Guatemalan banana workers without a union work longer hours and earn less than half than of those who are unionized, and report more cases of verbal and physical abuse.
In an historic judgment, the South African Constitutional Court in mid-November recognized that injury and illness arising from work as a domestic worker in a private home is no different to that occurring in other workplaces and equally deserving of compensation. Beyond recognizing occupational hazards in the home, the decision also recognized the broader harm wrought by the invisibility of gendered, racialized work in the privacy of homes in the context of post-colonial and post-apartheid South Africa.
In the case of Mahlangu and Another v Minister of Labor and Others, the South African Domestic Service and Allied Workers Union (SADSAWU), with support from the Solidarity Center, challenged the constitutionality of provisions of the Compensation for Occupational Injury and Illness Act (COIDA), which precludes domestic workers employed in private homes from making claims to the Compensation Fund in cases of illness, injury, disablement or death at work. The Constitutional Court agreed that this exclusion violates rights to social security, equality and dignity, and it made this finding retroactively applicable from 1994, the date the South African constitution was enacted. In so doing, the court articulated a theory of intersectional discrimination and moved forward its own jurisprudence on indirect discrimination, infusing the right to social security, dignity and retrospective application with an intersectional analysis. It also reframed the narrative on domestic workers: no longer invisible but “unsung heroines in this country and globally”(paragraph 1).
The judgment gives a central role to international law, and establishes that “in assessing discrimination against a group or class of women of this magnitude that a broad national and international approach be adopted in the discourse affecting domestic workers“(Paragraph 42). It continues that, under international law conventions, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the exclusion of domestic workers from COIDA is inexplicable.
The court found that COIDA is a form of social security because the inability to work or the loss of a breadwinner’s support as a result of the COIDA exclusion, traps domestic workers and their dependents in cycles of poverty. According to the court this exclusion is unreasonable because it did not take into account the needs of the most vulnerable members of society, particularly those who experience compounded vulnerabilities arising from intersecting maltreatment based on race, sex, gender and/or class. It concludes that there is no legitimate objective to the exclusion, rather it entrenches patterns of disadvantage.
This case could be easily disposed on grounds of direct discrimination, since the majority found the exclusion irrational and arbitrary, and therefore constitutionally invalid. However, the case provided the court with a unique opportunity to interpret constitutional provisions on indirect discrimination, using an intersectional framework: Domestic workers “are predominantly Black women … and discrimination against them constitutes indirect discrimination on the basis of race, sex and gender” (paragraph 75). It goes on to find that discrimination on the grounds of race, gender and sex are not only presumptively unfair “but the level of discrimination is aggravated”(paragraph 73).
The court took the opportunity to enunciate a theory of intersectionality, which considers the social structures that shape the experience of marginalization, and the convergence of sexism, racism and class stratification. Viewed historically, the racial hierarchy established by apartheid, placed Black women at the bottom of the social hierarchy and relegated them to low-skilled and low-paid sectors of the workforce, such as domestic work. This sector was and is predominated by Black women and remains the third largest employer of women in South Africa. Yet it continues to be characterized by poverty-level salaries and poor living conditions, in which domestic workers are deprived of their own family while caring for that of their employers. As a result, the court found that domestic workers are a “critically vulnerable group of workers,” declaring the COIDA exclusion invalid both at an individual and group level (paragraph 106).
Background
The case centers on Maria Mahlangu, who was employed as a domestic worker in a private house for 22 years. According to her family, she was partially blind and could not swim. In March 2012 while at work, she fell into her employer’s swimming pool and drowned. When Mahlangu’s dependent daughter approached the Department of Labor for compensation, she was told that she was precluded from doing so under COIDA. Then SADSAWU organizer Pinky Mashiane read about the incident in a newspaper and approached the family to see how she could assist.
In 2013, the Solidarity Center embarked on a research project under a USAID grant to examine domestic workers’ socioeconomic rights in South Africa, which culminated in a list of domestic worker issues requiring urgent law reform. At the top of this list was inclusion of domestic workers in COIDA. Indeed, the issue had been on the agenda since 2001, without legislative reform being passed.
At the same time the Solidarity Center was looking for a litigant to challenge COIDA’s constitutionality. Pinky Mashiane—after having been turned down by multiple lawyers and law centers—was looking for a remedy to assist Mahlangu’s family. The Solidarity Center approached lawyers in South Africa as well as SADSAWU leadership with the proposal to litigate this case in constitutional terms, with financial support. Beginning in 2015, the case wound its way through the South African court system, litigated before the Constitutional Court by lawyers from the Social and Economic Rights Institute (SERI).
The case benefited from sustained advocacy at global and local levels. In 2019 , the Solidarity Center and partners brought the issue of domestic workers’ exclusion from COIDA before the United Nations Committee on Economic, Social and Cultural Rights, which was considering South Africa’s compliance with treaty obligations. In its concluding observations, cited in the Constitutional Court’s decision, the Committee recommended that South Africa include domestic workers in COIDA. Similarly, in the early stages of litigation, the amicus, the Gender Commission of South Africa, expressed frustration at the almost complete absence of information on the types of injuries and illnesses arising in the context of domestic work in private homes. To fill this vacuum, Solidarity Center commissioned qualitative research consisting of in-depth interviews with domestic workers around the country, describing the types of injury and illness occurring in the context of the home. After the COVID-19 pandemic broke out, which had severe consequences for domestic workers, domestic worker unions and partners also put together a petition to try and propel the legislature to include domestic workers in COIDA. Most significantly, at each of the numerous court hearings, the domestic worker unions and groups maintained a constant presence at the court, and in the media, insisting that the death of Maria Mahlangu not be in vain.
Far-Reaching Impact
When Solidarity Center initially proposed constitutional impact litigation on COIDA, it was with the hope that a successful outcome in this case would serve three purposes: obtain much-needed relief for domestic workers who were outside of COIDA’s purview; strengthen domestic worker unions; and create an important precedent that would lay the foundation for jurisprudence on domestic workers that could serve as a global marker.
The Mahlangu decision will clearly achieve the first as it removes the legal obstacle to domestic workers claiming compensation, with immediate and retrospective effect. Meanwhile, the long road to Mahlangu has also strengthened a growing coalition of unions and NGOs that have articulated their claims effectively in all forms of media. The fact that after 26 years of democracy, Mahlangu is the first case brought by the domestic worker union to the apex court of South Africa and guardian of constitutional values is a significant milestone.
Yet, perhaps the greatest import of Mahlangu might lie both in its precedent and in the paradigm it establishes to conceptualize domestic work. Using international human rights norms as a reference point, the court sets up an approach on domestic workers as a category, which stands to benefit domestic workers in South Africa and beyond. It also reasserts the goals of transformative constitutionalism as “undoing gendered and racialized poverty” and insists that an intersectional and historic lens is essential to the achievement of structural and systematic transformation. Indeed, the adoption of a historical lens allows the Court to reframe the narrative of domestic workers and their place in South Africa’s constitutional democracy: no longer powerless and invisible, but foundational toSouth Africa’s constitutional project. This reframing is captured eloquently in the concurring judgment of Justice Mhlantla who asserts that these Black women are smart, creative and survivors; who frequently work in environments that are emotionally and physically challenging, and which carry vestiges of South Africa’s colonial and apartheid past. She concludes: “On the contrary, they have a voice,” and according to Justice Mhlanthla J (paragraph 195) as well as the substance of majority judgment, the Constitutional Court is “listening.”
Even as gender equality and women’s fundamental rights are under attack around the world, women activists and their unions and organizations are standing up to the challenges and pushing back, panelists said yesterday during the launch of a landmark report, “Celebrating Women in Civil Society and Activism” with Clément Voule, United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association.
“Women around the world are building economic power by exercising freedom of association and assembly,” said Solidarity Center Executive Director Shawna Bader-Blau. “Unions and the right to collective bargaining is one way we fight back.” (Watch the event here.)
“Courageous women and organizations are pushing back,” said Bahia Tahzib-Lie, Netherlands Ambassador for Human Rights in her opening remarks. “They make clear that women’s voices can no longer be ignored or silenced.”
The virtual side event, co-sponsored by the Solidarity Center, brought together women civil society leaders from around the world to discuss the findings of the report, prepared by Voule, who is presenting the report to the UN General Assembly this week.
“Women’s organizations and movements and their contribution to activism and civil society continued to be undervalued,” Voule said, highlighting one of the report’s key findings. Their ability to freely form unions and associate is key to their ability to create positive change, according to the report. Yet these rights increasingly are being violated, he said.
“Women are 50 percent of the population” but are often targeted by harassment and other forms of violence when they seek to form unions to improve their workplaces, he said, one of the report’s many findings informed by the experiences of many Solidarity Center partners.
“All forms of gender-based violence and harassment must end,” says UN Special Rapporteur Clément Voule.
Crucially, the report finds that gender-based violence and harassment (GBVH) is “perhaps the fiercest form of reprisal to the exercise of the rights to freedom of peaceful assembly and of association for women workers.”
Gender-based violence begins at home for women and continues to all aspects of public space: “to the streets and the workplace and the public sphere,” said Voule, and COVID-19 lockdowns have worsened the violence women face at home.
The pandemic also has increased the violence women face at work, said Bader-Blau. But a new treaty the International Labor Organization approved last year creates the fundamental right to be free from violence and harassment at work by addressing the root causes of gender-based violence which often also involve race, ethnicity and gender identity.
The treaty, Convention 190, “demands employers and governments make real changes,” she said. “The treaty calls for employers to negotiate directly with workers. No longer can we look at workplace as the private sphere of the employer where workers give up their rights.”
Unions and the right to collective bargaining is one way we fight back”—Shawna Bader-Blau.
Unions and other activists are campaigning for their governments to ratify C190, a difficult process, but one that creates the opportunity for coalition building and cross-movement building among unions, feminist organizations and our allies, said Bader-Blau.
Voule also pointed out how the pandemic has been used to limit the space for civil society, with women especially targeted. “COVID-19 has increased criminalization of women’s rights organizations and harassment against women exercising their rights to peaceful assembly and association with worrisome reports on the misuse of emergency measures, application of criminal laws or limiting public gatherings.”
This year marks the 25th anniversary of the Fourth World Conference on Women and UN adoption of the Beijing Declaration and Platform for Action on advancing women’s rights, a landmark panelists said should be celebrated, but also reinforced and built upon.
World leaders are now talking about gender equality, but only due to the efforts of grassroots women activists, says Nicolette Naylor.
“Over the last 25 years, we have gone from zero laws, zero resolutions to over 120 laws and resolutions to protect gender equality,” said Nicolette Naylor at the Ford Foundation. “It shows us that progress is possible. This is thanks to women on the ground pushing for change. It’s because of the mobilization of women’s rights organizations and feminists on the ground.”
Making progress on ending gender inequality means involving women and ensuring their voices are heard, according to panelists who reinforced the report’s recommendations that “effective strategies to address violations of women’s rights to freedom of peaceful assembly and association should be grounded in supporting and empowering women’s movements and organizations in all their diversity.”
“Many women on the ground led the way. Now we need to create more space for women to get places they deserve so they can push forward these agendas,” said Mireille Tushiminina from the Cameroon Women’s Peace Movement. “To hold our governments accountable, we need to be part of the conversation. Women are at the forefront and need to be in the conversation.”
Uma Mishra-Newbery at the Women’s March Global moderated the panel, which also included Marusia López from the Mesoamerican Network of Women Human Rights Defenders and Masina Fusi at Her Voice.
Event co-sponsors included Access Now, CIVICUS, Freedom House, Geneva Academy, Iniciativa Mesoamericana de Mujeres Defensoras de Derechos Humanos, International Center for Not-for-Profit Law, Women’s Global March, Women’s Major Group and the World Movement for Democracy.
Women activists and their organizations are the drivers of positive change worldwide—and the freedom to form unions and freely associate is key to their ability to do so, according to a report released today.
“Celebrating Women in Civil Society and Activism,” prepared by Clément Voule, United Nations special rapporteur on the rights to freedom of peaceful assembly and of association, finds these fundamental freedoms empower women to “express their political opinions, engage in … economic and social activities … form and join trade unions and cooperatives, and elect leaders to represent their interests and hold them accountable.”
Yet women’s voices are undervalued, the report states, even as government, employers and others violate women’s rights, with many women experiencing an increase in severe violations of these fundamental freedoms and backlashes against gender equality. Exclusions from labor laws, barriers to forming and joining unions and reprisals for labor organizing leave women with “little leverage to change the conditions that entrench poverty, fuel inequality and limit democracy.”
Women’s exclusion from labor laws and reprisals for forming unions in Bangladesh and around the world limit women’s ability to improve their workplaces. Credit: Solidarity Center
For instance in Bangladesh, “in many cases when garment workers want to unionize, they are blacklisted, intimidated, local groups threaten their families and many women are subject to physical assault,” says Nazma Akter, Awaj executive director and president of the Sommilito Garments Sramik Federation (SGSF). “There is no robust legal mechanism to appeal to for the right to organize and to help protect our human rights.”
Women seeking to improve their working conditions face similar challenges around the world, including in Ghana, where women “often are threatened with dismissals or non-renewal of contracts,” say Edward Kareweh, general secretary of the General Agricultural Workers’ Union (GAWU) and GAWU Gender Equality Officer Bashiratu Kamal. “There is a lack of cooperation from government in enforcing laws against discrimination, marginalization and exploitation.”
Agricultural workers in Morocco and around the world often are not covered by their countries’ labor laws, a lack of rights that falls especially hard on women. Credit: Solidarity Center/Hind Cherrouk
Laws barring retaliation against women who seek to form unions often are not enforced and additional barriers erected, say women activists.
In El Salvador, “the ability to form and join unions is a constitutional right, but in practice, there are many obstacles, ranging from delay in legal registration, defamatory campaigns, loss of employment, widespread violence, to murder in certain cases, says Marta Zaldaña, Secretary General of the union federation FEASIES.
“Tunisia’s Constitution guarantees equality and equal opportunities for men and women. But despite those important laws, the actual problem is in implementing those laws, especially in the interior regions where male domination prevails,” according to a Tunisian woman union activist.
Nazma, Kareweh, Kamal, Zaldaña and the Tunisian activist were among hundreds of worker rights and human rights activists whose testimony informed the report, which Voule is presenting this week to the UN General Assembly. SGSF, GAWU and FEASIES are Solidarity Center partners.
The ability of women to freely take action is especially critical now, as the COVID-19 pandemic has worsened the inequalities facing women, in their jobs, homes and communities.
“Faced with narrowing civic space, mounting inequalities and rising fundamentalisms, women have persisted in their fight for structural change, speaking truth to power and building resilience in their communities,” the report states.
Gender-based violence and harassment is “perhaps the fiercest form of reprisal to the exercise of the rights to freedom of peaceful assembly and of association for women workers,” the Special Rapporteur finds.
Violence is used as a way of discouraging women from actively participating in unions and seeking leadership positions—Rose Omamo, Metal Workers Union, Kenya. Credit: Solidarity Center
“Gender-based violence against women at work has been on the rise in various places in Kenya. Violence also is used as a way of discouraging women from actively participating in unions/associations and seeking leadership positions,” says Rose Omamo, general secretary of the Amalgamated Union of Kenya Metal Workers, a Solidarity Center partner.
And, when they protest gender-based violence and harassment, women then become targets. “Women workers in Nigeria have been involved in protests against all forms of gender-based, violence and harassment,” says Mercy Okezie, chairperson of the National Women Commission and Nigeria Labor Congress vice president.
“There have been protests against rape and abduction of young girls by terrorists, femicide, sexual harassment in markets and gender-based violence and harassment in the world of work. Some of the women who participated faced … gender-based violence attacks ranging from bullying, sex discrimination to loss of jobs, threats to life and social stigmatization as a result of speaking out or standing up to push for an end to GBVH at home, workplace, their unions and communities.”
In Honduras, union activists are posting photos of themselves on social media with signs urging passage of C190. Credit: Promotoras Legales
In recommending steps to address violations of women’s rights to freedom of peaceful assembly and association, the report emphasizes the actions “should be grounded in supporting and empowering women’s movements and organizations in all their diversity.”
Governments must ensure adherence to international treaties addressing women’s right to a voice at work and in their communities, Voule said, speaking on a panel today with Solidarity Center Executive Director Shawna Bader-Blau and other civil society leaders. Among its recommendations, the report urges governments ratify International Labor Organization (ILO) Convention 190, which covers gender-based violence and harassment at work, and ILO C189 which recognizes domestic workers’ right at work.
Employers also “have a direct responsibility to respect and protect women’s rights to freedom of peaceful assembly and of association, to act with due diligence to prevent the violations of such rights and to provide women with effective remedies for violations connected to their operations,” the report states.
“Celebrating Women in Civil Society and Activism” builds on the 2016 UN Special Rapporteur report on workers rights that found workers rights—and the freedom to form unions and freely assemble—are key to achieving human rights because without assembly and association rights, workers have little leverage to change the conditions that entrench poverty, fuel inequality and limit democracy.
Download here.