Monday, January 18, 2016

USDOL failure to address sex discrimination claims in CAFTA-DR Honduras Report and Action Plan puzzles, disappoints

In early 2015, the U.S. Department of Labor issued its much-anticipated report on trade unions' public submission contending that the Government of Honduras failed to set high labor standards and effectively enforce existing labor laws.  The 143-page report confirmed petitioners' claims, observing that some progress was made during the 3 years since the petition was originally filed but that the Honduran Ministry of Labor (Secretaría de Trabajo y Seguridad Social - STSS) continues to fall short in responding to complaints, conducting inspections and remediating workplace violations.  The report made 7 recommendations for improvement of STSS labor inspections including imposing sanctions for labor law violations, compelling access to worksites, compelling employer compliance with remediation orders and improving enforcement of laws related to freedom of association, collective bargaining and child labor.

Notably absent from USDOL's report was any reference to or acknowledgement of claims of systemic sex discrimination in the Honduran garment sector outlined by petitioners in their 2012 public submission.  Petitioners highlighted the discriminatory nature of Honduras' industry-based minimum wage setting mechanism which set wages significantly lower in the predominantly female garment sector than in other manufacturing sectors (p. 4) and pointed to NGO reports of high levels of mistreatment of women workers in the form of verbal abuse, shoving, punching, denial of meal breaks, sexual harassment, sexual assault, sex-motivated dismissals and pregnancy discrimination (p. 5).

A critical element of petitioners' overall argument in the submission was that discriminatory low wages paid in the garment sector directly affects trade between the U.S. and Honduras (p. 5), thereby violating Honduras' commitment under CAFTA-DR Article 16.1(1) to strive to set high labor standards in conformity with the 1998 ILO Declaration on Fundamental Principles and Rightsat Work and its Follow-Up.

Despite early criticism that USDOL's report was incomplete (See Mateo Crossa, "Honduras: US Government Fails to Act to Prevent Labor Rights Violations," The Americas Blog, CEPR, March 19, 2015), the Labor Rights Monitoring and Action Plan signed by the labor ministers of the U.S. and Honduras on December 9, 2015 fails to include specific measures to address the problem of workplace sex discrimination in Honduras.  Like the February 2015 report, the Monitoring and Action Plan (MAP) does not contain a single word, commitment or timeline related to addressing the issue of sex discrimination, pay equity or sexual harassment in labor law enforcement, workplace inspections or training for STSS personnel.

USDOL's silence on the issue of sex discrimination in the Honduran garment sector and other industries is puzzling in light of recent reports and actions it has taken in response to submissions filed under the CAFTA-DR and other U.S. free trade agreements.  Since 2009, the Obama Administration has pressed its trading partners not only to improve enforcement of existing labor laws but to achieve a higher standard by passing laws that give life to fundamental labor standards in the ILO Declaration.  Examples include issuing a report exhorting the Government of Bahrain to pass a law prohibiting discrimination based on religion and other grounds; commissioning a series of studies on how to identify indicators of forced labor and slavery in the modern era; and designating funds to eradicate child labor in the Dominican Republic.  Any or all of these responses would have been appropriate in response to the sex discrimination claims raised in the Honduran labor petition under CAFTA-DR - and in fact could form the basis of a work plan to address workplace sex discrimination in Honduras.

By ignoring claims of sex discrimination in its report and action plan in response to the Honduras CAFTA-DR petition, USDOL has demonstrated that it is out of sync with the rest of the international community. The United Nations Conference on Trade and Development (UNCTAD) acknowledged as early as 2004 that gender equality is a universal goal and that trade can have important positive and negative implications for women - recommending in its seminal note Trade and Gender:  Opportunities, Challenges and Policy Dimension that women's concerns and role in the economy should be considered in the development of trade policy.  As discussed in the 2002 United Nations guide Gender Mainstreaming An Overview, gender mainstreaming has been a part of international policy making for the last two decades.  Even the World Bank came out in support of workplace childcare facilities because it is good for women's labor force participation, as discussed in Markus Goldstein's September 2013 piece "Building the evidence based roadmap for women's economic empowerment" in the World Bank's Development Impact blog.

The essence of the concept of gender mainstreaming is that issues affecting women in particular must be addressed and incorporated into international policy making.  "Mainstreaming should situate gender equality issues at the centre of analyses and policy decisions, medium-term plans, programme budgets, and institutional structures and processes" (UN 2002, pp. v-vi).  The UN emphasizes that attention to gender issues must be explicit and systematic (p. vi).

In the case of the USDOL report on and action plan for improved workplace law enforcement in Honduras, it is not enough to simply expect that enhanced protections for trade unions and improved labor inspection methods and follow-through in general will address the particular issues faced by working women in Honduras. USDOL and the Obama Administration must explicitly account for and respond to working women's issues in Honduras.

In my mind, there was always a question whether USDOL would embrace the concept of equal pay for equal value implicit in petitioners' argument.  U.S. law recognizes the concept of equal pay for equal or similar work under the 1963 Equal Pay Act, but does not go as far as Canadian law, which recognizes the concept of equal pay for work of equal value - where the work being performed in a predominantly female sector is different but of equal value to work performed in a predominantly male sector (as explained in this November 2015 Ontario Equal Pay website).

What can USDOL do to remedy the situation?

The important question for USDOL, Honduran trade unions and women's rights advocates and their international allies is What now?

USDOL has a number of tools at its disposal to address the big gender gap left by its report on labor law standards and enforcement in Honduras and the resulting Action Plan.

  • Work with Central American women's advocacy groups and trade unions along with the Labor Affairs Council established under Article 16.4 of the CAFTA-DR to develop a Model Code to Eliminate Sex Discrimination, Violence Against Women and Unequal Pay in Central American workplaces.  A 2013 study produced by COVERCO (Guatemala) and other groups in Central America observed that the inequitable minimum wage setting mechanism present in Honduras is present in all of the Central American nations - contributing to overall poverty and lack of well being in these nations.
  • Provide technical support and funding for workplace childcare initiatives such as that agreed to by Honduran employers and trade unions in the 2014 Tripartite Agreement on Employment in the Maquila Sector.  In addition to setting forth a schedule for periodic wage increases, the agreement commits employers to establish workplace child care centers on a pilot basis - a pilot that has yet to be launched, no doubt due to lack of support and funding.
  • Work with women's rights groups, trade unions and international experts to develop best practices for a gendered approach to workplace inspections to identify unequal pay, sex discrimination in promotion and sexual harassment and violence.
  • Address USDOL's own shortcomings in addressing gender issues in labor petitions filed under trade agreements by developing and implementing a policy that mainstreams gender in its day-to-day activities, investigations and reports.
  • Work with the U.S. Department of State, its Central American counterparts, Central American Women's Rights Commissions, trade unions and women's civil society groups in Central America to negotiate a binding Memorandum of Understanding on Women's Rights and Economic Empowerment covering the entire CAFTA-DR region.
What can women's groups and trade unions do to remedy the situation?

Women's advocacy groups, trade unions and their allies have tools and options at their disposal as well.  Among others, these include:
  • Work through existing networks of women's rights groups and trade unions in Central America to file a region-wide sex-discrimination petition under CAFTA-DR Chapter 16 to challenge unfair wage setting mechanisms and inadequate protections against workplace sex discrimination and workplace violence.  The problem with the 2011 Honduras CAFTA-DR petition was that gender issues were buried among over 25 different instances of failure to enforce labor laws in several sectors of the economy.  Focusing solely on sex discrimination will ensure that the subject will not be ignored.
  • Go to Canada.  The United States is not the only actor in the global trade arena with a mechanism for filing claims that a country is not complying with internationally recognized labor standards.  Not only does Canada have more advanced pay equity laws than the U.S., its Labor Cooperation Agreement with Honduras specifically requires Honduras to ensure that its labor law and practices embody and provide protection for the elimination of discrimination with respect to employment occupation.  Under CAFTA-DR, member states are only obligated to "strive to ensure" their labor laws comport with the 1998 ILO Declaration.
It is not fair for working women in Honduras to have to "resubmit" their petition for equal treatment under Honduran labor law.  This was already part of the 2011 petition.  Honduran women - like all women throughout the world - know that if they don't do it, who will?  It is only with constant and sustained pressure that their voices will be truly heard.