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04. Anti-Discrimination Laws

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04. Anti-Discrimination Laws

Summary

In Mexico, discrimination laws in labour matters are not extensively developed. The FLL states that no worker may be discriminated against on the grounds of race, nationality, gender, age, disability, religion, migratory condition, health, sexual orientation, religion, sexual preferences, political opinion or social status.

Article 3 of the FLL establishes as a general principle, among other matters, that: ‘any distinction made against employees based on race, nationality, sex, age, disability, religion, migratory condition, health, sexual orientation, religion, political affiliation or social status is strictly prohibited’.

Article 132, VI further requires employers to: ‘treat employees with due consideration and avoid mistreatment by word or conduct’, while Article 133, Section I prohibits employers from: ‘refusing employment (to an applicant) based on age or gender’. Article 164 provides that: ‘women have the same rights and obligations as men’.

The Federal Law to Prevent and Eliminate Discrimination prohibits any discriminatory practice that infringes on the principle of equal opportunity. The federal government’s interpretation of this law must be consistent with international treaties on discrimination to which Mexico is a party.

Notwithstanding the above stated laws and legal provisions; there are no stipulations with respect to concrete sanctions or legal actions, should the employer incur in discriminatory acts. Therefore, regardless of the existence, in paper, of these laws and provisions, the lack of enforcement thereof represents a standstill in the evolution of non-discriminatory legislation in Mexico.

Extent of Protection

Protected characteristics include ethnic or national origin, gender, age, disability, social or economic condition, health, pregnancy, language, religion, opinions, sexual preferences, marital status or any other that impedes or nullifies the recognition or exercise of rights and real equality of opportunities among individuals. The law does not prohibit retaliation; however, most companies include such a provision in their compliance programmes and policies. Employers must avoid any practice such as asking for non-pregnancy certificates to women or health certificates to employees and, in general, any practice that may imply a distinction between two or more individuals who apply for the same job.

Protections Against Harassment

The General Law for the Equity of Men and Women aims to regulate and guarantee gender equality. It sets up the guidelines and mechanisms for the fulfilment of equality in the public and private sector, by encouraging women’s empowerment. The FLL however, does not specifically regulate sex discrimination aside from general discrimination. Federal and state criminal codes have established harassment as an offence. Under the Criminal Code for the Federal District, it is an offence for any person to harass another person repeatedly for sexual purposes.

Employer’s Obligation to Provide Reasonable Accommodations

In August 2009, the General Law for Handicapped People was published. This law states that those with a physical handicap must be included in society on equal grounds. Nonetheless, the FLL does not provide anything specific regarding disability discrimination, except that it falls into the general discrimination prohibited by the FLL. In order to promote equity and diversity within the workplace, the FLL establishes the obligation for employers with more than fifty employees to have appropriate facilities for the performance of the services of employees with disability.

Remedies

Employers who violate any of the anti-discrimination provisions shall be subject to a fine of 250 up to 5,000 times the UMA in effect. Article 1916 of the Federal Civil Code (FCC) states that a person must be indemnified in cash for ‘moral damages’ when he is affected in his feelings, affections, beliefs, honour, reputation, private life, shape and physical appearance, or in the consideration that others have of such person. Furthermore, the same provision assumes that moral damage exists when a person’s freedom or physical or psychological integrity is violated or diminished. Despite this assumption, in practice it is difficult to prove the essential elements of the action that causes moral damage, taking into consideration its subjectivity.

Internal Dispute Resolution Process: Companies may have internal dispute resolution processes; however, they are not mandatory, as the parties will always be entitled to raise their actions with the Conciliation and Arbitration Boards.

Mediation and Conciliation: There is no mediation and conciliation except for the formal conciliation process performed by the Conciliation and Arbitration Boards.

Arbitration: Arbitration is performed by the Conciliation and Arbitration Boards, as it is not possible for the parties to agree to a third-party arbitration. For a labour-related ruling to be enforceable, it must be issued by the competent labour authority, Conciliation and Arbitration Board or a Court of Appeals.

Litigation: Conciliation and Arbitration Boards are the administrative agencies in charge of solving labour disputes. When dealing with individual litigation cases, a Board will encourage the parties to reach a settlement agreement before the actual proceedings take place. If the parties refuse to reach an agreement, a Board will initiate the process; however, the parties may reach an agreement at any moment before the final award is issued.

Fines, Penalties and Damages: The Social and Welfare Department can impose fines of different amounts on employers for breach to the FLL.

Other Requirements

For any employer, at least 90% of its employees must be Mexican nationals. In addition, all technical and professional employees must be Mexican nationals, unless there are no Mexican nationals qualified in a particular specialised field, in which case the employer is allowed to temporarily employ technical and professional foreign nationals, but in a proportion not exceeding 10% of those working in the relevant field of specialisation. Also, all physicians, railway employees and employees on a Mexican-flagged ship must be Mexican nationals, Mexican civil aviation crews must be Mexican by birth. The recruiting, screening and hiring process is the same as for nationals; however, foreign employees must have a valid work permit before being hired.

Any questions

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