Summary
The Colombian Political Constitution recognizes the right to equal treatment and the prohibition of discrimination based on sex, race, national origin, language, religion or ideology. In the legal framework, Colombia has provided special protection for other groups like disabled people, unionized employees and pregnant women. The Colombian Constitutional Court has developed special protection on anti-discrimination laws even further for other groups.
Extent of Protection
Employers are prohibited from any measure that could be considered discriminatory against their employees (or potential one) in every aspect of the employment contract, including any question or conduct that could be considered discriminatory in a hiring process (i.e. a request for an HIV and/or pregnancy test without an objective justification), whether the discrimination is through a direct or indirect conduct.
Anti-discrimination laws in Colombia have been developed mostly through case law, by reinforcing the protection for these special groups to other forms of employment. The protection extent is normally the prohibition of dismissal if the termination leads to a discriminatory ground or infringes upon a superior hierarchical right.
Protections Against Harassment
Since 2006, Colombian legislation provided a special scheme for protection against harassment in the workplace.
However, Law 2365 of 2024 introduces measures to prevent, address, and protect people against sexual harassment in the workplace and Colombia’s education institutions. This new law defines sexual harassment as any act of pursuit, harassment, or behavior with a sexual, lewd, or lascivious intent. In the workplace, sexual harassment may arise in hierarchical or peer relationships, influenced by factors like age, gender, sexual orientation or identity, and social or economic status. A single occurrence of such behavior, whether it occurs in the workplace, or outside of it, can be considered workplace harassment. Protection against harassment requires employers not only to prevent sexual harassment but also to investigate and sanction it. The main obligations of employers regarding sexual harassment include developing and communicating a written internal policy that aligns with Internal work regulations, employment contracts, and reporting procedures and handling these complaints directly rather than through the labour co-existence committee, intended for workplace harassment cases.
Also, employees who filed a complaint as victims of harassment cannot be dismissed without a fair cause in the following six months after the formal complaint. This special protection also applies to the employees who served as witnesses in the process of harassment.
Employer’s Obligation to Provide Reasonable Accommodations
Colombian legislation does require the obligation for any undertaking to compliance with certain legal minimum standards, which may include the need to provide certain facilities for disabled persons, whether they are employees or visitors. In addition to this, the law requires the employer to comply with the competent authority’s rehabilitation report regarding employees with health disabilities, including any ergonomic or (special) workplace accommodation. From 2019 or 2022 ( depending on the number of employees), employers will be obliged to provide special facilities inside the workplace for baby nursing employees.
Even while the Colombian Constitution recognises the freedom of religious belief, there is no a specific provision that obliges the employer to accommodate the workplace for the employee’s religious practices. Nevertheless, the case law has recognized the possibility for the employee to excuse himself (be absent) from working on certain days for religious reasons.
Remedies
Employers can implement any kind of unilateral internal policy that promotes anti-discriminatory rules for his employees, providers and/or contractors.
In case an employee is found responsible for a discriminatory behaviour, it is usually possible to terminate the contract without a severance payment for the employee. In the specific case of harassment in the workplace, the 1010 Act of 2006 obliged the employer to create a special internal body to analyse the harassment complaints.
