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Discrimination in Labor Matters

September 19, 2014
Discrimination in Labor Matters

The Federal Law to Prevent and Eliminate Discrimination substantially establishes the existence ofdiscrimination when there is conduct that demonstrates differentiation, exclusion or restriction, because of apersonal characteristic of an individual, that as a consequence annuls or impedes the exercise of his/her humanrights and liberties. The Federal Labor Law (FLL) itself does not have a definition of discrimination as such;however, it does establish the conditions that must prevail so that no discrimination exists in the workplace, andso that work may be dignified, such as: the employer’s responsibility to respect the human dignity of theemployee, access to social security, payment of salary, providing continuous training, guaranteeing optimalsafety and hygiene conditions, among others.The risk of labor lawsuits for possible cases of discrimination is increasing based on recent legal reforms and theinfluence of international treaties on Human Rights, including among them those related to labor matters and theprevention and eradication of discrimination. State legislation is also starting to focus on the matter, as in therecent reform of the Penal Code of the State of Nuevo Leon, which in article 353 Bis provides that the crime ofdiscrimination occurs when “... II. A labor right is denied or restricted …” The crime of discrimination ispunishable by three months to one year in prison, and is prosecuted upon filing of a criminal complaint made bythe alleged victim. At the federal level, the Federal Penal Code provides, in article 149, that the crime ofdiscrimination is punishable by one to three years in prison for anyone who “… II. Denies or restricts labor rightsprimarily because of gender or pregnancy; or limits a health service, mainly to a woman in relation to pregnancy…”The classification of discrimination as a criminal offense in various federal and state regulations opens to theemployees additional options to make claims against employers in different forms and times other than the classicones established in the FLL, so it becomes more relevant for companies to train their representatives to avoidconduct that could be considered discriminatory, in addition to establishing necessary policies for hiring, training,ethics, safety and discipline.

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