The Constitution prohibits any form of discrimination and states that all persons are equal before the law. The Labour Code strictly prohibits acts of discrimination, including distinctions, exclusions or preferences based on race or ethnicity, nationality, socioeconomic status, language, political ideology or opinion, religion or beliefs, union membership or participation in union organisations, sexual orientation, gender identity, marital status, age, affiliation, personal appearance and illness or disability, which have the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation. Discrimination is also prohibited on the basis of HIV/AIDS, maternity, breastfeeding and the act of extracting breast milk (lactation).
Protections Against Harassment
Any conduct that constitutes aggression or harassment, exercised by the employer or by one or more employees against another by any means, and which results in impairment, mistreatment or humiliation, or threatens or harms the affected person’s employment situation or job opportunities, provided that all such behavior is practiced repeatedly, constitutes harassment at work.
Employer’s Obligation to Provide Reasonable Accommodations
Public and private institutions employing 100 or more employees must dedicate 1% of their workforce to persons with disabilities. As of 1 April 2019, companies with 100 or more employees must comply with the law. This hiring quota can be met directly, by hiring people with disabilities or those assigned a disability pension, or through one of the alternative compliance modalities provided by the law. As of 1 April 2020, companies may only use alternative measures insofar as they have good reason to do so. Only reasons derived from the nature of the functions performed by the company, or the lack of persons interested in the offers of employment, will be considered as well-founded reasons for the application of alternative measures.
An employee, who is directly affected, or the union may denounce the violation of a fundamental right, such as sexual indemnity or non-discrimination, before the courts or the Department of Labour. In addition, the Labour Inspectorate must file a complaint before the competent court when it becomes aware of a violation of fundamental rights.
The fundamental objective of the Zamudio Law is to establish a judicial mechanism to effectively restore the rule of law, when an act of arbitrary discrimination is committed. Arbitrary discrimination is understood as any distinction, exclusion or restriction that lacks reasonable justification, made by agents of the State or individuals, and which causes deprives, disturbs, or threatens the legitimate exercise of fundamental rights.
Moreover, the company’s internal regulations must further contemplate a procedure to report such conduct, along with the protective measures and sanctions that will be applied in the event of a harassment complaint. A victim of sexual or work harassment must submit his/her complaint in writing to the management of the company, establishment or service provider where he/she works or to the respective Labour Inspectorate.