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AGE DISCRIMINATION INTERNATIONALLY

MEXICO

 



Basham, Ringe y Correa

www.basham.com.mx

Overview

General Legal framework on discrimination:

On April 2001 Article 1 of the Mexican Federal Constitution was amended and currently its third paragraph recognises the individual guarantee against discrimination. This article declares that in Mexico rights shall not be limited based on discrimination because of ethnic origin or nationality, gender, age, different abilities, social condition, health, religion, opinions, preferences, civil status or for any other cause which is against human dignity and has as its purpose the annulment or diminishment of rights and freedoms of the individual.

The above mentioned amendment incorporates the Federal Law to Prevent and Eliminate Discrimination, which, in Article 4, defines discrimination as any distinction, exclusion or restriction, based on ethnic or national origin, sex, age, disability, social or economic conditions, health conditions, pregnancy, language, religion, opinions, sexual preferences, civil status or any other reason whose purpose is to impede or annul the recognition or the exercise of rights and real equity for personal opportunities. This law establishes the powers and duties of the State in promoting the eradication of discrimination in Mexico. Its general scope includes private and public discrimination.

The Federal Labor Law prohibits discrimination in the workplace. For the same work performed under the same efficiency conditions, the same remuneration shall be granted, without distinction among employees.

Law for the Rights of Older Adults (LROA). This establishes principles and guidelines for the Health, Education, Work, and other Federal Ministries, in order to protect senior citizen's rights.

National System for the Social Assistance Law; and the General Law for the Social Development. These laws include senior citizens as important targets for social assistance.

Mexico City's Criminal Code establishes in its article 206 a punishment from one to three years of prison and a fine of from 50 to 200 days to any person who discriminates against another for reasons of age, sex, pregnancy, civil status, race, ethnic origins, language, religion, ideology, sexual preferences, skin color, nationality, origin, social position, job or profession, economic position, physical characteristics, disability, health status and to anyone who provokes or incites hatred and violence, or excludes from or denies to anyone his/her labour rights.

In January, 2003 the Human Rights Commission of Mexico City initiated a Permanent Campaign for Non Discrimination. Its main activities are related to the publication of materials and the organization of public assemblies and sensitivity training, giving special attention to the topic of Sexual Discrimination.

Age discrimination cannot be legally justified in Mexico.

Who's covered?

Non-Discrimination dispositions within Mexican legislation form a general basis against discrimination. For example, the Mexican Constitution, the Federal Labor Law (FLL) and the Federal Law to Prevent and Eliminate Discrimination (FLPED) state what shall be understood as discrimination and in the case of the FLPED states a disciplinary procedure for public authorities and private entities who discriminate.

The LROA defines senior citizens as people above 60 years old. This law sets out the principles and rights for senior citizens such as: strengthening their independence and personal development; participation in public life; fair and proportional treatment regarding access to and satisfaction of needs for welfare; and the prohibition against distinctions based on sex, economic situation, ethnicity, belief, religion or any other characteristic.

At work, senior citizens shall have equal access to job opportunities, and other options that could allow them their own income and the protection of the FLL. When unemployed, they shall receive social assistance through the federal programs “Popular Insurance” and the “Opportunities Program”, which provide health and food support for elderly people. More than 2.5 million people benefit from these programs. Today in Mexico one of every ten persons is a senior citizen.

What enforcement/remedies exist?

 

The entity in charge of enforcing discrimination laws is the National Council to Prevent Discrimination (the CONAPRED).

If an employee is discriminated against based on age, the employee may begin a conciliation procedure to the FLPED. If the discrimination was committed by a private employer, the employer's participation in the conciliation process is voluntary. If the discrimination was committed by the federal government or one of its agencies, the conciliation process is mandatory for the government as follows:

  • Filing a complaint;

  • Conciliation for purposes of a settlement agreement;

  • If no agreement is reached, then an Investigation process will begin;

  • Once the Investigation is over, the CONAPRED will issue a resolution determining if discrimination took place or not. If it so rules, sanctions would be applied through administrative measures.

The conciliation process has, as its main purpose, the attainment of an agreement to halt the discrimination. The Conciliation process does not allow the employee to enter a claim for damages or compensation.

If a criminal complaint is filed pursuant to the Mexico City Criminal Code, the claim shall be heard by a criminal court judge. The penalty for discrimination in the workplace is: a) 1-3 years of imprisonment or b) a fine of from 25 to 100 days of the minimum salary (approximately USD$5 per day).

How common are claims?

Currently there is no information available regarding claims for discrimination against senior citizens.

  • There are around 7 million senior citizens in Mexico (INEGI [1])
  • Of these, only one third have social security.(Conapred)
  • Of all senior citizens, only 10% receive a daily income above 20 dollars per day; of these 3% are women and 7% are men. (Conapred)
  • Senior citizens are the least protected discriminated-against group in Mexico. (Poll [2])
  • Senior citizens are considered to be the group in Mexico with the most difficulties in finding a job. (Poll)

What claims are most common and what are trickiest issues for employers?

Currently the LROA in its Articles 5 and 43 establishes that when a senior citizen's rights are violated by a public officer, a complaint can be presented before the competent authority, creating an apparently confusing duplication of the complaint procedure established by the Conapred.

Our impression is that the most common place to find discrimination in employment matters towards senior citizens is in vacancy postings, the recruitment process, and within the workplace.

Although the FLL specifies that there shall be no distinctions between employees based on race, sex, age, religious belief, political opinion or social condition, it does not specify any non-discrimination standards in the recruitment process, nor in the posting of vacancies. Advertisements are frequently seen in which companies offer vacancies that specify the range of age they are looking for.

We spend considerable time advising on seniority recognition of corporate restructuring processes in which employees are transferred from one company to another. For employee transfer the most viable options regarding employee seniority are: a) to terminate the employment relationship by paying the employee's seniority or b) to substitute the employer with the recognition of the employee's seniority.

Are there any specific exceptions in your laws?

There is an exception in the FLL that prohibits children under 14 years of age from working; the prohibition also applies to teenagers between 14 and 16 that haven't accomplished compulsory education unless they have the authorization of their parents, the Union they belong to, the Labor Board or of a political authority.

In Mexico there is a minimum wage established each year by a special Commission. A specific minimum wage is established for each of the three geographical areas into which the country is divided. In Mexico City the minimum wage is 57.56 pesos (as of 2010), which is equivalent to less than US$5.00 dollars.

Retirement ages

There is no justified age under which an employer is entitled to terminate the employment relationship for reasons of employee's age without liability for the employer. This means that there is no mandatory retirement age; an employee could continue performing his or her job as long as he or she lives.

In order to obtain the retirement pension granted by the Mexican Social Security Institute (IMSS) to affiliated employees, employees must prove that they are no longer in any employment relationship, they are 60 years old or above and have made 1,250 weekly contribution dues payments before the IMSS. This pension is called “Cesantía en edad Avanzada” (”Early Retirement”). There is another pension called “Pensión por Vejez” (”Old Age Pension”), to which are entitled employees of at least 65 years of age, who have made the 1,250 weekly contributions and who are able to prove they are not in any employment relationship. In this case affiliated employees only receive 70% of their total pension.

Currently, besides the social security pension, most companies are offering private retirement plans to their employees, specifying the age at which they would receive the pension. This age may vary according to the company's needs; most plans set the age around 55 to 60, requesting at least 15 years of continuous rendering of services to the Company.

Interesting cases

There are no relevant cases.

[1] National Institute for Statistics, Geography and Information.

[2] First National Poll regarding Discrimination in Mexico made on 2005