This summary of age discrimination law in Chile has been prepared by Munita & Olavarria Ius Laboris Chile/Global HR Lawyers: www.munitaabogados.cl
OVERVIEW
The Chilean Constitution establishes in Article 19 (number 16) that every person has the right to free undertaking and free selection of work, with just compensation, prohibiting any discrimination that is not based on personal capacity.
Paragraph 3 states:
“Any form of discrimination that is not based on a personal capacity or suitability is prohibited, regardless of situations where the law might require Chilean nationality or age limits for certain cases.”
Moreover, Article 2 of the Labour Code establishes that acts of discrimination are contrary to the principles of the labour laws.
The article states:
“Discrimination acts are the distinctions, exclusions or preferences based on race, colour, sex, age, marital status, union affiliation, religion, political opinion, nationality, national ancestry, socioeconomic status, language, beliefs, participation in trade organisations, sexual orientation, gender identity, parentage, personal appearance or social origin, which purpose is to annul or reduce the equality of opportunities or treatment in the employment and occupation”.
Job offers made to an individual directly or indirectly through a third party or by any means, which specify a requirement as per the above, will also be deemed as discriminatory.
The rights and obligations set forth in the Labour Code shall be deemed incorporated in employment contracts.
WHO'S COVERED?
Any person and employee.
WHAT ENFORCEMENT/REMEDIES EXIST?
If discrimination occurs during employment, unions, employees and the Labour Directorate are entitled to file a judicial or administrative complaint in order to force the employer to end this behaviour.
However, in case of termination, only the employee (instead of the trade union or Labour Directorate) is entitled to allege that his/her dismissal was discriminatory.
If this complaint is admitted, the Labour Courts may order that the employer pay the employee 6 to 11 months’ of pay, in addition to a severance payment and damages caused by the unfair dismissal. Moreover, a company that has been deemed responsible for infringing on fundamental rights will be barred from entering into contracts and participating in tenders with the State of Chile for a two-year period.
An employee may only elect to be reinstated or receive compensation when:
The judge declares the dismissal to be discriminatory; and
Serious.
Otherwise, and in most of the claims, the employee would only be entitled to receive a compensation.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
Dismissal based on age or because the employee has reached the retirement age, does not constitute just cause for terminating an employment contract. Where an employee has been unjustly terminated therefore, an employer may be ordered to pay compensation if the employee succeeds in making a claim to the Labour Court.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
There are no specific exceptions apart from the relevant section in the Chilean Constitution which allows discrimination based on a personal capacity or suitability, or in such cases where particular laws might require Chilean nationality or age limits for certain types of work.
RETIREMENT AGES
Chilean law does not have a statutory retirement age and therefore, employees cannot be terminated on grounds of retirement.
Notwithstanding the above, according to Law Decree N° 3500, men can retire at the age of 65, and women at the age of 60. Nevertheless, if an employee decides to retire, they are able to receive a retirement pension and continue working. If they decide not to retire, they will continue paying social security contributions.