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‘Slavs only’ Discrimination exists in Russia, but it’s nearly impossible to prove in court

Source: Meduza

Russian lawyers and human rights activists who have worked even a single case where they had to prove discrimination by sex, age, sexual orientation, or ethnicity will explain how it’s nearly impossible to win one of these lawsuits in Russia. Judges usually refuse to go to trial, and the best case scenario is often a ruling that only partially satisfies a claim. Meduza looks at how Russians fight discrimination in court, and why it so rarely ends in anything but defeat.

Her go-to question

On June 6, Otkritie Bank vice president and Tochka Bank co-founder Yana Gannik wrote on Facebook about how she hires new staff. In a post that she later deleted, Gannik explained: “I really love interviews. I found and interviewed almost all the guys on the team. It’s very important to me that anyone we invite shares our sense of beauty and strong life philosophy, and isn’t afraid to express his own opinion.”

Gannik said her latest go-to interview question has been: “Is Crimea ours?” In her Facebook post, she explained that it isn’t the substance of job candidates’ answers that interests her, but applicants’ readiness to express their opinions to a potential employer. She emphasized that she regards “over-the-top ultra-patriotic or, conversely, left-wing answers” to be evidence of “brainwashing” and unambiguous grounds for refusing to hire someone. She said she rejects anyone who refuses to answer her Crimea question, and anyone who won't discuss politics more generally.

Gannik’s post made quite a splash. In comments on Facebook, angry readers reminded her that opinions about Crimea have no bearing on a person’s professional qualifications, and refusing to hire someone because of their political views violates both labor regulations and Russian criminal law. Critics say Gannik not only tarnished her personal reputation, but also disgraced Otkritie and Tochka. Some people even promised to move their money to different banks, in protest.

Two days later, Gannik published a detailed explanation, writing that she “loves her country and recognizes its laws,” and believes that Crimea belongs to Russia “factually and legally.” She also denied that she’s ever refused to hire someone because of their political views, insisting that her Facebook post had been misinterpreted.

Non-Slavic appearance

The second chapter of the Russian Constitution says the state guarantees equal rights and freedoms “regardless of sex, race, nationality, language, origin, property and official status, place of residence, religion, convictions, membership of public associations, and also other circumstances.” A general ban on discrimination is enshrined in Article 5.62 of Russia’s Code of Administrative Offenses and Criminal Code Article 136. Offenders face fines as high as 300,000 rubles ($4,780), professional disqualifications for up to five years, and sometimes even prison sentences. The Labor Code also prohibits discrimination: employers cannot reject or restrict Russians because of their age, sex, ethnicity, religion, or beliefs.

Despite all these protections, many employers wrote explicitly in job postings as recently as a few years ago that they were looking for men, or for women, and indicated that the positions were for people of a “suitable age,” and so on. Between 2009 and 2010, the Center for Social and Labor Rights and the Higher School of Economics conducted several studies in major Russian cities, finding that roughly 70 percent of job vacancy advertisements specified some kind of discriminatory hiring policy. “It never even occurred to anyone that this wasn’t okay,” says Elena Gerasimova, the director of the Center for Social and Labor Rights and an associate professor at the Higher School of Economics. “People were aware that we’ve banned discrimination, but they still wrote these job postings.”

In 2013, lawmakers expressly banned employers from advertising jobs that specify requirements for age, sex, ethnicity, skin color, marital status, membership of public associations, or other qualities with no professional bearing. For the past five years, anyone who indicates discriminatory hiring practices when promoting a job vacancy faces an administrative fine. Mikhail Tarasenko, a member of the State Duma’s Labor Committee and the author of the 2013 amendments, acknowledges that the reforms didn't eradicate discrimination completely, but he says they have discouraged some companies. “There are unscrupulous employers who want a staff of nothing but salesgirls in their twenties,” Tarasenko explained. “And there are people who are law abiding and simply didn’t know this is against the law. Now they’ll accept applicants from people in their twenties and their thirties.”

Despite the legislative reforms, Russians still encounter job postings today that describe openly discriminatory hiring practices. In May 2018, an ad appeared in an employment group on Facebook promoting a vacancy at the “Kafeterius” cafe at Moscow’s Art. Lebedev Studio. To apply for the job, you needed “at least one year’s experience, a love of people, and a Slavic appearance.” Many Internet users expressed outrage that the company wouldn’t even accept applications from “non-Slavs,” but more than a few defended the discriminatory policy, arguing that employers have the right to make such demands if “clients feel more comfortable” when being served by Slavs, or when the establishment’s “central vision” requires workers who look a certain way.

In Russia, you’re even more likely to encounter “Slavs only” discrimination in the housing market (especially in listings for vacant apartments and rooms). Alexander Verkhovsky, the director of the “Sova” research center, says most Russians prefer to ignore these advertisements, assuming that they can’t do anything to change the situation. “In other countries, people file lawsuits against the sites that post these ads, and the issue is resolved quickly,” Verkhovsky says. “Even if [a landlord] fights it in court, the lawsuit itself devastates their reputation. For us [in Russia], this still isn’t an issue that affects someone’s reputation. It’s not considered disgraceful here to post this kind of thing, and, until it is, we’ll keep seeing these ads.”

The elderly accountant

Just because a job posting doesn’t mention sex, age, or ethnicity, however, doesn’t mean an employer won’t make a hiring decision based on exactly these criteria. According to Elena Gerasimova, job applicants say employers “pretty frequently” turn them down because of their age or their sex. “When HR works with specific candidates, they’re operating with these criteria and they’re brushing off [unsuitable] candidates,” Gerasimova explains.

Yuri Stupko is an accountant from Voronezh. In 2006, he started looking for a job, after taking some time away from work to care for his elderly parents. He was 57 and had 30 years of experience under his belt. Before returning to the labor market, Stupko took some career development courses and registered with a local employment service, which sent him for an interview at a company seeking a new accountant. The posted salary was 15,000 rubles a month, and there weren’t any additional requirements listed in the job advertisement. Stupko walked out of the interview with a formal rejection, where the company had written to the employment service that he “didn’t fit the age category.” Igor Sivoldayev, the lawyer who later defended Stupko in court, says his client was also rejected for being a man: the company wanted to hire a woman.

Stupko decided to challenge his rejection, and he actually won his lawsuit. Sivoldayev says it was Russia’s first successful discrimination litigation, and the case attracted significant public attention. But Stupko would never get his compensation.

A appellate court upheld only half of the initial ruling, dismissing the sex discrimination conviction. Stupko’s lawyer says his client was still supposed to receive roughly 190,000 rubles (a large sum of money, at the time), “but the employer apparently hired specialists to ‘offload’ the firm, transferring all assets and property to another business, and then ‘zeroed out‘ the debtor company, before re-registering to proxies in another, far away region of the country.” In the end, Yuri Stupko never got a kopeck from the company that illegally refused to hire him, and he failed to get the authorities to hold its owners and managers accountable.

In 2008, Russia’s official newspaper of record, Rossiiskaya Gazeta, wrote that Stupko never managed to find work and planned to retire. He’d apparently given up on the news media, as well, after appearing on the TV talk show “Pust Govoryat” (Let Them Talk), where he felt he was “ridiculed and insulted,” according to his lawyer.

Traditional values

Stupko was “lucky” to have paperwork documenting the official reason that he wasn’t hired. Elena Gerasimova says this is one of the few cases where you can take the matter to court and expect to win. She recalls a similar case from 2013, when her center defended a man of northern heritage who was refused a job as a cafe waiter on the grounds that he is “a Russian citizen but not of Slavic appearance.” Like Yuri Stupko, this person had a document submitted to his local employment office stating the official reason that he wasn’t hired. He, too, won his court case.

When discrimination isn’t documented in official paperwork, however, it’s almost impossible to prove in Russian court. Gerasimova says even a tape recording won’t do you much good: “They’ll say it was just the interviewer’s personal opinion, and that he made a mistake.” Formal correspondence and instant message records won’t likely sway the judge, either.

Three years ago, a man from St. Petersburg (who asked Meduza not to reveal his name) planned to move to Moscow and find a job. He published his resume on a popular recruitment website, where a woman representing a potential employer found his information and contacted him, wanting to talk about a job. She interviewed him over Skype, and later she said her company promised to make him a formal offer. “They told me that they wanted me to start as soon as possible,” the man remembers. “Plus they said they were willing to help with the ticket to Moscow and even reimburse me partially for housing costs in the city.” The offer sounded good, and he says he was ready to take the job.

The woman later asked the man for a hyperlink to his profile on social media, so she could “get in touch quickly.” That same evening, he got an email from her that read, “Wait, you’re not gay, are you?” He’d shared several photographs of himself with his boyfriend on his profile page, and the woman felt it was necessary to “get clarity about his orientation.”

“I tried to find out why it mattered,” the man told Meduza, “but she answered that she couldn’t hire me because the company adhered to certain traditional values. She stopped responding to me on social media and sent me roughly the same explanation in an email.”

The incident was so enraging that the man decided to take the company to court — not because he wanted to work there or win compensation, but to “create a precedent.” He says he was almost certain that his lawsuit would fail, but he believed his case would help “make it clearer what is happening in this country.” Russians might already know about gay school teachers losing their jobs, but did they know employers outside education and childcare also get away with refusing to work with gay people?

As evidence, he submitted a notarized copy of his correspondence with the company’s representative, but his attorney couldn’t prove in court that the woman had been authorized to conduct hiring negotiations for the firm. It didn’t make any difference that she had responded to his resume, invited him to an interview, talked to him on Skype, and corresponded with him from a corporate email address.

Over the next three years, this man lost his case and every subsequent appeal. He says the situation not only outraged him, but frightened him. At his next job (yes, he was able to find work, eventually), he says he didn’t even try to make friends at the office, closing his profiles on social media and erasing his list of friends. He says he also started going to a psychologist.

But he still believes he’ll get justice in the end, and in March 2018 the European Court of Human Rights agreed to hear his appeal. According to Max Olenichev, a lawyer for the St. Petersburg LGBT rights group “Vykhod,” this is the first Russian case involving hiring discrimination against a gay person to reach the ECHR.

The burden of proof

In Russia, litigating discrimination cases is almost always a grueling process that typically achieves very little, even when successful. At best, the court acknowledges that discrimination took place and awards a symbolic financial compensation. For example, when a gym in St. Petersburg was convicted of discriminating against a transgender woman in December 2016 by refusing to renew her membership, it was ordered to pay her 10,000 rubles ($160) and offer her a membership renewal. (She turned them down, however, having found another gym by then.)

Elena Gerasimova says the situation in Russia is complicated by the fact that discrimination victims are expected to prove that their rights were violated. In many countries, including the United States, she says, the burden of proof in labor discrimination cases falls on employers, not workers, meaning that businesses have to demonstrate proactively that they don’t discriminate. “It’s not a panacea, but at least it encourages employers and organizations to think about avoiding problems in this area,” saysAlexander Verkhovsky. “It doesn’t even matter that they’re thinking about these people or those people. It’s not a question of people’s private racism or sexism, but their financial interests.”

Verkhovsky says various European authorities have repeatedly advised Russia to adopt not only a declarative law against discrimination, but also explicit regulations explaining how discrimination lawsuits should work. In addition to the burden of proof, which currently lies with the claimant, Russian officials need to articulate what generally qualifies as evidence in discrimination cases.

To prove human rights violations in the workplace, you often need to compare the treatment of one person to someone else in similar conditions. In countries where human rights law is well developed, lawyers can turn to labor statistics, for instance, to learn who works where and how much they earn. In Russia, this kind of data is almost impossible to get; employers refuse to provide attorneys with information about their staffs, citing personal data protections and commercial secrecy.

Even when lawyers somehow get access to this information, Russian courts dismiss it as “irrelevant to the case,” says Elena Gerasimova. Instead, judges look almost exclusively to the country’s regulatory bylaws. Attorneys who have worked discrimination cases in Russia say this is a serious procedural obstacle, and removing it would require reforms to the Civil Code and a revised definition of discrimination itself. “It’s incomplete and incomprehensible,” says Gerasimova. “It argues that a violation of someone’s rights is discrimination, but unequal treatment unrelated to a rights violation isn’t. That is wrong.”

In recent years, Russia’s most striking example of workplace discrimination was a case brought by the Aeroflot flight attendants Evgeniya Magurina and Irina Ierusalimskaya, who accused the company of showing favoritism to younger, thinner stewardesses. Formally, all Aeroflot attendants spend the same required number of hours in flight, but in practice younger and thinner employees are typically assigned five long flights a week (to the U.S., for example), while larger women and stewardesses over 40 have to work more flights (shorter flights) on less prestigious routes. Aeroflot was giving the grunt work to women with more wrinkles and bigger waistlines.

Lawyers for the flight attendants managed to win the lawsuit against Aeroflot on appeal, showing that the airline used age and physical data to determine employees’ salary bonuses. The company never admitted that its policies were discriminatory, insisting that its weight categories for stewardesses were merit-based. In the end, Aeroflot was ordered to abandon its company policy of factoring in flight attendants’ weight when awarding bonuses, and the airline also had to compensate stewardesses for pecuniary and non-pecuniary damages.

No complaints, no problem

When it comes to discrimination in Russia, there are no precise statistics. Even the judicial record is fuzzy. Human rights lawyers told Meduza that relatively few cases on these grounds are ever heard, and fewer still are ever won. Because court rulings are treated as one of the main indicators for the presence or absence of a particular social phenomenon, it’s sometimes said that Russia has no discrimination.

On May 14, 2018, Russia submitted a report to the United Nations on its observance of human rights over the past five years. Justice Minister Alexander Konovalov said many supposed cases of human rights violations in Russia are not in fact human rights violations, arguing that things are improving throughout the country. The report even says the negligible number of discrimination lawsuits in Russia demonstrates the effectiveness of measures taken by the state.

Elena Gerasimova says the only real “sign of progress” in the past several years was the 2013 ban on job vacancy advertisements mentions sex, age, and other discriminatory hiring requirements. “There’s been nothing else,” she says. “Our Center for Social and Labor Rights and a few other organizations have been busy in this field, developing a ton of proposals. There have been studies and there are recommendations. But the situation is what it is because nobody wants to change anything. For example, there’s a government program to support women, but they’re putting all their efforts into backing away from pro-equality rhetoric and going in a more patriarchal direction.”

Activists and attorneys are trying to fill the vacuum by investigating the problem on their own. In March 2018, the Russian LGBT Net published a monitoring report on discrimination and violence in Russia. The researchers found that 17.3 percent of respondents (653 people) said they’d encountered discrimination in the workplace because of their sexual orientation or gender identity. Of these individuals, 512 were fired for homophobic reasons, and another 49 people weren’t hired at all.

Experts say most offenses go unreported because many Russians don’t want to defend their rights publicly. This is especially true for vulnerable groups like LGBT people, people with disabilities, and people living with HIV. “Society often says, ‘So what? Nothing even happened!‘” explains “Vykhod” lawyer Max Olenichev, who says people don’t feel the need to go to court because they know it won’t help. Legal representation isn’t cheap, moreover, and the available court statistics don’t justify much optimism in this pursuit.

Elena Gerasimova also says the Russian justice system’s lousy record keeps victims from speaking up: “You don’t find many truth-seekers who will go to court on principle, just to prove that, yes, discrimination happens.”