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, disability or any other reason, 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 based on 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 company’s internal regulations must include a protocol and procedure for the prevention, investigation and punishment of sexual harassment, workplace harassment and violence at work. The main objective is to eradicate all forms of violence that may occur in the workplace, creating safe and respectful workplaces where integrity, respect and good treatment prevail among all people who are part of it. It is understood that:
- Sexual harassment: understood as when a person makes, in an inappropriate manner and by any means, requests of a sexual nature that are not consented to by the person receiving them and that threaten or harm their work situation or employment opportunities.
- Workplace harassment: understood as any behaviour that constitutes aggression or harassment by the employer or by one or more workers against another or other workers, by any means, whether it is manifested once or repeatedly, and that results in the affected worker or workers being undermined, mistreated or humiliated, or that threatens or harms their work situation or employment opportunities.
- Violence at work: is that perpetrated by third parties outside the employment relationship, understood as those behaviours that affect workers while providing their services, by customers, suppliers or users, among others.
Duty to prevent
Employers are required to establish a protocol for the prevention of sexual harassment, harassment at work and violence at work, which includes the following elements:
- Identification of the psychosocial risks identified in the company.
- The appropriate measures to prevent and control such risks.
- Measures to adequately inform and train employees on the identified risks.
- The obligation to report on a semi-annual basis, the complaint channels maintained by the company for the receipt of complaints, as well as the governmental bodies for the reporting of labour violations.
Duty to investigate
The duty to investigate arises when a report of an act constituting sexual harassment, workplace harassment and workplace violence is filed. The complaint may be made in writing or verbally, in which case a report must be made.
If the complaint is filed with the employer, the employer must inform the complainant that the company may initiate an internal investigation or refer the complaint to the Labour Authority. In the case of the first option, the employer must inform the Labour Authority of the initiation of the investigation, together with the safeguards adopted, within 3 days of receiving the complaint. If a referral is chosen or requested by the complainant, the complaint must be forwarded to the Labour Inspectorate within the same period.
Once the investigation is completed (within 30 days), a copy of the report with the conclusions will be sent to the Labour Inspectorate within the next two days. The Labour Inspectorate has 30 days to decide on the report. If this period expires without a pronouncement, the conclusions of the report will be considered valid.
Obligation to impose sanctions
The company must adopt the appropriate measures and sanctions within 15 days of receipt of the report with the relevant observations, or within 15 days of the expiry of the 30-day deadline set by the Labour Authority without the latter having issued a decision, informing both the complainant and the denounced party.
In the case of an investigation into violence at work, the conclusions must include the corrective measures to be taken by the employer with respect to the cause of the violence.
These measures must be aimed at preventing the recurrence of the conduct found and at preventing future violations. This is because the Labour Authority states that the employer is not authorised to sanction a third party outside the labour relationship.
Investigation of conduct by third parties outside the employment relationship and under the subcontracting regime
In cases where the conduct comes from third parties outside the employment relationship, the person concerned may file a complaint with his or her own employer or with the Labour Authority.
If the main or user company receives a complaint from an employee of another employer, it must inform him/her that the complaint can be filed with his/her own employer or with the Labour Authority if the parties involved in the facts are from the same company. Once the decision is known, the main or user company must send the complaint within 3 days.
If the denounced facts involve workers from different companies, the affected person can denounce to the main or user company, to his employer or to the Labour Authority. If the employee files a complaint with his/her employer, he/she must inform the main or user company within 3 days. The latter will always be responsible for carrying out the investigation.
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 contracts for the provision of services with companies that have hired people with disabilities.
- making 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. Regarding the first reasoned consideration, the company’s industry will no longer be the sole reason but will have to be argued.
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.
With the publication of Law No. 21,690, which amends the Labour Code on Worker Inclusion, the hiring quota for people with disabilities and/or disability pensioners was increased from 1% to 2% for those companies that are obliged to comply, i.e. with a staff of 100 or more employees. However, the Ministries of Labour, Social Development and Family, and Finance will issue a report certifying that 80% of the obligated companies have complied with the current 1% hiring requirement. Once certified, the increase to 2% will take effect on January 1 of the following year.
The company shall include in its internal regulations accessibility measures, making the necessary adaptations and measures to prevent harassment of workers with disabilities.
Accessibility requirements are understood to be the requirements that goods, environments, products, services and procedures must meet, as well as the conditions of non-discrimination in standards, criteria and practices, in accordance with the principle of universal accessibility. Necessary adaptations are measures to adapt the physical, social and attitudinal environment to the specific needs of persons with disabilities that facilitate, in an effective and practical manner and without imposing a disproportionate burden, the access or participation of a person with a disability on an equal footing with other citizens.
Likewise, a protocol for the work environment must be prepared and distributed annually to employees, in accordance with Law No. 20,442, which regulates equal opportunities and social integration of people with disabilities. This protocol is in addition to the training programs on the same subject already provided for in the current law.
Finally, companies must adapt their recruitment and selection procedures and practices to ensure equal opportunities for people with disabilities who participate in them.
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 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 employer 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.
