What is generally meant by diversity in the workplace in your jurisdiction? Which factors are the primary focus?
In Chile, diversity in the workplace is directly related to the principle of non-discrimination and the acceptance of employees regardless of their gender, age, social status or political beliefs.
Diversity in the workplace is mainly governed by Article 19 of the Constitution, the Labour Code and complementary laws, which prohibit exclusions or preferences based on race, colour, gender, age, marital status, syndication, religion, political opinion and national or social origin in any way that may alter equal opportunities available to or the treatment of employees.
At present, gender diversity is encouraged within companies through government policies and initiatives that promote the recruitment and participation of women in the workforce and their equal treatment in employment, primarily economically (ie, the equal remuneration of men and women).
What progress has been made to date in your jurisdiction to improve diversity in the workplace?
The Labour Code was amended in 2005 to recognise formally that sexual harassment is an issue that affects labour relationships. A lack of adequate internal procedures to tackle sexual harassment can result in an increase in severance payments in favour of employees who decide to terminate their labour contracts due to sexual harassment.
New procedures have been developed to protect the fundamental rights of employees and punish their violation. In 2012 'mobbing' or labour harassment was formally recognised as an issue affecting labour relationships.
Further, in 2016 a major reform regarding labour relations and trade unions expanded the concept of 'discrimination' established in Article 2 of the Labour Code, which is now defined as:
"Distinctions, exclusions or preferences based on race, colour, sex, age, marital status, unionisation, religion, political opinion, nationality, national ancestry, socioeconomic situation, language, beliefs, sexual orientation, gender identity, affiliation, personal appearance, illness or disability or social origin, which are intended to nullify or alter equality of opportunity or treatment in employment and occupation."
Another notable initiative in the implementation of special work conditions is the promotion of remote working for employees with special needs or dependants.
The above measures relate to fostering wellbeing at work and enriching a company's human capital.
What positive measures can employers adopt to foster diversity in the workplace without running the risk of positive discrimination claims?
At present, this issue is a major challenge for companies. Companies should aim to establish clear, well-defined policies with no room for interpretation (ie, defining concepts, positions and functions so that employees, trade unions and employers are certain of their rights, obligations and benefits).
An example of this is to have:
- well-defined profiles and job descriptions within the company; and
- policies for the equal treatment of men and women which prevent distinctions being made that are not based on ability or suitability to perform the role.
Incentives are generally based exclusively on an employee's performance and, therefore, remuneration has a technical and objective basis. Thus, any difference in the treatment of employees of the same pay grade must be based on objective and clear parameters and professional rather than the personal concerns.
What training methods and key performance indicators can employers use to promote and assess diversity in the workplace? Can the resulting data be shared if it includes confidential employee information?
Training methods in this regard should focus on developing soft skills for managers and personnel that can be used in the work environment, such as emotional intelligence, social skills, communication and language.
Key performance indicators must be based on objective processes and respect the fundamental rights of employees. In Chile, fundamental rights are defined as rights and freedoms to which all individuals are entitled and that are recognised and guaranteed by law.
Employees can resort to the labour courts when one or more of the following rights have been affected:
- the right to life and physical safety, if its violation is a direct consequence of acts that took place as part of an employment relationship;
- respect for and the protection of the privacy of employees and their families;
- the right to freedom of conscience and religious freedom;
- the right to freedom of expression, opinion and information without prior censorship, in any form and by any means;
- the freedom to work, the right of free choice and a guarantee that no work can be prohibited, excluding constitutional exceptions;
- the right not to be subject to discriminatory acts under Article 2 of the Labour Code;
- the freedom of association and the right to bargain collectively without undue obstacles; and
- the guarantee of indemnity, which consists of not being subject to employee reprisals due to or as a consequence of the Labour Directorate's supervisory work or the exercise of legal proceedings.
As a general rule, performance evaluation results are confidential and cannot be shared unless there is formal agreement from the employee.
What are the implications for global businesses working in multiple jurisdictions with different diversity laws? Do the approaches taken by domestic and multinational enterprises differs in your jurisdiction?
Global companies operating in several jurisdictions with rules on diversity in the workplace aim to respect the rules and regulations of the country in which their employees provide their services. Multinational companies are frequently governed by their own codes of conduct, which contain international policies. However, local authorities of multinational companies do not always adapt these policies to specific national contexts.
In this sense, the different norms on diversity in the workplace should aim to respect the rights and guarantees of employees. Employee rights are affected when an employer or its representative performs, acts or adopts measures that limit the exercise of an employee's fundamental rights without sufficient justification in an arbitrary or disproportionate manner.
Chile is moving towards the adoption of international standards on non-discrimination. Since 2012, 14 categories have been formally recognised based on international human rights treaties that it has ratified, including:
- race or ethnicity;
- socio-economic status;
- ideology or political opinion;
- religious beliefs;
- unionisation or participation in trade union organisations;
- gender, sexual orientation and gender identity;
- marital status;
- political affiliation;
- personal appearance; and
- illness or disability.
As a result, Chile's non-discrimination policies dovetail with existing international standards.
For further information on this topic please contact Germán Segura at Montt y Cia SA by telephone (+56 22 233 8266) or email ([email protected]). The Montt y Cia SA website can be accessed at www.monttcia.cl.