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 labour matters. Article 13 of the Colombian Political Constitution states equality as a basic principle of the society and prohibits any type of discrimination, especially, but not limited to grounds of sex, race, national or family origin, language, religion, political or philosophical opinion, which are considered traditional discrimination criteria. In addition, Article 53 of the Constitution provides equal opportunities for workers as a fundamental principle of labour relationships in Colombia.
Even if age discrimination is not explicitly listed in the Constitution or in the Labour Code, constitutional and ordinary case law have evidenced that age discrimination is in fact, constitutionally and legally prohibited. The Labour Chamber of the Colombian Supreme Court of Justice and the Constitutional Court in their case law, have recognised that age has been established in Colombian legislation as an additional ground of discrimination in application of Article 1(1)(b) of the International Labour Organisation (ILO) Convention No. 111.
In addition to the foregoing, the Labour 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 employees’ remuneration or compensation schemes, as per the principle of pay equity stated in Article 143 of Labour Code that specifically considers age as a discriminatory motive for differences of salary. Law 1426 of 2011, which sets out general rules to eradicate any kind of discrimination in labour retribution, adds to this article that differential treatment is presumed to be discriminatory unless the employer can demonstrate an objective criterion to justify such treatment.
In 2004, Colombian Congress issued Law 931 to expressly prohibit age discrimination. Under this law specifying a particular age or age range in job adverts is considered a form of discrimination. Those found guilty were liable to fines of up to 50 times the national minimum wage.
Thus, Colombian law has established a clear mandate against discrimination set out in the Constitution, the Labour Code and the Law 22 of 1967, among others. Discrimination is also 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 the age of 15 as the minimum age to work, subject to the approval of the Labour Inspector, or else by the Local Authority. It also stipulates 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.
In certain circumstances, children under 15 may receive authorisation from the Labour Inspector, or 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 14 hours per week.
The protections contained within the Constitution cover everyone, whether employed, self-employed or public servants. However, Law 1010 of 2006 limits labour harassment to dependent relationships (i.e. those who are employed under an employment contract), by excluding independent contractors. Only employees can benefit from the protection against labour harassment.
WHAT ENFORCEMENT/REMEDIES EXIST?
Age discrimination is not considered a criminal offence, however, an individual may file a cause of action for unfair dismissal to seek 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, 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 causes.
The Work Harassment Law views discrimination as a disciplinary offence under the Disciplinary Code where the perpetrator is a public official and may impose a fine amount from two to 10 times the national minimum wage.
HOW COMMON ARE CLAIMS?
Age discrimination claims are becoming more common in Colombia but not all are litigated. This is due to the fact that with under-aged workers, 51.4% of the population has an informal employment, whereby this type of employment falls outside the formal structures that govern taxes, workplace regulations and social protection schemes. In most cases, informal economic enterprises are small as they are often based around families.
Whilst the activities carried out by informal economic enterprises are not necessarily illegal, they are not covered by the framework of national laws, thereby also hindering the possibilities for individuals to go to Court as informal employment is not protected by Colombian law and does not afford any protection.
In addition to the above, individuals are also aware of the difficulties of being hired after certain age, along with the fact that the labour market generally focuses on the young population preferably when providing jobs, therefore, more claims may be brought forward by senior employees.
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 are asked to voluntarily resign just prior to receiving their retirement pension. Finally, there have also been claims made by younger employees with more academic qualifications questioning the higher salaries being paid to senior, experienced workers without the same academic qualifications.
Very recently, we have seen the Courts ordering the reinstatement of employees nearing the retirement. In these cases, the court considers that employees of this age are in a sensitive situation because it is unlikely for them to get another job and this could jeopardise the possibility to obtain an old age pension.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAW?
Yes, for under-age workers.
In Colombia, two requirements must be fulfilled in order to retire: (i) minimum age; and (ii) minimum contributions to the social security system.
Two different pension systems were created by Law 100 of 1993 - one administered by a 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.
To receive a pension administered by Colpensiones (Régimen de Prima Media con Prestación Definida), the following conditions must be fulfilled, females must be 57 years old; and males must be 62 years old.
Under 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 not, affiliates to statutory pension system (under the Individual Saving Scheme), are entitled to obtain a refund of the contributions made to such pension system.
The Labour 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 and reiterated in several judgements, that in order for an employer to terminate an employer by reason of reaching pensionable age, the employee must be included on the pensioners’ payroll, which means that the pension has already been granted and it will effectively be paid.
In the Protection action of José Overmán Paredes Moreno against Misión Bogotá D.C and the Consultiva Distrital de Bogotá, 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.
The Constitutional Court ruled for the claimant and held 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 of his age.