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04. Anti-Discrimination Laws
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04. Anti-Discrimination Laws

Summary

The Constitution prohibits any form of discrimination and states that all persons are equal before the law.

Extent of Protection

The Labour Code strictly prohibits acts of discrimination, including distinctions, exclusions or preferences based on race or ethnicity, nationality, socioeconomic status, language, political ideology or opinion, religion or beliefs, union membership or participation in union organisations, sexual orientation, gender identity, marital status, age, affiliation, personal appearance and illness or disability, which have the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation. However, distinctions, exclusions or preferences based on the qualifications required for a particular job are not considered acts of discrimination. Article 194 of the Labour Code prohibits discrimination on the basis of pregnancy. Another law prohibits discrimination on the basis of HIV/AIDS. The law on the Protection of Breastfeeding (No. 21.155) amends the Labour Code to include maternity, breastfeeding and the act of extracting breast milk (lactation) amongst the prohibited grounds of employment discrimination.

Protections Against Harassment

The internal regulations of the company must contemplate the obligations and prohibitions to which the employees are subject, and must include (within this section) a rule that prohibits employees of the company from improperly exercising or imposing, by any means, demands or ultimatums of a sexual nature upon a person, without their consent, that threaten or harm his/her employment situation or job opportunities; such conduct will, for all related purposes, constitute sexual harassment or harassment at work.

Moreover, the company’s internal regulations must further contemplate a procedure to report such conduct, along with the protective measures and sanctions that will be applied in the event of a harassment complaint. Likewise, it must establish the mechanisms to report an act that constitutes harassment at work, which includes, specifically: any conduct that constitutes aggression or harassment, exercised by the employer or by one or more employees against another (or others), by any means, and which results in impairment, mistreatment or humiliation, or threatens or harms the affected person’s (or persons) employment situation or job opportunities, provided that all such behavior is practiced repeatedly.

A victim of sexual or work harassment must submit his/her complaint in writing to the management of the company, establishment or service provider where he/she works or to the respective Labour Inspectorate. The employer may choose to make an internal investigation directly or, within 5 days of receiving the complaint, refer it to the Labour Inspectorate, which has 30 days to carry out the investigation. The internal investigation conducted by the employer must be carried out within 30 days. Once the investigation is completed, the results must be sent to the Labour Inspectorate. If the complaint is made by the affected party -male or female- or referred by the employer to the Labour Inspectorate, the latter will carry out an investigation under the same terms/guidelines described above. Once the investigation has been completed, the Labour Inspectorate will communicate the results to the employer and, if the existence of sexual and/or work harassment has been proven, will suggest concrete measures to be taken.

Employer’s Obligation to Provide Reasonable Accommodations

The law on the Inclusion of Persons with Disabilities in the world of work, requires that public and private institutions employing 100 or more employees must dedicate 1% of their workforce to persons with disabilities. As of 1 April 2019, companies with 100 or more employees must comply with Law No. 21,015, which encourages the labour inclusion of persons with disabilities. This hiring quota can be met directly, by hiring people with disabilities or those assigned a disability pension, or through one of the alternative compliance modalities provided by the law.

Main obligations established by law include the following:

  • Obligation to hire: companies with 100 or more employees must hire or continue to employ, as the case may be, at least 1% of persons with disabilities or those who are assigned a disability pension from any social security system, in relation to the total number of their employees.
  • Obligation to register contracts: on the Labour Department’s website, the employer must electronically register the employment contracts of persons with disabilities or those assigned a disability pension, as well as the modifications and terms of these contracts. Companies are required to complete this registry within 15 working days, counted from the date of hiring.
  • Obligation to communicate electronically: during the month of January of each year, companies with 100 or more employees must proceed to communicate electronically via the Labour Department’s website, which they inform as to: (i) the number of employees hired in each month; (ii) the number of hired employees with a disability or assigned a disability pension for each month; and (iii) the effectiveness of having complied with the law directly or through alternative measures as established by the law itself.

Alternative compliance modalities:

  • entering into contracts for the provision of services with companies that have hired people with disabilities.
  • make monetary donations to projects or programs of associations, corporations or foundations referred to in Article 2 of Law No. 19.885.

As of 1 April 2020, companies may only use alternative measures insofar as they have good reason to do so. Only reasons derived from the nature of the functions performed by the company, or the lack of persons interested in the offers of employment, will be considered as well-founded reasons for the application of alternative measures.

Due to the new provisions of Law 21.015 on Labour Inclusion, the company is required to make the necessary adjustments to adapt the mechanisms, procedures and practices of selection in all pertinent matters that are required to safeguard equal opportunities for people with disabilities who participate.

In terms of accessibility regulations involving a company, a distinction must be made between public and private spaces. Until now, the duty to incorporate accessibility standards in spaces “of public use” or “attention to the public” is the only obligation under the law.

Industrial establishments (e.g., where industrial products are manufactured) should consider spaces and facilities for people with disabilities only in case of public attention, if the project considers it.

Remedies

An employee, who is directly affected, or the union may denounce the violation of a fundamental right, such as sexual indemnity or non-discrimination, before the courts or the Department of Labour. In addition, the Labour Inspectorate must file a complaint before the competent court when it becomes aware of a violation of fundamental rights.

Non-Discrimination Law No. 20. 609 (“Ley Zamudio”): The fundamental objective of this law (known as the ‘Zamudio Law’) is to establish a judicial mechanism to effectively restore the rule of law, when an act of arbitrary discrimination is committed. Not every distinction or restriction has an arbitrary character. For the application of this law, arbitrary discrimination is understood as any distinction, exclusion or restriction that lacks reasonable justification, made by agents of the State or individuals, and which causes deprives, disturbs, or threatens the legitimate exercise of fundamental rights as established in the Political Constitution of the Republic or by international treaties on human rights, which have been ratified by Chile and are in force. The Zamudio Law creates an action for arbitrary non-discrimination, which may be filed by those directly affected by an action or omission that amounts to arbitrary discrimination before the judge of letters of their domicile, or before the judge of the domicile of the person responsible for such action or omission.

Other Requirements

  • companies with 100 or more employees must hire or continue to employ, as the case may be, at least 1% of persons with disabilities or those who are assigned a disability pension from any social security system, in relation to the total number of their employees.
  • at least 85% of the employees serving the same employer shall be Chilean nationals. In other words, the percentage of foreign employees allowed per company is 15%. An exception to this provision applies to an employers who does not employ more than 25 employees.
  • initiate internal adjustments to be implemented in the company to promote both the inclusion of people with disabilities and a culture of diversity within the company. The inclusion, exclusion or vulnerability of any group in a minority situation, means the implementation of all the necessary processes involved in the management of people.

For the above, it is necessary to explicitly state the prohibitions and sanctions for discrimination, between various aspects/reasons for disability, according to the Zamudio Law, which establishes measures against discrimination in the Code of Ethics or Good Practices and Conduct.

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