This summary of age discrimination law in Venezuela has been prepared by D'Empaire Reyna Abogados, the Ius Laboris affiliate for Venezuela: www.dra.com.ve
There are several laws in Venezuela that enunciate the prohibition on discrimination among their provisions. The Venezuelan Constitution enacts a general prohibition on discrimination practices based on race, gender, religion, sexual orientation, and social condition. Specifically applied to labour matters, the Constitution also provides a set of core principles on employment protection, which include the prohibition on age discrimination, among others.
Furthermore, this precept is developed by the Venezuelan Labour Law, according to which the employer must refrain from any distinctions, exclusions, preferences or restrictions in job access and employment based on grounds such as age. The Venezuelan Health and Safety Law, also prohibits all types of discriminatory practices against job candidates and employees.
However, the development of age discrimination is relatively limited.
Constitutional and legal provisions set the minimum standards that must be complied with on employment discrimination. Hence, employees, contractors, public servants and military are covered by them.
What enforcement/remedies exist?
Employees can claim employment termination on the grounds of discrimination (as a justified cause for termination) before the labour Courts. If discrimination is proved, the employer must pay twice the amount of severance payments the employee is entitled to.
Employees can also seek the restitution of a work condition affected by the discriminatory practice or the abolition of a discriminatory measure, through a claim filed before the labour authorities against the employer.
Employers are also subject to civil liability and may respond for both materials and immaterial damages caused to the employee.
In addition, employers may be subject to fines by the Health and Safety authority ranging from $19.64 (at the current Simadi exchange rate) and $56.67 (at the current Simadi exchange rate) per affected employee.
Class actions claims on grounds of discrimination can also be brought by protected groups before Courts.
How common are claims?
There is no relevant case law on age discrimination in Venezuela. The most common claims on discrimination are gender-related.
What are the trickiest issues for employers?
We have identified that in practice, employers actions during the pre-employment and recruitment stages may be held as age-discriminatory. These procedures must be performed in a way that prevents prospective employees from identifying any offensive or discriminatory terms prior to employment.
Are there any specific exceptions in your law?
In general terms, distinctions and privileges granted to employees on account of seniority, experience, family burdens, productivity and other features related to the employer’s activity and employment relation, are not considered discriminatory.
Furthermore, in the year 2000, the Constitutional Chamber of the Venezuelan Supreme Court ruled that differential treatment can be justified when it is based on an objective and reasonable purpose. The Court identified four conditions that enabled differential treatment: (i) it must have a specific purpose; (ii) it must have a reasonable aim (compatible with constitutional rights and principles); (iii) it must have proportionate effects in relation to the originating circumstance and the aim achieved; and (iv) it must be applied to cases in which different circumstances are involved. Hence, measures that fulfil these requirements are not considered discriminatory.
On the other hand, the Law on the Institute of National Education and Training allows “positive discrimination” based on age, whereby young people between the ages of 14 and 18 (“apprentices”), are favoured to enter the labour market. This law sets a quota of apprentices that must be hired, equivalent to a minimum of 3% of the employees in companies with more than 15 employees.
In Venezuela, the retirement age for women is 55 years of age and 60 years of age for men. However, retirement in Venezuela is voluntary.
There are no interesting cases at present.