WOMEN IN THE LABOR MARKET
Urszula Nowakowska, Anna Swędrowska
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WOMEN IN THE LABOR MARKET
Urszula Nowakowska, Anna Swędrowska |
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Introduction Until 1989, women played an active and firm role in the workplace. Women's high employment rate resulted from not only the ideological appreciation of women's emancipation, but also from a need for women's labor in the nation's accelerated industrialization process. In addition, women's labor was needed to provide support for families that couldn't subsist with one salary. Although in times of recession, leaders stressed the role of women as childcare provider, when their labor was in demand they argued that women could only be emancipated through participation in the labor market. The fact that the previous system, by definition, created full employment prevented the visibility of gender discrimination in the labor market. However, women rarely attained management levels positions, despite the fact that their educational credentials and skills often exceeded those of men. Moreover, the high level of participation by women in the labor markets did not automatically change the model of the family to one based on partnership. Women, outside of their role in the labor market, were seen as primarily responsible for the family and expected to play a traditional role at home. This double burden imposed on women was very difficult to carry out in times of economic hardship, where citizens faced problems with providing basic supplies for the family. In fact, this burden evoked some reluctance to feminist ideology. Since Poland's political and economic transformation in 1989, the status of women has changed drastically. A large amount of evidence shows that economic adjustments have influenced women and men differently. Although women are better educated than men amongst professionals, their position in the labor market has become much weaker. Women earn, on average, less than men and are the first to be fired and the last to be hired. Job offers are often gender and age specific, which, in practice, discriminates against women. A woman's physical appearance is often weighed, and most offers are for secretarial positions, while men receive managerial jobs. Nonetheless, improvement is growing, as job offers are becoming more and more gender neutral. However, gender specific offers, as well as questions concerning family status, are still legal. In the 1990s, the number of unemployed women has risen very quickly. In 1990, women constituted 50.9% of the unemployed, while in 1997, the number grew to 60.4%. Unemployed women also faced greater hardship than men because they remained unemployed longer and experienced more difficulty in finding new jobs. The number of training courses and new job openings differs significantly for men and women. The decreased access to childcare facilities and increased prices for services have seriously affected women's possibilities in the labor market, especially for those poorly paid. Until recently, the very existence of discrimination against women has been commonly denied. Today, however, in the face of high unemployment, the gravity of discrimination against women and their unfavorable position in the labor market have been finally recognized. Legal guarantees of gender equality The Constitution and international law Basic guarantees for gender equality in the labor market, such as the right to equal treatment by public authorities and the prohibition of discrimination, are enshrined in Article 32 of the Constitution. The following Article (33), among others, relates solely to the issue of equality of women and men in the labor market. It states:
Labor Code Until 1996, the Labor Code neglected to mention gender equality. The general principles of the amended Labor Code, however, provide references to the equality of women and men. Article 11.2 states: All employees equally performing the same job have equal rights; this concerns especially equal treatment of women and men. Article 11.3 prohibits discrimination: Any discrimination in employment based on gender, age, handicap, race, nationality, political, religious, and other beliefs and on participation in a trade union is prohibited". For the first time, the amended Labor Code contains a provision obliging employers to respect the personal dignity and other moral rights of employees (Art. 11.1). However, the provisions regarding gender equality are difficult to apply; they lack detailed solutions to facilitate making claims of discrimination or unequal treatment. Their application is also limited because the provisions mainly refer to the employment relationship already in force. No legal regulations have been enacted that refer explicitly to the frequent discrimination in hiring. In practice, a woman not hired because of her gender has no possibility of establishing a claim. Invoking constitutional provisions is difficult; Poland lacks a tradition of referring to the constitution in the execution of individual rights, and the awareness of constitutional rights is limited. Judges are also reluctant to refer and make use of constitutional provisions. In addition, the defense against discrimination becomes more difficult from the fact that, in Poland, the burden of proof lies on persons claiming their rights and not on the employers, as in some other countries. The Labor Code lacks guarantees of equal pay for work of equal value; it provides only a general clause on equal rights for those performing the same tasks (Article 11, §2). Other Provisions Concerning Women's Rights in the Labor Market Protective regulations Although the Labor Code generally provides for gender equality, some clauses permit exceptions. Art. 10.1, in the section, "Basic Principles of Labor Law," grants everyone the right to freely chosen employment, but allows exceptions for cases defined by statute. Subsequent chapters of the Labor Code describe the exceptions that pertain to women. Article 176 contains a section on protecting women at work and prohibits the employment of women in jobs particularly strenuous to their health. A list of these professions was included in an executive order of the Council of Ministers. The order, in force until September 1996, banned women from over ninety occupations, including bus and truck driver, and, for example, diver). Although the order, as amended in 1996 gave women access to many occupations, its authors did not fully give up the "protective" (in other words: discriminatory) approach to women's work. The executive order of 10 September 1996 (Official Journal 96.114.545) divided the prohibited occupations into two categories: those prohibited to all women, and those prohibited to pregnant women and women who are breast-feeding. Professions requiring heavy, labor intensive tasks, forced body position or exposure to high noise or vibration levels, as well as jobs requiring work either underground or at high altitudes are prohibited to all women, as they do not comply with the standards provided for by the order. Standards for pregnant women and women who are breast-feeding are still lower than those which apply to all women; such women cannot work in areas of micro-climate changes, in jobs where they will be exposed to even low levels of electromagnetic fields, any kinds of radiation, extreme high or low air pressure, dangerous biological factors, dangerous chemical substances, or in jobs which may result in heavy physical or psychological traumas. In restricting women's right to a free choice of work, legislators regard women as persons unable to make autonomous decisions concerning their own well being. More and more women regard these restrictions as signs of discrimination and unjust limitation of their professional opportunities. Moreover, provisions restricting women's right to work is inconsistent with international law and EU standards. In the opinion of the Women's Rights Center and many other women's organizations, maintaining restrictions on work for all women is inconsistent with international standards and must be changed. Protection of women's work may apply only to pregnant women and women who are breast-feeding. Protection of pregnant women The Labor Code grants pregnant women and those bringing up young children a number of rights. Under the code, an employer is not allowed to fire a women who is pregnant or on maternity leave, unless she has not complied with the terms of her contract and the trade union representing her agrees to the dismissal (Art. 177.1). The job protection for pregnant women applies to everyone, aside from those on a trial period less than one month. According to Art. 177.3, fixed-term employment contracts, work contracts or trial-period contracts exceeding one month, which would be terminated after the third month of pregnancy, shall be prolonged until the day of delivery. Although a woman can be fired if her company claims bankruptcy or liquidates (Art. 177.4), the employer has to negotiate with the trade union the date of the dissolution of the contract with the pregnant woman. If there is no possibility of providing her with another job, she is entitled to temporary benefits and the time not working to be included in her tenure. Overtime work, nighttime work, and business trips are banned for pregnant women (Art. 178.1) and for women bringing up children of less than four years of age (Art. 178.2). Article 179.1 obligates employers to transfer a pregnant woman to another position if she performs work the law prohibits in her condition, or if she submits a medical certificate that states she cannot continue her current work due to her pregnancy. If the transfer results in lower pay, she is entitled to special benefits. When the causes of transfer are no longer valid, employers are obligated to return her to the work defined in her contract. A pregnant woman has the right to be exempt from normal duties in order to undergo medical check-ups related to pregnancy as recommended by a physician, if such check-ups cannot be done after working hours. In these cases, she has the right to receive remuneration for the time she was absent from work (Art. 185.2). Maternity leave The Labor Code grants women the right to paid maternity leave, for the duration of 16 weeks for the first birth; 18 weeks for each following birth, and 26 weeks in cases of multiple births (Art. 180). The problem, however, is that a woman has not only the right, but is obliged to take a maternity leave. An employer could be punished if he or she allows a woman entitled to maternity leave to work. A woman who has adopted a child is entitled to up to 18 weeks of leave for her first birth. The legislators intended that maternity leave begin two weeks prior to the woman's due date, but the right to the full amount of time remains, even if part of the leave was not taken before that day. A mother who decides not to raise a child and allows another person to adopt it or places it in an orphanage is entitled to at least eight weeks of maternity leave. A woman who has adopted a child less than one year of age and filed a petition in the court is entitled to up to 14 weeks of maternity leave (Art. 183). In September 1999, the Seym amended regulations concerning maternity leave extending its duration to 6 months, retaining, however, this entitlement as also obligatory. The Senate endorsed the proposal to extend maternity leave, but it adopted a compromise solution according to which extended maternity leave should be introduced in two stages: In the year 2000, women would be entitled to 4 more weeks of leave and from 2001 women would be entitled to another 6 weeks for each birth and 9 weeks in the case of a multiple birth. Moreover, according to the Senate's proposal women would be allowed to decide whether they want to take this additional 4 weeks. The provision that gave women the right to decide if they want to use the extended leave caused sharp controversy and has been found contradictory with the philosophy of the labor law. Some Senators pointed out that it gives employers an opportunity to put pressure on women. Extended, obligatory maternity leave can seriously and adversely affect the situation of women in the labor market. Employers will be even less willing to employ women facing the prospect of their half year absence from work. Obligatory maternity leave will diminish the chances of women who seek employment and will unfavorably influence their professional carriers. The Women's Rights Center advocates abolishing obligatory maternity leave as well as combining maternity and childcare leaves and introducing parental leave available to both parents. A woman who takes maternity leave is entitled to a postnatal allowance and maternity benefits. A woman whose contract has been terminated because her company was declared bankrupt, it was closed down, or it was dissolved illegally and she received a compensation, is also entitled to a postnatal allowance (Art. 30 of the Act of 17 December 1974 on social insurance benefits in the case of illness and maternity). A non-working wife of an employee is also entitled to these benefits. Postnatal benefits amounts to up to 15% of an average monthly pay (officially published for pension matters). A pregnant woman whose contract has been dissolved due to bankruptcy or liquidation, and who has not been provided with another job is entitled, until the day of birth, to an allowance equal to the maternity benefit (Art. 32 of the above-mentioned act). A monthly maternity allowance equals 100% of salary. A breast-feeding mother on a full-time contract has the right to two thirty-minute breaks or two forty-five minute breaks in the case of twins, to breast-feed her baby during working ours (Art. 187). When she works less than four hours a day, she is not entitled to such breaks. In practice, women rarely make use of this right, as they live far from their workplaces and very few companies provide childcare facilities. Childcare leave Since 1996, both parents are equally entitled to childcare leave (Art. 186 & 189). All workers employed for at least six months, in any company or plant have the right to take childcare leave. The leave allows a parent to take personal care of a child for a period of three years, up to the fourth year of the child's life. The employer must allow either parent to take childcare leave, in a period convenient for them. During the leave, a parent is entitled to all employment rights, and the employment relationship is specially protected. The childcare leave is included in the employee's tenure, which defines the amount of special bonuses, tenure benefits, and paid vacation, as well as the period of notice. Before 1996, childcare leave was available to a father only when the entitled mother renounced it and agreed that he would execute the right to childcare leave. The father would have forfeited this right only if the mother had engaged in any business enterprise. In practice, however, the father's right to childcare leave, irrespective of the mother's right, arose only in cases of the death of the mother, of a disease disabling her from fulfilling parental duties, or of a deprivation of her parental authority by the guardianship court. These regulations perpetuated the traditional role division and violated the principle of equal rights within the duties of parents. These laws were detrimental to women's position in the job market, as well as to men's rights, as they restricted the father's right to act in a parental role. Although the government of the Democratic Left Alliance altered this regulation, and in theory, both parents are provided with equal rights, the law still mainly addresses women. Article 186 mentions only female employees and Article 189 states that only an employee-father is also entitled to childcare and medical leave to take care of a sick child. The Executive Order of 28 May 1996 on child-care leaves and benefits contains similar provisions (Official Journal 96.60.277). Such legal construction, despite the formal guarantees of equal rights of both parents, is in itself discriminatory. Men's rights to childcare and medical leave to take care of a sick child, guaranteed by provisions included in the end of the section, are considered by legislators of secondary importance. Despite declarations of equality, the role of a woman as mother has been particularly stressed. It is possible for a woman to extend childcare leave for a further three years if the child has a chronic disease, disability, or mental deficiency requiring the mother's personal care, up to the 18th year of child's life. Pursuant to the fourth paragraph of the above-mentioned executive order, the employer is not allowed to denounce or dissolve an employment contract in the period that begins on the day the employee requests childcare leave and ends on the last day of that leave. The only justification of termination without notice can occur when the employee is at fault or she has stopped taking personal care of her child. With notice, an employee can be terminated if the company declares bankruptcy or liquidates the workplace. An employee (woman or man) taking childcare leave is entitled to benefits if he or she complies with criteria provided in the regulation: 1. the period of leave is not shorter than three months, and 2. a family's income does not exceed 25% of an average monthly salary, per person, in the previous calendar year. Childcare benefits are financed by the Social Insurance Fund and paid on the request of the employee. During childcare leave, the employee maintains the right to medical services for herself and her family and the right to remain in a company's apartment. In addition, the legislators created an obligation for employees taking leave to inform employers of their intentions to work or engage in other activities during the leave which might affect their ability to take personal care or limit the extent of the care of the child (Paragraph 11). Persons returning from leave are entitled to occupy a position equivalent to that held previously or another post that meets his or her qualifications. Salary cannot be lower that what it was prior to the leave (Paragraph 14). Although both parents are entitled to take leave, they cannot exercise this right at the same time (Paragraph 21). In practice, protective guarantees of women's work are often illusory. Frequently, employers denounce employment contracts within a short time after an employee returns from childcare leave. Other childcare benefits The Labor Code (Art. 186 & 189) entitles both employed parents with children under the age of fourteen to two days of childcare leave per year while preserving their right to remuneration. Until 1996, men were entitled to this right only if they were the sole guardians of their children. Under the Law of 17 December 1974 on Social Security Pecuniary Performances in the Cases of Sickness and Maternity, as amended in March 1995, both parents are granted equal benefits for a sick child under the age of fourteen, or other sick family member. Childcare benefits for children under the age of eight are also granted if the nursery, kindergarten, or school is closed, or a parent is required to permanently care for the child, such as at birth, or in illness (Article. 35 of the above-mentioned act). This benefit is available up to sixty days per year for a child that is nursing and up to fourteen days for other family members (Art. 37), but is not available if other family members can care for the child or sick person. An exception is made for working mothers with children under the age of two (Art. 38). They are entitled to the monthly care benefit, amounting to 80% of salary. Until March 1995, fathers were only entitled to this benefit in exceptional cases, such as when the mother was absent from the place of permanent residence or if she was unable to care for the child, due to an inherited or other illness. Such regulations undermined the principle of equal treatment of women and men. Although men are now entitled to childcare leave, they rarely make use of that right; household care is still performed by women. Nevertheless, due to the high unemployment rate and increasing fears of dismissal, more and more women do not make use of their entitlement to care for their children personally. Women look for other care options, such as leaving the child with a grandmother, and rarely share parental responsibilities in a partnership with the children's fathers. Despite positive changes in the 1990s towards equalizing the rights of both parents to childcare leave and sick child benefits, the wording of these legal provisions undermines the principles of gender equality. The legislators highlight the crucial role women play in raising and caring for children, granting the right to childcare and medical leave to women first, and mentioning men's entitlement to these rights, only in the last article of the chapter. Limiting the right to care for a child under the age of two to only the mother is of a still more restrictive character. Moreover, in the context of equal treatment of women and men, the entitlement that allows only one parent to take leave at a time does not seem the best solution. The use of childcare leave should be the decision of parents and they should have the possibility to jointly exercise that right. The change of name from «childcare leave» to «parental leave» as well as eliminating the separation of maternal leave from the category of parental leave (childcare leave) as in other countries, would help create partnership in the family. Legislators argue that their approach to women's work protects women's reproductive functions and helps women reconcile their professional lives with maternity and household duties. Neither the law, nor social policy expects a man to reconcile his professional life with family obligations. In practice, women have two jobs under the law, in the workplace and at home. In this context, it is not difficult to understand why some women are tired of "equal treatment," as it is a burden that only they have to carry on their shoulders. Sexual Harassment in the workplace Sexual harassment in the workplace is a relatively new legal and social concept in Poland. Polish legislation provides no definition of harassment, and no provisions on the various forms of sexual harassment in the workplace. The Labor Code also lacks provisions that refer explicitly to sexual harassment. The only provisions that can be used to prosecute a case of sexual harassment are Article 11.1 of the Labor Code, which obligates the employer to respect the personal dignity and bodily integrity of an employee, and Articles 11.2 & 11.3, on anti-discrimination. The Supreme Court has issued judgments that may serve to define anti-discrimination standards. On 10 September 1997, the Supreme Court pronounced, "discrimination, in the meaning of Article 11.3 of the Labor Code, is an illicit deprivation or limitation of rights subsequent to the employment relationship, or unequal treatment of employees for reasons of their gender, age, disability, nationality, race, beliefs or opinions, especially religious and political, and trade union membership, as well as granting some employees less rights than other employees in the same situation, de jure and de facto (IPKN 246/97)." In the judgment of 13 February 1997, the Supreme Court decided: "Any discrimination in the employment relationships, inter alia, for reasons of gender, . . . of an employee is inadmissible." First and foremost, discrimination means making an employee's situation worse, in comparison to others. If such a plea is fully confirmed and if readiness to work is shown, an employee may present a claim pursuant to Art. 81 of the Labor Code. Applying these provisions to prohibit discrimination in the form of sexual harassment is limited to cases of the so-called sexual advantage. It would be difficult to apply these provisions to the behavior of colleagues. Another way to seek redress for sexual harassment in the workplace is to refer to the Labor Code provisions that obligate the employer to create safe and healthy working conditions (Art. 94.4 and Art. 15). Safe and healthy working conditions include a workplace free of sexual harassment; the employer is obliged to assure a safe environment for his employees in this context. On 19 December 1980, the Supreme Court ruled "the obligation to provide employees with safe and harmless working conditions covers not only the respect for general standards in this field, but also individual constraints related to the health or inclinations of an employee." Sexual harassment in the workplace can also be addressed through the Labor Code provisions related to the protection of personal dignity and moral rights (Art. 23 & 24). Under these articles, an employer and a perpetrator may be requested to stop abusive behavior and to pay compensation for damages. Article 199 of the Penal Code may also be used to bring a sexual harassment claim: "Whoever uses the relation of dependency or critical situation to force another person to engage in sexual intercourse, to be a subject of any sexual act, or to perform such an act, shall be liable to imprisonment for not more than three years." This penal restriction may be used in the most abusive cases of workplace sexual harassment. However, this provision is very rarely used in practice and is not even mentioned in the statistical data of the Ministry of Justice. In practice, women do not make use of existing legal possibilities of countering sexual harassment in the workplace. Not only is the awareness of sexual harassment very low, women's fear of being dismissed prevents them from opposing such behavior from co-workers and employers. However, in recent years the awareness of discrimination and sexual harassment in the workplace has grown considerably. In public opinion poll commissioned by the daily Rzeczpospolita and conducted in 1996, only 6% of women admitted that they had ever been sexually harassed at work. Only 3 years later, in the poll ordered by another daily, Gazeta Wyborcza, the percentage of women who admitted that they had experienced unwelcome sexual attention, seduction, requests for sexual favors and other sexual advances was significantly higher. Three percent of women admitted that they had often faced that kind of conduct, 10% of women said that it had happened to them on several occasions and 15% that it had happened only exceptionally. (Together 28% admitted some form of harassment). Sixty percent of women replied that they had never been subjected to any form of sexual harassment. A higher number of women who confessed that they had been harassed does not mean, of course, that the levels of sexual harassment have grown so rapidly. It rather illustrates women's growing awareness of what amounts to sexual harassment. The survey showed that it is young women who are harassed most often and that they commonly experience harassment during social contacts (67%) and in public places (52%). The workplace turned out to be third on the list of places where women are at risk (43%). In the workplace women are more often harassed by their co-workers (25%) than by their superiors (18%). Education does not seem to play a significant role in this context. The authors of the questions asked in the poll and the article on sexual harassment discussing the survey, repeat a common misunderstanding: they do not differentiate between unwelcome sexual advances and flirtation or romance in the workplace. Both are used interchangeably. The Women's Rights Center has counseled dozens of women who complained about sexual harassment in the workplace. In most of those cases there was hardly any evidence of harassment and women did not decide to file a formal complaint or withdrew it when they found a new job. Only the first case of those reported to the Center was finalized successfully. Although our client was dismissed, we negotiated for her a compensation amounting to 12 months remuneration. This success was possible partly because the woman had been an employee of a giant American company which was afraid that the case would tarnish its reputation. In the USA this company is well known for its excellent policy promoting women's rights and opposing sexual harassment, the fact which we used in negotiations. The Center did not, however, succeed in other cases, despite sound evidence of wrongdoing and extensive media coverage. Administration of justice and law enforcement bodies handled the cases suspiciously and were openly hostile to the victims of harassment. Pension Plans The violation of the principle of gender equality is quite visible in provisions concerning the retirement age and retirement pension. Pursuant to Article 24.1 of the Law of 17 December 1998, an employee born after 31 December 1948 becomes qualified for retirement pension when he or she reaches the retirement age: at least 60 for women and 65 for men. For insured people born after 31 December 1948, working in special conditions or special jobs, the legislators introduced the so called "overarching" pensions. This pension is calculated by the amount an employee contributes each month into a pension fund, which is raised until the last month before a person is entitled to a pension (Art. 25.1). Insured people born before 1 January 1949 are entitled to a pension if they comply with the following criteria:
The employees also have the possibility of a pension after havin1g reached the retirement age and having worked at least 15 years fo1r women, and 20 years for men (Art. 28). Employees born before 1 January 1949 have the possibility of early retirement. To retire early, a woman must be at least 55, with a 30 years contribution and non-contribution period, or 20 years of contribution and non-contribution, if she is considered completely unable to work. Men must be 60 years of age, and have at least a 25-year contribution and non-contribution period, if he is considered completely unable to work (Art. 29). Contribution and non-contribution periods (the latter cannot exceed a third of the contribution period) are considered in the amount of pension granted. Although contribution periods include military service and religious missions, they do not cover periods of childcare leave, receiving childcare benefits, leaves without pay, periods not working and taking care of children, and interrupted work, for spouses of delegates to diplomatic missions, consular offices, permanent representatives at the UN and other special missions abroad (Art. 7). Thus, the legislator's decisions do not seem gender-neutral. As military service and religious and diplomatic missions fall mostly in the domain of men, women much more frequently make use of childcare leave or stay at home. Provisions guaranteeing women the right to early retirement actually provided for de facto compulsory retirement. The Constitutional Tribunal ruled that the principle of a lower retirement age for women must be considered an entitlement, rather than a limitation of their professional opportunities, nor a reason to discriminate at the labor market. In practice, women who reach the age of sixty are often forced to retire; they are expected to sacrifice professional careers to either care for an infirm family member or sick child. Men are obligated by law to work longer and retire later, as they are expected to maintain dependent family members. Starting 1 January 1999, the new pension system gives priority to those who have been insured the longest and who have paid much in insurance contributions. Simulations in "Nowe Ubezpieczenia" (New Insurance, January 1999) indicate that the pensions of women, retiring five years earlier, will be much lower than men's. A woman earning the same salary as her male colleague will receive about 61.8% of his pension. After the nation's social reforms, the difference in retirement age and tenure not only discriminates, but also has a negative economic impact on women. Provisions of the new pension law contradict Article 33.2 of the Constitution, which provides equal rights to men and women, rights which include social security. The provisions are also inconsistent with the Social Insurance Law of 13 October 1998, on Pension Plans. The Law's Article 2a.1 provides for equal treatment of all insured persons, regardless of gender or marital and family status. Pursuant to the law, the equal treatment principle relates to conditions on the inclusion into the social security system and calculating the amount of allowances. Differences in retirement age have also had a negative impact on entitlements to unemployment benefits and benefits resulting from the 14 December 1994 act on employment and counteracting unemployment (Official Journal, 25/1997). Article 2 of the law states that a woman over 60 years of age and a man over 65 are not included in the unemployed. Monitoring of Labor Law Provisions and Dispute Settlement The National Labor Inspectorate The National Labor Inspectorate (PIP), an agency subordinate to the Parliament, monitors and controls the workplace's compliance with labor law, including the provisions on safety and health at work. This agency consists of the Central Labor Inspectorate and district inspectorates, which work jointly with regional labor inspectors. The PIP work is monitored by the Labor Protection Council. If the labor law is infringed, competent PIP bodies have the right to order the head of the offending company or plant to eradicate existing violations. Most of the complaints received by the National Labor Inspectorate have been filed by women. They complained about employers demanding non-pregnancy certificates, about being fired during pregnancy or childcare leave and about being employed in jobs prohibited to pregnant women. Until now, there have been no complaints about discrimination in the workplace. Generally speaking, however, the number of complaints filed by women whose labor rights have been violated is relatively low. Conciliation A woman whose labor rights have been violated may, before bringing a case to court, submit a written request to be heard before a Conciliation Committee (Art. 242 of the Labor Code). The employer, trade union, or employee can appoint a committee in any company or plant, regardless of the number of employees it hires, as long as the employer and union agree on who serves on the committee. If no agreement is reached, the committee will bring the case to labor court, if the employee requests to do so within two weeks after the conciliation procedure is terminated (Art. 254). If the employer does not implement the agreement, it will be enforced by the court. Unfortunately this procedure of ascertaining labor rights, including the cases of gender-based discrimination and sexual harassment, is not applied in practice. It is often perceived as a remnant of the communist past. Judicial proceedings Proceedings in the labor courts are free of charge, although an employee may be charged with the costs of proceedings in justified cases. If the employer violates the rights of employees, the court can levy a fine on the employer or his plenipotentiary responsible for health and safety at the workplace (Art. 283). A labor inspector, who also adjudicates in particular cases (Art. 284), initiates the proceedings against the misdemeanors that violate employees' rights. If a dismissal is unjustified or violates dismissal provisions, the labor court, at to the employee's request, adjudicates on the nature of the dismissal, or - if the contract has already been terminated - rules on whether an employee is to be reinstated or on his or her compensation (Art. 45). Similar rights are granted to those dismissed without notice, if the dismissal constitutes a violation of the adequate provisions. The employee is entitled to claim a reinstatement on the same conditions or compensation (Art. 56). Generally, the employee has the right to choose which claim he or she opts to pursue, but the court will not consider it if the claim is impossible or ill advised. In these cases, the court adjudicates on compensation. This rule does not apply to employees whose employment relationships are specially protected, such as pregnant women. An employee reinstated in his or her job is entitled to remuneration for the time away from work, up to two months; if the period of notice was three months, up to a month. Pregnant women or women on maternity leave have the right to remuneration for the entire period without employment. Compensation in cases without reinstatement is from two weeks to three months remuneration (Art. 47). An employer maliciously or persistently violating employment rights is liable to a fine, restriction of liberty, or imprisonment. An employer who violates health and safety rules and exposes an employee to immediate danger of loss of life or heavy bodily injuries, is liable to imprisonment for up to three years. The number of cases of protection for women in employment is very low and has, in fact, decreased since 1990 (170 cases in 1990, 78 in 1997). Although no research exists on women's labor rights abuses, the picture created by above given figures seems far too optimistic. Women are often not aware of their rights and they are reluctant to engage in legal proceedings because they lack faith in the court system. Women in the labor market Employment practices Most employers and employees are still convinced that the free market system grants the employer the right to unlimited freedom in hiring his or her staff. Proposals limiting the right of employers to define their employment policy are seen as remnants of the communist past and its centrally planned economy, contradicting free market principles. Employees often share this opinion and are unaware they have the right to question or challenge the employer's decision. In addition, a strongly held belief in Polish society is that men should be granted priority over women in a shortage of jobs. The stereotype that women cope better when unemployed (since lack of a job degrades men) also influences employment practices. Consciousness of discrimination and employee rights is very low among women. Thus, although discrimination is widespread, women rarely utilize the legal channels available to counteract this phenomenon. For the reasons listed above, gender discrimination in the labor market is a very common phenomenon. Women applying for a position are expected to be better educated and have better qualifications than the males she is competing with for the job, if she is to receive an equal chance of being employed. Frequently, employers stereotypically see women as a mother and housewife and will discriminate against them in their first interview by asking questions about their family life, rather than professional qualifications. Research conducted by the Center for the Advancement of Women in Warsaw found that women are promoted less frequently then men and do not receive equal pay for work of equal value. In advertisements on job vacancies, the expected gender of the successful candidate is frequently mentioned, and those addressed to women more frequently mention age requirements. Employers do not make secret that they prefer to employ men, as men are considered to be more stable workers in the context of the length of employment. Often employers, even if a job offer was phrased in gender-neutral language, explicitly express their preference in interviews; women are asked their age, marital status, and plans for the future. In addition, employers, contrary to the law, often request a non-pregnancy certificate or a declaration that a woman will not become pregnant for some time. Despite the laws protecting the employment of pregnant women, many women are fired during pregnancy. Women's employment In the last decade the number of women in the labor force has decreased from 45.7% in 1988 to 43.9% in 1998. In the years 1992 to 1998, women's economic activity decreased from 66.1% to 61.8%, while men's decreased from 75.6% to 71.2%. Notably, from 1990 to 1998, the percentage of those employed in the public sector decreased from 52.1% to 30.9% and correspondingly increased in the private sector from 47.9% to 69.1%; the number of women employed in public sector increased from 48.2% in 1994 to 50.6% in 1998 and decreased in private sector from 42.6% to 40.9% in the same period. This data, along with the high unemployment rate among women, indicates that the private sector has been less favorable to women; in the private sector gender-based discrimination may occur more frequently. The fact that wages are higher in the private sector than in the public sector also unfavorably affects the economic position of women in the society. The self-employment of women, especially since 1994, has shown a constant and dynamic increase. Toward the end of 1988 women accounted for 37% of the employers and self-employed. A large number of women's businesses engage in trade or provide services and often, the businesses are small or family firms. Surveys conducted among female entrepreneurs indicate that women owners of businesses are most often aged 35-45, with secondary vocational education and that the main incentive for self -employment is not only the need to increase the family's income, but also the need for independence, autonomy, and utilization of skills.
* February 1999
Education of employed women The fact that professionally active women are better educated than men has never been adequately reflected in their position in the labor market. Data provided by the Central Statistical Office (GUS) shows that more than fifty-four (54.8%) percent of women and only 35.4% of men receive a minimum secondary level education, and 11.1% and 9% respectively received a higher education. Women have rarely attained management level positions, in both the previous regime and the new democracy. The fact that women are better educated and less associated with the previous managerial cadre (nomenklatura) has not influenced their chances of promotion in the nineties. Nonetheless, although employed women are generally better educated, their qualifications and skills are often not well adapted to the needs of the market economy.
Because of the significant disparity in women and men's educational backgrounds, they enter the labor market with different qualifications and skills. The difference has significantly impacted on the types of jobs performed and sectors in which men and women are employed. At the professional level, women make up a large percentage of the workforce in finance, insurance, medicine, health, and social services. They also constitute a large percentage of employees in light manufacturing, particularly in textile, clothing, and electro-mechanical industries. Women also constitute the majority of office administrative jobs. Payment Inequalities Despite constitutional guarantees of equal pay, government statistics indicate that gender-based discrimination persists in matters of remuneration. Due to cultural norms, social traditions, and the fact that it is more difficult for women to find adequate employment, they often accept lower paid positions to earn an income. Data of the Central Statistical Office from August 1998 indicate the national average salary for a woman was a mere 82% of an average man's salary. Notably, in enterprises that employ more than 500 persons, women's salaries constitute only 69% of an average man's salaries. (GUS, Employment in National Economy by Salaries in September 1997, Warsaw 1998). Among people who earn less than the average salary, 75% are women while only 25% are men; among those who earn the highest salaries, men constitute 80% and women only 20%. The professions with the largest wage gap are the mining industry, trade and repair work, and investment trading. Women in the mining industry earn 63% of men's salary, while in the other three sectors, women earn, on average 74% of men's salaries. Table 4. Full–time Paid Employment and Average Gross Wages and Salaries by Occupational Groups for March 1996
Women's unemployment The percentage of women among the unemployed has steadily increased over the last years; in 1990, women constituted 50.9% of the unemployed while in 1997, this figure grew to 60.4%. The gap between the unemployment of women and men's has increased since 1993, a year that saw a significant increase in economic growth. Thus, as men's unemployment is related to the economic situation, women's unemployment stems from more structural and institutional causes. Regardless of the educational level and age, the unemployment rate for women is much higher than it is for men (12% for women and 8,7% for men). Unemployed women face more difficulty than men do because they tend to remain without jobs longer and run into more problems finding new positions. Nearly twice as many men find employment within a month; in contrast, of the total unemployed registered in September 1997, 72% of those without a job for over twelve months were women. In fact, nearly half of all jobless women have been unemployed for a year or more (Unemployment, 1997). In addition, the duration of unemployment increases with a woman's age. For women between the ages 30 and 34, unemployment lasts for 17 months; for older women aged 35 to 44 and 45 to 54, it is 18.3 and 19 months, respectively. The duration of unemployment is the shortest for women with higher education (an average 6.4 months), and the longest for women with only an elementary education (18 months). The largest group of unemployed women consists of those under the age of 25, while the smallest percentage comprises those over 45. An analysis of educational levels shows that women with vocational and secondary vocational education face the most difficulty in finding a job. Table 5. Unemployed Persons in August
Women's attitude towards employment
A report by the Center for Social Research in December 1996, entitled "Gender Equality in Professional Life," questioned women on their attitudes towards their employment. Many women responded that they faced a higher risk in losing their jobs than men, and experienced more difficulty finding employment. Many also believed that as they became more educated, the visibility of inequality increased in the workplace. Additionally, the women stated that only by owning their own companies and developing independent careers could they escape the inequality in the workplace. When asked why women have fewer job opportunities than men, most women answered that the burden of work in the home coupled with work in the job market made it more difficult for them to achieve a professional status equal to men. Many women noted that the stereotypical role of women as a homemaker results in unfounded discrimination in the workplace, as employers and co-workers are unable to see women as professional employees and view them solely as mothers and wives. When questioned about balancing their professional and private lives, most women responded that the ideal situation is for an equal partnership with their husbands sharing responsibilities in the home. Eighty-four percent of professional women responded that their jobs provide them with a great deal of satisfaction, and 65% said they did not feel at risk of losing their jobs. Over half of the women questioned said they would not quit their jobs even if they could afford to do so. Thirty-four percent of university graduates questioned under age 24 said they believed they have the same skills as men, and have the same opportunities for employment as their male peers. A higher percentage responded that they were unsure about their qualifications, and did not know how their gender affected their employment opportunities. Even though 37% of women believed they were not paid an equal amount with men, when questioned about their salaries, 43% said they believed their chances of promotion and a raise were equal. In fact, the more highly educated women believed they did not face discrimination in pay. Seventeen percent of women believed they were discriminated against in both promotion opportunities and salary increases, while 14% responded that they did not feel a gender bias at work. Only 1% believed they were promoted or received a raise specifically due to being a woman. Despite these figures, the majority of women in this study could not determine if they had ever been discriminated against in promotional opportunities or salary increases. The report concluded that most women derive great satisfaction from their work; they view employment not as an obligation, but rather, a source of fulfillment. However, the report made no findings that women expect to be promoted as quickly as men, despite their equal performance, nor did they expect to fall into the highest salary levels. Finally, the report concluded that women's overall satisfaction with their jobs depends on three factors: their educational level and qualifications, their salaries, and if they perceived themselves as being discriminated against. This report, as well as the International Informational Forum held in Warsaw in November, 1996, entitled "Inequality Between Men and Women in the Labor Market," finds that women in Poland, despite the Labor Code's prohibition against gender discrimination, do, in fact, face a gender bias in the workplace. Women encounter larger rates of unemployment, despite higher levels of education, and earn less for equal work. Professional Goals: In a discussion based on 1997 statistics from the Center for Social Research, 54% of women questioned claimed that the best way to balance family and professional lives is for each spouse to contribute equally to both household and professional responsibilities. Thirty percent responded that the husband should be the sole breadwinner, and the wife should be responsible for working in the home. Fifteen percent said that although both men and women should work outside the home, women are responsible for the household if the husband spends more time at work. When asked about the changing workplace atmosphere, many women responded that in a market economy, they must work longer hours and experience greater pressures to be more emotionally connected and involved in their work than they were before. Eighteen percent responded that this kind of atmosphere has a detrimental effect on their home life, while a quarter said that the advantages and disadvantages were equal. The latter group includes highly educated women (those who have completed university studies), single women ages 25 to 34, and women in professional decision-making positions. Most women polled, however, said that the advantages of this atmosphere outweighed the disadvantages. Of those questioned, students, women under 24 years old, divorced women, women working on farms, partially disabled women, and women involved in liberal politics overwhelmingly responded that they are able to balance work and home life with ease. Women over 50 years old, retired women, women who are heavily involved in church life, and politically conservative women all responded that the disadvantages of this work environment outweighed the advantages and produces a detrimental effect of family life. Among all Polish women, only 34% work outside the home; the majority are homemakers. Those women who enter the workforce believe they are at greater risk of losing their jobs then their male counterparts because of their dual roles as homemaker and professional. However, since 1994,women have increasingly felt their position in the labor market stabilize. Today, 60% of professional women no longer feel their jobs are in jeopardy. This is especially true for women over age 45 who own their own businesses. However, the remaining 30% continue to feel their jobs are at risk, particularly those with low-levels of education. The study also found that a quarter of all working women is in a decision-making position and overwhelmingly feels their jobs are secure. For those not in decision-making positions, when asked if they would accept this sort of job, only 28% responded they would, while 59% responded that they would not. The main reasons given by those declining the position were that they believed they lacked the qualifications and abilities necessary for the job, they did not want the responsibility of the position, they would feel uncomfortable giving direction to employees, they would not have sufficient time to dedicate to the job because of household responsibilities, they did not want to create bad relationships at work by being in a power position, and they felt that women generally should not be in decision-making positions. Those women who responded that they would accept a decision-making position gave reasons such as they would earn more money, they believed they were qualified for the position and did not fear the responsibility, they believed they were capable of giving direction to employees, they had the requisite experience, they could foster good working relationships, their family lives were not so demanding as to consume a large amount of their time, and they felt it important for women to be active in traditionally male-dominated positions. This report concluded that more women today believe that their professional lives influence their family lives and that their jobs are more secure. For those women polled, the biggest change in recent years is that the role of women as homemaker no longer receives the same respect as it once did. Most felt that in order to be respected in society today, they must hold professional positions. The rulings of Constitutional Tribunal
The Constitutional Tribunal has also passed several rulings concerning gender-based discrimination. One of the first cases before the Tribunal concerned the differences in qualification criteria for women and for men to enter medical universities. After an intervention of the Ombudsman, the Tribunal, in a judgment of 3 March 1987, decided that regulations are inconsistent with the Constitution. The Constitutional Tribunal also presented its opinion on the retirement age, which, in Poland, is different for women and men. The retirement provisions, originating in the times of the Polish People's Republic, were considered a privilege for women to compensate their burden of reconciling professional and family duties. In the current market economy, in the time of high unemployment and women's increasing professional aspirations, these provisions are seen as discriminatory. In response to a claim submitted by a women forced into early retirement, the Tribunal, in a judgment passed on 24 September 1991, held that the possibility to retire earlier must be seen as a women's entitlement only and not an obligation to retire. According to the Tribunal, this provision cannot be used against women. In the same judgment, the Tribunal ruled on the issue of female researchers not employed as professors that were discriminated against by a law obliging them to retire earlier. In the judgment, the Tribunal stressed that "constitutional guarantees of equal treatment for women and men also mean professional equality and equal opportunities. That means that in relation to some professional groups, a lower retirement age must be considered as a special women's entitlement . . .compulsory termination of an employment relationship is a limitation of women's professional opportunities . . . and becomes a factor discriminating against women in comparison to men with the same professional status. Limited professional opportunities in conditions where biological and social differences are unimportant to a successful continuation of a career and to subsequent scientific promotions, are in drastic contradiction with the equality principle and equal treatment of men and women." Some time ago the media highlighted the case of a women employed in a central administration agency who was forced to retire after she received her pension rights. Both the Constitutional Tribunal and the Supreme Court issued opinions on these laws that on their face are gender-neutral but in practice refer mainly to women. The Tribunal held, on 23 February 1993, that Art. 10.1.2 of the law on farmer's social insurance was inconsistent with the constitutional principle of law and equality. The case concerned a one-time compensation for a close relation (a person not covered by insurance)of a farmer with insurance, who suffered permanent bodily injuries as a result of an accident occurring when helping the farmer in agricultural works. Farmers' spouses were not mentioned among those entitled to such compensation. In practice, this provision discriminated against women because in the majority of cases, wives were those that were injured. The Constitutional Tribunal confirmed the inconsistency of this provision. Another issue important for women and examined by the Tribunal is the right to unemployment benefits. The Tribunal ruled that withholding unemployment benefits from those living in a household with a spouse earning twice the average salary was discriminatory. This deprivation prevents an individual from including the time of unemployment in the period required to qualify for or to keep employment or pension rights. Due to the higher unemployment among women and the higher average salary of men, such provisions have had a greater negative impact on woman than men and, as such were considered discriminatory. The Supreme Court also issued its opinions on gender equality. In one case the Court examined the interpretation of a provision on a supplementary allowance for an employee transferred to another job due to pregnancy. The question was solved by the Supreme Court resolution I PZP 6/94 of 28 April 1994: the pregnancy and the protection of a pregnant women's work cannot be reasons for depriving an employee of some of her income; a pregnant employee is entitled to those parts of her remuneration which she would receive if she worked at night or over-time. The Ombudsman also expressed his opinions on the discrimination of women by responding to some of the cases brought to the Constitutional Tribunal. Professor Ewa Letowska, the Ombudsman from 1988 to 1992, presented the problem in a special chapter of her yearly reports. In addition, her successors frequently admitted that legislative regulations which, some years ago, protected women, such as the right to early retirement or medical leave to care for a sick child, in recent years has become of discriminatory character. Conclusions The analysis presented above indicates that the Polish legislation does not fully take into consideration the principle of equality before the law and equal opportunities for women and men at the labor market. It still maintains the "protective" approach towards women's work, which is more and more frequently seen by women as discriminatory. The draft law on the equal status of women and men intended to close the existing loopholes and to broaden legislative guarantees of equal treatment. This intent failed, both during the previous and present terms of the Seym. The draft prohibited discrimination, introduced sanctions for not observing the provisions of the act, and obligated state agencies to create the necessary conditions to implement the principle of gender equality. The draft also contained a definition of discrimination, introduced mechanisms to facilitate the rewarding of compensation in discrimination cases, and established institutions to ensure respect for gender equality. One of the most controversial issues in the debate on the draft act was the introduction of a quota system to maintain at least a 40% representation of one gender in collective bodies that are appointed, elected or nominated by the public authorities. Due to Poland's desire to join the European Union, the nation will be obliged to adjust its legislation to EU standards. We may expect that in the near future amendments to the Labor Code will extend legal protection against gender-based discrimination and introduce sanctions for the violations of the principle of gender equality. National Plan of Action for Women Women's Labor Rights Objective 1. Adopt and enact legislation to prohibit discrimination on the basis of sex in the labor market, in hiring and promotion policies and practices. Actions to be taken:
Objective 2. Enact and enforce legislation to guarantee the rights of women and men to equal pay for equal work or work of equal value. Develop and implement equal opportunity policies.
Objective 3. Improve the situation of women by introducing the principle of equal treatment of women and men in the social welfare system as well as by improving their working conditions.
Actions to be taken:
Objective 4. Increase women's income-generating opportunities by providing equal access to productive resources and control of natural resources, land, credit, capital and ownership.
Actions to be taken:
Objective 5. Promote and strengthen micro-enterprises and new small businesses run by women. Support women's self-employment.
Actions to be taken:
Objective 6. Promote and strengthen women's new small businesses, cooperative enterprises and other employment opportunities and facilitate the transition from the informal to the formal sector, also in rural areas.
Actions to be taken:
Objective 7. Pursue policies supporting business, non-governmental and local organizations, co-operatives, women's self-help and other groups to provide services for women entrepreneurs in rural and urban areas.
Actions to be taken:
Objective 8. Create equal opportunities for the realization of local initiatives and for the promotion of women's and men's entrepreneurship.
Actions to be taken:
Objective 9. Counteract excessive and unjustified family income differentials (through the creation of mechanisms to eradicate abject poverty and regional economic imbalances.
Actions to be taken:
Objective 10. Strengthen the implementation of organizational instruments toward women's equal opportunities in the labor market.
Actions to be taken:
Objective 11. Enable women and men to reconcile their family and professional roles and create conditions to protect women's work.
Actions to be taken:
Objective 12. Develop flexible working hours and working schemes.
Actions to be taken:
Objective 13. In policy-making, elaborate and implement the system of indices to analyze the state and dynamics of women's poverty at national, regional and local levels for urban and rural areas.
Actions to be taken:
References
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