This summary of age discrimination law in Peru has been prepared by Estudio Olaechea, the Ius Laboris member for Peru: www.esola.com.pe.
Age discrimination is protected by the Peruvian Constitution (Constitution). Article 2.2 of the Constitution says:
“Every person has the right to equality before the law. No person shall be discriminated on the basis of origin, race, gender, language, religion, opinion, economic situation or any other reason” (e.g. age of the person).
Article 23 of the Political Constitution of Peru goes on to state:
“The State prioritises its attention to work in its different forms and provides special protection for working mothers, minors and persons with disabilities.”
There has been some development in legislation by Article 22 of the “Child and Adolescent Code” which recognises the right of adolescent to work within the restrictions of the law, provided that there is no economic exploitation and that their activities do not involve any risk or danger which might affect their education or cause harm to their physical or mental health, spiritual, moral or social development. The law covers those aged 12 to 17.
Furthermore, Law 27270 “Law against Acts of Discrimination” prohibits any discriminatory treatment due to age, among other conditions.
Law No. 30490 establishes the rights of the elderly to equal opportunity, non-discrimination in any public or private place, and to actively participate in the employment sphere, among others. Law No. 28983 provides that job offers may not contain requirements that constitute discrimination, annulment or alteration of equality of opportunity or treatment.
Peruvian Legislation covers the following, amongst others:
Workers in a dependent relationship (such as an employee);
Domestic servants (regulated by special employment regulations);
The elderly (60 years or older);
In general, men and women, for equal opportunities in all areas of their lives.
Independent personnel and/or persons that render services independently and without subordination are not covered by employment legislation as they are not considered employees.
WHAT ENFORCEMENT/REMEDIES EXIST?
An employee that suffers a violation of his/her constitutional and legal rights can seek protection from the competent Courts and may be self-represented.
Furthermore, the Labour Authority may impose fines of between USD 2,850 to USD 57,450 (approx.) in serious cases of discrimination.
Article 323 of the Peruvian Criminal Code sets out criminal sanctions for discrimination (including age) with imprisonment of 2 to 4 years.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE THE TRICKIEST ISSUES FOR EMPLOYERS?
Claims regarding discrimination are fairly rare. Gender discrimination claims are more common than claims for age discrimination.
When it comes to claims involving age discrimination, they often come from the recruitment stage in the public sector, where age limits are set for certain positions.
The trickiest issues relate to sex discrimination. In all discrimination claims, the employee has the burden to prove the alleged discrimination. As the employee is faced with this onus, it is difficult to win a claim, especially because much of the evidence will land in the hands of the employer.
MINIMUM WORKING AGE AND SPECIFIC EXCEPTIONS
The minimum working ages are:
15 years for non-industrial farming;
16 years for industrial, commercial or mining; and
17 years for industrial fishing work.
For other forms of work, the minimum age is 14 but an exception may be granted at 12 years, provided that the work will not harm the child’s health or development, or interfere or limit the assistance to schools and allow them to participate in counselling programs or vocational training.
The mandatory retirement age for both men and women is 70, although there is a voluntary retirement age for both genders from 65.
People may in certain circumstances, depending on the chosen system of contribution, take early retirement:
National Pension System (under the Government Pension Fund Office – ONP): For men, early retirement is 55 so long as 30 years of pension contributions have been made. For women, early retirement is 50, with 25 years of contributions.
Private Pension System (managed by a Pension Fund Management Companies – AFP): There are some early retirement programmes for people under 65, such the special regime of early retirement for the unemployed, for employees who perform “risky” work, or for employees who are suffering from terminal illness.