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Anti-Discrimination Laws in Mexico

1. Brief Description of Anti-Discrimination Laws

In Mexico, discrimination laws in labor 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, 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’.

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.

2. 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.

3. Protections Against Harassment

Among the several prohibitions that the FLL imposes on employers, is toleration of sexual harassment within the workplace. The breach of this provision may result in the imposition of a fine of 250 up to 5000 times the minimum wage in effect.

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.

Furthermore, Article 1916 of the Federal Civil Code (FCC) states that a person must be indemnified in cash for ‘moral damages’ when he or she is affected in his or her feelings, affections, beliefs, honour, reputation, private life, shape and physical appearance, or in the consideration that others have of such person.

4. Employer’s Obligation to Provide Reasonable Accommodations

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.

5. Remedies

A. 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.

B. Mediation and Conciliation

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

C. Arbitration

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

D. Litigation

Conciliation and Arbitration Boards are the administrative agencies in charge of solving labor 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.

E. Fines, Penalties and Damages

The Social and Welfare Department can impose fines of different amounts on employers for breach to the FLL.

For more information on these articles or any other issues involving labour and employment matters in Mexico, please contact Oscar De La Vega, Partner at De La Vega & Martinez Rojas S.C. (www.dlvmr.com.mx) at ODelaVega@dlvmr.com.mx
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