It may be prohibited to indicate discriminative requirements in position announcements

“Ekonomika I Zhinzn (Economy and Life)” newspaper, No. 42 (9458), 2012

The Ministry of Labor of Russia has drawn up amendments to the employment legislation of the Russian Federation. The amendments prohibit the employers to disseminate such information on vacant job positions containing discriminative limitations as contains discriminative limitations, first and foremost – age limitations.

The Labour Code of the Russian Federation prohibits unmotivated refusals to execute employment contracts (Article 64). Such refusal is not allowed, as well as any other direct or indirect limitation of rights or fixing direct or indirect preferences during the execution of an employment contract depending on sex, race, skin color, nationality, language, origins, property, social and official position, age, residence (including the existence or absence of residence or permanence registration) and other circumstances not connected with the employee’s professional skills. The only exceptions are fixed by federal laws.

However, the current legislation contains no provision, which directly prohibits discrimination in the job announcements placed by the employer or by the representative acting on the employer’s instruction and in his interests.

For example, a recruiting agency.

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The Ministry of Labor of Russia believes that the current situation requires governmental regulation. In this connection and for the purpose of regulating the relations preceding the execution (refusal to execute) an employment contract, the Ministry has prepared a draft law of amendments to Article 25 of the Law of Russia No. 1032-1 “On employment of the population of the Russian Federation” dated 19.04.1991. In particular, authors of the draft law suggest the introduction of a direct prohibition to the employers or their representatives to publish such information on job vacancies as contains discriminative limitations, with the exception of the cases stipulated by the laws of the Russian Federation.

If an employer or his representative publishes such information, they will bear administrative responsibility.

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Tatiana Samarina, Senior Lawyer of the Law Firm "YUST", Doctor at Law.

Adding to the Russian legislation the provisions of responsibility for dissemination of the information on vacant job positions, which contains discriminative limitations is a tribute to the worldwide trend of “modernizing” legal provisions towards protection of the human rights from unmotivated limitations (including in the sphere of labour relations). For example, earlier this year, a number of the American states adopted laws prohibiting wording the job announcements in such a way as to indicate that the employers will only consider the CVs of those, who has no unemployed status. Earlier this month, English legal requirements to the prevention of age discrimination at hiring were updated (the third part of Equality Law of 2010 entered into effect). In 1991, the legal category of “genuine occupational requirement” was introduced in Great Britain. According to it, it is acknowledged that the employers have objective reasons to set age, sex, race and other requirements to candidates to a certain position. For example, it is acceptable to not consider male applications for a role of a teenage girl in a play or the applications of persons with different views for the position of a religious school teacher.

Russian practice of law application currently contains few cases, where state authorities, taking into account actual circumstances, could formulate clear criteria of evaluation of the employers’ actions from the point of view of discrimination.

The court resolves the issue, whether there was discrimination in the refusal to execute an employment contract and whether the employee’s professional skills suit the job requirements, taking into account concrete circumstances of the case.

Clause 10 of the Resolution No. 2 by the Plenum of the Supreme Court of the Russian Federation dated 17.03.2004 explains that a refusal to execute an employment contract for a reason not listed in Article 64 of the LCRF should be appealed against to courts, since the list in the Article is not complete. In this connection, we may assume that the introduction of administrative liability for the facts of discrimination at hiring will facilitate the elaboration of the uniform practice of application of Articles 19 and 37 of the Constitution of the Russian Federation, of Articles 2, 3 and 64 of the LCRF, of Article 1 of the ILO Convention No. 111 of 1958 on discrimination in the sphere of labour and occupation ratified by the Decree of the Board of the Supreme Soviet of the USSR dated January 31, 1961 – which impose prohibition to discriminate.

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