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 in Peru is protected by the Constitution. Article 2.2 of the Peruvian 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.
In this regard, Law No. 28803 establishes the rights of the elderly to equal opportunity and non-discrimination in any public private place. Law No. 28983 provides that job offers may not contain requirements that constitute discrimination, annulment or alteration of equality of opportunity or treatment.
Situations which are covered by Peruvian Legislation include:
- Workers in a dependent relationship or as an employee
- Domestic servants (regulated by special employment regulations)
- Unpaid family work (e.g. the usual domestic tasks carried out by a housewife/husband such as cleaning, cooking and childcare)
- Older people (60 years or older)
- In general men and women 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 without the presence of a legal representative.
Furthermore, the Labor Authority may impose fines of between $14,000 and $25,350 in serious cases of discrimination. Article 323 of the Peruvian Criminal Code sets out criminal sanctions for discrimination (including age) with imprisonment of between 2 and 4 years.
What claims are most common and what are the trickiest issues for employers?
Overall, 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 recruitment in the public sector where age limits may be set for certain positions.
The trickiest issues relate to sex discrimination. In all discrimination claims the employee has the burden of proving that the discrimination is taken place, giving the employer the advantage. As the employee is faced with the burden of proving that the discriminatory act occurred, 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
For work in an employment relationship the minimum ages are:
- 15 years for non-industrial farming
- 16 years for industrial, commercial or mining
- 17 years for industrial fishing wo rk
For other forms of work, the minimum age is 14 years, but an exception can 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 participation in counselling programs or vocational training.
The mandatory retirement age for both men and women is 70 years of age, although there is a voluntary retirement age for both genders from 65 years of age.
People may in certain circumstances take early retirement. For men, early retirement is 55 years of age so long as 30 years of pension contributions have been made. For women, early retirement is 50 years of age with 25 years of contributions.