in their dignity and rights (Para. 1, Art. 21); citizens have equal constitutional rights
and freedoms and are equal in the eyes of the law (para. 1, Art. 24); equal rights of
women and men (ch. 3, Art. 24) etc.
Furthermore, in order to achieve parity of women and men in all areas of social
life by legal provision of equal rights and opportunities for women and men, by
elimination of gender-based discrimination and by use of special temporary measures
aimed at addressing the imbalances between the opportunities of women and men to
exercise equal rights provided to them by the Constitution, there was adopted the Law
of Ukraine on Protection of Equal Rights and Opportunities for Women and Men.
In order to specify the provions of the Constitution of Ukraine the regime securing
equal opportunities has been enshrined in several articles of Labour Code of Ukraine,
in particular in Art. 3, where among the basic principles of labour regulation there was
also defined the equality of rights and opportunities of employees, including gender
equality; creation of equal opportunities to employees for their professional growth,
training, further training and continuing professionsl development etc.
At the same time, the provisions of Art. 4 of the draft Labour Code, which prohibit
discrimination in employment, generally agree with the international instruments.
However, it would be more appropriate in the text of para. 2, Art. 4 of Labour Code of
Ukraine change the wording when identifying the absence of discrimination, namely
instead of “restricting the rights and opportunities or providing privileges to employees
depending on certain types of work related to age, level of education, health, gender
and other relevant circumstances”, and rather use the rules of the ILO Convention №
111 "any distinction, exclusion or preference regarding a particular job based on its
specific requirements is not considered discrimination."
We believe that it is necessary to widen the number of grounds of discrimination
in employment in order to protect workers' rights in accordance with the ILO
documents since in view of the international and European documents setting an
exhaustive list of grounds is impossible and impracticle. In particular, it is advisable
to express the concept of "sexual harassment" mentioned in para. 2 part 2, Art. 4 of the
draft Labour Code of Ukraine by the wording proposed in the Social Accountability
International Standard SA8000: 2001, namely "behaviour (including gestures,
language and physical contact) that is threatening, abusive, exploitative or sexually
coercive".
National legislator in para. 3. Art. 4 of the draft Labour Code sets the provision
stating that a person who believes that he/she has suffered discrimination in the
workplace, may apply to the court for redress. However, in our opinion, in this article
there should also be noted that the burden of proving the absence of such discrimination
rests with the employer and the actions of the person considered to be a victim may be
- 1062 -