Occupational health policies often co-exist with policies to ensure equity in the workplace. Laws, regulations, and standards adopted or endorsed in many countries prohibit various forms of workplace discrimination and require safety and health goals to be achieved in ways that do not infringe workers’ other rights and interests. Legal obligations compel employers in some jurisdictions to implement practices that ensure workplace equity; policy considerations may encourage similar practices even when they are not legally mandated, for the reasons set forth by Freda Paltiel at the beginning of this chapter.
As a practical matter, workers’ acceptance of health and safety programmes may be affected by the extent to which they incorporate and reflect equitable principles. Workers are more likely to reject occupational safety and health programmes if they are implemented at the expense of other important interests, such as the interest in self-determination and economic security. There are additional reasons to implement health and safety programmes with attention to workplace equity. Rational and fair workplace rules improve workers’ job satisfaction, productivity and emotional well-being, and reduce work-related stress. An individualized approach to workers’ needs and abilities, which is at the core of both occupational safety and health and workplace equity, expands the pool of qualified workers and maximizes their skills and abilities.
There are certain areas in which equitable principles and occupational safety and health seem to conflict, and these tend to be situations in which certain workers appear to have unique or special needs. Pregnant workers, older workers, and disabled workers fall into these categories. Closer inspection often reveals that the needs of these workers are not so dissimilar to those of workers generally, and that well-accepted workplace policies and practices can ordinarily be adapted to create programmes that implement health and safety and equity in tandem. The guiding principle is the flexibility to make individual assessments and adjustments, which is a familiar reality in most work settings, since illness, temporary disability, and work restrictions often require flexibility and adaptation. At some point in their working lives, almost all workers have occupational health needs related to “age, physiological condition, social aspects, communication barriers or similar factors (which) should be met on an individual basis” (ILO 1992).
Workplace equity connotes fairness in the allocation of jobs, duties, promotion, benefits, and other terms and conditions of employment. Employment-related distinctions on the basis of race, sex, national origin and religion, in particular, have been recognized as perpetuating invidious forms of social bias and discrimination, and have been almost universally condemned. More recently, distinctions drawn on the basis of age and disability have come to be recognized as similarly inequitable. These characteristics are generally irrelevant to an individual’s desire to work, financial need for employment, and are often irrelevant to the ability to perform a job. Failure to integrate all able and willing individuals into productive activity not only stymies human potential but also defeats social needs by reducing the population of self-sufficient individuals.
Principles of equity rely on the premise that workers should be judged on the basis of an objective assessment of their own skills, abilities and characteristics, not on assumptions about any group to which they belong. Thus, at the core of workplace equity is the repudiation of stereotypes and generalizations to judge individuals, since even accurate generalizations often inaccurately describe many individuals. For example, even if it is true on average that men are stronger than women, some women are stronger than some men. In hiring workers to perform a job requiring strength, it would be inequitable to exclude all women, including those who are strong enough to do the job, on the basis of a generalization about the sexes. Instead, a fair assessment of individual abilities will reveal which women and men have the requisite strength and ability to perform the job adequately.
Some kinds of screening tests disproportionately exclude members of certain groups. Written tests may disadvantage individuals whose native language is different or who have had less access to educational opportunities. Such tests are justifiable if they actually measure the abilities that are needed to perform the job in question. Otherwise, they operate to bar qualified individuals and reduce the pool of eligible workers. Reliance on certain kinds of screening devices also reflects stereotypes about who should do particular types of work. For example, height requirements imposed for law enforcement jobs assumed that greater height correlated with successful job performance. Elimination of these requirements has demonstrated that height per se is not a necessary element of the ability to function effectively in law enforcement, and it has opened this field to more women and members of certain ethnic groups.
The classic barriers to workplace equity include physical requirements such as height and weight, written tests, and education or diploma requirements. Seniority systems sometimes exclude members of groups that have been disfavoured, and veterans’ preferences often disadvantage women workers, who are often neither required nor permitted to do military service. Stereotypes, traditions and assumptions about skills and characteristics associated with race, sex and ethnicity also operate, often subconsciously, to perpetuate a traditional allocation of employment opportunities, as do other factors, such as preferences for friends or relatives. The presence of such barriers is often signified by a work environment that does not accurately reflect the composition of the pool of qualified workers, but shows members of certain groups holding a greater share of desired positions than would be expected based on their representation in the field or labour pool. In such cases, careful evaluation of the practices by which workers are chosen usually reveals either reliance on screening practices that unfairly eliminate certain qualified applicants, or unconscious bias, stereotyping or favouritism.
Notwithstanding almost universal adherence to workplace equity principles and the desire to implement equitable practices, these goals are sometimes confounded, ironically, by the view that they conflict with occupational safety and health goals. The area in which this issue is most prominent relates to women of childbearing capacity, pregnant women and new mothers. Unlike other workers who ordinarily enjoy the right to undertake any work for which they are qualified, women workers are often subject to involuntary restrictions in the name of health protection either for themselves or their children. Sometimes these provisions secure much-needed benefits, and sometimes they exact a high price in terms of access to economic independence and personal autonomy.
Many of the principles relevant to the consideration of women workers’ rights and needs apply to workers who are disabled or ageing. Most important is the notion that workers should be judged on the basis of their own skills and abilities, not on the basis of generalizations or stereotypes. This principle has resulted in recognition of the fact that disabled individuals can be highly productive and valuable workers. Some investment may be necessary to accommodate a disabled worker’s needs, but there is growing appreciation that such investment is well worth the cost, especially in light of the consequences of the alternative course.
Sex Discrimination, Pregnancy and Childbirth
Many international conventions and recommendations advocate the elimination of sex discrimination in employment, for example, the International Convention on the Elimination of All Forms of Discrimination Against Women (1979), the International Covenant on Civil and Political Rights (1976), and the Equal Treatment Directive (76/207/EEC). The concept of equal pay for male and female workers doing work of equal value was adopted by the ILO in the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 1951 (No. 100). The Recommendation Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 1951 (No. 90), which supplemented that Convention, also urged “promoting equality of men and women workers as regards access to occupations and posts”. A more comprehensive statement of the non-discrimination principle was adopted in June 1958 in the Convention Concerning Discrimination in Respect of Employment and Occupation (No. 111) and the Recommendation Concerning Discrimination in Respect of Employment and Occupation (No. 111).
The European Community Directive 76/207/EEC on equal treatment of women and men with respect to access to employment is consistent with these provisions. There is thus widespread agreement with the principle that women and men should enjoy equal access to employment opportunities and equality in the terms and conditions of employment. For example, Austria has amended its Equal Opportunities Act to place Austrian law in line with European Community Law. The Austrian amendments stipulate that there may be no discrimination in connection with an employment relationship on grounds of gender. This extends the prohibition of discrimination to all aspects of the employment relationship.
Long before international bodies and national laws condemned sex discrimination, many recognized a need for maternity protection. The Maternity Protection Convention which was first adopted in 1919, gave pregnant women with a medical certificate the right to a leave six weeks before the expected date of delivery, and prohibited a woman from working “during the six weeks following her confinement”. Pregnant women were required to receive breaks during work hours. (ILO 1994). The Convention also entitled women workers to free medical care and cash benefits. The dismissal of a woman during maternity leave or during an illness arising out of pregnancy or confinement was “unlawful”. The revised Maternity Protection Convention, 1952 (No. 103), provided that maternity leave be extended to 14 weeks where necessary for the health of the mother, expanded the provisions for nursing mothers, and prohibited night work and overtime for pregnant and nursing mothers. It also stated that work that could be harmful to a pregnant or nursing mother’s health, such as any hard labour or work requiring special equilibrium, should be prohibited. Notably, Member States were allowed to make exceptions for women who fell into certain occupational categories, such as non-industrial occupations, domestic work in private households, and labour involving the transport of goods or passengers by sea.
Consistent with ILO Conventions on maternity protection, the European Community adopted Council Directive 92/85/EEC of 19 October 1992, to encourage improvements in the safety and health of pregnant workers and workers who have recently given birth or are breast-feeding. This calls for the evaluation and communication of types of activityies which may pose specific risks to pregnant and nursing women, prohibition of the requirement of night work when necessary for the health and safety of pregnant and nursing workers, the right to maternity leave, and the maintenance of the rights of the employment contract during pregnancy and confinement. While these Conventions and Directives contain provisions that enhance the ability of women to work and bear children safely, they have been criticized for failing to guarantee that result. For example, studies done by the Indian Government found that few women received maternity benefits as a result of poor enforcement and the exclusion from coverage of temporary and seasonal workers, women working in small industries, and homebased workers (Vaidya 1993). In addition to maternity benefits, some countries require that women receive rest breaks, seats, sanitary facilities and other benefits.
In contrast, other measures adopted to protect women workers’ health include limitations on women’s work. These take the form of exclusion from dangerous jobs or heavy work, restriction from jobs thought to pose a moral danger, restrictions during menstruation, maximum hours and overtime prohibitions and so on (ILO 1989). Unlike maternity benefits provisions, these actions are restrictive: that is, they limit women’s access to certain kinds of jobs. One example is the prohibition of night work by women, which was one of the first items addressed at the International Labour Conference in 1919. Four ILO documents provide further discussion of these issues (ILO 1919a; 1921; 1934; 1948). (It is interesting to note that there is no standard definition of the word night.) The history of attitudes towards night-work restrictions provides an instructive study in the relationship between health and safety goals and workplace equity.
The prohibition of night work was meant to protect family life and to protect workers against the particularly arduous physical burden of night work. In practice, the ILO Conventions are meant to prohibit night work by women doing manual work in industry, but not to prohibit white-collar or managerial work or work in service sectors. But night-work restrictions also denied women job opportunities. In the name of health and morality, women were restricted from some jobs altogether and limited in their ability to progress in other jobs. The impulse to legislate restrictions on night-work was in response to the exploitation of workers of both sexes, who were required to work exceedingly long hours. However, in the United States, for example, night- work restrictions prevented women from obtaining lucrative jobs as streetcar conductors. Restrictions did not, however, bar women from working as nightclub dancers (Kessler-Harris 1982).
Inconsistencies of this sort, along with the economic disadvantage experienced by women workers, fuelled criticism of night-work restrictions for women, which were ultimately replaced in the United States by legal protections against exploitation for workers of both sexes. The US Fair Labor Standards Act provided for the establishment of regulations regarding hours of work.
Other countries have likewise rejected the sex-specific approach to protecting working women, responding to increasing awareness of the economic penalties on women workers and other aspects of sex discrimination. In 1991, the Court of Justice of the EEC held that under European Community Directive 76/207/EEC, Member States may not statutorily ban night work for women. The European Commission requested that ILO Member States bound to the ILO Convention banning night work for women renounce it, and many have done so. In 1992, the German Constitutional Court declared the prohibition of night work for women to be unconstitutional. Within the last ten years, laws prohibiting night work by women have been repealed in Barbados, Canada, Guyana, Ireland, Israel, New Zealand, Spain and Surinam. Currently, the law in 20 countries contains no prohibition on night work by women. A summary of the actions repealing protective laws prior to 1989 has been published by the ILO (1989b).
This trend is most pronounced in developed countries where women have enforceable rights protecting their legal status and where occupational health and safety concerns are recognized. In countries where conditions for women are “deplorable” and are much worse than they are for men, however, it is sometimes argued that “more protection is needed, not less” (ILO 1989b). For example, the average number of hours women in Kenya work per week, 50.9, greatly exceeds the average number of hours worked per week by men, 33.2 (Waga 1992). Notwithstanding this caveat, in general protecting women workers by restricting their ability to work has clear disadvantages. In June 1990, the ILO passed the Night Work Convention (No. 171) stating that all night workers, not just those who are female, need protection (ILO 1990). This approach is consistent with the ILO’s general position that all “work should take place in a safe and healthy working environment” (ILO 1989) and is an approach which accords health protection and workplace equity equivalent respect.
The evolution of efforts to protect women from the effects of hazardous workplaces and toxic substances at work demonstrates some of the same concerns and trends that appear in the discussion of night work. Early in the twentieth century, the ILO and many countries barred women from dangerous workplaces, as illustrated by Conventions prohibiting women and children from exposure to lead (ILO 1919b). By custom and by law, women were barred from many kinds of work, ranging from bar tending to mining. These restrictions undermined women’s employment options and economic status, and were implemented inconsistently—barring women from lucrative jobs held exclusively by men, while permitting work in equally hazardous, but low-paid, jobs frequented by women. Critics charged that all workers need protection from toxic chemicals.
In the United States, the effort to exclude women from hazardous work took the form of “foetal protection” policies. Proponents claimed that the foetus is more sensitive to certain workplace hazards and that it is therefore rational to exclude women who are or might be pregnant from such environments. The United States Supreme Court rejected that claim and held that occupational safety and health practices must account for the health needs of both women and men. The Court’s decision vigorously enforces women’s right to employment, while recognizing the equally important right to health protection. On a theoretical level, this solution accords equal weight and respect to equity and safety and health goals and obligations. As a practical matter, some have expressed concern whether the absence of adequate mechanisms to enforce occupational safety and health laws leaves both sexes vulnerable to reproductive and other injuries (International Union 1991).
Other countries have sought a different solution. For example, Finland’s Act on the Special Maternity Leave, which came into force in July 1991, allows women who are exposed to agents considered to be harmful to the pregnancy or to the offspring, to request a transfer to a different job which does not involve such exposure from the beginning of their pregnancy. If such a job is not available to them, they may be entitled to special maternity leave and benefits (Taskinen 1993). Similarly, the Pregnant Workers Directive (92/85/EEC) contemplates a series of accommodations to women who require additional protection for pregnancy or breast-feeding, including modifications of the work environment or conditions of work, temporary transfer, and leave of absence.
This approach, like the one discussed above, solves some, but not all, problems: the different level of benefits accorded to women may make them less desirable and more expensive employees and may encourage sex discrimination; and the failure to accord male workers protection against reproductive risks may result in future illness and injury.
Provisions that accord women the right to request transfers, modification of work conditions, and other accommodations point up the importance of how rights and obligations are allocated between workers and employers: the workers’ right to request certain benefits, which the employer is required to provide on request, accords with principles of equity, while rules which permit employers to impose unwanted restrictions on workers, even if “for their own good”, do not. Allowing employers to control the conditions of women’s work, as opposed to men’s work, would deprive women, as a class, of decision-making power and personal autonomy, and would also violate basic concepts of equity. The notion that workers retain control over health-related decisions, even though employers are required to observe certain standards and provide benefits, is already recognized in the context of biological monitoring (ILO 1985) and is equally applicable to address the health needs of women and other identifiable sub-groups of workers.
As the foregoing discussion indicates, efforts to protect women workers as a separate group, through benefits not available to other workers, have had mixed success. Some women have undoubtedly benefited, but not all. Poor enforcement, especially in the case of maternity benefit laws, has limited their intended beneficial effect. Limits on the employability of women workers themselves, as in the case of night-work restrictions, impose economic and other penalties on women workers themselves by restricting their options, opportunities and contributions.
At the same time, other factors have forced re-evaluation of the best ways to meet workers’ needs for health protection. Entry of more women into all parts of the workforce has exposed more women to the full range of occupational risks previously experienced only by men, while increasing knowledge of male susceptibility to reproductive and other injury from occupational exposures reveals the need for comprehensive health policies. Other trends also influence the direction of all employment-related policies. These include not just the demand for equality between the sexes, but also the fact that more women work, work longer, and in more kinds of jobs. As a result, the recent trend is to allow men and women more choices concerning all aspects of family and employment: more men have elected to participate in the care of young children, more women are principal wage-earners, and more workers of both sexes seek greater flexibility in managing their work and family lives. These factors contribute to a trend to provide benefits to both men and women to accommodate a range of predictable needs associated with family welfare, including reproductive health concerns, pregnancy, temporary disability, childbirth and child care and elder care. For example, the Workers With Family Responsibilities Convention, 1981 (No. 156), applies equally to both men and women. In addition, France, Germany, Belgium, Denmark and Greece permit some form of parental leave to address a range of family needs. The benefits for men still do not equal the maternity benefits received by women, however (Dumon 1990). Instead of excluding workers thought to be susceptible to the effects of toxins, some reproductive toxins have been banned altogether and others have been strictly regulated to prevent reproductive harm by reducing exposures to both sexes. Transfer options for men and women exposed to reproductive hazards at work have been adopted in several countries, such as in the United States for workers exposed to lead. A number of countries have adopted parental leave benefits that allow parents greater freedom in caring for young children.
The examples drawn from the historical and current experiences of women workers demonstrate principles that apply with equal force to the situation of many disabled and older workers. Like women, these workers have sometimes been protected from employment-related risks in ways that have deprived them of economic self-sufficiency and the other rewards of work. Restricting the choices of these workers suggests that they are incapable of making appropriate decisions about the risks and benefits of work. All three groups have been burdened with negative assumptions about their abilities, and often denied the opportunity to demonstrate their skills. And there has been a tendency to view accommodation of these workers as especially burdensome, even though it may be routine to accommodate a worker injured in a traffic accident or an executive who has had a heart attack.
Equity is served when workplace policies are established to meet the needs of all workers. This principle is essential to address situations in which members of identifiable ethnic or racial groups are thought to be especially susceptible to certain work-related risks. Such claims must be carefully scrutinized to ensure their validity; they have sometimes been advanced without foundation and used to justify exclusion of affected workers, even though individual variation in susceptibility is usually more important than group-based differences (Bingham 1986). Even if true, however, equitable principles suggest that the risk should be reduced or avoided through engineering controls, product substitution, or other means, rather than by depriving an entire class of individuals of employment opportunities or subjecting them to conditions that are known to pose a hazard.
Ideally, workers’ abilities and needs should be assessed individually, and individual needs accommodated to the extent possible. Risk-benefit calculations are ordinarily best performed by the individuals most directly affected. The possibility that workers will sacrifice their health for their economic well-being can be reduced if government standards are established with the expectation that the workplace will contain a representative sample of the population, including pregnant women, older workers, those who are disabled, and members of different racial and ethnic groups. Certain events in life are highly predictable: procreation and ageing affect a large proportion of the working population, disability affects significant numbers, and everyone belongs to some racial or ethnic sub-group. Work-related policies that treat these circumstances as normal, and that anticipate them, create workplace environments in which equity, and health and safety, can co-exist comfortably.