The right to equality is enshrined in our Political Constitution in Article 33 and states that all people are equal before the law and no discrimination contrary to human dignity may be practiced.
According to the International Labour Organization (ILO), discrimination in the workplace includes: “any distinction, exclusion or preference based on race, color, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and any other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation…” (C111, Discrimination (Employment and Occupation) Convention, 1958, ILO).
With the entry into force of the Labor Procedural Reform in July 2017, the existing criteria for discrimination in our legal system were expanded. In accordance with Article 404 of the Labor Code, all discrimination in the workplace is prohibited for reasons of age, ethnicity, sex, religion, race, sexual orientation, marital status, political opinion, national extraction, social origin, filiation, disability, union affiliation, economic status, or any other analogous form of discrimination.
This last phrase, “any other analogous form of discrimination,” is the main reason why since the Reform, a large number of claims and lawsuits have been generated in the labor sphere, since its wording opens the possibility for any other action or omission by companies to be considered discriminatory.
This “numerus apertus” obliges companies to modify both recruitment and selection processes as well as labor terminations to avoid situations in which discrimination may occur. This could eventually generate significant repercussions for them, including lawsuits, reinstatements of the worker to their position, the payment of back wages, damages, and fines for violations of labor laws, if discrimination is proven.
The Labor Code prohibits dismissal for any of the reasons mentioned above, in accordance with Article 406. Furthermore, it establishes a prohibition of discrimination, even before the start of the employment relationship, that is, in the job application, by stating that it is forbidden to discriminate based on age when requesting a service or selecting a worker for a certain position, in accordance with Article 407.
The issue is not limited to claims about discriminatory actions or omissions by employers. Discrimination in job applications, jobs, and remuneration is also contemplated in the Labor Code.
Article 408 states that “all people, without any discrimination, shall enjoy the same opportunities to obtain employment and shall be considered eligible in their specialty, as long as they meet the formal requirements requested by the employer or that are established by law or regulation.” This means that, under equal conditions, every person must have the same opportunity to access a recruitment process, regardless of the reasons mentioned in Article 404, cited above.
In the same way, workers of a company who perform an equal job under equal subjective and objective conditions shall enjoy the same rights, in terms of the workday and remuneration, without any discrimination, as established by Article 405.
This article includes the issue of equal pay between men and women in the workplace. In May of this year, a Reform to Law No. 7142, Law on the Promotion of Women’s Social Equality, of March 8, 1990, for the Protection of Equal Pay Between Women and Men, was published.
In this reform, Article 14 establishes that: “Women shall have the right to equal pay with men, in both the private and public sectors, for work of equal value under the same employer, whether it is the same position or different positions of equal value, or in similar or reasonably equivalent functions (…) In no case shall differences that imply lower remuneration for women solely because of their gender, or for their condition of motherhood, or that lack an objective and reasonable justification, be valid.”
Regarding the burden of proof in the allegation of discrimination, Article 409 of the Labor Code states that it is up to “the person alleging discrimination to specifically state the factual basis on which their allegation is based and the terms of comparison that substantiate their affirmation.” The worker must precisely detail the evidence of the apparent discriminatory action by the employer.
However, the employer has the obligation to demonstrate that their decision is based on objective and real and non-discriminatory causes. The Second Chamber, in ruling number 2017-001533, stated that “the evidentiary activity of the person alleging discrimination will be limited to providing clear and precise evidence of the violation of the right to equality. Thus, the employer entity will have the obligation to demonstrate that its decision was based on real or truthful causes unrelated to any underlying discriminatory motive.”
The employer will also have the burden of proof when there is no agreement on “the justification of the objectivity, rationality, and proportionality of the measures or behaviors designated as discriminatory in all lawsuits related to discrimination,” in accordance with Article 478, subsection 10 of the Labor Code.
To avoid possible convictions in discrimination lawsuits, companies must pay special attention to the proper documentation corresponding to the employment relationship, and even in personnel recruitment processes. If the employment relationship from its beginning to its termination is based on objective criteria and the employer has abundant proof of this, the company will have a greater possibility of proving in a trial that its actions are in accordance with the law and do not constitute a violation of the right to equality.