Introduction

In 2014 the Supreme Court of Justice issued rulings in two major employment discrimination cases.

Amendments to the Constitution in 2011, together with the 2012 labour reform, have led to increased discrimination and human rights litigation. For the first time, the Supreme Court has defined the scope of employment discrimination, considering protection from discrimination a fundamental right which, if violated, may result in multiple penalties for employers.

The rulings in question involved discrimination on the basis of disability and age, and have been widely reported in the media.

First case

The first case arose from a civil claim for damages against a well-known hotel chain, which posted a job advertisement on a private university's job board for the position of paralegal with experience in corporate law. The advertisement expressly stated that the position was not available to people with disabilities.

The Supreme Court considered that the advertisement was discriminatory on the basis of disability, since there was no justifiable reason to exclude disabled candidates for a position that required no physical labour, but rather intellectual skills.

Relief was granted based on violations of both equal protection and freedom of work established by Articles 1 and 5 of the Constitution, respectively.

The Supreme Court recognised that international treaties on human rights to which Mexico is a party must be applied whenever they are more favourable to individuals. Further, it set the rule that the strict scrutiny test must be used to analyse equal protection cases involving suspect classifications, such as disability. Finally, the Supreme Court affirmed that the plaintiff was entitled to compensatory damages.

Second case

The second case involved multiple discrimination claims on the basis of age, gender and physical appearance. A restaurant chain published a job advertisement in a local newspaper for the position of hostess. The job offer was limited to "18 to 25-year-old women, cheerful and good-looking, with height 1.60m and size 30".

The plaintiffs alleged a violation of Article 1 of the Constitution, which expressly prohibits discrimination on the basis of age. The defendant's arguments were based on free will and freedom of contract rights.

The Supreme Court resolved that there was no valid reason to consider that only persons between 18 and 25 years old could efficiently perform the hostess position; the referred age range did not correspond to the requirements of the position. It condemned the restaurant chain for creating a sexist commercial image, without taking into account the professional characteristics or skills of the applicants. As a result, the job advertisement was discriminatory and violated Article 1 of the Constitution.

The Supreme Court established that equal protection and free will are both constitutional rights that should be guaranteed, but equal protection will prevail where the following conditions are met:

  • An asymmetrical relationship exists in which one party clearly holds a superior position while the other holds a weak position.
  • There are social repercussions to the discrimination (ie, a generalised discriminatory pattern).
  • The discrimination potentially affects the victim's dignity.

Freedom of contract is therefore limited by the statuses protected under Article 1 of the Constitution, including – without limitation – gender, age and disability.

Additionally, the Supreme Court determined that employment discrimination can occur during the recruitment process where potential applicants are denied access to job opportunities simply because they are individuals protected by the Constitution and regardless of the fact that they are not yet employees.

The penalties that can be imposed in employment discrimination cases are of special significance. The Supreme Court determined that compensatory damages are not the only way to remedy discrimination and are definitively not to be granted in all cases as a general rule. Penalties include:

  • annulment of the discriminatory action (eg, removal of the job advertisement);
  • deterrent measures, such as administrative fines imposed by the labour authorities, a mandated public apology and publication of the court decision holding that the employer's actions are discriminatory;
  • criminal penalties; and
  • compensatory damages.

Comment

Although this recently developed case law may be common in other jurisdictions, in Mexico it is a new trend that is changing employers' practices regarding job advertisements and employment discrimination.

For further information on this topic please contact Nadia Gonzalez Elizondo at Santamarina y Steta by telephone (+52 81 8133 6007) or email (ngonzalez@s-s.mx). The Santamarina y Steta website can be accessed at www.s-s.mx.

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