Summary
The Colombian Political Constitution recognises the right of equal treatment and the prohibition of discrimination on basis of sex, race, national origin, language, religion or ideology. In the legal framework, Colombia has provided special protection for other groups like disabled people, unionised employees and pregnant women. The Colombian Constitutional Court has developed the 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 his 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.
Private sector employers, while encouraged through some benefits, are not subject to any mandatory affirmative action law.
Protections Against Harassment
Since 2006, Colombian legislation provided a special scheme for protection against harassment in the workplace. In general, harassment in the workplace is considered any conduct persistent and provable, executed on an employee aimed to instill fear, intimidation, terror or anxiety, cause harm on his work, demotivation, or the employee’s resignation.
Protection against harassment includes the obligation for the company to create a special body within the organisation to analyse the harassment complaints, constituted by employees’ and employer representatives.
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 a process of harassment.
Employer’s Obligation to Provide Reasonable Accommodations
Colombian legislation does require the obligation for any undertaking to compel 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 his disabled employees, including any ergonomic or (special) workplace accommodation. From 2019 or 2022 (depending the number of employees), employers will be obliged to provide special facilities inside the workplace for nursing employees.
Even while the Colombian Constitution recognises the freedom of religious belief, there is not a specific provision that obliges the employer to accommodate the workplace for the employee’s religious practices. Nevertheless, the case law has recognised 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 behavior, 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.
