dependent on, the undertaking employing them”, declaring that “these considerations, in so far as they are only generalizations about certain categories of workers, do not enable criteria which are both objective and unrelated to any discrimination on grounds of sex to be identified.” It then announced a variation of the least-means proportionality test developed in Bilka. To mount a successful defense, Member States must convince a judge that the legislative “means chosen meet a necessary aim of its social policy,” and that these means “are suitable and requisite for attaining that aim.” The national judge has a duty to apply this test. The Court thus extended the Bilka framework to the judicial review of statutory-mandate social policy.



Hadijatou Mani Koraou v. Republic of Niger ECOWAS Community Court of Justice (2008)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Trafficking in persons

Hadijatou Mani, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her master under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, Hadijatou brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that Hadijatou had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict Hadijatou’s former master, Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.



Bracebridge Engineering Ltd. v. Darby Employment Appeal Tribunal (1990)

Sexual harassment

Sexual harassment. Two of Mrs. Darby’s male supervisors, Mr. Daly and Mr. Smith, grabbed and sexually assaulted Mrs. Darby in the works manager’s office at Bracebridge. Mr. Smith threatened Mrs. Darby with a written warning when she attempted to get away from him, but she was eventually able to run away from the men. Mrs. Darby reported the incident, but the general manager did not take action against the men and Mrs. Darby subsequently resigned. An Industrial Tribunal upheld Mrs. Darby’s complaints of sex discrimination and unfair dismissal, awarding £3,900 to Mrs. Darby. Bracebridge appealed to the Employment Appeal Tribunal, and the Employment Appeal Tribunal dismissed Bracebridge’s appeal. The EAT found no error in the Industrial Tribunal’s finding of sex discrimination by Bracebridge, noting that the single incident of sexual harassment was sufficiently detrimental to Mrs. Darby and therefore no pattern of harassment was necessary to reach this finding. The EAT also noted that the incident took place in the workplace and was perpetrated by Mrs. Darby’s supervisors, further supporting a finding of sex discrimination under s.6(2)(b) of the Sex Discrimination Act. The EAT also found no error in the Industrial Tribunal’s finding of constructive dismissal (unfair dismissal) by Bracebridge, because the company failed to respond appropriately when Mrs. Darby reported the incident and Mrs. Darby left her position at the company as a result of Bracebridge’s failure to act.



Slovak Republic, Supreme Court, Decision No. 36/2005, File No. 2 Cdo 67/03 Supreme Court of the Slovak Republic (2005)

Gender discrimination

Ms X.Y. (the claimant) had worked as a nurse in the Hospital in the city of Velký Krtíš (the employer) since November 30, 1998.  On April 11, 2002, the claimant received a notice of the termination of her employment due to her failure to take an oath in accordance with new legislation.  The new legislation came into force on April 1, 2002, when the claimant was on maternity leave.  The notification of the new legal prerequisite was posted in the halls of the hospital making it almost impossible for workers on maternity leave to be informed.  The claimant sued the employer for unlawful termination of employment, arguing that the termination was discriminatory on the grounds of her gender.  The district court ruled in favor of the claimant; however, on appeal the regional court quashed the decision and dismissed the case.  The claimant appealed to the Supreme Court which held that the termination was unlawful for a number of reasons.  Firstly, the employer failed to perform its legal obligations to enable the claimant to take the oath. Secondly, the acts of the employer with respect to the termination of employment were discriminatory.  The employer had disadvantaged a certain group of its employees, in particular those on maternity leave, by failing to provide them with notice about the new requirement to take the oath, breaching the prohibition of discrimination established in labor relations.  This was in breach of the prohibition of discrimination under Section 13 of the Labor Code of the Slovak Republic.  Lastly, the Supreme Court held that the employer had abused its rights as an employer, which is in violation of moral principals.  The Supreme Court further held that the termination would have been lawful if the employer had duly informed the claimant about the new regulations and provided her with a chance to comply with them, and ordered a re-examination of the issue by the district court.



Doebbler v. Sudan African Commission on Human and Peoples' Rights (2003)

Custodial violence, Gender discrimination, Gender-based violence in general

Eight female students of the Nubia Association of Ahilia University were arrested for engaging in immoral activities that violated the public order, in contravention of Sudan's Criminal Code, which incorporates Islamic Sharia law. The immoral activities the women committed consisted of "girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys, and sitting and talking with boys." The women were punished with fines and between 25 and 40 lashes. The lashing took place in public by use of a wire and plastic whip. The wire and plastic whip were unclean, the lashing was not under the supervision of a doctor, and the women were bareback in public while they were lashed. The complaint asserted that the punishment violated Article 5 of the African Charter on Human and Peoples' Rights, which guarantees the right of individuals to human dignity and prohibits cruel, inhuman or degrading punishment and treatment. The Commission found that the lashing violated article 5 of the African Charter. It requested that Sudan abolish the punishment of lashing and compensate the women for their injuries.



Interights (on behalf of Husaini and Others) v. Nigeria African Commission on Human and Peoples' Rights (2005)

Custodial violence, Gender discrimination, Gender-based violence in general, Harmful traditional practices

Interights, an international human rights organization, filed a complaint before the Commission on behalf of Ms. Safiya Hussaini and others, arguing that Nigeria's Islamic Sharia courts had violated their rights to a fair trial and due process. Safiya Hussaini, a nursing mother, was sentenced to death by stoning for adultery. Ms. Hussaini was tried under Sharia law, according to which adultery is punishable by death. The petitioners also included Amina Lawal, a woman sentenced to similar punishment for adultery, and Bariya Magazu, an unmarried woman who received 100 lashes as punishment for zina (voluntary premarital sexual intercourse). In response to the complaint, the Chairman of the African Commission sent an urgent appeal to Nigerian President Olusegun Obasanjo, urging him to suspend further implementation of the Sharia penal statutes and convictions under those laws pending the outcome of the complaints before the Commission. In response to the Chairman's urgent appeal, the Secretary General of the African Union formally brought the matter to President Obasanjo. The President's Chief of Staff wrote to the Chairman of the African Commission that while the federal government could not suspend the operation of Sharia law, the administration would ensure that the "right to life and human dignity" of Ms. Hussaini and the others would be adequately protected. Before the court ruled on admissibility of the complaint, the complainant moved for withdrawal of the complaint, and it was withdrawn from the Commission.



Arjona Camacho v. Securitas Seguridad España, SA European Court of Justice (2015)

Employment discrimination

Ms. Arjona Camacho was dismissed from her position as a security guard at a juvenile detention center. The Social Court No. 1 of Cordoba in Spain found that her dismissal constituted discrimination on the grounds of sex, and referred to the European Court of Justice the question of whether EU law (specifically Article 18 of Directive 2006/54/EC) requires a national court to grant punitive damages, i.e., damages that go beyond the amount necessary to compensate the actual loss and damage caused by the discriminatory act, even when the concept of punitive damages does not exist within the legal tradition of that national court. The European Court of Justice found that, although punitive damages may be awarded under such circumstances, they are not required under EU law. If the national law does not provide a ground for the award of punitive damages, EU law does not independently provide such a right.

La Sra. Arjona Camacho fue despedida de su puesto como guardia de seguridad en un centro de detención juvenil. El Juzgado de lo Social Nº 1 de Córdoba en España determinó que su despido constituía una discriminación por motivos de sexo y remitió al Tribunal de Justicia de las Comunidades Europeas la cuestión de si la legislación de la UE (específicamente el artículo 18 de la Directiva 2006/54 / CE) exige una tribunal nacional para otorgar daños punitivos, es decir, daños que van más allá del monto necesario para compensar las pérdidas y daños reales causados ​​por el acto discriminatorio, incluso cuando el concepto de daños punitivos no existe dentro de la tradición legal de ese tribunal nacional. El Tribunal de Justicia de las Comunidades Europeas determinó que, aunque en tales circunstancias se pueden otorgar daños punitivos, no están obligados por la legislación de la UE. Si la legislación nacional no proporciona un motivo para la concesión de daños punitivos, la legislación de la UE no puede proporcionar dicho derecho de forma independiente.



J. v. Peru, Report No. 76/11, Case 11,769A Inter-American Commission on Human Rights (2011)

Custodial violence

In April 1992, the Petitioner, Mónica Feria Tinta, was arrested during a raid by DINCOTE, the counter-terrorism branch of the Peruvian police. The police believed that Ms. Tinta was a member of the Sendero Luminoso, a communist militant group in Peru. During the raid, Ms. Tinta was blindfolded, beaten and raped by some of the police officers. When Ms. Tinta protested the sexual violence, the officers beat and kicked her. After the raid, the officers took Ms. Tinta to a DINCOTE facility, where she was detained for more than a year in cells infested with roaches and rats. While detained, DINCOTE officers deprived Ms. Tinta of access to her attorney, forced her to urinate in a can in the presence of two male officers, and doused her with cold water if she resisted their orders. The Inter-American Commission on Human Rights (the “IACHR”) found that the Peru violated Ms. Tinta’s rights by failing to conduct a serious investigation of her claims, even though her claims “fit a pattern known to have existed at that time” and involved violence (¶ 207). According to the IACHR, Peru had a duty to investigate Ms. Tinta’s claims of rape, including ordering medical tests and examinations, to either corroborate or disprove Ms. Tinta’s claims. The IACHR concluded that Peru, inter alia, violated the rights recognized in articles 5(1), 5(2) and 11 of the American Convention on Human Rights (the “American Convention”), as well as Article 1 and 6 of the Inter-American Convention to Prevent and Punish Torture. Noting its well-established precedent that “rape committed by members of the security forces of a state against the civilian population constitutes, in any situation, a serious violation of the human rights protected by Articles 5 and 11 of the American Convention,” the IACHR established that rape is particularly reprehensible when it perpetrated by a state agent against a detainee, because of the victim’s vulnerability and the agent’s abuse of power (¶ 188). In addition, noting that various reports had shown a pattern of rape and sexual abuse against women by members of Peru’s security forces, the IACHR found that such sexual violence was part of a “broader context of discrimination against women” (¶ 65).



Reports

"They are Destroying Our Futures" Sexual Violence Against Girls in Zambia's Schools (2012)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

A report by the Avon Global Center for Women and Justice at Cornell Law School, Women and Law in Southern Africa-Zambia, and the Cornell Law School International Human Rights Clinic examining the problem of sexual violence against girls in school in Zambia.



Exclusion of women from the legal profession in the United States of America, the United Kingdom, and South Africa (2012)

Employment discrimination, Gender discrimination, Harmful traditional practices

Although great strides have been made in breaking down the barriers that have previously kept women from being able to have the same rights and privileges to work in the legal profession that men enjoy, there is still progress to be made.



Evaluation: Strengthening of Prosecution of SGBV Offences through support to the Sexual and Gender Based Violence Crimes Unit (SGBV CU) in Liberia (2010)

Gender-based violence in general, Sexual violence and rape

UNFPA Report presenting the findings, analysis and recommendations from the Evaluation of the SGBV Crimes Unit, which has as its purpose to prosecute perpetrators of gender and sexual based violence, particularly rape, in Liberia (November 2010).



Hidden in the Mealie Meal (2007)

Gender discrimination, Gender-based violence in general, Property and inheritance rights, Sexual violence and rape

Human Rights Watch Report on the Zambian government's failure to meet its international obligations to combat violence and discrimination against women. The report documents abuses that obstruct women's ability to start and adhere to HIV treatment regimens, including violence against women and insecure property rights (2007).