This summary of age discrimination law in Chile has been prepared by Philippi Prietocarrizosa Ferrero DU & Uria: www.philippi.cl
Protection from discrimination is guaranteed by the Political Constitution of Chile. Article 19 No. 16 of the Constitution recognises the right to freedom of work and its protection for every person. Paragraph 3 of this Article states:
“Any form of discrimination that is not based on a personal capacity or suitability is prohibited, regardless of situations where the law might require Chilean nationality or age limits for certain cases.”
In addition, Article 2 of the Labour Code of Chile states:
“Acts of discrimination are contrary to the principles of Labour law.”
Acts of discrimination are the distinctions, exclusions or preferences based on grounds of race, colour, sex, age, marital status, syndication, religion, political opinions, nationality, national origin or social origin, which reduce equality of opportunities or treatment in employment and occupation.
However, distinctions, exclusions or preferences based on qualifications required for a specific job are not considered discrimination.
Thus, and regardless of other dispositions of this Code, job offers made by an employer, directly or through third parties, and by any means, that point out as applying conditions any of the ones named on Paragraph 4, are considered acts of discrimination.
Rights and obligations derived from the Labour Code are implied into the contract of employment in order to make them enforceable.
Constitutional and legal provisions cover every person and employee.
What enforcement/remedies exist?
If discrimination occurs during employment, unions, employees and the Labour Directorate are entitled to file a judicial or administrative complaint in order to force the employer to end this behaviour. However, in relation to any dismissal which is alleged to be discriminatory, the only person entitled to bring a claim is the allegedly discriminated employee.
An employee that suffers a violation of his/her constitutional and legal rights during employment can bring a claim in the Labour Courts. The Labour Courts will command the employer to put an end to the discriminatory conduct. In the case of a discriminatory dismissal, the Labour Courts may fine the employer 6 to 11 months pay, in addition to a severance payment and damages caused by the unfair dismissal.
In serious cases of discriminatory dismissals, the employee can opt between his/her reinstatement of employment, or the aforementioned payments plus back pay.
What claims are most common and what are trickiest issues for employers?
In Chile, employees cannot be dismissed for a reason which does not fall within any of the justified causes contained in Articles 159 to 161 of the Labour Code. Age is not included among those causes, so a dismissal based on age or even on the employee’s retirement is not a justified one, and the employer could be forced to pay compensation if the worker claims in Court.
Are there any specific exceptions in your laws?
There are no specific exceptions, though the Chilean Constitution will allow discrimination when it is based on a personal capacity or suitability, or in cases where specific laws might proscribe age limits for certain jobs.
In Chile, the retirement age for women is 60 years of age and for men 65 years of age. It is not mandatory to retire once the retirement age is reached, so a person can work until whenever he/she decides to quit.
Employees cannot be terminated on grounds of retirement; employees in Chile can receive a retirement pension and continue to have paid employment at the same time.