U.S. National Administrative Office
Bureau of International Labor Affairs
U.S. Department of Labor
January 12, 1998
TABLE OF CONTENTS
I. INTRODUCTION
II. SUMMARY OF SUBMISSION 9701
A. Submission Summary
B. Issues
C. Relief Requested
III. NAO REVIEW
A. Initiation of the Review
B. Objective of the Review
C. Information from the Submitters
D. Information from the Mexican NAO
E. Information from Legal Expert
F. Public Hearing
IV. NAALC OBLIGATIONS AND MEXICAN LABOR LAW
A. NAALC Obligations
B. The Maquiladora Industry
C. Relevant Mexican Law
D. Enforcement Bodies
E. Alliance for Equality: National Program for Women, 1995-2000
F. Human Rights Commission
V. INTERNATIONAL CONVENTIONS AND STANDARDS
A. International Labor Organization Convention 111
B. The U.N. Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
VI. ANALYSIS
VII. FINDINGS AND RECOMMENDATIONS
ENDNOTES
PUBLIC REPORT OF REVIEW OF
NAO SUBMISSION NO. 9701
I. INTRODUCTION
The U.S. National Administrative Office (NAO) was established under the
North American Agreement on Labor Cooperation (NAALC). The NAALC, the labor
supplemental agreement to the North American Free Trade Agreement (NAFTA),
provides for the review of submissions concerning labor law matters arising in
Canada or Mexico by the U.S. NAO. Article 16 (3) of the NAALC states:
[e]ach NAO shall provide for the submission and receipt, and periodically
publish a list, of public communications on labor law matters arising in the
territory of another Party. Each NAO shall review such matters, as appropriate,
in accordance with its domestic procedures.
"Labor law" is defined in Article 49 of the NAALC, as follows:
laws and regulations, or provisions thereof, that are directly related to:
(a) freedom of association and protection of the right to organize; (b) the
right to bargain collectively; (c) the right to strike; (d) prohibition of
forced labor; (e) labor protections for children and young persons; (f) minimum
employment standards, such as minimum wages and overtime pay, covering wage
earners, including those not covered by collective agreements; (g) elimination
of employment discrimination on the basis of grounds such as race, religion,
age, sex, or other grounds as determined by each Party's domestic laws; (h)
equal pay for men and women; (i) prevention of occupational injuries and
illnesses; (j) compensation in cases of occupational injuries and illnesses; (k)
protection of migrant workers.
Procedural guidelines governing the receipt, acceptance for review, and
conduct of review of submissions filed with the U.S. NAO were issued pursuant to
Article 16 (3) of the NAALC. The U.S. NAO's procedural guidelines were
published and became effective on April 7, 1994, in a Revised Notice of
Establishment of the U.S. National Administrative Office and Procedural
Guidelines.(1) Pursuant to these guidelines, once a determination is made
to accept a submission for review, the NAO shall conduct such further
examination of the submission as may be appropriate to assist the NAO to better
understand and publicly report on the issues raised therein. The Secretary of
the NAO shall issue a public report that includes a summary of the review
proceedings and findings and recommendations. The review must be completed and
the public report issued within 120 days of acceptance of a submission for
review, unless circumstances require an extension of time of up to 60 additional
days.
II. SUMMARY OF SUBMISSION 9701
U.S. NAO Submission No. 9701 was filed on May 16, 1996, by Human Rights
Watch (HRW), the International Labor Rights Fund (ILRF), and the National
Association of Democratic Lawyers (Asociación Nacional de Abogados
Democráticos, hereinafter ANAD) of Mexico. The submission raises
issues of discrimination against women job applicants and women workers in
Mexico's export processing (maquiladora) sector.(2) The
submitters allege that maquiladora employers regularly require female job
applicants to verify their pregnancy status as a condition of employment and
deny employment to pregnant women. Additionally, the submitters allege that
some maquiladora employers discharge pregnant employees or deliberately
mistreat them in order to provoke their resignation.
Mexican law guarantees financial and medical support to pregnant workers and
their families through the social security system. However, when workers have
not been employed for a sufficient period (30 weeks) to qualify for social
security benefits, employers are required to provide maternity benefits to
pregnant workers, including six weeks of paid leave before and after delivery.
Thus, the alleged basis for the discrimination is economic.
The submitters assert that such discrimination is widely countenanced by
Mexican Government officials charged with enforcing Mexico's labor laws, and may
even be condoned as part of a wider effort to curb population growth. They
assert that these actions are in violation of Mexican domestic law which
prohibits gender discrimination and provides special protection for pregnant
workers. The submitters argue that by failing to enforce its laws, Mexico is in
violation of NAALC Article 3(1) on effective enforcement of its labor law, and
Articles 4(1) and 4(2) on access to tribunals for enforcement of labor law and
recourse to procedures through which labor rights are protected. Moreover, such
discrimination is asserted to be inconsistent with the Preamble of the NAALC
which commits the Parties to the protection and enforcement of basic worker
rights as well as the promotion of Labor Principles included in Annex 1 of the
NAALC, specifically the principle committing the Parties to the elimination of
employment discrimination on the basis of race, religion, age, sex, or other
grounds. The submitters further argue that Mexico is in violation of
international law, namely Convention 111 of the International Labor Organization
(ILO); the International Covenant on Civil and Political Rights (ICCPR); the
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW); and the American Convention on Human Rights. All of these instruments
have been ratified by Mexico and, it is asserted, have legal force in accordance
with the Mexican Constitution.
The submitters requested that the U.S. NAO (1) initiate a review pursuant to
NAALC Article 16; (2) hold public hearings on the matter; (3) engage the Mexican
Government in a public evaluation of the issues raised; (4) encourage the
Mexican Government to meet its NAALC obligations; and (5) urge the Secretary of
Labor to request consultations with the Mexican Secretary of Labor and Social
Welfare in accordance with NAALC Article 22.
A. Submission Summary
In March 1995, a HRW mission traveled to the cities of Tijuana, Baja
California State, Chihuahua, Chihuahua State, and Matamoros, Reynosa and Rio
Bravo, Tamaulipas State. The purpose of the mission was to investigate possible
discrimination against women job applicants and women workers employed in the
maquiladora sector, who were pregnant or who may become pregnant. The mission
conducted interviews with women's rights activists, maquiladora personnel, labor
rights advocates, Mexican Government officials, community organizers, and women
workers.
The results of the interviews were released in a report in August, 1996.(3)
HRW reported that pregnancy-based gender discrimination takes three forms: (1)
testing and interviewing of job applicants during the hiring process to
determine their pregnancy status; (2) denial of employment to pregnant
applicants; and (3) dismissal of pregnant workers or the mistreatment of
pregnant workers in an effort to bring about their resignation.
According to the submitters, the report showed that pregnancy testing by
maquiladora employers is widespread. HRW alleged the use of pregnancy testing
or other methods of determining the pregnancy status of job applicants in
thirty-eight companies in the five cities. These other methods include direct
and intrusive questioning of applicants by personnel officers on whether the
applicant is sexually active, when she last menstruated, and the type of
contraceptive(s) she uses. In some cases, the questions were included in the
written job application. On some occasions, doctors, nurses, or other
maquiladora personnel allegedly informed job applicants that if they were found
to be pregnant they would not be hired. In other companies, personnel officers
reportedly informed workers that if they became pregnant after they began work,
they would lose their jobs.
HRW found that after a worker became pregnant, she could be subject to
pressure to resign or harassment and mistreatment for becoming pregnant. It was
alleged that working conditions were applied arbitrarily and punitively against
pregnant workers in order to persuade them to resign. Such conditions were
reported to included reassignment to more difficult tasks; alteration of work
shifts on a weekly basis; being forced to stand instead of being offered a seat;
and being obliged to work overtime hours without compensation as a condition for
keeping their employment. Further, pregnant workers reported that maquiladora
employers frequently use probationary contracts of thirty to ninety days as a
mechanism to refuse permanent positions to pregnant workers. Finally, a number
of the women interviewed reported that they were coerced and intimidated into
submitting resignations after they were discovered to be pregnant.
The submitters assert that women who are subject to the treatment described
are not afforded relief in Mexico, either through the appropriate administrative
labor tribunals or the courts. They allege that the Inspectors of Labor (Inspectores
del Trabajo) and the Office for the Defense of Labor(4) (Procuraduría
de la Defensa del Trabajo) lack jurisdiction on the issue of pre-employment
pregnancy-based discrimination and are unresponsive to complaints on the issue.
They also allege that the Conciliation and Arbitration Boards (Juntas de
Conciliación y Arbitraje - CABs), which are the primary bodies
charged with the investigation and adjudication of labor disputes, are
ineffective in dealing with gender discrimination issues.
According to the submitters, many of the women employed in the
maquiladoras come from rural backgrounds, are poor, and have limited formal
education. They are in need of employment and are not always aware of their
rights under the law. This makes them particularly vulnerable to the actions
described. Many of the workers lack confidence in the official institutions and mechanisms in place for the enforcement of
the law and the protection of their rights.
B. Issues
The submitters allege (1) employment discrimination on the basis of gender
in violation of the obligation of Mexico to enforce its labor laws, including
obligations related to international conventions, under Article 3 (1) of the
NAALC; and (2) failure to ensure appropriate access to administrative,
quasi-judicial, judicial or labor tribunals for the enforcement of a Party's
labor law and failure to ensure that persons shall have recourse to procedures
by which rights arising under a Party's labor law can be enforced, in violation
of Articles 4 (1) and 4 (2) of the NAALC.
In support of the first allegation, the submitters argue that
Mexico's Constitution and Federal Labor Law prohibit sex discrimination,
guarantee equality between men and women, protect women workers during
pregnancy, and guarantee the right to decide freely on the number and spacing of
children. Further, they argue that Mexico has ratified a number of
international treaties against gender discrimination which, according to Mexican
law, are binding on Mexico. These include the International Covenant on Civil
and Political Rights (ICCPR), the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), the American Convention on Human Rights,
and Convention 111 of the ILO on Discrimination in Respect of Employment and
Occupation. The submitters claim that pregnancy testing is widespread, that
the Government of Mexico is aware of the practice, and that it has failed to
take corrective action.
In support of the second allegation, the submitters argue that the
institutions that exist to enforce compliance and adjudicate labor issues are
not effective in gender discrimination issues. The primary institutions for the
adjudication of disputes arising under the Federal Labor Law (FLL) are the CABs.
Several of the government officials that HRW reportedly interviewed said that
the CABs are limited in their jurisdiction to cases in which a labor
relationship is already established, that is after a worker has been hired, and,
therefore, lack the authority to adjudicate pre-employment issues. The
submitters also maintain that the CABs have no clear position on whether
pre-employment pregnancy- based discrimination is illegal. They further assert
that the CAB process is time consuming and that the CABs lack transparency and
credibility among the workers. Consequently, few workers use the CABs.(5)
The submitters assert that other institutions charged with the protection
of workers and their rights are equally ineffective. In Submission 9701 and in
the HRW Report, labor inspectors who were interviewed reportedly
responded that they lack support from their superiors, as well as the legal and
material resources, to pursue cases involving pregnancy discrimination. The
Office for the Defense of Labor is allegedly subject to similar constraints as
well as possible conflict of interest in some cases. This last allegation was
made on the basis that one local attorney of an Office for the Defense of Labor
also served as head of an industrial association representing employers.(6)
C. Relief Requested
The submitters requested that the NAO undertake the following measures:
- initiate a review pursuant to Article 16 of the NAALC;
- hold public hearings on the matter;
- engage the Government of Mexico in a process of public evaluation of the
problems documented in the petition;
- encourage Mexico to meet its NAALC obligations by (a) taking steps against
employment discrimination by enforcing its labor laws; (b) declaring that the
Minister of Labor has failed to enforce laws against sex discrimination in
employment; (c) vigorously enforcing sex discrimination labor laws; (d) posting
copies of the ministerial declaration in all appropriate government offices; (e)
staffing the offices of the Inspectorate of Labor, [Office for the Defense of
Labor] and Conciliation and Arbitration Boards to enable them to handle non-
hiring cases; and (f) empowering those bodies to adequately investigate and
pursue cases involving gender discrimination; and
- urge the Secretary of Labor to request consultations at the ministerial
level with Mexico's Secretary of Labor and Social Welfare on the issues raised in the submission and, if matters are not resolved through
consultations, request the appointment of an Evaluation Committee of Experts
(ECE).
III. NAO REVIEW
The NAO procedural guidelines specify that following a determination by the
NAO Secretary to accept a submission for review, the Secretary shall publish
promptly in the Federal Register a notice of determination, a statement
specifying why the review is warranted, and the terms of the review. Moreover,
the NAO shall then conduct such further examination of the submission as may be
appropriate to assist the NAO to better understand and publicly report on the
issues raised.
A. Initiation of the Review
Submission No. 9701 was filed on May 16, 1997. It was accepted for review
on July 14, 1997, within sixty days of its receipt, as required by the NAO's
procedural guidelines. The NAO published its notice that Submission No. 9701
had been accepted for review on July 17, 1997.(7)
Review of this submission was deemed appropriate because it satisfied the
criteria for acceptance as stated in Section G.2 of the NAO procedural
guidelines: (1) it raised issues related to labor law matters in Mexico and (2)
a review would further the objectives of the NAALC as set out in Article 1.
Article 1 provides that the objectives of the NAALC include improving working
conditions and living standards in each Party's territory; promoting, to the
maximum extent possible, the labor principles set out in Annex 1; promoting
compliance with, and effective enforcement by each Party of, its labor law; and
fostering transparency in the administration of labor law.
The NAO further stated that acceptance of the submission for review was not
intended to indicate any determination as to the validity or accuracy of the
allegations contained in the submission.
B. Objective of the Review
Consistent with Section H.1 of the NAO guidelines, the review focused on
compliance with, and effective enforcement by the Government of Mexico, of labor
laws that provide protection against employment discrimination and on the access
to the appropriate tribunals or other government bodies by workers who claim
they have been discriminated against. The review also included NAALC Article 7
on the promotion of public awareness and public education on gender
discrimination laws.
C. Information from the Submitters
NAO officials met with representatives of the submitters on June 19, 1997,
to supplement information included in the submission.
D. Information from the Mexican NAO
In a memorandum dated July 11, 1997, the Mexican NAO stated that a review of
the submission would exceed the intended scope of the NAALC in that it
questioned Mexican law rather than its application and enforcement. The Mexican
NAO also stated that the cases of abuse reported in the submission were limited
in number and that Mexican law adequately protects women in matters involving
gender discrimination. The Mexican NAO provided supplemental information in
support of this position.(8)
In a memorandum dated October 14, 1997, the Mexican NAO responded
to questions submitted by the U.S. NAO on July 18, 1997. In its memorandum, the
Mexican NAO stated that there is no explicit prohibition in Mexican law against
pre-employment pregnancy screening and that there is no legal mechanism by
which a person may pursue a claim of pre-employment gender discrimination prior
to the establishment of the employment relationship. The response also included
information on a recommendation by the Human Rights Commission of the Federal
District of Mexico, Mexican law on gender and employment issues and the role of
the courts in these types of cases.(9)
E. Information from Legal Expert
The NAO contracted the services of an expert in Mexican labor law and gender
issues. The scope of the research included information on the proper mechanism
for bringing forth claims of pregnancy-based employment discrimination in
Mexico; Mexican law and practice on pre-employment issues; cases involving
pregnancy-based employment discrimination brought before Mexico's Federal and
state courts; cases brought before labor and other administrative tribunals; and
other Mexican jurisprudence relevant to the issues raised in the submission.(10)
F. Public Hearing
The NAO held a public hearing on Submission No. 9701 in Brownsville, Texas,
on November 19, 1997. Notice of the hearing was published in the Federal
Register on October 17, 1997.(11)
Twelve witnesses presented information at the hearing on behalf of the
submitters. These included seven expert witnesses who provided information on
Mexican labor law, ILO Convention 111, the U.N. Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW), employer practices concerning
pregnancy, and the practices of Mexico's executive and judicial authorities as
regards the issues raised in the submission.
Five women workers employed in the maquiladora sector testified as to their
experiences regarding both pre-employment and post-hire pregnancy practices
by maquiladora employers.(12)
IV. NAALC OBLIGATIONS AND MEXICAN LABOR LAW
A. NAALC Obligations
Part One of the NAALC lists the objectives to which the Parties commit
themselves, including the promotion, to the maximum extent possible, of the
labor principles set out in Annex 1. The seventh principle of Annex 1 commits
the Parties to the elimination of "employment discrimination on such
grounds as race, religion, age, sex or other grounds."
Part Two of the NAALC sets out the obligations agreed to by the Parties to
the Agreement. Three of the NAALC articles are pertinent to this submission.
These are Article 3 on Government Enforcement Action; Article 4 on Private
Action; and Article 7 on Public Information and Awareness.
B. The Maquiladora Industry
Mexico's export processing (maquiladora) industry traces its origins
to the Decree for the Development and Operation of the Maquiladora Export
Industry (the Maquiladora Decree) which was enacted in 1965. This law allows
companies to import components into the maquiladora sector free of duty provided
that they are re-exported as assembled products. A company wishing to avail
itself of the duty free privileges must obtain a permit from Mexico's
Secretariat of Commerce (SECOFI). Though the maquiladora industry began along
the northern border with the United States, and is still largely concentrated
there, a maquiladora can be established anywhere within Mexico.
The law was amended by the 1989 Maquiladora Decree which implemented a
number of measures to streamline and expedite procedures. The 1989 amendment
also enables the maquiladoras to sell an increasing portion of their production
in the Mexican market.(13)
By July, 1997, the maquiladora industry had grown to include 908,000 workers
in 2723 establishments.(14) Of this total, over 731,000 workers are
employed in the six northern states that share the border with the United
States. Production line workers constitute over 738,000 of the total number of
employees, with production technicians numbering 104,512 and administrative
employees totaling 64,762. Statistics on gender are only provided for
production workers, with women comprising about 58% (426,112) of the total.(15)
Labor relations and standards in maquiladora operations are regulated by the
Mexican Federal Labor Law, which regulates all individual and collective labor
relations in the private sector. No exceptions to labor laws and standards are provided
in the Maquiladora Decree.
C. Relevant Mexican Law
Equality between the sexes before the law is ensured in the Political
Constitution of the United Mexican States (hereinafter, the Mexican
Constitution), Article 4, which was enacted in 1974, and states, in relevant
part: "Man and woman are equal before the law. This will protect the
organization and development of the family."(16)
Article 4 goes on to state "[a]ll persons have the right to decide in a free, responsible and
informed manner, on the number and spacing of their children."(17)
Article 5 of the Constitution states "[n]o person shall be prevented from pursuing
the profession, trade, business, or work of their choice, provided it is legal."(18)
Article 123(A) of the Mexican Constitution governs labor standards and
labor- management relations. Paragraph V establishes protection for pregnant
workers.(19) Paragraph VII addresses equal pay for equal work, without
regard to sex or nationality.
Article 123(A) is implemented by the Federal Labor Law (Ley Federal del
Trabajo, hereinafter the FLL).(20) Article 3 of the FLL states: "[t]here
shall not be established distinctions among workers for [reason] of race, sex,
age, religious creed, political doctrine or social position."
Title V of the FLL deals with the employment of women. Article 133 of that
title lists prohibited practices by employers. Article 133 (I) states that
employers may not "[r]efuse to accept workers for reason of age or sex . .
. ."
Article 164 states "[w]omen enjoy the same rights and have the same
obligations as men."
Article 170 of Title V addresses pregnancy and maternity and states that
working mothers shall have the following rights:
(I) during the period of pregnancy they shall not perform work demanding
considerable strength, which is dangerous for their health in relation to the
gestation period, such as lifting, dragging or pushing heavy weights, that
which produces rapid vibrations, remaining in a standing position for long
periods or that which may alter their mental or emotional state;
(II) they shall be entitled to maternity leave of six weeks duration before
and after [delivery];
(III) the maternity leave referred to in the preceding item is extended by
the time necessary if it is impossible for the woman to return to work on
account of her pregnancy or confinement;
(IV) during the period of lactation the woman shall be entitled to two extra
breaks each day of one half hour's duration each to breast feed her infant, in
suitable hygienic premises designated by the enterprise;
(V) during the maternity leave referred to in item II the woman shall be
entitled to her full wages. In case of the extended maternity leave referred to
in item III, the woman shall be entitled to half pay for a period not exceeding
sixty days . . . .
FLL Title II, Chapter IV, Articles 46-52 and Chapter V, Articles 53-55
addresses the termination of the labor relationship. Article 47 lists fifteen
causes for justified termination of the labor relationship, none of which
includes pregnancy.
Article 38 of the FLL allows temporary contracts for a fixed term only when
necessary due to the nature of the work, when temporarily replacing another
worker, or as otherwise provided in the law. Mexican labor law does not provide
for probationary or trial periods of employment to determine a person's ability
and proficiency to perform a job, or for any other reason.(21) There
appear to be no provisions in Mexican labor law that would permit the use of
temporary contracts to refuse permanent positions to pregnant workers, which
practice the submitters refer to in the submission.
The Law of Social Security (Ley de Seguiridad Social), Mexican
Federal Law 93, established the social security system in Mexico and created the
Mexican Institute of Social Security (Instituto Mexicano de Seguridad Social
) to implement and regulate the law. To be entitled to paid maternity
leave, a worker must have participated and made payments to the Social Security
Fund for at least thirty weeks during the twelve-month period prior to receiving
the benefit.(22) Workers who do not qualify for coverage by social
security are entitled to the same rights and protections under FLL Article 170
at the expense of the employer.
D. Enforcement Bodies
Three Mexican Government entities appear to have jurisdiction in cases
involving allegations of employment discrimination on the basis of sex.
1. The Federal and Local Conciliation and Arbitration Boards (CABs)
adjudicate most individual and collective disputes between labor and management.
FLL Article 604 establishes the Federal Conciliation and Arbitration Board
(CAB) and empowers it to hear and decide labor disputes between workers and
their employers. Article 621 establishes the Local Conciliation and Arbitration
Boards (CABs) and empowers them to adjudicate disputes that do not fall within
the jurisdiction of the Federal CABs.
FLL Article 604 states that "[t]he Federal Conciliation and
Arbitration Board shall hear and decide labor disputes arising between workers
and employers or between workers only or employers only, arising out of the
labor relationships or acts closely connected with such relations . . . ."
Article 621 of the FLL states that "[l]ocal Conciliation and
Arbitration Boards shall operate in each of the States of the Federation. They
shall hear and settle labor disputes which do not fall within the competence of
the Federal Conciliation and Arbitration Board."
The Mexican NAO asserts that there is no mechanism to bring cases of pre-
employment pregnancy screening as both Article 123 (A) of the Mexican
Constitution and the Mexican Federal Labor Law protect only the rights of those
parties already engaged in a labor relationship.(23)
Documented interviews with officers of the CABs, in which these officers gave similar responses on the
non-application of the FLL and the absence of jurisdiction of the CABs in
pre-employment issues, were included in both the HRW Report and in
Submission No. 9701.
On post-hire pregnancy discrimination, there is general agreement that the
CABs have the authority and jurisdiction to act under FLL Articles 46-55. In
such cases, the action would be against unjustified dismissal. The submitters
provided information at the public hearing that the CAB and the Office for the
Defense of Labor in Juarez, Chihuahua, handle approximately one case per month
of unjustified dismissal, some of which involved dismissal for pregnancy, and
that favorable rulings for the workers have been obtained.(24) The
Secretariat of Labor and Social Welfare (STPS) estimates that the federal CABs
heard over 53,000 cases in 1996, most of them individual cases. More than 9,000
of the CAB decisions were appealed to the courts using the amparo
process.(25) The NAO has no information on how many of these cases
involved pregnancy discrimination or other forms of employment discrimination.(26)
2. The Inspectorate of Labor is primarily charged with workplace
inspections. FLL Article 540 specifies the functions of the Inspectorate of
Labor as follows:
(I) to ensure fulfillment of labor [standards];
(II) to provide technical information and advise workers and employers as to
the most effective manner for fulfilling the labor [standards];
(III) to report to [the authorities] any failure to observe, and violations
of, the labor [standards] it discovers in enterprises and establishments;
(IV) to make such studies and collect such data as may be required by the
authorities and those which it deems necessary to achieve harmony in the
relations between workers and employers; and
(V) such other functions as may be assigned to it by law.
Article 541 states that labor inspectors will have the following powers and
duties:
(I) to ensure that the labor [standards] are observed, in particular those
prescribing the rights and obligations of workers and employers, those
concerning the prevention of employment injuries, safety and health;
(II) to inspect enterprises and establishments during the hours of work
(day or night) on producing [appropriate] identification;
(III) to put questions to workers and employers, in the presence or in the
absence of witnesses, on any matter connected with the application of the labor
[standards];
(IV) to require the [presentation] of any books, registers or other
documents required to be kept by the labor [standards];
(V) to suggest that any non-observance of the employment conditions be
corrected;
(VI) to suggest that any duly ascertained defects in plans and methods of
work be put right if they constitute a violation of the labor [standards] or a
danger to the workers' safety or health, and the adoption of immediate measures
in the case of any imminent danger;
(VII) to examine the substances and materials used in enterprises and
establishments in the case of dangerous work; and
(VIII) any other powers and duties assigned to them by law.
The submitters maintain that the inspectors lack authority, support, and
resources to effectively discharge their responsibilities. On the other hand,
the Mexican NAO provided information that during 1997 STPS conducted 809
inspections of 437 maquiladoras and found that they were substantially in
compliance with the law. In those cases where violations were detected,
corrective action was taken which, in some cases, could include the application
of sanctions against those companies found to be in violation of the law.(27)
The plants that were inspected reportedly employed 138,712 workers, of whom
3,414 were pregnant and 484 were nursing.(28) In another memorandum, the
Mexican NAO stated that approximately 48,000 worksite inspections are conducted
annually in Mexico. According to the Mexican NAO, very few of the inspections
revealed the violation of maternity protection laws.(29)
The Mexican NAO has stated that STPS maintains an ongoing dialogue with the
National Council of the Maquiladora Industry (CNIME), which cooperates in
securing the compliance of its member companies with labor laws and standards
and in correcting deficiencies. Further, since 1996, STPS has reportedly
conducted a program of consciousness awareness among maquiladora employers on
discrimination against women employed in the maquiladoras.(30)
3. The Office for the Defense of Labor has the following functions, as
outlined by FLL Article 530:
(I) to advise workers and their trade unions or represent them [before] any
authority whenever requested, in matters connected with the application of the
labor [standards];
(II) to bring ordinary and extraordinary appeals which may arise on behalf
of a worker or trade union; and
(III) to propose [negotiated] solutions to the parties concerned for the
settlement of their disputes and make official reports of the results thereof.
The submitters argue that the Office for the Defense of Labor is ineffective
in discharging its obligations in pre-employment pregnancy cases because it is
legally restricted to addressing only post-hire cases. On post-hire cases, the
submitters allege that some of the attorneys of that agency are inaccessible to
workers and lack the necessary material and human resources to effectively
advocate on their behalf. On the other hand, in testimony at the public
hearing, the submitters indicated that in Juarez, Chihuahua, the Attorney for
the Defense of Labor did take up and win cases of post-hire dismissal for
pregnancy before the CAB. The Mexican NAO has indicated that very few of the
unspecified number of requests for assistance to the Office for the Defense of
Labor involved complaints of violations of the FLL against pregnant or nursing
women.(31)
Mexico's courts entertain amparo appeals through which an individual
or legal entity may seek protection against the violation of constitutional
guarantees by the government or its agents. Amparos, however, must be
filed against an action by the government or its agent.(32) Further,
according to the Mexican NAO, unless an action is prohibited by law, the
amparo process may not be used to seek redress against the action.(33)
The amparo has been used with some success against decisions by the CABs
in labor cases. As noted previously, over 9000 amparo appeals against
CAB decisions were filed during 1996. There is no indication, however, that
affected workers have availed themselves of the amparo process in gender
discrimination cases. (34)
E. Alliance for Equality: National Program for Women, 1995-2000
The Mexican NAO provided information on efforts the Mexican Government is
undertaking to improve the enforcement and awareness of the rights of women
workers. The Alliance for Equality: National Program for Women 1995-2000
(Alianza para la Igualdad: Programa Nacional de la Mujer, 1995-2000
) was designed to rectify inequalities that persist in Mexican society
between men and women. This document, the product of the Secretariat of
Government (Secretaría de Gobernación), articulates
general programs to address problems affecting women including (1) access to
health services; (2) education; (3) employment; (4) poverty; (5) development of
small businesses; (6) family problems; (7) women's rights; (8) violence against
women; and (9) stereotypical images of women.(35)
The labor objectives of this program include (1) improved access for women
to employment opportunities and protection of their labor rights; (2) improved
working conditions; and (3) an increase in employment and training opportunities
available to women workers.
In its background statement describing problems faced by working women, this
document states: "To some extent the practices of dismissal for reason of
pregnancy and the requirement of a non-pregnancy certification to obtain
employment persist."(36) The Alliance for Equality goes on to
state: "Additionally, women workers are frequently subjected to
discriminatory practices in obtaining employment and in dismissal from employment for reason of pregnancy
or because they are nursing."(37) The program calls for a broad range of actions, including the establishment of "mechanisms
to ensure the respect for the rights of women workers and their access to the
welfare and social security systems, on an equal footing with men, in compliance
with the Federal Labor Law, in order to avoid discrimination for reason of sex,
age, civil status and pregnancy . . . ." Priority is also assigned to the
implementation of information and orientation programs to enable working women
to better defend their labor rights.(38)
F. HUMAN RIGHTS COMMISSION
The Human Rights Commission of the Federal District is an autonomous body
that derives its statutory authority from Article 102, Part B of the Mexican
Constitution. Article 102, Part B, authorizes the National Congress and the
State legislatures to establish bodies to protect those human rights that are
covered by Mexican law. Their essential function is the investigation of
administrative acts or omissions on the part of any governmental authority or
individual that may violate human rights. The recommendations of the bodies created under the law are not binding and they are precluded
from ruling on matters properly within the jurisdiction of the courts. Further, they are
explicitly precluded from becoming involved in electoral, labor and
jurisdictional issues.(39)
The National Human Rights Commission was established on June 29, 1992.(40)
In a 1994, report to the United Nations General Assembly, it was designated as
the national institution responsible for overseeing the implementation of human
rights.(41) The Human Rights Commission of the Federal District was
established on June 22, 1993.(42) The President and Council of both commissions are prominent citizens
nominated by the President of Mexico. Members of the National Commission are
confirmed by the Senate, while those of the Federal District are confirmed by
the Legislative Assembly of the Federal District.
Beginning on February 15, 1995, the Commission for the Federal District
conducted an investigation of allegations that women in Mexico's Federal
District were required to undergo pregnancy testing or provide certificates
attesting to their non-pregnancy before being accepted for employment in a
number of federal agencies located in the Federal District. The agencies
included in the investigation were the Department of the Federal District, the
Superior Court and Judicial Council of the Federal District, and the Office of
the Attorney General for the Federal District. This case was considered a human
rights case, not a labor case, and was, therefore, within the jurisdiction of
the Commission. The Commission issued its report and recommendations on June 1,
1995, finding that such practices did occur, that they did discriminate against
women, and that they were in violation of Articles 4 and 5 of the Mexican
Constitution. The Commission cited Article 11(1) of the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW)(43) in support of its conclusions and recommended that the
federal entities that were engaging in this practice cease doing so.(44)
The Mexican NAO has provided information stating that the recommendations of
the Commission were accepted and implemented in their entirety.(45)
V. INTERNATIONAL CONVENTIONS AND STANDARDS
The submitters maintain that the practices outlined in the submission are in
violation of the International Covenant on Civil and Political Rights (ICCPR),
CEDAW, the American Convention on Human Rights, and Convention 111 of the International Labor
Organization (ILO) on Discrimination in Respect of Employment and Occupation.
Article 133 of the Mexican Constitution sets forth the hierarchy of laws
within the Mexican legal system:
[t]his Constitution, the laws of the Congress of the Union which emanate
therefrom, and all treaties made, or which shall be made in accordance therewith
by the President of the Republic, with the approval of the Senate, shall be
bound to the said Constitution, the laws and treaties, notwithstanding any
contradictory provisions that may appear in the Constitution or Laws of the
States.
Article 6 of the Federal Labor Law addresses the issue of international
treaties with respect to labor law: "[t]he respective laws and the treaties
ratified and approved in accordance with the terms of Article 133 of the
Constitution will be applicable in labor relations in all that benefits the
worker, as of the date they enter into effect."
There are different opinions among Mexican legal scholars on the position of
international treaties within the hierarchy of Mexican law. This was addressed
by the NAO in its review of Submission No. 9601.(46) The debate has
focused on whether international treaties are superior to, equal to, or inferior
to organic federal laws in the Mexican legal hierarchy.(47) Most Mexican
legal scholars place them on equal footing.
Although there is disagreement over their force under Mexican law, ILO
Conventions have been cited by the Mexican courts in support of decisions
concerning labor rights under the law. In its review of earlier submissions, the
NAO ascertained that ILO Convention 87 was cited by the Mexican Supreme Court in
two 1996 decisions(48) and by the Third Collegiate Tribunal of the First
Circuit of Mexico City in a decision dated June 4, 1997,(49) concerning
the Fishery Ministry Workers Union (SUTSP). In all three cases, the supremacy
of the Mexican Constitution, which guarantees freedom of association, was the
principal argument. However, Convention 87, and its ratification by Mexico, was
cited in support of the courts' broad interpretation of freedom of association
under Mexican law.
A. International Labor Organization Convention 111
Convention 111 of the ILO has figured prominently in the submission and
associated documents, and has also been the subject of interpretive reports by
ILO bodies over the years. Convention 111 was adopted by the ILO on June 4, 1958, and
ratified by Mexico in 1961.
Article 1 of Convention 111 states:
1. For the purpose of this Convention the term discrimination includes--
a) any distinction, exclusion or preference made on the basis of race,
colour, sex, religion, political opinion, national extraction or social origin,
which has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation;
b) such other distinction, exclusion or preference which has the effect of
nullifying or impairing equality of opportunity or treatment in employment or
occupation as may be determined by the Member concerned after consultation
with representative employers' organizations, where such exist, and with other
appropriate bodies.
2. Any distinction, exclusion or preference in respect of a particular job
based on the inherent requirements thereof shall not be deemed to be
discrimination.
3. For the purpose of this Convention the terms employment and occupation
include access to vocational training, access to employment and to particular
occupations, and terms and conditions of employment.
Article 2 of the Convention states:
Each Member for which this Convention is in force undertakes to declare and
pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in
respect of employment and occupation, with a view to eliminating any
discrimination in respect thereof.
Article 3 states in relevant part:
Each Member for which this Convention is in force undertakes, by methods
appropriate to national conditions and practice--
a) to seek the cooperation of employers' and workers' organisations and
other appropriate bodies in promoting the acceptance and observance of this
policy;
b) to enact such legislation and to promote such educational programmes as
may be calculated to secure the acceptance and observance of the policy; [and]
c) to repeal any statutory provisions and modify any administrative
instructions or practices which are inconsistent with this policy . . . .
In 1988, the ILO Committee of Experts on the Application of Conventions and
Recommendations (hereinafter the Committee of Experts or the Committee) noted
that some national laws against discrimination on the basis of sex sometimes
fail to provide an adequate definition of gender discrimination. Other
countries, however, specify that such discrimination includes "acts of
discrimination on the basis of civil status, marital status or family status,
pregnancy or confinement."(50) The Committee described as discriminatory,
under the terms of the Convention, those requirements that are imposed only on
individuals of one sex stating: "[t]he discriminatory nature of
distinctions on the basis of pregnancy, confinement and related medical
conditions is demonstrated by the fact that up to the present time they have
only affected women."(51)
In 1996, the ILO Committee of Experts indicated that the definition of
sex-based discrimination includes "[discrimination] based on marital
status or, more specifically, family situation (especially in relation to
responsibility for dependent persons), as well as pregnancy and confinement."(52)
The Committee also clarified "indirect" discrimination as a practice
that:
refers to apparently neutral situations, regulations or practices which in
fact result in unequal treatment of persons with certain characteristics. It
occurs when the same condition, treatment or criterion is applied to everyone,
but results in a disproportionately harsh impact on some persons on the basis
of characteristics such as race, colour, sex or religion, and is not closely
related to the inherent requirements of the job.(53)
Two cases are indicative of the Committee's concern about the
inappropriateness of pregnancy testing prior to employment. In 1991, 1993, and
1996 the Committee reviewed allegations of sex discrimination in Colombia, which
included requiring negative pregnancy tests before employing women. In 1995,
the Committee stated that it:
notes with satisfaction the adoption, following receipt of technical
assistance from the Office, of Ministry of Labour and Social Security Resolution
No. 3716 of 3 November 1994 which restricts the requirement of a pregnancy test
for obtaining employment in both the private and public sectors to employment or
occupations where pregnancies might be at risk. It also notes with satisfaction
the adoption of resolution No. 3941 of 24 November 1994 which specifies that
such employment and occupations shall be only those listed as "high risk"
in Decrees Nos. 1281 and 1835 of 1994. It also notes with interest the copy of
the Ministry of Labour's circular, addressed to all regional labour directors
and labour inspectors, recalling the importance of verifying compliance with
constitutional provisions on equality of opportunity between men and women,
including the elimination of sex-based discrimination and sexual harassment.(54)
In 1993, the Committee reviewed allegations that employers in Brazil
frequently require that women of reproductive age who seek employment submit
certificates attesting to their sterilization. In its report, the Committee
also addressed pregnancy testing by stating:
The Committee notes with interest Law No. 11081 of 6 September 1991 and
Decree No. 30497 of 6 November 1991, of the Municipality of Sao Paulo, which
empower the Municipality of Sao Paulo to impose sanctions on commercial or
industrial establishments and entities, as well as civil associations or
societies which have restricted a woman's right to employment, in particular, by
requiring a pregnancy test or proof of sterilization in order to be hired or to
remain employed or by requiring gynecological examinations on a periodic basis
as a condition for maintaining employment, and by discriminating against married
women or mothers in employment selection or dismissal. The Committee requests
the Government to supply information on the practical application of Municipal
Law 11081 and of 6 September, 1991 and Decree No. 30497 of 6 November 1991,
including the sanctions imposed where an employer has asked women for proof of
sterility or pregnancy in order to be employed.(55)
B. The U.N. Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
The U.N. Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) was adopted by the United Nations General
Assembly in resolution 34/180 of December 18, 1979, and opened for signature,
ratification and accession in March 1980. In accordance with Article
27, the Convention entered into force on September 3, 1981. The Convention was
ratified by Mexico and published in the Official Diary (Diario Oficial)
on May 12, 1981.
Article 11 of CEDAW addresses discrimination against women in the
field of employment. Article 11 states, in relevant part:
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to ensure, on a
basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the
application of the same criteria for selection in matters of employment . . . .
2. In order to prevent discrimination against women on the grounds of
marriage or maternity and to ensure their effective right to work, States
Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the
grounds of pregnancy or of maternity leave and discrimination in dismissals on
the basis of marital status . . . .
Oversight of CEDAW is provided for in Article 17 which establishes the
Committee on the Elimination of Discrimination against Women. The CEDAW
Committee submits annual reports to the General Assembly of the United Nations.
Article 18 of CEDAW commits States Parties to submit reports on measures they
have adopted to give effect to the provisions of the convention and on progress
made. Such reports are to be submitted within one year after the convention
enters into force in the respective state and every four years, or when
requested by the CEDAW Committee, thereafter. Mexico has submitted the required
reports.
VI. ANALYSIS
The relevant portions of the NAALC are Article 3 on Government Enforcement
Action; Article 4 on Private Action; and Article 7 on Public Information. Also
relevant are the provisions of ILO Convention 111 and, to a lesser extent,
CEDAW, both of which Mexico has ratified.
Article 3 (1) of the NAALC states that "[e]ach Party shall promote
compliance with and effectively enforce its labor law through appropriate
government action, subject to Article 42, such as:
(b) monitoring compliance and investigating suspected violations, including
through on-site inspections;
(c) seeking assurances of voluntary compliance;
(d) requiring record keeping and reporting; . . .
(f) providing or encouraging mediation, conciliation and arbitration
services; or
(g) initiating, in a timely manner, proceedings to seek appropriate
sanctions or remedies for violations of its labor law."
Article 3 (2) states: "[e]ach Party shall ensure that its competent
authorities give due consideration in accordance with its law to any request by
an employer, employee or their representatives, or other interested person, for
an investigation of an alleged violation of the Party's labor law."
Article 4 (1) states: "[e]ach Party shall ensure that persons with a
legally recognized interest under its law in a particular matter have
appropriate access to administrative, quasi-judicial or labor tribunals for the
enforcement of the Party's labor law."
Article 4 (2) states:
[e]ach Party's law shall ensure that such persons may have recourse to, as
appropriate, procedures by which rights under:
(a) its labor law, including in respect of occupational safety and health,
employment standards, industrial relations and migrant workers, and
(b) collective contracts
can be enforced.
Article 7 states:
[e]ach Party shall promote public awareness of its labor law, including by:
(a) ensuring that public information is available related to its labor law
and enforcement and compliance procedures; and
(b) promoting public education regarding its labor law.
MEXICAN LAW AND PRACTICE
Gender discrimination is clearly prohibited in Mexico's Constitution and in
its Federal Labor Law. Article 4 of the Mexican Constitution states "Man
and woman are equal before the law . . . ." Article 5 guarantees that
individuals shall not be prevented from pursuing the work of their choice.
Article 4 further provides that all persons have the right to determine the
spacing of their children. Article 3 of the FLL states that "[t]here shall
not be established distinctions among workers for motives of race, sex, age,
religious creed, political doctrine, or social position." Article 133
states that employers may not "[r]efuse to accept workers for reason of age
or sex . . . ." Article 164 states that "[w]omen enjoy the same
rights and have the same obligations as men."
International agreements also provide insight on how pregnancy-based gender
discrimination is defined. ILO Convention 111 defines discrimination as "any
distinction, exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin, which has the effect of nullifying or
impairing equality of opportunity or treatment in employment or occupation . . .
." It explicitly includes access to employment within its scope, stating,
in Paragraph 3 of Article 1: "For the purpose of this Convention the terms
employment and occupation include access to vocational training, [and] access to
employment. . . ." Additionally, the ILO Committee of Experts has
expressly defined gender discrimination to include discrimination based on
family status, pregnancy and confinement.(56) As noted previously, Mexico
ratified Convention 111 in 1961.
Although the ILO Committee of Experts has considered discrimination on the
basis of pregnancy to come within the definition of gender discrimination, it
has yet to specifically address whether pregnancy screening is a prohibited
practice under the terms of Convention 111. However, the Committee's comments
in 1995 on Colombia indicate that it approves of measures taken against this
practice. Though the submitters refer to ILO Convention 111 in the
submission, as well as CEDAW, the NAO was unable to find any applicable international jurisprudence that specifically defines pregnancy
screening to be a prohibited practice under either agreement.(57)
Pre-Employment
Submission No. 9701 contains allegations indicating that pre-employment
pregnancy screening is practiced in Mexico, that the authorities are aware of
it, and that the federal government agencies responsible for the enforcement of
the labor laws have not taken corrective or enforcement action against the
practice. The submitters argue that this practice is prevalent and in violation
of Mexican law. The Mexican Government answers that pre-employment pregnancy
screening is not widespread, and, to the extent that it is practiced, is not
inconsistent with Mexican law.
Information provided by the submitters indicates that federal executive
authorities with jurisdiction over monitoring and enforcing labor laws do not
consider pre-employment pregnancy screening to be illegal. Submission No. 9701
and the HRW Report include documented interviews with officials of the
three federal agencies responsible for enforcement and compliance of the FLL:
(1) the Inspectorate of Labor; (2) the Office for the Defense of Labor; and (3)
the CABs. The interviewees reportedly asserted that (1) the law does not
prohibit pre-employment pregnancy screening; and (2) that enforcement agencies
have no jurisdiction over pre-employment cases as raised in the submission.(58)
The submitters argue that pregnancy screening constitutes gender
discrimination in Mexico, and posit three arguments in support of this position:
(1) pregnancy is a condition experienced only by women and, therefore, any
discrimination based on pregnancy is discrimination against women, in violation
of Mexican law; (2) Mexico has ratified four international conventions,
including CEDAW and ILO Convention 111, which prohibit gender-based
discrimination, and are, in accordance with the Mexican Constitution,
enforceable as law within Mexico; and (3) the Human Rights Commission of the
Federal District found pregnancy screening practiced in the Federal District by
Federal Government agencies to be unconstitutional.
In support of their position that pregnancy screening is widespread, the
submitters point to responses from companies identified in the original HRW
Report of August, 1996.(59) In letters to HRW and the U.S. NAO, four
of the companies acknowledged that they have engaged in the practice of
screening female job applicants for pregnancy. Three of the four also indicated
that they did so only after ascertaining that the practice is legal in Mexico.
In a letter appended to the HRW Report, one of these companies additionally
stated that the practice is used to avoid the possibility that pregnant women
may seek employment only to obtain maternity benefits that the Social Security
system does not provide.(60) In letters responding to the NAO review of
the submission, two of the companies stated that, although the practice of
pre-employment pregnancy screening is legal and common in Mexico, they had, of
their own volition, ceased inquiring and/or screening for pregnancy.(61)
The NAO was also informed that, on at least one occasion, Secretary of Labor and
Social Welfare Javier Bonilla García met with the National Council of the
Maquiladora Industry (CNIME) and urged that its members discontinue pregnancy
screening.
The submitters position is further supported by the testimony of women
workers at the public hearing conducted on November 19. Women testified that
they were required to fill out medical questionnaires that went beyond simply
ascertaining whether they were pregnant. These included questions on their last
menstruation, sexual activity, birth control methods, and the number of children
they had. They testified that they were interviewed on these same matters and
required to produce urine samples which, they were told, were for the purpose of
determining pregnancy. They told of being hired for training periods and being
required to sign documents agreeing to their dismissal if they became pregnant
during that period. They testified as to warnings they received that they would
be dismissed if they became pregnant and told of being compelled to resign after
it was learned by their employer that they were pregnant.(62)
Maria Vazquez Perez testified that she was required to fill out a
questionnaire that included:
a series of questions that had nothing to do with body illnesses but rather
with the private issues of life, which I felt were very intimate and that had
nothing to do with my need or my skill in performing a job. These questions
basically were my last menstruation, sexual activity, [and] birth control
methods as well as questions on the [number] of children that one had.(63)
She said she found this experience to be "humiliating because they
invade the most intimate part of a woman."(64)
Ana Rosa Rodriguez testified that she underwent a physical examination
shortly after beginning work. She stated that:
[t]he doctor, who no longer works at the company, carried out the exam,
which was basically a urine sample, blood sample, as well as blood pressure
testing, clinical information, your health, which is part of the exam. He asked
me questions on my sexual activity, the use of birth control methods, and the
date of my last menstruation. When I was asked for the urine sample, I asked
what that sample was for. The nurse told me that it was for pregnancy tests.
And, playing around, I asked, "And if I'm pregnant?" She replied "Well,
we will kick you out of here," which means that I would be fired.(65)
Dulce Maria Gonzalez testified that at her medical examination, she was
asked:
if I was pregnant and the last date of my menstruation. They also asked me
if I was sexually active and what kind of birth control methods I was using. At
the end of the interview [on] the medical background, the nurse gave me a form
and said "Sign it". I asked her what I was going to sign and why.
She said that it was a letter stating if I became pregnant during the hiring
period of three months, I would be automatically fired.(66)
Maria Isabel Teresa Sanchez testified that she was forced to resign when her
employer discovered she was pregnant, stating:
I did not wish to resign, and because I needed the work, I went to speak
with the union representative, who told me she could not help me. Ms. Emily,
the person in charge of the plant, called me to her office and asked me if I was
pregnant. I told her that I was. She stated that I shouldn't come to work
anymore because I couldn't work like that at the plant. I signed the
resignation sheet, and on that sheet she stated the reason for my dismissal was
work distraction. This happened at the beginning of October of '96. I didn't
have any medical insurance for the rest of my pregnancy, nor leave time. During
my pregnancy, my mother and I made tamales and posoles to sell,
and this is how I was able to survive this period of time.(67)
Rafaela Rojas Cruz testified that she signed a three month hiring
(probationary) contract when she was hired and was fired when she was found to
be pregnant during her first month of employment. She said the union was unable
to help her.(68) She testified that she subsequently applied for a job at another
maquiladora, where she "underwent and passed all the skills tests, but the
pregnancy test came out positive." She was informed by the nurse that "I
had come up pregnant in the test and thus they would not be able to hire me, due to the insurance and coverage and leave time that the company
would have to pay if I were hired.(69)
The Mexican Government has provided information that pregnancy screening is
not widely practiced, and that to the extent that it is, it is legal in Mexico.
In its response to the submission, the Mexican NAO disputed the extent of the
problem, asserting that while HRW uncovered instances in which pre-employment
pregnancy screening occurs, the representative sample was far too small to
justify the conclusions arrived at by HRW and included in the report and
submission. The Mexican NAO also stated that, in the absence of an employment relationship, the FLL provides for no legal process for
bringing forth cases of employment discrimination.(70)
However, the Alliance for Equality discusses the practice of
pre-employment pregnancy screening. This document states that discrimination
in hiring and in dismissal for reason of pregnancy occurs "frequently."
The Alliance for Equality is a five-year policy guideline prepared by
the Secretariat of Government of Mexico, a cabinet level government agency. In
that document, the government discusses both discrimination in hiring due to
pregnancy and dismissal from employment for reason of pregnancy. The government
proposes to establish "mechanisms to ensure the respect for the rights of
women workers and their access to the welfare and social security systems, on
an equal footing with men, in compliance with the Federal Labor Law, in order to
avoid discrimination for reason of sex, age, civil status and pregnancy . . . .(71)
Additional information provided by the Mexican Government indicates that it
is conducting programs of consciousness awareness among women workers and has
sought to obtain the voluntary cooperation of the maquiladora employers to cease
the practice of pre-employment pregnancy screening.(72) Evidently, the
government finds these practices to be inappropriate, even if they may be
technically legal under Mexican law.
Moreover, the Human Rights Commission for the Federal District offers a
markedly different interpretation to that of the Mexican NAO on the legality of
pre-employment pregnancy screening. The Commission found (1) that the federal
agencies it investigated did, in fact, conduct pregnancy screening and, (2) this
practice violated Mexico's Constitution.
The Mexican NAO has asserted that the recommendations of the Commission are
not binding and do not establish jurisprudence. The enacting
legislation for the Commission, however, imposes an obligation on the responding
agencies to comply with the recommendations once they accept the findings of the
report.(73) Additionally, the Commission was created pursuant to the
Mexican Constitution and implemented by Federal law. It is composed of
prominent jurists, appointed by the President and confirmed by the legislature,
and their recommendation, in this case, was complied with by Federal Government
agencies. Further, though the case involved public sector agencies, in its
recommendation the Commission made no distinction on the application of the
appropriate constitutional guarantees between the public and private sectors.
The position of the Human Rights Commission on the legality of pregnancy
screening is markedly different from that expressed by the Mexican NAO.
Moreover, the Alliance for Equality recognized pregnancy screening as a
problem and outlined a plan of action to address such discriminatory practices.
That pregnancy screening occurs and is of concern is supported by information
from companies conducting business in Mexico, agencies of the Government of
Mexico, women workers, and the submitters. It also appears that the intrusive
nature of the questioning described in the submission goes beyond what is
necessary to determine if an applicant for employment is pregnant.
An additional question is raised with regard to the lack of any
legal procedure by which to bring cases of pre-employment gender discrimination.
The Mexican NAO asserted that the FLL does not provide for the adjudication of
cases involving pre- employment discrimination. CAB officials interviewed by
HRW also indicated that the CABs had no jurisdiction over these cases as they
involved issues that occurred prior to the establishment of the employment
relationship. The Mexican NAO's position appears to go beyond the question of
pre-employment pregnancy screening to also include the lack of a legal procedure
for bringing any pre-employment discrimination issue. Since Mexican law clearly
prohibits employers from discriminating in hiring for a variety of reasons,(74)
the Mexican NAO's response creates a question as to what process exists for
bringing such pre-employment discrimination claims.
Post-Hire
Mexico's laws are clear on the matter of post-hire dismissal or reprisal on
the basis of gender, pregnancy, or for any reason not provided for by the law.
Mexico's Constitution and labor law guarantee the right of all citizens to
employment and the FLL provides specific causes and procedures by which the
employment relationship can be terminated.(75) Essentially, the
employment relationship imposes contractual obligations that are enforceable by
the labor authorities and by the courts.(76) Pregnancy is not listed as a
justified cause for dismissal from employment and, therefore, dismissal for
reason of pregnancy is prohibited under the FLL.(77) Actions taken
against pregnant workers to coerce them into resigning violate maternity
protection clauses under Article 170 of the FLL.(78) Finally, the FLL
makes no provision for probationary labor contracts under which a worker could
be dismissed without cause.(79)
The CABs and the courts have jurisdiction over these cases as do the Office
for the Defense of Labor and the Inspectorate of Labor. The submitters provided
information that the CABs have ruled in a number of cases involving unjustified
dismissal for reason of pregnancy and have found in favor of the dismissed
workers.(80) Moreover, the Mexican Government has asserted that it has a
program of workplace inspections and that the CABs and Office for the Defense of
Labor have significant case loads involving workers complaints, including
unjustified dismissal, though the NAO has been unable to obtain information on
the number of cases involving pregnancy.
Despite information that women have been able to win their cases in the CABs
against post-hire dismissal for reason of pregnancy, the submitters assert that
women workers lack confidence in the CABs for the enforcement of their rights
against dismissal for reason of pregnancy. This also was attested to by some of
the witnesses at the public hearing.(81) Working women's perceptions of
the CABs may be reinforced by the lack of awareness of their rights and their
economic circumstances, which mitigates against challenging authority.(82)
Women with little formal education and limited economic means may lack the
wherewithal to pursue legal remedies. Further, fear exists, whether real or
perceived, of the blacklisting of workers who cause trouble.(83)
Moreover, a number of the women approached their union and were advised that
there was nothing that the union could do in their defense.(84)
Indeed, the need for a program of orientation and information for women workers is
recognized by the Mexican Government in its Alliance for Equality
program.
The Alliance for Equality addresses dismissal for reason of
pregnancy and indicates that the government is preparing steps to bring about
compliance with the law. The existence of the document and the action plan
included indicates that the Government of Mexico is aware of this problem and
intends to address it. The Alliance for Equality proposes to
improve enforcement and compliance with the law by the appropriate institutions,
improve access for working women to these institutions, and expand the
dissemination of information to women workers to enable them to better pursue
and defend their rights.
VII. FINDINGS AND RECOMMENDATIONS
The NAO makes the following findings:
1. The Mexican Constitution and the Federal Labor Law prohibit
discrimination on the basis of gender.
2 Pre-employment pregnancy screening is practiced in Mexico's maquiladora
sector. There are differing opinions within the Government of Mexico on the
constitutionality and legality of the practice.
3. Post-hire pregnancy discrimination, by way of unjustified dismissal for
reason of pregnancy or pressure exerted on pregnant women to resign, is clearly
in violation of Mexican law and is enforceable through the appropriate
tribunals. In some cases, it is apparent that relief has been obtained.
However, it is also evident, from the information provided by witnesses as well
as in the Government's Alliance for Equality, that additional efforts
need to be directed toward awareness programs for women workers, the protection
they are afforded by the law, and the means and procedures by which they may
seek redress.
4. ILO Convention 111, which has been ratified by Mexico, defines employment
to include access to employment and has been interpreted to equate pregnancy
discrimination with gender discrimination by the Committee of Experts.
Pregnancy screening, however, has not been explicitly addressed by ILO
authorities. CEDAW, similarly, has no explicit jurisprudence or interpretation
on pregnancy screening.
The review of Submission No. 9701 raises serious matters regarding the
treatment of women workers who are pregnant in Mexico's maquiladora sector and
the protection they are afforded by the Mexican authorities. Women are
subjected to pregnancy screening and intrusive questioning. They are denied
employment if they are pregnant. There are instances where they are dismissed
from employment after becoming pregnant or are pressured into resigning for the
same reason. The level of awareness amongst women of their rights is in
question and they may lack confidence in the procedures and mechanisms by which
those rights can be protected.
It would further the objectives of the NAALC to clarify the law and practice
in Mexico on pre-employment pregnancy screening and post-hire discrimination on
the basis of pregnancy. The issues for consultation, discussed in detail in
this report, include:
1. The differing views of officials of the Mexican Government on the
legality and extent of pregnancy screening.
The Mexican NAO questioned the extent of the problem and asserted that
there is no legal prohibition in Mexico against pregnancy screening, and that
the Federal Labor Law makes no provision for bringing forth cases alleging pre-
employment discrimination.
The Human Rights Commission for the Federal District found that Federal
Government agencies in the Federal District conducted pregnancy screening and
that such screening was unconstitutional. The Commission recommended that
the practice be discontinued, and the appropriate agencies complied.
2. The extent of relief for post-hire pregnancy discrimination, given the
information provided by the submitters, the lack of data on cases, and
information from the Alliance for Equality.
There is significant evidence that women workers lack awareness of their
rights and confidence in the institutions responsible for the enforcement of
post-hire pregnancy discrimination laws. The Government of Mexico, in its Alliance
for Equality document, recognized that pre-employment and post-hire
pregnancy discrimination occur frequently and are a matter of concern.
Although, neither this document nor the Mexican NAO provided data on the extent
of the problem, the Alliance for Equality expressed the need to improve
enforcement and compliance with the law.
For these reasons, the NAO finds that further consultations are appropriate,
permitting a full examination of the matter and furthering the objectives of
the NAALC. Pursuant to Article 22 of the NAALC, "[a]ny Party may request
consultations with another Party at the ministerial level regarding any matter
within the scope of this Agreement." The NAO, therefore, recommends that
the Secretary of Labor consult with the Secretary of Labor and Social Welfare of
Mexico for the purpose of ascertaining the extent of the protections against
pregnancy-based gender discrimination afforded by Mexico's laws and their
effective enforcement by the appropriate institutions.
Respectfully Submitted;
Irasema Garza
Secretary
U.S. National Administrative Office
January 12, 1998
ENDNOTES
1. 59 Fed. Reg. 16660-16662 (1994).
2. Maquiladoras are companies operating in Mexico that import
components free of duty provided that they are re-exported as assembled
products. Such companies have grown significantly in Mexico since that country
enacted the Decree for the Development and Operation of the Maquiladora
Export Industry (the Maquiladora Decree) in 1965. More information on the
maquiladora industry is included beginning on p. 12 of this report.
3. Human Rights Watch, No Guarantees: Sex Discrimination in
Mexico's Maquiladora Sector, A Human Rights Watch Short Report, vol.
8, no. 6, August 1996, (hereinafter the HRW Report or No Guarantees).
4. HRW uses the term Labor Rights Ombudsman. In this report, the NAO
translation Office for the Defense of Labor will be used.
5. Submission No. 9701, pp. 27-29. See also No
Guarantees, pp. 37-45.
6. Submission No. 9701, p. 27.
7. 62 Fed. Reg. 38327 (1997).
8. Memorandum from the National Administrative Office of Mexico to
the U.S. National Administrative Office (July 11, 1997), Subject: Submission No.
9701 (on file with the U.S. National Administrative Office).
9. Memorandum from the National Administrative Office of Mexico to
the U.S. National Administrative Office (October 14, 1997), Subject: Submission
No. 9701 (on file with the U.S. National Administrative Office).
10. Cuevas, Leticia, Analysis of Issues Raised in Submission No.
9701: Gender Discrimination and Pregnancy-Based Discrimination, (U.S.
National Administrative Office, Bureau of International Labor Affairs, U.S.
Department of Labor, January, 1998).
11. 62 Fed.Reg. 54128-54129 (1997).
12. At their request, women workers who testified at the public
hearing used pseudonyms. These pseudonyms are used in this report and in the
official transcript of the hearing.
13. United States International Trade Commission, Production
Sharing: Use of U.S. Components and Materials in Foreign Assembly Operations,
1992-1995, (USITC Publication 3032, April, 1997) p. 4-1.
14. Instituto Nacional de Estadística, Geografía e
Informática (INEGI), Industria Maquiladora de Exportación,
Septiembre, 1997, (Mexico, September, 1997), p. 2.
15. Ibid., pp. 8-9.
16. Political Constitution of the United Mexican States,
(U.S. NAO Staff translation).
17. Ibid.
18. Ibid.
19. Paragraph V states: "[w]omen, during their pregnancy, will
not perform work that requires considerable exertion and constitutes a danger to
[their] health in relation to gestation; they shall be entitled to rest for
approximately six weeks prior to the date of delivery and six weeks following
delivery, with full pay and without losing employment or employment rights
acquired in the employment relationship. While nursing, women shall have
additional rest periods of one-half hour each during the day to nurse their
children . . . ."
20. Federal Labor Law, (as amended through December,
1993) (Ormond Beach, Florida, Foreign Tax Law Publishers, Inc., trans.). This
English translation of the FLL is used throughout this report.
21. Cuevas, Analysis of Submission No. 9701, pp. 32-33. See
also the testimony of María Estela Ríos, Public Hearing on
Submission No. 9701, Department of Labor, Bureau of International Labor
Affairs, National Administrative Office, November 19, 1997, pp. 112- 113.
22. Law of Social Security (Ley del Seguro Social),
Article 110.
23. Mexico NAO memorandum dated October 14, 1997.
24. Testimony of LaShawn Jefferson, Public Hearing on Submission
No. 9701, November 19, 1997, p. 19.
25. Programa de Empleo, Capacitación y Defensa de los
Derechos Laborales, 1995- 2000, Secretaría del Trabajo y Previsión
Social, México, 1996, pp. 78-81.
26. In reviewing a previous submission, an expert retained by the
NAO ascertained that on individual employment issues, including unjustified
dismissal, the CABs act expeditiously and equitably, although this review did
not specifically consider allegations of dismissal for pregnancy. See
Middlebrook, Kevin J., and Quintero Ramirez, Cirila, Conflict Resolution in
the Mexican Labor Courts: An Examination of Local Conciliation and Arbitration
Boards in Chihuahua and Tamaulipas, (U.S. Department of Labor, Bureau of
International Labor Affairs, U.S. National Administrative Office, North American
Agreement on Labor Cooperation, April, 1996).
27. Mexico NAO memorandum dated July 11, 1997. The Mexican NAO did
not provide information on the number of violations found or the application of
sanctions.
28. Ibid.
29. Mexico NAO memorandum dated October 14, 1997. The Mexican NAO
did not provide information on the number of violations found.
30. Mexico NAO memorandum dated July 11, 1997.
31. Mexico NAO memorandum dated October 14, 1997.
32. Constitution of the United Mexican States, Articles 103
and 107.
33. Mexico NAO memorandum dated October 14, 1997.
34. The NAO explicitly requested this information from the
submitters, the Mexican NAO, an expert in Mexican labor law and gender issues,
and from several of the witnesses at the public hearing. They were unable to
cite any case involving gender discrimination that underwent the amparo
process.
35. Alliance for Equality: National Program for Women,
1995-2000 (Alianza para la Igualdad: Programa Nacional de la Mujer 1995-2000),
Secretaría de Gobernación, México, March, 1996, pp.
59-65, (U.S. NAO Staff translation). See also Mexico NAO memorandum dated July
11, 1997.
36. Alliance for Equality, pp. 88-90.
37. Ibid., p. 88.
38. Ibid., pp. 88-90.
39. Constitution of the United Mexican States, Article 102,
Part B.
40. Law of the National Human Rights Commission (Ley de
la Comisión Nacional de Derechos Humanos), published in the Official
Diary of the Federation, June 29, 1992.
41. United Nations, International Human Rights Instruments, Core
Document Forming Part of the Reports of States Parties, Mexico, 23 November
1994, paragraph 64.
42. Law of the Human Rights Commission of the Federal District
(Ley de la Comisión de Derechos Humanos del Distrito Federal),
published in the Official Diary of the Federation, June 22, 1993.
43. Article 11(1) states as follows: "[s]tates Parties shall
take all appropriate measures to eliminate discrimination against women in the
field of employment in order to ensure, on a basis of equality of men and women,
the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the
application of the same criteria for selection in matters of employment . . . ."
44. Comisión de Derechos Humanos del Distrito Federal, Recomendación
6/95, pp. 14- 19.
45. Mexico NAO memorandum dated October 14, 1997.
46. U.S. Department of Labor, Bureau of International Labor Affairs,
U.S. National Administrative Office, North American Agreement on Labor
Cooperation, Public Report of Review of Submission No. 9601 (1997), p.
22.
47. Organic Federal Laws derive their authority directly from the
Constitution. Lesser Federal Laws may be secondary or tertiary laws that
implement and clarify organic laws.
48. Decisions on Amparo Suits 337/94 and 338/95. See also
Anna Torriente, National Law Center for Inter-American Free Trade, Tucson,
Arizona, Study of Mexican Supreme Court Decisions Concerning the Rights of
State Employees to Organize in the States of Jalisco and Oaxaca, U.S.
National Administrative Office, Bureau of International Labor Affairs, U.S.
Department of Labor, (November, 1996).
49. Decision on Amparo Suit DT 13-97.
50. International Labour Conference, 75th Session, Report III
(B), Special Survey on Equality in Employment and Occupation in Respect of
Convention No. 111 (Geneva, International Labour Office, 1988), pp. 38-39.
51. Ibid., pp. 39-40.
52. International Labour Conference, 83rd Session, Report III
(Part B) Special Survey on Equality in Employment and Occupation in respect
of Convention No. 111 (Geneva, International Labour Office, 1996) p. 15.
53. Ibid., p. 13.
54. International Labour Conference, 82nd Session, Report III (Part
4A), Report of the Committee of Experts on the Application of Conventions
and Recommendations (Geneva, International Labour Office, 1995), p 300.
55. International Labour Conference, 80th Session, Report III (Part
4A), Report of the Committee of Experts on the Application of Conventions
and Recommendations (Geneva, International Labour Office, 1995), p 300. pp.
321-322.
56. Special Survey on Equality in Employment and Occupation in
Respect of Convention No. 111, (1996) p. 15.
57. The submitters cite C-177/88 Elisabeth Johanna Pacifica Dekker v
Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus. In this
case, the Court of Justice of the European Community found that an employer who
refuses to recruit a worker because she is pregnant is in violation of Directive
76/207/EEC. This decision interpreted an EEC directive, however, and its scope
is limited to the EEC.
58. Submission No. 9701, pp. 23-29; No Guarantees,
pp. 37-45.
59. HRW interviewed women who worked or had worked in forty-three
maquiladoras near the U.S.-Mexico border. HRW found that thirty-eight companies
routinely required women to undergo pregnancy exams as a condition of employment
and/or required women applicants to indicate their pregnancy status on the job
application or during an interview. A list of the companies is found in No
Guarantees, pp. 14-15.
60. No Guarantees, Appendix B. Letter from Dennis R.
Winkleman, Vice-President, Human Resources, Zenith Electronics Corporation, to
LaShawn R. Jefferson, Research Associate, Human Rights Watch (July 12, 1996).
61. Three other companies responded to the U.S. NAO's inquiries but
did not provide specific information about the practices at their facilities in
Mexico.
62. Hearing on Submission No. 9701, November 19, 1997, pp.
23-55.
63. Ibid., p. 24.
64. Ibid., p. 26.
65. Ibid., p. 30.
66. Ibid., p. 34.
67. Ibid., p. 44-45.
68. Ibid.,pp. 47-48.
69. Ibid., p. 48.
70. Mexico NAO memorandum dated July 11, 1997.
71. Alliance for Equality, p. 89.
72. Mexico NAO memorandum dated July 11, 1997.
73. Law of the Human Rights Commission of the Federal District
, Art. 49.
74. For example, Article 133(I) of the FLL prohibits employers from "[r]efusing
to hire workers for reason of age or sex." The FLL, in Article 154, also includes provisions for the
preferential hiring of Mexican nationals, workers with families, and union members.
75. FLL Articles 46-52.
76. See Paul A. Curtis, Esq. and Alfredo Gutierrez Kirchner, Esq.,
Questions on Labor Law Enforcement in Mexico and the Role of the Federal and
State Conciliation and Arbitration Boards, U.S. National Administrative
Office, Bureau of International Labor Affairs, U.S. Department of Labor (August
8, 1994), pp. 6-7.
77. Mexico NAO memorandum dated October 14, 1997. The Mexican NAO
went on to note, however, that no cases involving unjustified dismissal for
reason of pregnancy have been heard by the Federal CABs in Mexico's Federal
District.
78. FLL Article 170, Paragraph I, provides that pregnant
women shall not be required to perform work requiring strong physical effort
that could affect their health or gestation, such as lifting, pulling, or
pushing heavy weights, that produces excessive shaking, that requires standing
for extended periods, or that otherwise affects their physical or mental state.
79. FLL Article 38 specifies the terms and conditions under
which a temporary contract can be entered into. See also Cuevas, Analysis
of Submission No. 9701, pp. 32-33 and testimony of María Estela Ríos,
Public Hearing on Submission No. 9701, November 19, 1997, pp. 112-113.
80. Testimony of LaShawn Jefferson, Public Hearing on Submission
No. 9701, November 19, 1997, p. 19.
81. Hearing on Submission No. 9701, November 19, 1997, pp.
14-15, 67, 79, 108-109.
82. See testimony of Edgar Krueger, Hearing on Submission No.
9701, November 19, 1997, pp. 65-71.
83. Allegations of blacklisting of workers by employers are made with
some frequency in Mexico. See U.S. Department of Labor, Bureau of International
Labor Affairs, National Administrative Office, Follow-up Report: NAO
Submission No. 940003 (December 4, 1996), p. 4.
84. Hearing on Submission No. 9701, November 19, 1997, pp.
38-39, 48, 51-52, 53-54.