This summary of age discrimination law in Argentina has been prepared by Funes de Rioja & Asociados, the Ius Laboris member for Argentina: www.funes.com.ar
Argentinian national employment law provides that all workers should be granted equal protection and treatment. This includes protection against age discrimination. The equal treatment principle is included in the National Constitution and related to the employment contract by the Labor Contract Act. There is also a civil act (n* 23.592) which protects both employees and non-employees against discrimination. There is no specific regulation covering age discrimination and it is not included in the list of grounds of discrimination set out in the act (which are race, religion, nationality, ideology, political or union affiliation, sex, economic status, social condition and physical appearance), but it must nevertheless be considered a prohibited ground of discrimination.
An employer can in any case terminate an employee's contract of employment, provided he has satisfied conditions regarding age and years in service making social security contributions. If these conditions are met, the employment contract can be terminated without payment, allowing the employer to force the employee to retire. The age of retirement is 65 for men and 60 for women (although women can choose to continue to work up to the age of 65).
As explained above, there are general rules regarding discrimination in the Labour Contract Act and in the civil law too, so no worker, whether employed or self-employed, is excluded. There is a fiscal benefit for employers who take on employees between 55 and 65 years of age. There are also rules prohibiting minors from working.
What enforcement/remedies exist?
Civil act. N* 23.592 allows an employee who feels he or she has been discriminated against to ask for "moral and material damages", as well as reinstatement to the position (s)he had before the act of discrimination occurred. There are no specific rules for age discrimination, and claims of age discrimination are rare.
As with any other form of discrimination, the victim of age discrimination can go to the Labour Court if he is an employee, or to the Civil Court in any other case. If an independent criminal act is committed, directed towards a group of persons who could be identified by a race, religion etc. or possibly by age, criminal sanctions could apply.
How common are claims?
Although some isolated cases have been brought before our courts, age discrimination claims are quite unusual. This is mainly because written procedures in multinational companies tend to determine a retirement age which differs from that established by law.
What claims are most common and what are trickiest issues for employers?
There have been no cases related to discrimination in the recruitment process. Reviewing the few cases that have been brought to court, they are based on claims by senior executives who are being dismissed because they are too expensive compared to younger colleagues. These claims of age discrimination are always added to existing claims of wrongful dismissal, with a view to increasing the moral damages payable.
Are there any specific exceptions in your laws?
There are no exceptions in relation to the minimum wage, which is the same for minors (who can work with parental authorisation from 14 years of age), those over 21 and older employees. Minors between 14 and 18 years old may work for no more than 6 hours per day. As mentioned above, women can retire at 60 with the right to choose to continue until the age of 65, while men can be retired at 65.
The retirement age for men is 65 years. Before the employer can require the employee to retire, the employee must have completed at least 30 years' employment with social security contributions. When these conditions are satisfied the employer can notify the employee that he has to initiate the procedures for his retirement, allowing a maximum of one extra year of paid salary. Women can retire at 60, with the same provisos.
Recently the Labour Court decided a case of discrimination brought by a Union of Airline Pilots, which complained about company policies that did not permit the promotion of pilots over the age of 57. The company had a policy in which candidates could put themselves forward for promotion. This opportunity was limited to pilots with experience but under 57 years of age. The court decided that this restriction was discriminatory and that age should not be an obstacle to promotion "if the pilot is fit". The decision is an important precedent as it was brought by the union rather than directly by the employee, and it affects the profile of employees to be appointed to the most senior positions in the company.