This summary of age discrimination law in Colombia has been prepared by Brigard & Urrutia Abogados, the Ius Laboris member for Colombia: www.bu.com.co
Colombian law has been emphatic in the prohibition against any kind of discrimination in labor matters. Article 13 of the Colombian Political Constitution states equality as being a basic principle of our society and prohibits any type of discrimination on grounds of sex, race, national or family origin, language, religion, political or philosophical opinion. However, age discrimination is not explicitly prohibited by the Constitution. In addition, article 53 of the Constitution provides equal opportunities for workers as a fundamental principle of the Labor Statute, which is the compilation of all labor legislation including the Labor Code.
Nevertheless, the Labor Chamber of the Colombian Supreme Court of Justice in recent case law, has recognised that age has been established in Colombian legislation as an additional ground of discrimination regarding Article 1(1)(b) of the ILO Convention No. 111. In accordance with the foregoing, the Labor Code states:
"ART. 10.- Workers Equality. All workers are equal before the law, have the same protection and guarantees, and thus abolished any legal distinction between workers on the basis of intellectual or material nature of the work, its form or remuneration, except as otherwise provided by law."
This rule of equity is also applicable in terms of employee’s retribution regarding the principle of pay equity stated in article 143 of Labor Code that specifically considers age as a discriminatory motive to establish differences of salary. Law 1426 of 2011, which determines the general rules to eradicate any kind of discrimination in labor retribution, adds to this article that differential treatment is presumed to be discriminatory until the employer demonstrates objective criteria to establish such difference.
In 2004, Colombian Congress issued Law 931 with the purpose of expressly forbidding age discrimination. This law states that requesting a particular age or age range in order to be eligible for a job is considered a form of discrimination. The Ministry of Labor was appointed by Law 931 to impose fines against those found guilty of discrimination of up to 50 times the national minimum wage.
Thus, Colombian law has established a clear mandate rejecting discrimination: starting with the Constitution, then the Labor Code and Law 22 of 1967, among others. Discrimination is considered to be a type of workplace harassment under Article 2 of Law 1010 of 2006.
Regarding underage workers, the Code for Children and Adolescents sets 15 years old as the minimum age to work, subject to the approval of the Labor Inspector, or else by the Local Authority. It also indicates that minors from 15 to 17 years may only work for 6 hours and until 6pm, while adolescents from 17 to 18 may only work until 8pm, with shifts up to 8 hours maximum.
Exceptionally, children under 15 years may receive authorisation from the Labor Inspector, or alternatively the Local Authority, to carry out remunerated activities of artistic, cultural, recreational and sporting activities. The permit will set the maximum number of hours and prescribe the conditions under which this activity should be carried out, but in any case, the permit may not exceed fourteen hours per week.
The protections contained within the Constitution cover everyone, whether employed, self-employed or public servants. The Work Harassment Law 1010 of 2006 excludes contracts for services rather than contracts of service. Only employees can benefit from the protection against harassment.
As long as equity is a constitutional criterion, constitutional case law has concluded that each particular case must be analysed by using a rationality test - which is implemented in order to determine whether or not the existence of any of the discrimination measures is reasonable.
What enforcement/remedies exist?
Age discrimination is not considered a criminal offence. That said, the Work Harassment Law foresees a punitive treatment, such as a disciplinary offence under the Disciplinary Code whenever its perpetrator is a public official or a fine from two to ten times the National Minimum Wage for the employer that performs it.
The victim may also file a cause of action for unfair dismissal and ask for a compensation for damages and loss of earnings. It is also possible to initiate a protection action claiming for the defence of the fundamental right to the work, equality, freedom to exert profession, for example in cases in which the individual was not hired as a consequence of age discrimination, or was hired but later dismissed for the same reasons.
This protection has been reinforced with the constitutional rule stated in article 13 that has been used in connection with age, establishing a special protection for those persons who, due to their economic, physical or mental condition, are manifestly at a disadvantage. This rule has extended the scenarios of protection regarding labour discrimination for age motives.
How common are claims?
Cases of age discrimination are becoming more usual in Colombia. In regards to under-age work, it is unlikely to find a case, mainly due to two main reasons:
- 51.4% of the population has an informal employment, hindering their possibilities to go to Court. Informal employment is work not protected by Colombian law, without any protection and without the payment of taxes and;
- The Youth Labour market (14 to 26 years) only represents 3 out of 10 of the working age population, and only half of them are part of the overall work force rate. Therefore, the work force rate of underage’s workers is very low (1.5 out of 10).
Furthermore, people are aware of the difficulties of being hired after certain age, along with the fact that the labor market generally focuses on the young population preferably when providing jobs.
What claims are most common and what are the trickiest issues for employers?
There have been claims by individuals that were not hired because of their age, involving young as well as elderly people. There have also been cases where employees have been terminated by their employers or pursued for their resignation just prior to receiving their retirement pension. Finally, there have also been claims concerning the pay of young workers with more academic recognitions in regards to the higher salaries being paid to older experienced workers without the same academic titles.
Employers must be very careful when identifying the reason for ending someone’s employment in order to avoid lawsuits and having to pay damages. It is much harder for an older individual to find another job, and as a consequence, making enough social security payments to obtain their desired pension will not be possible.
Are there any specific exceptions in your law?
As explained above, there is a special regime for under-age workers.
In Colombia, two requirements must be fulfilled in order to retire: minimum age and a minimum of contributions to the social security system. Two different pension systems were created by Law 100 of 1993, one administered by Colpensiones (public entity) and the other by private independent funds. Workers may freely choose the regime to which they would like to make their pension contributions.
In the scheme administered by Colpensiones (Régimen de Prima Media con Prestación Definida), in order to receive a pension, the following conditions must be fulfilled:
- 57 years of age for females
- 62 years of age for males
While on the Individual Saving Scheme (Régimen de Ahorro Individual), a private pension system administered by private independent funds, individuals are entitled to a pension at the age they choose, whenever the capital accumulated in their individual savings account allows them to obtain a monthly pension up to 110% of the legal monthly minimum wage in force. If this is not possible, Law 100 of 1993 provides that the affiliates are entitled to a refund of the amounts accumulated in their individual savings account.
It is important to highlight that the Labor Code and Article 33 of Law 100 of 1993, establish the recognition of the retirement pension as a cause for the termination of the contract. However, the Constitutional Court has clarified in the Judgment C – 1037 of 2003, that in order for an employer to terminate an employer by reason of him reaching pensionable age, it is necessary for the employee to be included in the pensioners’ payroll, which means that the pension has been already granted and it will be effectively paid.
Protection action of José Overmán Paredes Moreno against Misión Bogotá D.C and the Consultiva Distrital de Bogotá, two different public entities.
In this case, the claimant requested the protection of his fundamental rights to work, to equality, good reputation and free development, arguing that the Consultiva Distrital de Bogotá did not hire him because he was 53 years old. The internal policies of Misión Bogotá D.C prohibited hiring individuals exceeding 45 years of age.
After a deep analysis made by the Constitutional Court, the case was ruled for the claimant and that he was discriminated against due to his age. As a consequence of this decision, the Misión Bogotá D.C. was ordered to include the claimant in the recruitment process and evaluate his capacities, without any considerations regarding his age.