Decision to deny certain self-employed women maternity benefits violated CEDAW (Elisabeth de Blok et al. v. the Netherlands)

In 1998, the Netherlands established mandatory insurance for self-employed workers (and certain other categories of workers). The scheme insured against the risk of loss of income due to inability to work and, inter alia, entitled insured women to a maternity allowance. 

In August 2004, the insurance scheme ceased to exist. Self-employed women were therefore no longer entitled to maternity benefits and had to take out private insurance to be covered against loss of income resulting from maternity. Such insurance often came with restrictions, including a two-year waiting period for new customers during which no benefits could be paid for maternity leave. These restrictions have been challenged without success in Dutch courts.

Following community objections, the Netherlands reintroduced maternity benefits for self-employed women. However, as the new law was not applied retrospectively, self-employed women who gave birth before 4 June 2008 were not entitled to claim such benefits.

Six self-employed women, who gave birth between June 2005 and March 2006, were ineligible for public maternity benefits. One of the women had taken out private insurance, but could not access compensation until she threatened to take the insurer to court. The remaining women did not take out insurance because the premiums were prohibitively expensive and, for some of the women, also because of the waiting period.

In 2005, the six women sought a declaratory decision from the District Court of The Hague. They claimed that the failure to provide self-employed women maternity benefits violated article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), among other obligations. Article 11(2)(b) provides:

In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.

In 2007, the Court rejected their claim. It found that article 11(2)(b) was not directly applicable in the Netherlands and therefore could not form the basis of their claim. It reasoned that the provision merely contained “an instruction” for State Parties to introduce maternity leave and, as such, the Netherlands was afforded a “margin of appreciation” to determine how it would comply with the provision in practice.

In 2009, the Court of Appeal upheld the ruling. It found that article 11(2)(b) was too general to be applied by a court, given that it requires States Parties to take “appropriate measures”, but does not prescribe the measures to be taken. In its view, article 11(2)(b) was therefore unsuitable for direct application by national courts.

In 2010, the Supreme Court upheld the ruling of the Court of Appeal.

The six women subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). They claimed that the Netherlands violated article 11(2)(b) of CEDAW by failing to provide self-employed women maternity benefits during the period 1 August 2004 to 4 June 2008. 

CEDAW Committee’s admissibility decision

As the State Party did not contest admissibility and there were no grounds upon which to declare the communication inadmissible, the CEDAW Committee declared it admissible.

State Party’s observations

The State Party claimed that it had not violated article 11(2)(b) of CEDAW. Among other things, it argued that:

  • it was within its margin of appreciation to decide how it would apply its maternity leave scheme
  • an adequate maternity scheme existed, given that some self-employed women could access insurance under the Sickness Benefits Act
  • self-employed women can address the risk of loss of income by saving or taking out private insurance
  • it had facilitated access to private insurance by making the payments tax deductible and that insurers were free to impose lawful restrictions on insurance policies      
  • article 11(2)(b) of CEDAW is not sufficiently specific to be applied by its national courts and is a “best-efforts” obligation because it does not prescribe how to pursue its objectives and, accordingly, has no direct effect
  • article 11(2)(b) applies to women in paid employment only and does not extend to women who are self-employed.

CEDAW Committee’s views

The CEDAW Committee concluded that the State Party had directly discriminated against women, in violation of articles 11 and 11(2)(b) of CEDAW. In its views, the Committee criticised, inter alia, the State Party’s failure to introduce transitory measures, the cost of private insurance (especially for women on low incomes), and the two-year waiting period for insurance.

In reaching its views, the CEDAW Committee affirmed that:

  • the obligations in article 11 of CEDAW, including article 11(2)(b), extend to women who are self-employed and do not apply only to female employees
  • States Parties are required under article 18 to give effect to, fulfil, or ensure the application of, CEDAW provisions
  • the direct applicability of CEDAW at the national level is a question of constitutional law and depends on the status of treaties in the domestic legal order
  • States Parties cannot seek to avoid their article 11(2)(b) obligations by claiming that the provision is not directly applicable at the national level or citing qualifications such as “instructions” or “best-efforts” obligations.

The CEDAW Committee recommended that the State Party provide reparation to the authors for the loss of maternity benefits. It also urged the State Party to take steps to ensure compensation for loss of maternity benefits is available for self-employed women who gave birth between 1 August 2004 and 4 June 2008.

Communication No. 36/2012, UN Doc. CEDAW/C/57/D/36/2012 (2014)

Decision

 

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CEDAW Committee declares asylum communication inadmissible (N. v. The Netherlands)

In 2007, N began working for L in his hotel in Mongolia. In 2008, she also began working as his personal housekeeper.

In 2008, L raped N, after which she became pregnant. N filed a complaint with police, but they released L after questioning him. L told N she could not do anything to him because he was wealthy, well connected and had her passport and other key documents. L then forced N to return to his house, locked her in a small room, and sexually and physically abused her regularly.

N escaped two months later and complained to police, but, as she had nowhere to go, returned to L’s house. L told N he had bribed the police and that they would not protect her. Her again abused her.

In February 2009, N escaped again. She stayed with a former colleague, before two men forcibly returned her to L. N later escaped, but, in March 2009, two men again forcibly returned her to L. L then tried to induce a miscarriage by forcing N to take pills and, when that did not work, by beating her.

In June 2009, after escaping a further time, N travelled to, and sought asylum in, the Netherlands. In March 2011, the Immigration and Naturalization Service denied her asylum claim on the basis that there was no reason to believe that Mongolia is unable to protect N effectively. N appealed the decision unsuccessfully.  

N then submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed that the denial of her asylum claim by the Netherlands violated articles 1, 2(e), 3 and 6 of the Convention on the Elimination of All Forms of Discrimination against Women. In particular, she claimed that: she experienced gender-based violence in Mongolia; Mongolian authorities are reluctant to address abuse against women; and the Netherlands was required under CEDAW to grant her asylum claim to protect her against discrimination and, by denying the claim, had failed to protect her rights.

State Party’s observations on admissibility

The Netherlands challenged the admissibility of the communication on several grounds.

It claimed that the communication was inadmissible ratione materiae and that the CEDAW Committee lacked jurisdiction to consider the communication. It submitted that it cannot be held liable for violations of CEDAW by Mongolia and that CEDAW should not be interpreted as encompassing the non-refoulement principle.

The State Party also claimed that N had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Specifically, it submitted that N had failed to raise a claim of sex discrimination as part of her asylum claim and that it had, therefore, not been afforded an opportunity to address and remedy the alleged violation. 

The State Party also made several submissions on the communication’s merits.

CEDAW Committee’s decision on admissibility

The CEDAW Committee concluded that N had failed to sufficiently substantiate her claim and, therefore, declared the communication inadmissible under article 4(2)(c) of the Optional Protocol. 

Sufficiently substantiated (art 4(2)(c))

In line with article 4(2)(c) of the Optional Protocol, the CEDAW Committee concluded that N had failed, for the purposes of admissibility, to sufficiently substantiate her claims that:

  • the denial of her asylum application by the Netherlands exposed her to a personal and foreseeable risk of serious gender-based violence
  • Mongolian authorities have failed, or would fail, to protect her effectively against such violence.

The Committee determined that, based on the facts, it was not open to it to conclude that: Mongolia lacked an effective legal system capable of prosecuting and sanctioning L; N was at risk of persecution by L; or Mongolia was unable to protect N against such a risk, if returned. According to the Committee, N had failed to show:

  • how the denial of her asylum application violated her CEDAW rights
  • that L was still a real threat to her
  • that Mongolian authorities had not protected her previously and that there was a real risk they could not protect her effectively, if she was returned
  • why she had not followed-up her complaints with the police or complained to the prosecuting authorities or courts.

Notwithstanding its decision to declare the communication inadmissible under article 4(2)(c), the CEDAW Committee addressed several other admissibility criteria.

Exhaustion of domestic remedies (art 4(1))

The Committee concluded that N had satisfied the exhaustion of domestic remedies requirement in article 4(1) of the Optional Protocol.

It explained that even assuming N had not specifically alleged sex discrimination at the national level, she had raised gender-based violence, sexual slavery and physical abuse, “directed against her as a woman …when seeking asylum and that the competent authorities had thus an opportunity to examine those claims”. It also noted that the State Party had not challenged the suggestion that there is no other procedure available domestically that N could have used to raise a sex discrimination claim in substance.

Ratione materiae, ratione loci and extraterritoriality

The CEDAW Committee declared itself competent to examine the communication, having regard to the definition of gender-based violence against women and its jurisprudence on the applicability of CEDAW ratione materiae, ratione loci and extraterritorially.

Communication No. 39/2012, UN Doc. CEDAW/C/57/D/39/2012 (12 March 2014)

Decision

 

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)

Decision


Headscarf communication inadmissible (Rahime Kayhan v. Turkey)

 

In June 2000, Ms Rahime Kayhan, a Turkish national, was terminated from her position as a public school teacher after she refused to stop wearing a headscarf.  As a result of her termination, Ms Kayhan lost her status as a civil servant and related benefits.  She unsuccessfully challenged the decision before domestic authorities. 

Ms Kayhan subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee).  She claimed that the decision to terminate her employment for wearing a headscarf, a piece of clothing unique to women, constituted a violation of article 11 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  Specifically, she claimed violations of ‘her right to work, her right to the same employment opportunities as others, as well as her right to promotion, job security, pension rights and equal treatment.’  Ms Kayhan further claimed that Turkey had violated her right to freedom of religion and thought. 

Turkey’s observations on admissibility

Turkey challenged the admissibility of the communication on several grounds.

Failure to exhaust domestic remedies

First, Turkey claimed that Ms Kayhan had failed to exhaust all available domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).   

Same matter already examined

Second, it claimed that the communication was inadmissible under article 4(2)(a) of the Protocol because the European Court of Human Rights had already examined the same matter.  In support of its claim, Turkey cited the Court’s judgment in Leyla Şahin v. Turkey, which concerned a student’s right to wear a headscarf at university. 

Facts predated entry into force of Optional Protocol for Turkey (ratione temporis)

Third, Turkey claimed that the Committee was required to declare the communication inadmissible under article 4(2)(e) because the termination of Ms Kayhan’s employment occurred prior to the entry into force of the Optional Protocol for Turkey.

Incompatibility (ratione materiae)

In a subsequent submission, Turkey claimed that the communication was incompatible with CEDAW and, thus, inadmissible ratione materiae under article 4(2)(b) of the Optional Protocol.  According to Turkey, sex/gender was not a consideration in the decision to terminate Ms Kayhan’s employment.    

CEDAW Committee’s admissibility decision

On 27 January 2006, the CEDAW Committee determined that Ms Kayhan had failed to exhaust domestic remedies and, consequently, declared the communication inadmissible under article 4(1) of the Optional Protocol.  

Failure to exhaust domestic remedies

In declaring the communication inadmissible under article 4(1), the CEDAW Committee explained that the exhaustion of domestic remedies requirement

should guarantee that States parties have an opportunity to remedy a violation of any of the rights set forth under the Convention through their legal systems before the Committee considers the violation.  This would be an empty rule if authors were to bring the substance of a complaint to the Committee that had not been brought before an appropriate local authority.

Whilst Ms Kayhan had pursued a variety of domestic remedies, the Committee concluded that her failure to raise sex discrimination as an issue for determination in domestic proceedings meant that she had not satisfied the exhaustion requirement.  It explained:

In sharp contrast to the complaints made before local authorities, the crux of the author’s complaint made to the Committee is that she is a victim of a violation by the State party of article 11 of the Convention by the act of dismissing her and terminating her status as a civil servant for wearing a headscarf, a piece of clothing that is unique to women.  By doing this, the State party allegedly violated the author’s right to work, her right to the same employment opportunities as others, as well as her right to promotion, job security, pension rights and equal treatment.  The Committee cannot but conclude that the author should have put forward arguments that raised the matter of discrimination based on sex in substance and in accordance with procedural requirements in Turkey before the administrative bodies that she addressed before submitting a communication to the Committee.   

Same matter had not already been determined

Although the Committee declared the communication inadmissible under article 4(1) of the Optional Protocol, it went on to dismiss Turkey’s claim that the communication should be declared inadmissible under article 4(2)(a).  According to the Committee, the European Court of Human Rights had not previously examined the same matter because the complaints before the Committee and the Court concerned different subject matters and individuals.  It explained that the communication before the Committee concerned the right of Rahime Kayhan to wear a headscarf at her workplace, whereas Leyla Şahin v. Turkey concerned the right of a different woman to wear a headscarf at her educational institution.

Effects of alleged violation were ongoing (ratione temporis)

The CEDAW Committee also dismissed Turkey’s claim that the communication should be declared inadmissible ratione temporis under article 4(2)(e) of the Optional Protocol.  Although the Committee conceded that Ms Kayhan’s employment had been terminated prior to the entry into force of the Optional Protocol for Turkey, it found that the effects of the termination (e.g., loss civil servant status) were ongoing.  

Communication No. 8/2005, UN Doc CEDAW/C/34/D/8/2005 (27 January 2006)

Decision