Gender discrimination at work places, valid gender legal claims and available remedies

Scenario.

Ms. Sarah, a qualified and experienced professional, has been working for XYZ Corporation in Tanzania for the past five years. Recently, she applied for a promotion to a managerial position within her department. Despite meeting all the requirements and having a stellar performance record, she was denied the promotion. Ms. Sarah believes that she was passed over for the promotion due to her gender, as all the previous managers in her department have been male. She seeks legal advice to determine if she has a valid claim of employment discrimination.

1. Does Ms. Sarah have a valid claim of employment discrimination based on gender?

2. What laws and regulations in Tanzania prohibit employment discrimination, specifically regarding gender-based discrimination?

3. What legal remedies are available to Ms. Sarah if her claim of discrimination is valid?

Instructions: Please provide a legal opinion addressing the above issues based on Tanzanian employment law. Analyze the relevant legislation, including labor laws and any other regulations or guidelines concerning discrimination in the workplace. Assess the facts provided and determine if there is sufficient evidence to support a claim of gender-based employment discrimination. If so, discuss the available legal remedies and recommend the best course of action for Ms. Sarah to pursue her rights and seek appropriate redress.

Introduction

Discrimination in the workplace is a pervasive issue that undermines and violates human rights. It is a matter that is strongly addressed by employment and labor relations laws to ensure that employees are treated fairly and equitably. Section 7 of the Employment and Labor Relations Act[1] and rule 28 and 29 of Employment and Labor Relations (Code of Good Practice) Rules[2], expressly prohibits discrimination based on various protected characteristics. Discrimination at the workplace refers to the unfair treatment, exclusion, or preferential treatment of individuals based on certain inherent characteristics. These characteristics include color, nationality, tribe or place of origin, race, national extraction, social origin, political opinion or religion, sex, gender, pregnancy, marital status or family responsibility, disability, HIV/AIDS, age, or station of life [3].

Our main focus will be on gender discrimination, gender discrimination in the workplace refers to the unfair treatment or exclusion of individuals based on their gender identity or sex. It occurs when employees are treated differently or denied opportunities solely because of their gender. One common form of gender discrimination is pay disparity. This occurs when employees of different genders are paid unequally for performing the same work. For example, a female employee may be paid less than her male counterpart for doing the same job with the same level of experience and qualifications. This disparity in pay is a clear violation of equal pay principles.

Maternity discrimination is another prevalent form of gender discrimination. It involves treating pregnant employees unfairly during their pregnancy or during their leave. This can include denying them promotions or subjecting them to unfavorable treatment due to their pregnancy or family responsibilities. Such discrimination not only affects the affected employees' careers but also undermines their rights to work and support their families[4].

Another manifestation of gender discrimination is promotion bias. This occurs when individuals are denied promotions or career advancement opportunities based on their gender rather than their skills. For instance, a female employee with the necessary qualifications and experience may be repeatedly overlooked for a managerial position in favor of less qualified male candidates. This type of bias limits the professional growth and potential of employees based solely on their gender. All these forms of gender discrimination are born from gender stereotypes that women are not much competent or capable in certain roles compare to men. As a result, women may be assigned less-challenging tasks or denied leadership positions based on preconceived notions. Stereotyping perpetuates gender inequality and restricts individuals' opportunities for advancement.

How promotion is normally done?

Promotions within companies are typically determined by a combination of factors that assess an employee's performance, qualifications, experience, and potential. The specific processes and criteria for promotions may vary between organizations, but the following provides a general understanding of how promotions are often conducted.

One significant factor in determining promotions is an employee's performance. Consistently high performers who meet or exceed their targets and contribute positively to the organization are often considered strong candidates for advancement[5]. Regular performance evaluations, feedback from supervisors, and objective performance metrics are commonly used to assess an employee's performance. Qualifications and skills also play a crucial role in promotions. Employers typically look for employees who possess the necessary educational background, certifications, specialized training, or specific technical skills relevant to the promotion. Having the required qualifications and skills enhances an employee's chances of being considered for a higher-level position[6].

Experience within the company or industry is another important consideration for promotions. Employees with a proven track record of success, industry familiarity are often seen as strong contenders for advancement. The experience gained through previous roles within the organization can contribute to an employee's readiness for a promotion. Assessing an employee's leadership potential is another factor in promotions[7]. Organizations look for individuals who exhibit qualities such as problem-solving abilities, communication skills, and sound decision-making capabilities. Demonstrating leadership potential can significantly enhance an employee's chances of being considered for promotion.

The availability of higher-level positions and the organization's specific needs also influence promotions. When a managerial or senior-level position becomes vacant, companies may consider promoting internal candidates who possess the necessary qualifications and skills. This approach can foster employee loyalty, retain institutional knowledge, and provide growth opportunities for talented individuals within the organization.

Does Ms. Sarah have a valid claim of employment discrimination based on gender?

Based on the scenario, Ms. Sarah appears to have a valid claim of gender discrimination. She met all the necessary criterions, had relevant working experience, and maintained a good performance record. Despite her exceptional qualifications and performance, she was denied the promotion she applied for. Given that all the previous managers in her department have been male, it raises concerns about potential gender-based bias in the promotion process. However, it is important to note that promotion decisions are not only based on an individual's qualifications and performance. Companies often consider various factors, including the specific needs of the organization and its economic status at a given time. These factors can influence the decision-making process and impact promotion outcomes. It is crucial to assess the promotion criteria used by the company to former promoted employees to determine whether gender bias was a determining factor in Ms. Sara's denial.

To determine the validity of Ms. Sara's claim, it would be necessary to examine whether other equally or less qualified candidates, particularly male candidates, were promoted instead of her. If it can be demonstrated that Ms. Sara's gender was a significant factor in her denial of the promotion despite her qualifications and performance, it would strengthen her case for gender discrimination.

What legal remedies are available to Ms. Sarah if her claim of discrimination is valid?

In Tanzania, labor claims can be taken to the Commission for Mediation and Arbitration (CMA), which is a quasi-judicial body established under section 12 of the Labour Institutions Act[8]. The CMA is responsible for resolving disputes between employers and employees, including claims related to wages, wrongful termination, discrimination, and harassment. Further functions and powers of CMA are provided under section 14(1) of the Labour Institutions Act.

A party who is dissatisfied with the decision of the Commission for Mediation and Arbitration has the right to appeal to the High Court Labor Division. This Court is established under Section 50 of the Labour Institutions Act[9] and given powers to review and adjudicate labor-related disputes and grievances. It provides an avenue for parties aggrieved by the decisions of media or arbitration bodies to seek further recourse and have their case reviewed by the court. By appealing to the High Court Labor Division, the aggrieved party can present their arguments, evidence, and legal submissions to challenge the previous decision. The court will then undertake a comprehensive review of the case, considering the relevant laws, regulations, and facts presented.

The High Court Labor Division's decision is not final, further appeals can be made. If either party remains dissatisfied with the judgment or ruling of the High Court, they have the right to file an appeal before the Court of Appeal. The Court of Appeal is a higher and final court that has the authority to review and decide on cases that have already been heard by the High Court.

Conclusion

While qualifications serve as an important foundation, promotions often take into account additional factors such as performance, experience, leadership potential, and the specific needs of the organization at a given time. Promotion is a multi-faceted process where several considerations come into play. Factors such as the company's economic status, its specific requirements, and the availability of positions can influence promotion decisions. It is useful to advocate fair and transparent while considering other factors which are out employer’s control. Companies should strive to provide equal opportunities for all employees and ensure that promotions are based on a comprehensive assessment of an individual's qualifications, performance, and potential.

REFERENCE

The Employment and Labour Relations Act [CAP. 366 R.E. 2019] s.7

Employment and Labor Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007

Equal Rights Advocates, “Discrimination at work place”, https://rb.gy/lgfsy accessed June 6, 2023

Indeed, “What You Need To Know About Job Promotions”, https://rb.gy/naupa accessed June 6, 2023

Study Smarter, “promotion”, https://rb.gy/nk6go accessed June 6, 2023

Recruitee blog, “Employee promotion: what you need to consider”, https://rb.gy/4m6uo accessed June 6, 2023

Labour Institutions Act [Cap. 300 R.E. 2019] s.12

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[1] The Employment and Labour Relations Act [CAP. 366 R.E. 2019] s.7

[2] Employment and Labor Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007

[3] Equal Rights Advocates, “Discrimination at work place”, https://rb.gy/lgfsy accessed June 6, 2023

[4] ibid

[5] Indeed, “What You Need To Know About Job Promotions”, https://rb.gy/naupa accessed June 6, 2023

[6] Study Smarter, “promotion”, https://rb.gy/nk6go accessed June 6, 2023

[7] Recruitee blog, “Employee promotion: what you need to consider”, https://rb.gy/4m6uo accessed June 6, 2023

[8] Labour Institutions Act [Cap. 300 R.E. 2019] s.12

[9] ibid