Workplace Anti-Discrimination and Equal Pay Laws in Mexico

Transcription

1 Page 1 of 49 Commission for Labor Cooperation Comisión para la Cooperación Laboral Commission de Coopération dans le domaine du travail Secretariat Secretariado Secrétariat Workplace Anti-Discrimination and Equal Pay Laws in Mexico I. INTRODUCTION... 2 A. Historical Context... 3 B. Jurisdiction... 4 C. Legal Sources of the Labor System ) Political Constitution ) International Legal Instruments ) Federal Labor Law, (Ley Federal del Trabajo, LFT) ) Other Legal Provisions i)federal Law for Prevention and Elimination of Discrimination ii) Criminal Legislation: Labor Discrimination Crimes iii) General Law for Persons with Disabilities II. MEASURES TO ELIMINATE EMPLOYMENT DISCRIMINATION A. Labor Principle 7 of NAALC: Elimination of Workplace Discrimination ) Prohibited Grounds for Discrimination B. Labor Principle 8 of NAALC: Equal pay for women and men ) Equal Pay for Equal Work C. Definition of Discrimination ) Types of Discrimination ) Defenses ) Defenses to the Principle of Equal Pay D. Employment Practices Covered by Prohibitions against Discrimination ) Employer Practices i) Hiring ii) Labor Conditions iii) Promotion iv) Dismissal 2) Union Practices ) Worker Practices ) Exclusions from Coverage E. Extent of Employers Legal Responsibility F. Specific Application Measures ) Maternity Protection ) Positive or Affirmative Action G. Protections against Interference in the Exercise of Rights

2 Page 2 of 49 III. GOVERNMENT ENFORCEMENT OF LAWS A. Administrative Labor Authorities ) Federal Labor Authorities ) State Labor Authorities B. Conciliation and Arbitration Boards (JCA) C. Labor Protection Agency D. National Council for the Prevention of Discrimination IV. PRIVATE ACTION A. Access to Administrative Tribunals B. Access to Judicial Courts V.PROCEDURAL GUARANTEES AND APPEALS TO ENSURE ENFORCEMENT40 A. Procedural Guarantees ) Procedural Protections before the JCA ) Independence and Impartiality of Decision Makers ) Free Legal Representation B. Appeals and Judicial Reviews ) Appeal for Constitutional Relief C. Sanctions and Remedies VI. PUBLICATION MEASURES A. Publication of Laws, Regulations, Procedures and Administrative Rulings B. Participation in the Legislative Process VII. PUBLIC INFORMATION AND AWARENESS A. Availability of Public Information B. Public Dissemination C. Private Information Sources D. NAALC Cooperative Activities BOXES Box 1: Federal Jurisdiction in Mexican Labor Law 5 Box 2: ILO Conventions 11 Box 3: Civic Commission on Studies against Discrimination...15 Box 4: Conditions for Justified Job Termination...32 Box 5: Conditions for Justified Job Resignation...33 Box 6: Conciliation Proceedings between Individuals..38 2

3 Page 3 of 49 Workplace Anti-Discrimination and Equal Pay Laws in Mexico I. INTRODUCTION A. Historical Context For some authors, the roots of the struggle to eliminate employment discrimination in Mexico can be traced to two labor strikes that took place at the beginning of the 20 th century: at Cananea in the state of Sonora on June 1, 1906, and at Rio Blanco in Orizaba, Veracruz, on January 7, On both occasions, Mexican workers included among their demands that they receive pay and treatment equal to those being provided to privileged foreigners. The two strikes triggered the Mexican Revolution, which brought down the government of President Porfirio Diaz. In other words, the struggle against workplace discrimination played a central role in the broad social movement that swept Mexico at that time. The 1917 Constitution that emerged from the Mexican Revolution was the first in the world to incorporate economic, social and cultural rights. In the Constitutional Congress of Queretaro, 2 the discussion centered as much around working conditions, particularly equal treatment and the rights of female workers, as it did around the issue of land rights. For example, Article 4 recognized that men and women were equal under the law and Article 123 established minimal working conditions for all workers. Moreover, Article 123 also incorporated the principle of equal pay for equal work, as well as provisions for protecting the work of women and minors, and these standards would later be adopted as guiding principles for the country s labor legislation. In spite of this important advance for labor rights, the principle of equal pay for equal work (wage equality) would remain unacted upon until the promulgation of the second Federal Labor Law of In this new federal legislation, the principle of equality would be extended to labor conditions and would become the guiding principle of Mexican labor law. 1 Nestor de Buen L., Derecho del Trabajo [Labor Law], V. I, 13 th edition, (Mexico: Editorial Porrúa 2000), pp The Constitutional Congress met to deliberate in the city of Queretaro, where its members discussed and approved the Constitution. 3

4 Page 4 of 49 It is worth noting, however, that neither the presence of the general principle of equality nor the presence of the principles of equal pay for equal work and equal working conditions in federal labor legislation was translated into specific regulations governing the different aspects of discrimination in the workplace. It was not until 2002 perhaps because of the growing emphasis Mexico had been placing on human rights issues for two decades that the first general legislation covering the elimination of discrimination, including that in the workplace, was promulgated. Unlike in Canada, however, under the Mexican Constitution the authorities charged with defending human rights (human rights Commissions or Attorneys General) are not considered competent to handle employment discrimination issues. In Canada, for the most part, legal standards against employment discrimination are contained in human rights codes and are enforced by human rights commissions and tribunals. B. Jurisdiction Article 123 of the original version of the Mexican Constitution granted state congresses the power to issue their own labor laws. The 1929 reform of Articles 73, Section X, and 123 of the Constitution, which granted the federal congress exclusive power to promulgate labor laws. Under these terms, the first Federal Labor Law (Ley Federal del Trabajo, LFT) was enacted in 1931 to regulate the basic labor rights recognized by Article 123 of the Constitution. Ever since, both Article and the LFT, which provides the regulations that implement Article 123, have been applicable throughout the country. In reference to labor law enforcement, Section XXXI was added to Article 123 in 1941 in order to establish shared responsibility between federal and local governments in the enforcement of labor law: it expressly stipulates the competence of local authorities in enforcing general labor matters and the competence of federal labor authorities in enforcing labor issues pertaining to industrial and raw materials production. (See Box 1.) 3 Today, Article 123 of the Constitution consists of two sections, A and B. The first regulates labor relations in the private sector and decentralized public entities. The second, added in 1960, regulates labor relations of civil servants (those who work for agencies of the Federal and Federal District governments). 4

5 Page 5 of 49 Box 1 Federal Jurisdiction in Mexican Labor Law Article 123 (A), Section XXXI of the Mexican Constitution states: Labor law enforcement corresponds to the authorities of the states in their respective jurisdictions, but the following matters remain within the exclusive competence of the federal authorities: a) Branches of Industry and Services: 1. Textiles; 12. Automotive Electrical; 13. Chemical Cinematography; 14. Pulp and paper; 4. Rubber; 15. Vegetable oils; 5. Sugar; 16. Packaged food processing Mining; 17. Brewing Foundries and steel mills Railroads; 8. Energy; 19. Lumber Petrochemical; 20. Glass Cement; 21. Tobacco Limestone; 22. Banks and credit unions. b. Enterprises: 1. Those administered directly or in decentralized form by the federal government; 2. Those operating by virtue of a federal contract or concession, and connected industries; 3. Those operating in federal zones or under federal jurisdiction, in territorial waters or in those included in the exclusive economic zone of the Nation. Also within the competence of the federal authorities are enforcement of labor laws in matters related to disputes that affect two or more federated entities [states]; collective agreements that have been declared mandatory in more than one federated entity; employer obligations in educational matters under the terms of the law, and with respect to employers obligations in matters of training and skills development, as well as safety and health in the workplace, for which the federal authorities shall have the assistance of state authorities when it concerns branches or activities within state jurisdiction, according to the terms of the relevant regulatory law. In Canada, with minor exceptions, the Constitution divides legislative jurisdiction to regulate employment. The federal Parliament has exclusive authority to regulate the federal public sector and private industries in specified areas, such as telecommunications and banking. Approximately 10 percent of the workforce falls under federal jurisdiction. Provinces regulate all other workers. Each province has its own anti-discrimination laws and enforcement agencies. In the United States, workers are protected from discrimination by both state and federal constitutions and laws, which are enforced by relevant federal and state government agencies and courts. 5

6 Page 6 of 49 C. Legal Sources of the Labor System The principal formal sources of the Mexican labor system in the private sector 4 are the Constitution, the international treaties to which Mexico is a party, and the Federal Labor Law (LFT) and its regulations. However, there are also other legal provisions that, though not exactly sources of labor rights, deal with matters of employment discrimination, such as the Federal Law for Prevention and Elimination of Discrimination (Ley Federal para Prevenir y Eliminar la Discriminación, LFPED) 5, and certain criminal provisions. (See Section 1.C.4.) Section 15 of the Canadian Constitution provides a broad right to equality, banning discrimination on numerous grounds, such as race and sex It also protects affirmative action programs that seek to ameliorate the conditions of economically disadvantaged groups. These provisions protect government workers from discrimination in the workplace. Moreover, when governments pass legislation regulating employment matters, these laws must conform to Section 15. All governments have passed laws that protect Canadian workers from employment discrimination, and these laws usually go beyond the constitutional requirements. The U.S. Constitution does not mention any specific prohibition against discrimination in the workplace, although its guarantees of equal protection and due process have been applied to protect government employees from discrimination in the workplace. Beyond the U.S. Constitution, however, workers in the United States are protected from employment discrimination by state constitutions and a wide array of federal, state and local legislation. Thus, workers in the U.S. can look to many different laws and many different state and federal government agencies and courts to enforce their rights. The Constitution, the highest source of rights and obligations, is the fundamental body of standards from which laws regulating the country s legal regime are derived. Article 133 of the Constitution, by indicating the following, contains a principle of legal supremacy: This Constitution, the laws of the Congress of the Union that stem from it and all Treaties in agreement with it, signed by the President of the Republic with Senate approval, will be the Supreme Law throughout the Union. Every State judge will follow 4 Labor relations in the public sector are foreseen in section B of Article 123 of the Constitution, and regulated by the Federal Civil Service Law (Ley Federal de los Trabajadores al Servicio del Estado). In the particular case of bureaucratic workers, the Constitution does not give the federal congress exclusivity in promulgating labor standards. For that, state legislatures may issue and apply their own labor laws. 5 Official Gazette of the Federation DOF, June 11,

7 Page 7 of 49 the Constitution and these laws and treaties, in spite of resolutions contrary to what may be decreed in the Constitutions or laws of the States. International treaties in agreement with the Constitution therefore must be complied with and enforced throughout the country, as such treaties rank immediately below the Constitution itself, and are therefore, hierarchically superior to other federal, general or state laws. Federal laws, for their part, must derive from the principles established by the Constitution, for their purpose is to regulate the implementation of those principles. By contrast, in cases for which there is no express provision in the Constitution, in international treaties signed and ratified by Mexico, or in the LFT and its regulations, Article 17 of the LFT specifies that all of the following be taken into consideration: the provision of law that regulates similar cases, general principles of law, general principles of social justice created by Article 123 of the Constitution, case law, jurisprudence, custom and equity. Even though the Mexican legal system follows a tradition of civil law in which judicial decisions do not necessarily create an obligatory precedent for judges, case law created by federal judicial authorities constitutes a secondary legal source that deserves further explanation. Case law is founded on the interpretation that the Constitution and laws give highest rank to federal jurisdictional bodies. A precedent is established when five consecutive identical final and binding judgments exist, without disagreement, on matters with identical characteristics 6. Case law is also established when the National Supreme Court (Suprema Corte de Justicia de la Nación, SCJN) issues a decision on two contradictory judgments that decided similar cases; this is known as case law by contradiction. The Constitution itself stipulates the obligatory nature of case law of the SCJN and the Circuit Courts (Tribunales Colegiados de Circuito) 7, whose regulation is established in the Law for Constitutional Relief 8 (Ley de Amparo). Regarding labor issues, both the SCJN and the Circuit Courts have issued diverse case law opinions and criteria whose application is mandatory for labor authorities in charge of administering labor justice. Generally, the United States and Canada are common law systems, which means that decisions of courts and tribunals (case law) establish precedents and give authoritative interpretations of protected rights and procedures. In Canada, the province of Quebec has a Civil Code. 6 Criteria established by case law lose their precedential nature once an order is handed down that runs contrary to the criteria (Article 194 of the Law for Constitutional Relief (Ley de Amparo), which implements Articles 103 and 107 of the Political Constitution of the United Mexican States). 7 The Circuit Courts (Tribunales Colegiados de Circuito) are federal courts for protections and appeals and the only authorities empowered, along with the SCJN, to decide case law. 8 The Law for Constitutional Relief (Ley de Amparo) implements Articles 103 and 107 of the Constitution. 7

8 Page 8 of 49 Finally, the opinions and doctrine developed by respected jurists, usually labor law professors or legal researchers, though not formally constituting legal sources of labor rights, are taken into consideration and occasionally cited when arguing and resolving labor disputes. 1) Political Constitution As a product of the 1910 social revolution that included the struggle for the dignity of work and the worker, the Mexican Constitution established the fundamental basis for eliminating both discrimination in the work place and wage inequality between men and women performing work of equal value. Protection against discrimination is based on the principle of equality. From its initial version on, Article 123, referring to social guarantees for the working class, set out various principles of protection for worker equality. As indicated in Article 123 s introductory paragraph, every person has the right to dignified, socially useful work. Section VII 9 of the article goes on to stipulate that there should be equal wages for work of equal value, regardless of a worker s sex or nationality. It also establishes special protections for female workers during pregnancy and for workers that are minors. In contrast to the Mexican Constitution, the Constitutions of Canada and the United States do not contain express provisions relating to labor, such as pregnancy leave or equal pay for equal work. However, the United States Constitution guarantees equal protection of the laws, and the Canadian Constitution guarantees broad equality rights. These provisions support legislation outlawing various forms of discrimination. The principle of equality was also grounded in certain individual guarantees. Article 1, for instance, grants all individuals the right to enjoy the guarantees established in the Constitution, and Article 4 establishes the equality of men and women under the law. However, with the reform of Article 1 in 2001, Mexico for the first time incorporated the right not to be discriminated against into its Constitutional framework. 10 A third paragraph added to that article establishes the following: All discrimination based on ethnicity, nationality, gender, age, special needs [different capacities], social condition, health, religion, opinions, preferences, marital status or anything else injurious to human dignity and intending to annul or diminish the rights and liberties of persons is prohibited. Under these terms, in conjunction with the express recognition of the right 9 Note that with the 1960 reform, which creates two sections out of Article 123 of the Constitution, the numeral VII referred to now belongs to section A. 10 Reform published in the Official Gazette of the Federation DOF, August 14,

9 Page 9 of 49 not to be discriminated against, the reform of Article 1 extended protection against all forms of discrimination to other vulnerable groups. Likewise, as a result of the reforms made to the Constitution regarding rights and indigenous culture, Article 2 11 also was completely reformed in 2001; section B now establishes the obligation of Mexico s federal, state and municipal authorities to promote equal opportunity and elimination of all discriminatory practices for indigenous people. It also states the obligation of these authorities to establish social policies to protect the labor rights of indigenous migrant workers who are employed as agricultural daylaborers, in both national territory and overseas. 2) International Legal Instruments As provided for in the Constitution, the international treaties signed by the President of the Republic and ratified by the Senate are the source of rights in the Mexican legal system. Article 6 of the LFT establishes that these treaties will be applicable to labor relations and that in cases where there is any question, the most favorable or beneficial interpretation for the worker should prevail. Canada has signed and ratified many international conventions that pertain to labor matters. International treaties in Canada do not automatically become part of domestic legislation. However, they influence the enactment of laws, and Canadian courts and tribunals consider Canada s international treaty obligations in interpreting domestic legislation. The issue of the hierarchy of international treaties and how they relate to federal laws has been amply discussed. Nonetheless, the National Supreme Court, through definitive case law opinions, determined that international treaties rank immediately below the Constitution and above federal and local laws 12. In its opinions, the National Supreme Court reasoned that, because international commitments are assumed by the entire country, all of its authorities are therefore obliged to abide by those commitments. Concerning the treaties that Mexico has entered into regarding discrimination and equality in the workplace, among the most important that directly allude to labor are those entered into under the auspices of the International Labor Organization (ILO). 11 Official Gazette of the Federation DOF, August 14, Opinion P. LXXVII/99, Plenary Supreme Court, Ninth Period, Federal Judicial Bulletin and Gazette, Volume X, Page 46, Constitutional Matters, November This opinion, supported by the full Supreme Court, abandons previous criteria that considered federal laws and international treaties to be equally binding (Opinion P. C/92, Plenary, Eighth Period, Federal Judicial Bulletin Gazette, Number 60, Page 27, December 1992). 9

10 Page 10 of 49 Beginning with the Philadelphia Declaration of 1944, concerning the purposes and objectives of the ILO, the guiding character of the organization could be glimpsed in what it could offer workers in the way of equal opportunity and freedom from discrimination. The Declaration states in part II, section a, that all human beings, regardless of race, creed or sex, have the right to seek their material well-being and spiritual development in an environment of liberty and dignity, economic security and equal opportunity. ILO conventions signed by Mexico that provide for the right to equal conditions and opportunities, as well as specific protections against work place discrimination, include the following: Convention Number 19 of 1925, 13 regarding equal treatment for work place accidents; Convention Number 100 of 1951, 14 regarding equal pay; Convention Number 111 of 1958, 15 regarding occupation and employment discrimination; Convention Number 118 of 1962, 16 regarding equal treatment for nationals and foreigners concerning social security; Convention Number 159, 17 regarding employment and professional rehabilitation for disabled persons; and lastly, Convention Number 169 of 1989, 18 regarding indigenous peoples and tribes in independent nations. Some of the ILO Conventions mentioned expressly prohibit discriminatory conduct, such as Conventions 111 and 169. Others establish obligations for member nations in terms of principles of equality, such as in Conventions 19, 100, 118 and 159. (See Box 2). 13 Ratified on May 12, 1934 and published in the Official Gazette of the Federation DOF on August 7, Ratified on August 23, 1952, and published in the Official Gazette of the Federation DOF on October 9, Ratified on September 11, 1961, and published in the Official Gazette of the Federation DOF on August 11, Ratified on January 6, 1978, and published in the Official Gazette of the Federation DOF on February 15, Ratified on April 5, 2001, and published in the Official Gazette of the Federation DOF on May 22, Ratified on September 5, 1990, and published in the Official Gazette of the Federation DOF on January 24,

11 Page 11 of 49 Box 2 ILO Conventions Convention 19 establishes the obligation of member states of this convention to grant to workers that are nationals of any other member state, if the worker has suffered a work place accident in their territory, the same treatment given to their own nationals in terms of workers compensation. For this purpose, member states will be able to enter into corresponding special compensation agreements that will be governed according to the legislation of the member state in which the accident occurred. Convention 100, concerning equal pay, stipulates the obligation of member states to promote and guarantee the application of the principle of equal pay for men and women performing work of equal value. It also promotes, in the framework of the national methods established to determine wages, the objective evaluation of work. Convention 111, concerning workplace discrimination, describes conduct understood to be discriminatory in the workplace and encompasses issues such as access to professional training and the hiring process, as well as labor conditions. This agreement stipulates that member states are obliged to formulate policies, in agreement with their national practices and legislation, regarding equal opportunity and treatment in matters of employment and occupation, for the purpose of eliminating any discrimination. Convention 118, concerning equal treatment of nationals and foreigners in matters of social security, establishes the obligation of member states to treat, within their own territory, workers who are nationals of another state which is a member of this convention the same way as their own nationals. This concession will be observed in terms of national legislation, in both hiring requirements and the right to receive benefits, throughout all branches of social security (medical assistance, sickness benefits, maternity, disability, retirement, survivorship, work accidents and professional ailments, unemployment, and family coverage) that the member has accepted as part of the obligations of the agreement. Convention 159, concerning employment and professional rehabilitation for disabled persons, obliges member states to formulate policies for professional rehabilitation of disabled persons, and promotion of employment opportunities in the labor market. This convention establishes that policies implemented by member states should be based on the principle of equal treatment and opportunity for disabled workers and workers in general. It contemplates the introduction of imposed measures that seek to effect equal treatment and opportunity for disabled workers and all other workers. Finally, Convention 169, concerning indigenous peoples and tribes, provides for a section regarding hiring and employment conditions. This section stipulates that member states, in the framework of their national legislation, adopt special measures to guarantee protection of indigenous workers. In addition, they should implement the necessary measures to avoid any discrimination between such workers and other workers, especially regarding access to employment, equal pay for work of equal value, medical and social assistance, occupational safety and health, housing, and freedom of association and collective bargaining. In this way, governments will guarantee that indigenous workers, be they men or women, enjoy equal treatment and opportunity. 11

12 Page 12 of 49 Among the United Nations (UN) human rights treaties ratified by Mexico that make reference to the principle of equality and that prohibit discriminatory practices are the following: the Universal Declaration of Human Rights of December 10, 1948; the International Pact on Civil and Political Rights, 19 and the International Pact on Economic, Social and Cultural Rights. 20 Mexico also has ratified Organization of American States (OAS) treaties such as the American Declaration of Rights and Duties of Man, as well as the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, known as the San Salvador Protocol. 21 In particular, Article 23, section 2 of the Universal Declaration of Human Rights stipulates the right, without discrimination, of every person to enjoy equal pay for equal work. Article 26 of the International Pact on Civil and Political Rights establishes, among others, that all people are equal before the law and have the same right to legal protection, without any type of discrimination. The International Pact on Economic, Social and Cultural Rights establishes in Article 6 the right to fulfilling and productive work, and in Article 2 the obligation of member states to guarantee the rights stated in the Pact, without discrimination. With respect to the agreements, treaties or declarations that Mexico has signed regarding specific aspects of discrimination, they include: The Convention on Elimination of All Forms of Discrimination against Women 22, which includes a detailed group of obligations for member states, such as the implementation of measures to eliminate discrimination against women in the workplace. This convention includes labor protection for female workers and prohibits firing for reasons of pregnancy or maternity leave, as well as discrimination on the grounds of marital status. The International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, 23 which contains a large number of civil, political, social and economic rights for international migrant workers, and which, in referring to labor matters, stipulates a series of guarantees of equal treatment for these workers in relation to labor rights enjoyed by national workers of the country in which 19 Ratified on March 20, 1981 and published in the Official Gazette of the Federation DOF on May 20, Ratified on December 18, 1980 and published in the Official Gazette of the Federation DOF on May 12, Ratified on December 12, 1995 and published in the Official Gazette of the Federation DOF on September 1, (Enters into effect once 11 States ratify it or give their general support.) 22 Ratified on March 23, 1981 and published in the Official Gazette of the Federation DOF on May 12, Ratified on March 8, 1999 and published in the Official Gazette of the Federation DOF on August 13, By express provision of Article 87, the current convention will be in effect on the first day of the month following a term of three months from the date on which the twentieth instrument of ratification or support has been submitted. 12

13 Page 13 of 49 they are employed. In the same way, it requires respect and fulfillment of the rights foreseen in the same convention for migrant workers and families, without making distinctions on grounds of sex; race; color; language; religion or belief; political or other opinions; national, ethnic or social origin; nationality; age; economic situation; heritage; marital status; birth; or any other condition. The Inter-American Convention on the Elimination of all Forms of Discrimination against People with Disabilities, 24 which establishes the obligation of member States to implement the necessary measures to progressively eliminate discrimination and promote integration at work for this group of people. The International Convention on the Elimination of all Forms of Racial Discrimination, which establishes the obligation of Member States not to permit, promote, advocate or support any discrimination on the basis of race, color or ethnic origin, on the part of any group, institution or individual. It makes special mention of discrimination at work on these grounds, and it underlines that States must dedicate themselves to preventing such discrimination. 3) Federal Labor Law (Ley Federal del Trabajo, LFT) The LFT, the implementing law for Article 123 of the Constitution, is the principal set of standards that govern labor relations for workers in Mexico s private sector. The first such law was promulgated in 1931 and constituted the first federal labor legislation applicable across the entire nation. Like the Constitution, the LFT established from the beginning the foundation for worker protection against discriminatory conduct in the workplace and repeated the principle of equal pay for work of equal value established in Article 123 of the Constitution. However, it was not until the second LFT, approved in 1970 and still in effect today, that Article 3 set forth the principle of equality that would become the guiding principle of Mexican labor rights. 25 It stipulates: No distinctions shall be established between workers based on race, sex, age, religious beliefs, political doctrine or social condition. In addition to the general principle of equality stipulated in Article 3, the LFT established other specific measures regarding equality. For example, the right to equal labor conditions for equal work, established in Article 56; equal pay for work of equal value, stipulated in Article 86; and the prohibition against not hiring on the basis of sex or age, indicated in Article 133, part I. Likewise, there are regulations guaranteeing protection for women workers, such as the express guarantee of work equality for men 24 Ratified on January 25, 2001 and published in the Official Gazette of the Federation DOF on March 12, The principle of equality found in Article 3 of the LFT is considered by the law itself to be the guiding principle and source for its interpretation (Article 18 of the LFT). 13

14 Page 14 of 49 and women, indicated in Article 164: Women enjoy the same rights and have the same obligations as men. 4) Other Legal Provisions i) Federal Law for Prevention and Elimination of Discrimination As a result of the reform of Article 1 of the Constitution, the Federal Law on the Prevention and Elimination of Discrimination (Ley Federal para Prevenir y Eliminar la Discriminación, LFPED) was enacted in (See Box 3, Civic Commission on Studies against Discrimination.) As a result of this law, measures were established to prevent and eliminate all forms of discrimination, including creation of conditions that enable people to access truly equal treatment and opportunities. In this way, the law updates the international agreements adopted by Mexico, which include the prohibition of discrimination against women, adoption of suitable work conditions for disabled people, protection of minors and of indigenous people, and tolerance for religious diversity and sexual preference. Discriminatory acts can occur in the political, economic, work, social, cultural, marital, or any other sphere of public or private life. As such, this new law stipulates that legal action directly extends to include private locations in which there are discriminatory practices 26. Even though the law is directed against general discrimination, it also contains special provisions regarding discrimination that takes place in private sector workplaces. The discriminatory labor practices it prohibits include those related to access, permanence and promotion at work. It also prohibits conduct that establishes differences in pay, benefits and general labor conditions for equivalent work, as well as exploitation and degrading or abusive treatment. In the United States, each state and locality can enact its own fair employment practices legislation to prohibit employment discrimination. State and local laws may include prohibited grounds of discrimination beyond those covered by federal legislation. In Canada, each jurisdiction (federal, provincial and territorial) has enacted legislation that prohibits employment discrimination. The grounds vary among jurisdictions, but all include the grounds that are enumerated in Section 15 of the Canadian Constitution. 26 Gilberto Rincon Gallardo, La Discriminación en México: Por una nueva cultura de la igualdad, Informe General de la Comisión Ciudadana de Estudios contra la Discriminación [Discrimination in Mexico: Towards a new culture of equality, General Report of the Civic Commission on Studies against Discrimination] (Mexico: Civic Commission on Studies against Discrimination, 2001), p

15 Page 15 of 49 Box 3 Civic Commission on Studies against Discrimination The Federal Law on the Prevention and Elimination of Discrimination was a product of the work of the Civic Commission on Studies against Discrimination, a democratic organ created to form this law. This Commission consisted of 161 people, among which included representatives of the nation s main political parties, federal executive branch officials, members of the federal congress and members of the Federal District Legislative Assembly, leaders and members of human rights commissions, members of non-governmental organizations that fight discrimination, members of academic institutions and other specialists. To develop the law, the Commission divided its tasks into four areas (general, studies, law, and operations) to be undertaken by six subcommittees. The subcommittees covered: 1) comparative analysis of international legislation; 2) review of international agreements; 3) statement of reasons; 4) development of the legislation for Constitutional reform; 5) development of the National Advisory for Discrimination Prevention project, and 6) development of legal reforms needed to adapt national standards to the new law for prevention and elimination of discrimination. ii) Criminal Legislation: Labor Discrimination Crimes Legal protection to counteract discrimination in the workplace sometimes exceeds the limits of the labor field and extends into other legal areas. Such is the case of the Criminal Code for the Federal District, 27 which for the first time in 1999 considered labor discrimination on the basis of age, sex, pregnancy, marital status, race, language, religion, ideology, sexual orientation, skin color, nationality, social origin or position, work or profession, economic position, physical characteristics, disability or state of health as a crime against the dignity of persons. Penalties imposed for this crime range from fines to imprisonment or community service. With the passage of the new code in 2002, discrimination based on ethnic origin was also prohibited. The importance of treating workplace discrimination as a criminal matter is underscored by the fact that the Federal District is the urban area in which the greatest numbers of the country s inhabitants reside. In this respect, Mexico s Congress of Deputies is currently studying an initiative to criminalize the workplace discrimination experienced by different vulnerable groups. iii) General Law for Persons with Disabilities For the purpose of establishing the foundation for allowing persons with disabilities to achieve equal opportunity, the federal legislature passed the General Law on Persons with Disabilities. 28 Although it is not a law concerning discrimination in 27 Official Gazette of the Federation DOF, July 16, Official Journal of the Federation of June 6,

16 Page 16 of 49 general, said legislation provides the law that supports disabled persons against discrimination in access to employment. It also establishes measures that promote public employment policies designed to integrate this vulnerable group into the labor market. II. MEASURES TO ELIMINATE EMPLOYMENT DISCRIMINATION The Mexican labor system is noteworthy for its imperative and inalienable character. 29 Labor rights for workers recognized by the Constitutional Congress were regulated in the LFT as inalienable public rights. Such stipulations allow no exceptions, and all hiring must be carried out in accordance with the basic rights established in both the Constitution and the LFT. In addition, the protections found within the recent LFPED are also socially important public mandates. As a consequence, the measures established by these laws to protect against workplace discrimination are also imperative and inalienable. In order to implement the legal protections for equality and against discrimination, the LFT and the LFPED, in their respective areas of jurisdiction, stipulate general and specific measures that must be undertaken. To do so, certain jurisdictional procedures and mechanisms are foreseen by which workers may utilize the measures established by legislation. Such measures range from explicit prohibitions against discriminatory acts and specific protection measures, such as the case of female workers requiring maternity leave, to proactive and remedial measures carried out by public agencies and the competent authorities in favor of equal work opportunities, such as job training and workforce integration programs. A. Labor Principle 7 of NAALC: Elimination of Workplace Discrimination. 1) Prohibited Grounds for Discrimination As noted earlier, conditions of inequality plaguing workers were one of the causes of the Mexican Revolution of 1910, and they strongly influenced the 1917 Constitution and the development of the basic principle of equality in the country s labor laws. Many grounds for protecting individuals against discriminatory conduct are taken into consideration by the Mexican legislation. However, neither the LFT nor Mexican case law defines their scope and significance. U.S. and Canadian employment discrimination laws generally cover race, color, national or ethnic origin, religion, age, sex 29 Néstor de Buen L., Derecho del Trabajo, op. cit. p

17 Page 17 of 49 (including pregnancy) and disability. In Canada, all jurisdictions also cover sexual orientation and marital or family status, and may include other grounds, such as criminal record. In the United States, various state and local measures may add prohibitions against discrimination on other bases, such as sexual orientation, marital and family status, criminal record, weight, physical appearance, and other characteristics. Both legal systems may extend such protections to cover workers who do not belong to a vulnerable group but who are associated with them, for example the spouse or parent of a disabled person. A discussion of the historical roots of the grounds, which would take into consideration Mexico s social, economic and political backdrop, is beyond the scope of this chapter. However, it is worth noting that the struggle against discrimination generally, and in particular against that which takes place in the workplace, has grown in importance in recent years. It comes as no surprise, therefore, that equal opportunity for all persons appears as a social policy priority and a guiding objective of the National Development Plan for In this way, the National Program of Labor Policy for targets certain vulnerable groups, including female workers, disabled persons, persons with HIV/AIDS, indigenous peoples, youth and the elderly. Moreover, as mentioned previously, beginning in 2002 Mexico enacted its first legislation seeking the elimination of discrimination. That legislation, the LFPED, does not provide a definition of the different grounds of discrimination that it prohibits, even though the Civic Committee on Studies against Discrimination, prior to drafting the law, held public forums with affected groups, political parties, human rights groups, public servants, academics and other interested parties in order to identify the most serious and frequent of those grounds. The principal objective of that effort was to translate the demands of the affected parties into legislative proposals that would protect them. 30 Mexico has enacted specific legislation for certain vulnerable groups like persons with disabilities 31 and indigenous people, 32 and some of that legislation enunciates 30 Initiative of the Federal Law to Prevent and Eliminate Discrimination, presented by the Federal Executive, November 28, 2002, Parliamentary Gazette, number 1141-I, Friday, November 29, 2002 (p. 876). 31 The General Law on Persons with Disabilities defines disabled persons as any person who possesses a permanent or temporary physical, mental or sensory deficiency that limits the capacity to carry out one or more of the activities essential to daily life and which may be caused or aggravated by the economic and social environment. 32 Article 2 of the Constitution states that indigenous peoples are those who descended from the populations which inhabited the territory of the country at the beginning of its colonization and who retain some or all of their own social, economic, cultural and political institutions. 17

18 Page 18 of 49 specific rights, such as in the case of indigenous linguistic rights. 33 In theory, these definitions could form the basis for legal proceedings based upon the legislation dealing with workplace discrimination. Nevertheless, no regulation yet makes explicit reference to the definitions of the grounds for discrimination. B. Labor Principle 8 of NAALC: Equal Pay for Women and Men 1) Equal Pay for Equal Work In addition to the equal wage protection mandated in Article 123 of the Constitution (See Section 1.C, Legal Sources of the Labor System), the LFT grants specific guarantees regarding this principle. Article 5, Section XI stipulates that no employment contract, whether oral or written, may contain a wage less than what is paid to another worker at the same place of employment for the same work, at the same efficiency level and with the same number of hours, on grounds of age, sex or nationality. Article 86 echoes the principle of equal pay and expressly stipulates that, Equal work, performed in the same position, under the same schedule and conditions of efficiency, should have equal compensation. In the United States, Title VII prohibits sex discrimination in all terms and conditions of employment, including pay. The Equal Pay Act requires equal pay for work of equal skill, effort, and responsibility performed under similar working conditions for the same establishment. In Canada, all jurisdictions have equal pay laws. In addition, several jurisdictions have laws that enact the principle of equal pay for work of equal value, known as pay equity or comparable worth. In order to address gender segregation in employment, pay equity goes beyond comparing people in similar positions to comparing the value of dissimilar jobs In addition, ILO Convention 100 stipulates that member states should guarantee the application of the principle of equal pay for women and men for work of equal value, within the framework of methods established for determining wages. The federal justice system has issued decisions concerning the principle of equal pay. And the topic is becoming more of a procedural issue through the implementation 33 The General Law on Linguistic Rights of Indigenous Peoples states that native languages are those of the people living in national territory before the establishment of the Mexican State, as well as those of other Indo-American peoples, also pre-existent, who have settled in national territory subsequently and who are recognized as having an ordered and systematic set of functioning oral and symbolic methods of communication. 18

19 Page 19 of 49 of so-called wage-leveling actions 34 that place the burden of proof on the worker. Under this procedure, the worker can demand that he or she receives equal pay for work performed in the same position and under the same schedule and conditions of efficiency. In addition, the job duties must be equal in quantity and quality. C. Definition of Discrimination The manner in which the Constitution and the LFT refer to discrimination and to the principle of equality is in terms of prohibited discriminatory conduct. Article 3 of the LFT indicates that distinctions cannot be made among workers for reasons of sex, race, religious creed, political affiliation, or social condition. This principle is included in the same form in Article 56 of the LFT. The LFPED is the first legal standard to define discrimination, and it does so in general terms, such as any distinction, exclusion, or restriction based on ethnic or national origin, sex, age, disability, social or economic condition, health condition, pregnancy, language, religion, opinions, sexual preference, marital status or anything else that hinders or disallows acknowledgment or exercise of rights and truly equal opportunity. This definition also includes all manner of discrimination due to xenophobia or anti-semitism. Regarding discrimination in the workplace, the LFPED considers discriminatory practices to be those which prohibit freedom of job choice, or that restrict opportunities to access and retain jobs, and to be promoted. Practices intended to establish differences in pay, benefits and labor conditions for equal work and those which limit access to professional training and education are also considered discriminatory. U.S. and Canadian laws consider the employer s failure to provide reasonable accommodation to certain employees in certain circumstances (for example, for a disability or for religious practices) to be a discriminatory practice. In addition, both legal systems include harassment in the workplace as discriminatory conduct. 1) Types of Discrimination According to the principle of equality incorporated in the LFT, labor law does not distinguish among different types of discrimination. There is no reference as to which specific practice is considered discriminatory. Nor has Mexican case law developed any 34 SALARIOS, NIVELACION DE LOS. CARGA DE LA PRUEBA [WAGES, LEVELING. BURDEN OF PROOF]. When wage leveling is performed, and as a result, payment is made of the difference, the party taking such action must do so based on the extremes of Article 86 of the LFT; in other words, that work is performed that is identical to work performed by another or other workers according to an equal schedule and in equal conditions of efficiency, both in quantity and quality. This is necessary since the principle of equal pay for equal work requires that the work done by the higher-paid worker and the work done by the worker demanding wage leveling be completely equal or identical in all aspects, so that the equation remains balanced and the resulting salary is truly leveled. Report 4 th Court Opinion 189, p

20 Page 20 of 49 opinions regarding employment discrimination and its different connotations. Similarly, the definition contained in the LFPED is formulated in general terms. Similarly, Canadian codes cover in general terms all distinctions, exclusions or preferences based on prohibited grounds. This lack of a concrete definition of discrimination gives rise to the interpretation that the legislation does not require a demonstration of the intent to discriminate or of the form of the discriminatory practice in order for the practice to qualify as discriminatory; it is sufficient that said practice create distinctions among workers, as stated in Article 3 of the LFT. Some theories of discrimination have been elaborated in labor doctrine, and this has led some legal writers to differentiate between types of discrimination. While such theories have no legal basis and are put forward largely by academics, their brief mention in this chapter helps illustrate the difficulty in defining discrimination. Some authors make reference to direct, indirect, positive and negative discrimination. Direct discrimination is understood as when a person is treated differently, usually unfavorably, based on the person s sex, race, etc, or for reasons inseparably linked to sex, race, etc. Indirect discrimination is when a criterion that is undefined nevertheless has unfavorable results for a particular group. Direct discrimination requires intent; indirect discrimination only requires a discriminatory result. 35 Positive discrimination consists of any action that awards any kind of special privileges. Negative discrimination works the opposite way, in denying or failing to award legal or contractual benefits. Normally the difference is intended to give certain workers privileges not for their benefit but in order to harm another worker. 36 2) Defenses There are certain exceptions to the principle of equality that are cited in the LFT, the LFPED and in international labor law. The principle of equality, as expressed in the LFT s Article 56, prohibits distinction of labor conditions on the same grounds stipulated in Article 3. In Article 56, the LFT stipulates that work conditions must be equal for equivalent jobs, without having to establish differential treatment on the grounds of race, nationality, sex, age, religious creed or political belief. That Article concludes by making an 35 María José Anon, Igualdad, diferencias y desigualdades [Equality, Differences and Inequalities],, (México: Fontorama, 2001), pp Patricia Kurzcyn Villalobos, [Sexual Harassment and Discrimination on the Basis of Motherhood in the Work Place],,(Mexico: UNAM, 2004), p