Creating outcasts

We asked lawyers if it’s legal for Russian employers to reject ‘foreign agents’

On August 30, iStories journalist Alesya Marokhovskaya wrote on Facebook that the Moscow-based nonprofit Information Culture had uninvited her to work as a mentor at a hackathon. The organization backpedaled on offering Marokhovskaya the gig after the Russian Justice Ministry designated her as a “foreign agent.” Information Culture’s staff told Marokhovskaya that their lawyers had advised them against signing a contract with a “foreign agent,” because it could create risks for the nonprofit organization itself. Meduza asked lawyers and labor law experts to weigh in on whether or not this decision is legal, and whether or not it constitutes discrimination.

Ksenia Mikhaylichenko

Lawyer, head of labor law practice at SZP Law Boutique

In this situation there’s one important question: what kind of contract was initially offered to Alesya Marokhovskaya — an employment contract or one of a civil-legal nature?

If Information Culture made her a job offer, that is, concluded an employment contract for some kind of work on a permanent basis, then this falls under Article 3 of the Russian Labor Code, which prohibits discrimination on a number of grounds during hiring. “Foreign agent” status isn’t included on this list, but the list is open. Therefore, in my opinion, refusing to hire someone for a job on the grounds that “you have foreign agent status” is discrimination and is illegal.

However, if Alesya was initially offered a civil-legal contract, for example, to provide a one-time service, then this situation falls under the Russian Civil Code, which has no such concept of “discrimination.” In this case, the client is free to choose the contractor and can arbitrarily refuse to conclude a civil-legal contract.

As of yet, it’s difficult to accurately predict the risks for potential employees receiving job applications from “foreign agents,” because the practice of assigning this status to individuals is new. There has yet to be a situation where an employer was designated as a “foreign agent” after hiring a “foreign-agent individual.” But since the government hasn’t directly spoken on this issue so far, I think that employers will be afraid to hire “foreign agents” as employees — and proving discrimination will be fairly difficult, since companies are unlikely to directly state their reason for rejecting them.

Pavel Chikov

Head of the international human rights group “Agora”

As far as I understand, this situation doesn’t concern an employment contract, but rather one-time participation in a hackathon, so labor law doesn’t apply here.

In any case, discrimination based on “foreign agent” status is illegal. Moreover, in its first ruling on the “foreign agents” law in 2014, the Constitutional Court neatly bypassed the question of the discriminatory nature of this law, but said that in general, there should be no discrimination in connection with it.

The big problem is how to prove discrimination, because no one ever directly says that they’re refusing to hire someone because of their skin color, origins, religion, nationality, or “foreign agent” status. Their explanations are always evasive or formally on some other grounds. And in order to go to court and have the rejection deemed illegal, you need evidence, such as an audio recording or an email.

I’m almost certain that if a lawyer or journalist were to ask Information Culture to confirm the reports that they refused to sign a contract with Alesya Marokhovskaya because she was assigned “foreign agent” status, the organization would refuse to confirm it. Because if they confirm it, this will be a matter for the courts. Moreover, violating the equality of citizens falls under [Article 136] of the Criminal Code.

If Marokhovskaya has evidence that she was rejected precisely because of her “foreign agent” status, then she has a good chance in court, because this is 100 percent discrimination. Again: this is prohibited by the Constitution and the law, under threat of criminal prosecution and being obliged to pay compensation for moral damages.

Predicting law enforcement practice is a thankless task. Whether it’s risky for an employer to hire a “foreign agent” depends on what job this person will perform. If a “foreign agent” journalist is hired to work as an office manager or in a kitchen, that’s no problem. But if you hire a journalist to perform journalistic work, then you have to label all of their articles. The owners of publications are likely reluctant to take on this requirement. They don’t want to risk the possibility of being charged with a misdemeanor offense if at sometime they forget to do this.

Galina Arapova

Director of the Mass Media Defense Center

Alesya’s Marokhovskaya case is pure discrimination! I think that’s what it’s all about. And there’s multiple levels of discrimination, in fact. “Foreign agents” are prohibited from many things, and so far a lot of the restrictions were mainly aimed at “foreign-agent NGOs.” Now we’re seeing the same discriminatory attitude toward journalists designated as “foreign agents.” We can expect more of this in the future, because a registry of ordinary “foreign-agent individuals” is in the pipeline. I think they will be denied employment without specific reasoning.

That said, formally, according to the law, there are only restrictions on hiring “foreign agents” to work in the federal civil service and municipal civil service.

Having a person with “foreign-agent media” status on staff doesn’t entail any consequences or burdens for employers, either from a tax perspective or any other perspective. If a “foreign-agent journalist” gets a job, the only place their status will appear is in this 24-word disclaimer on the publications they author. And that’s it.

This is a shameful fear in the business sphere, which is picking up signals from the government and doesn’t want to associate with “foreign agents,” even if there’s no direct ban. But I fear this was the calculation: create a caste of outcasts in society, while publicly pretending that this status does no such thing, we aren’t discriminating against anyone.

Interviews by Irina Kravtsova

Abridged translation by Eilish Hart