Lawyers comment on proposed changes to the list of jobs prohibited for women

Attorney Dmitry Bartenev, the lawyer representing the interests of ship navigator Svetlana Medvedeva

In my opinion, the draft of the Ministry of Labor order substantially narrows down the list of banned professions for women, which is the result of Svetlana Medvedeva’s case, among other things.

First of all, restrictions on the use of women’s labor only relate to women who are presumably of reproductive age (from 18 to 49), which makes sense.

Second of all, this restriction only applies to specific types of employment where it has been independently confirmed that work conditions are potentially dangerous for a woman’s reproductive functions. Nevertheless, the general idea of a list of banned professions for women is retained: a number of professions continue to be viewed as traditionally “male” and are banned for women. The amendments to the list of banned professions are not in keeping with the recommendations made by the Committee on the Elimination of Discrimination Against Women, since the free choice of women, and not a government decision, should lie at the foundation of choice of profession, while all types of jobs and production should be equally safe for men and for women. Instead, the draft shows that “men’s” health is still deemed less valuable, since men are not banned from working in conditions established to be harmful. The Ministry of Labor’s logic is apparently based on the fact that a number of workplace factors have a significantly more pronounced negative impact on a woman’s reproductive functions than on a man’s. Nevertheless, the question of choice of profession and the decision of whether to have children should belong to the woman herself in the same way as it does to a man.

Furthermore, it’s astonishing that under the draft women are not banned from working in harmful conditions while providing domestic services or holding painting jobs or other types of traditionally “female” jobs. This kind of exception essentially justifies existing stereotypes in relation to women’s professions. One would think that the setting of restrictions on the use of women’s labor should be based on the objective results of studies on harm caused by various professions with account for the share of women employed in these professions. It’s no secret that Russia has an array of “harmful” and arduous jobs mainly held by women and that no real measures are taken to protect reproductive health due to profound indifference.

Lawyer Maxim Olenichev, representative of printing worker Anastasia in court, legal adviser to the LGBT spearhead group Coming Out

The new draft of the list of professions banned for women was prepared in connection with the most recent amendments to domestic laws in the area of labor protection, but it still uses the same principle of gender-based separation of labor that came down to us from Soviet law. It is obvious that, in preparing this draft, Russia is attempting to show that is has responded to the opinion of the UN Committee on the Elimination of All Forms of Discrimination Against Women in the case of Svetlana Medvedeva v. Russia, which noted the discriminatory nature of having a list of professions banned for women that prevented women from choosing to work in their desired profession. However, the reaction of creating a new list does not resolve the basic problems of a list of professions banned for women—the discriminatory approach to a woman’s selection of a profession and her access to the labor market has not changed.

The draft uses two principles for the “ban” on women’s access to the labor market: chemical factors in the work environment and jobs with harmful and (or) dangerous work conditions.

In terms of chemical factors in the workplace environment, on January 1, 2014, Russia introduced a special evaluation of work conditions intended to discover harmful and dangerous workplace factors that might have a negative impact on workers’ health. The class (subclass) of work conditions is established based on the evaluation’s results. There are a total of four classes—optimal, acceptable, harmful, and dangerous. The assignment of a workplace to one of these classes implies that the employer must improve work conditions and that the worker must obtain the corresponding benefits and compensation (earlier retirement, milk delivery, etc.). This approach was used when creating the new draft, which focused on dangerous and harmful workplace factors in a move away from a list of professions. This is a more contemporary approach since it is not the performance of a specific job function that impacts health, but the presence of harmful and dangerous workplace factors.

In my opinion, the new draft cannot be adopted in its current form, since it does not allow women who have made their own decision to perform work in a certain category to enter the labor market. This draft introduces restrictions for women aged 18 to 49 in an attempt to “protect reproductive health.” However, if women already have children and do not wish to have any more, then why should they face discriminatory restrictions on access to the labor market because of their gender? The state is again deciding for a person their position and sector, which looks like an archaism in today’s world.

An optimal decision that could balance the positions of the parties to this discussion could initially be the approval of a list of harmful and dangerous workplace factors regardless of the worker’s gender. Then, as a result of the evaluation of workplace conditions provided for in existing laws, harmful and dangerous factors could be identified and indicated in a chart of the special evaluation of workplace conditions (as of January 1, 2019, the absence of such an evaluation will be a serious administrative offense in the sphere of labor protection). Even now, existing laws oblige employers to familiarize workers with the results of the special evaluation. Regardless of gender and in light of existing law, a person must be familiarized with harmful and dangerous conditions found at their workplace when they are hired for a job or after a planned or unplanned special evaluation of workplace conditions and must then make their own decision about whether they are prepared to hold this position or not.

Establishing jobs and positions with harmful and (or) dangerous working conditions is also an outdated construct for regulating women’s access to the labor market, since it is not the performance of a particular job function that impacts a person’s health, but the influence of workplace factors that may be identified. In objective terms, including “jobs and positions” in the list gives rise to serious doubts.

If approved in its current form, the list may, as it does now, create groundless proscriptive measures for women to access the labor market. For example, the draft envisages a ban on women performing work connected with manually lifting and moving heavy objects (regardless of position), if the weight of these loads exceeds the limits set specifically for women in 1993. This is just one example of the gender-based separation of labor that has no rational basis. All people are individuals and have different physical abilities. Many women who are physically stronger than men live in Russia, so the notion of women as the “weaker sex,” which predominates in patriarchal societies and carries over into legal regulations, does not meet the challenges of the times. Each person must decide for themselves which jobs they may and can perform and which they cannot. The state’s concern to the contrary is not help for a vulnerable group, but the reinforcement of gender stereotypes.

Unfortunately, the new document does not change the situation of Anastasia, whose interests I represent, since the profession of printer involves manually moving heavy objects that exceed limits set for women. After changing her gender marker, Anastasia, who had had a successful career as a printer, was suddenly unable to occupy this position under existing legal regulations because of the state’s expressed concern about her health. In practice, these declarative positions are actually a barrier to Anastasia’s work activities instead of concern about her. After changing her gender marker to female, she was fired from her position as printer. As of the current time, courts of two instances have refused to consider her individual abilities and provide her with the ability to work in her chosen profession. The courts focused on concern for women, but in practice they reinforced discriminatory treatment of Anastasia by depriving her of her profession and the means for existence that her work as a printer gave her. But we are not giving up and, with the support of Coming Out, we will continue to carry on the fight for Anastasia’s right to work in her chosen profession.

The list of jobs and positions with harmful and (or) dangerous work conditions established in the draft document has significantly curtailed the list of professions banned for women. But this reduction is purely cosmetic in nature because types of jobs banned for women have been generalized. At the same time, there has been a certain relaxation of the list, and specific professions (for example, cargo train conductor under special work conditions, jobs involving the operation and maintenance of radio and communications equipment on structures (towers, poles) over 10 meters in height that are not equipped with elevators, and others) have become accessible to women. But this does not change the fact that gender stereotypes existing in society are still reproduced in regulations and create artificial barriers for women to access the labor market.