Gender as a Business Concern: Legal Responsibilities

1
Gender as a Business Concern Legal
Responsibilities

• Atty. Marvic M.V.F. Leonen
• A.B. (Econ), J.D., Ll.M. (CLS, NewYork)
• Associate Professor of Law
• University of the Philippines

2
Efficiency

• Lower Costs
• Types of efficiency
• Productive efficiency
• Factor efficiency
• Allocative efficiency
• Distributional efficiency

3
Efficiency

• Gender concerns when met by a business improves
• Productive efficiency a person whose needs are
  met will best perform
• Factor efficiency the best person for the job is
  hired, supported and promoted
• Allocative efficiency regardless of gender, the
  labor and managerial force goes to where they
  have the best value added
• Distributional efficiency we correct a
  historical, cultural and economic injustice

4
Gender and the Law

• Equality provisions in the Constitution
• International Law
• National Laws

5
What is equal protection in the Philippines?

• Consti, article III, sec 1 nor shall any person
  be denied equal protection of the laws.
• It is an established principle of constitutional
  law that the guaranty of the equal protection of
  the laws is not violated by a legislation based
  on reasonable classification. And the
  classification, to be reasonable,
• (1) must rest on substantial distinctions
• (2) must be germane to the purposes of the law
• (3) must not be limited to existing conditions
  only and
• (4) must apply equally to all members of the same
  class. People v. Cayat, 68 Phil 12, 18 (1939)

6
Equality, positive rights

• Article II, section 14 The State recognizes
  the role of women in nation building, and shall
  ensure the fundamental equality before the law of
  women and men.

7
AND,

• Constitution can be interpreted from our
  international legal commitments
• Article II, section 2 The Philippines
  renounces war as an instrument of national
  policy, adopts the generally accepted principles
  of international law as part of the law of the
  land and adheres to the policy of peace,
  equality, justice, freedom, cooperation and amity
  with all nations.

8
Universal Declaration of Human Rights

• Article 1. All human beings are born free and
  equal in dignity and rights. They are endowed
  with reason and conscience and should act towards
  one another in a spirit of brotherhood.
• Article 2. Everyone is entitled to all the
  rights and freedoms set forth in this
  Declaration, without distinction of any kind,
  such as race, color, sex, religion, political or
  other opinion, national or social origin,
  property, birth or other status.

9
International Covenant Civil and Political Rights

• Article 2.
• 1. Each State Party to the Present Covenant
  undertakes to respect and to ensure to all
  individuals within its territory and subject to
  its jurisdiction the rights recognized in the
  present Covenant, without distinction of any
  kind, such as race, color, sex, language,
  religion, political or other opinion, national or
  social origin, property, birth or other status

10
International Covenant Civil and Political Rights

• Article 2.
• 1. Where not provided for by existing legislative
  or other measures, each State party to the
  present Covenant undertakes to take the necessary
  steps, in accordance with its constitutional
  processes and with the provisions of the present
  Covenant, to adopt such laws or other measures as
  may be necessary to give effect to the rights
  recognized in the present Covenant.

11
International Covenant Civil and Political Rights

• Article 2
• 3. Each State Party to the present Covenant
  undertakes
• (a) to ensure that any person whose rights or
  freedoms as herein recognized are violated shall
  have an effective remedy, notwithstanding that
  the violation has been committed by persons
  acting in an official capacity
• (b) to ensure that any person claiming such a
  remedy shall have his right thereto determined by
  competent judicial, administrative or legislative
  authorities or by any other competent authority
  provided by the legal system of the State, and to
  develop the possibilities of judicial remedies
• (c) to ensure that the competent authorities
  shall enforce such remedies when granted.

12
ICESCR

• Ratified by the Philippines in 1974
• Article 3 states parties to the present covenant
  undertake to ensure the equal right of men and
  women to the enjoyment of all economic, social
  and cultural rights set forth in the present
  covenant.

13
CEDAW

• Ratified by the Philippines in 1981

14
CEDAW Discrimination against Women, article 1

• discrimination against women shall mean
• any distinction, exclusion or restriction
• made on the basis of sex
• which has the effect or purpose
• of impairing or nullifying
• the recognition enjoyment or exercise by women,
  irrespective of their marital status, on the
  basis of equality of men and women,
• of human rights and fundamental freedoms in the
  political, economic, social, cultural, civil or
  any other field.

15
CEDAW, article 2

• States Parties condemn discrimination against
  women in all its forms, agree to pursue by all
  appropriate measures and without delay a policy
  of eliminating discrimination against women and,
  to this end, undertake

16
CEDAW, article 3

• States Parties shall take in all fields, in
  particular in the political, social, economic and
  cultural fields, all appropriate measures,
  including legislation, to ensure the full
  development and advancement of women, for the
  purpose of guaranteeing to them the exercise and
  enjoyment of human rights and fundamental
  freedoms on a basis of equality with men.

17
CEDAW provisions, health care

• Article 12 (1) States Parties shall take all
  appropriate measures to eliminate discrimination
  against women in the field of health care in
  order to ensure, on a basis of equality of men
  and women, access to health care services,
  including those related to family planning.
• (2) Notwithstanding the provisions of paragraph 1
  of this article, States Parties shall ensure to
  women appropriate services in connection with
  pregnancy, confinement and post natal period

18
CEDAW provisions, rural women

• Article 14 (2) States Parties shall take all
  appropriate measures to eliminate discrimination
  against women in rural areas in order to ensure,
  on a basis of equality of men and women, that
  they participate in and benefit from rural
  development and, in particular, shall ensure to
  such women the right
• (b) to have access to adequate health care
  facilitites, including information, counselling
  and services in family planning

19
Constitutional Provision Article XIII, Section 1

• The Congress shall give highest priority to the
  enactment of measures that protect and enhance
  the right of all the people to human dignity,
  reduce social, economic, and political
  inequalities, and remove cultural inequities by
  equitably diffusing wealth and political power
  for the common good.

20
Constitutional Provision, Article XIII, Section 1

• Political equality is a touchstone of
  democracyLet us not also close our eyes to the
  reality that in underdeveloped countries where
  sharp disparities in wealth exist, the threat to
  freedom of speech comes not from the government
  but from vested interests that own and control
  the media. Today, freedom of speech can be
  restrained not only by the exercise of public
  power but also by private power. Thus, we should
  be equally vigilant in protecting freedom of
  speech from public and private restraints. The
  observation of a legal scholar is worth
  meditating, viz. With the development of
  private restrains on free expression, the idea of
  a marketplace where ideas can compete on their
  merits has become just as unrealistic in the
  twentieth century as the economic theory of
  perfect competition. The world in which an
  essentially rationalist philosophy of the first
  amendment was born has vanished and what was
  rationalism is now romance.
• Puno, J. concurring in Osmena v. COMELEC, citing
  Barron, Access to the PressA New First
  Amendment Right, 80 Harv. L. Rev. 1641 (1967)

21
Sexual Harrassment

• Rep. Act No. 7877
• Offense of power or authority
• not necessarily male to female

22
Definition, section 3

• Work, education or training related sexual
  harassment is committed by an employer, employee,
  manager, supervisor, agent of the employer,
  teacher, instructor, professor, coach, trainor,
  or any other person who, having authority,
  influence or moral ascendancy, requests or
  otherwise requires any sexual favor from the
  other, regardless of whether the demand, request
  or requirement for submission is accepted by the
  object of said Act.

23
Work related, acts

• 1. The sexual favor is made as a condition in the
  hiring or in the employment, re-employment or
  continued employment of said individual, or in
  granting said individual favorable compensation,
  terms, conditions, promotions, or privileges or
  the refusal to grant the sexual favor results in
  limiting, segregating or classifying the employee
  which in any way would discriminate, deprive or
  diminish employment opportunities.

24
Work related, acts

• 2. The above acts would impair the employeer
  rights or privileges under existing labor laws
  or
• 3. The above acts would result in an
  intimidating, hostile, or offensive environment
  for the employee.

25
Who is liable

• Perpetrator
• Section 3 par 2
• Any person who directs or induces another to
  commit any act of sexual harassment as herein
  defined, or who cooperates in the commission
  thereof by another without which it would not
  have been committed, shall also be liable under
  this Act.

26
Who is also liable

• Section 5, employer, head of office
• The employer or head of office, educational or
  training institution shall be solidarily liable
  for damages arising from the acts of sexual
  harassment if the employer or head of office,
  education or training institution is informed of
  such acts by the offended party and no immediate
  action is taken thereon.

27
Illustrative Case University of the Philippines

• 7943 rank and file personnel represented by a
  union
• 4000 faculty and reprs, also represented by a
  union
• 65,000 students at any given time
• 7 universities, 12 physical campuses, one open
  university
• One teaching hospital and several infirmaries

28
Collective Negotiating Agreement Administrative
Personnel

• Rice subsidy
• Domestic Leave
• Maternity Leave
• Day care provisions
• International Womens Day
• Special Leave Incentives for nursing mothers

29
The law, in its majestic equality,forbids the
rich as well as the poorto sleep under bridges,
to beg in the streets,and to steal bread. 

• Anatole France,The Red Lily (1894)

30
Dreams at the Cathedral(Digital Proof MVFL
8/26/7)