Failure to ensure de facto equality in employment a violation of CEDAW (R.K.B. v. Turkey)
R.K.B.’s employer, a hairdressing salon, terminated her contract of employment. It also allegedly threatened to spread rumours that R.K.B. had extramarital affairs in order to pressure her to sign a document stating that she had received all of her work entitlements and precluding her from suing for unfair dismissal. R.K.B. did not sign the document, but claimed that she felt threatened to do so.
R.K.B. filed a claim before the Kocaeli 3rd Labour Court for severance pay and other damages. The employer sought to have the matter dismissed, claiming (inter alia) that it fired R.K.B. because she had a relationship with a male colleague (Mr. D.U.), displayed this sexual relationship, and behaved contrary to its business ethics.
R.K.B. then added sex/gender discrimination as an additional action, in accordance article 5 of the Labour Act of 2003. She claimed that, despite the contention of her former employer that it had dismissed her because of her alleged relationship with Mr. D.U., it had not also terminated his employment and that this difference in treatment was because she was a woman. The two actions were consolidated.
The Court held that R.K.B. had been terminated unlawfully and awarded her severance allowance and payments in lieu of notice. However, it held that her former employer had not violated the equal treatment principle in the Labour Act. R.K.B. appealed to the Court of Cassation, arguing that the Labour Court’s decision violated the principle of equal treatment guaranteed by the Labour Act and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The appeal was later dismissed, without any reference to the claim of discrimination.
R.K.B. then submitted a communication to the Committee on the Elimination of Discrimination against Women (Committee) in which she claimed that Turkey had violated articles 1, 2(a), 2(c) (state obligations), 5(a) (stereotyping), 11(1)(a) and 11(1)(d) (equality in employment) of CEDAW. She submitted that the courts had failed to apply the legal guarantee of equal treatment, and protect her against discrimination, in practice. She also submitted that they had based their decisions on gender stereotypes related to marital affairs, rather than law and fact.
Turkey’s observations on admissibility
Turkey submitted that the communication should be declared inadmissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), because it was incompatible with CEDAW (art 4(2)(b)), ill-founded and insufficiently substantiated (art 4(2)(c)).
Committee’s admissibility decision
The Committee opted to determine admissibility and merits together.
CEDAW Committee’s views
The Committee concluded that Turkey had violated articles 2(a) and 2(c) of CEDAW, read with article 1, as well as articles 5(a), 11(1)(a) and 11(1)(d). Committee member Pramila Patten issued a concurring opinion.
General obligations of States Parties
The Committee determined that, although Turkey had introduced legal guarantees of gender equality, it had failed to ensure the practical realisation of those guarantees and the effective protection of women against discrimination, in violation of articles 2(a) and 2(c) of CEDAW, read with article 1.
In reaching this determination, the Committee condemned the failure of both courts to “give due consideration to the clear prima facie indication of infringement of [the] equal treatment obligation in the field of employment.” It also condemned the Labour’s Court’s “very narrow interpretation” of the equal treatment principle.
Freedom from wrongful gender stereotyping
The Committee concluded that the courts’ decisions were based on gender stereotypes that condoned extramarital affairs by men but not women, in violation of article 5(a) of CEDAW. It explained that the Labour Court had allowed its reasoning to be influenced by stereotypes when it failed to challenge and reject the discriminatory evidence submitted by the employer, and scrutinised the moral integrity of R.K.B. and not that of her male colleagues. The Committee further explained that the Court of Cassation perpetuated gender stereotypes when it failed to address the gender-related aspects of R.K.B.’s complaint. In finding Turkey in violation of article 5(a), the Committee affirmed that CEDAW requires States Parties to “modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and consequence of discrimination.”
Right to equality in employment
The Committee determined that the behaviour of the employer, including the threats it made when terminating R.K.B.’s contract, violated the principle of equal treatment. Turkey’s failure to hold the employer accountable for that behaviour, the Committee found, violated articles 11(1)(a) and 11(1)(d) of CEDAW. The Committee clarified that the obligation of employers to refrain from discrimination and, concomitantly, states’ obligation to prevent, redress and remedy such discrimination, extends beyond the termination of employment to arguments made in unfair dismissal cases.
Although Committee member Patten agreed with the Committee’s findings in relation to article 11, she did not endorse its reasoning. She explained:
Article 11 … contains the most comprehensive provision on the right of women to work and … defines the core elements of the right to work, which includes the right to job security, the right to equal benefits and equality of treatment in the evaluation of quality of work. Article 11 requires States parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service. … [T]he author has lost her job despite a finding by the court of the unjustified and unlawful termination of her employment. I therefore conclude that the State party has failed to guarantee the author’s substantive equality at work, that the acts and doings of the employer and his agents has resulted in a denial of the author’s right to employment as well as a denial of job security.
Communication No. 28/2010, UN Doc. CEDAW/C/51/D/28/2010 (13 April 2012)