What is generally meant by diversity in the workplace in your jurisdiction? Which factors are the primary focuses?
Although Peruvian law does not define 'diversity in the workplace', the Constitution provides that everyone is entitled to equal opportunities without discrimination. In this sense, diversity in the workplace generally means differences among an employer's workforce regarding:
- ethnic or cultural identity;
- physical disabilities;
- political orientation; or
- economic status.
Peru's primary focus has been on guaranteeing equal labour opportunities for men and women and increasing workplace facilities for disabled people.
What progress has been made to date in your jurisdiction to foster diversity in the workplace?
Diversity in the workplace has not received enough attention in Peru. However, inclusion is a key issue, and public and private efforts to achieve full equality have therefore increased in recent years.
In the case of disabled people, Peru ratified the UN Convention on the Rights of Persons with Disabilities in 2008, as part of a major commitment to promote equal opportunities and non-discrimination. Further, the General Law of Persons with Disabilities (enacted in December 2012) provides that no less than 3% of the total workforce of companies with more than 50 employees must comprise disabled people. Complementary rules that regulate and facilitate the monitoring of private employers have also been approved, in order to verify that companies comply with this minimum recruitment quota. Further, under the Law of Productivity and Competitiveness, acts of discrimination based on a disability qualify as hostile acts equivalent to dismissal. In addition, in 2016 Ministry Resolution 127-2016-TR established guidelines for private sector employers to develop, implement and execute reasonable adjustments in the workplace for disabled employees.
The employment status of women has largely been neglected. There is a widespread belief among employers that men are better additions to the workforce as they are cheaper to employ than women, who are entitled to additional benefits (eg, maternity leave and nursing benefits). However, this belief is shifting thanks to both the government and society. From a legal perspective, the Law of Productivity and Competitiveness protects women who are dismissed because they are pregnant by stipulating that such dismissal is null, thereby ordering their immediate reinstatement. In addition, several rules regarding women's rights in the workplace are demanding on employers. An example of this is the provision which entitles all women to nurse their child for one hour per day during the first year of his or her life, which cannot be replaced or accumulated. Another example of employers' obligations in this regard is that public and private sector employers with 20 or more female employees of a fertile age must have a nursing room that complies with the law's specifications. Further, the Law on Equal Opportunities for Men and Women – which has been in force since 2006 – imposes several requirements on employers, such as guaranteeing equal pay for equal work and harmonising family and work responsibilities.
In this sense, although Peru is in a transitional phase with much progress still to be made, a variety of rules protecting vulnerable groups are being enacted to raise awareness about the need for equality in the workplace. Society has had a significant role in this regard.
What positive measures can employers adopt to foster diversity in the workplace without running the risk of positive discrimination claims?
Employers have a major role in promoting diversity in the workplace; arguably, the most important step in addressing this issue is for employers to refrain from discriminatory action based on the abovementioned reasons at any time during an employment relationship, including its commencement and termination. In this regard, employers must establish objective criteria and avoid discrimination as early as the recruitment process.
In view of the above, it is important that employers establish measures or policies that are based on objective criteria and align with their goals. In this sense, any employer decision that could be perceived as an act of discrimination against employees should be based on objective and reasonable criteria.
Employers should aim to provide equal opportunities without creating positive discrimination, which is also a form of discrimination. They should adopt a consciousness-raising position, seeking to create a culture of equality throughout their workplace. To do this, the continuous provision of correct information is essential. Employers should also ensure that their workplaces are accessible, including by ensuring that they have adequate infrastructure for disabled workers.
Reasonable workplace adjustments are also a relevant issue. These measures include the adaptation of tools and work environments according to each employee's needs. In order to promote diversity and avoid potential employee claims, employers should analyse each particular case to ensure that their workplace is accessible and, if necessary, make reasonable adjustments to improve accessibility, where possible.
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?
There are no Peruvian regulations specifically regarding how to address diversity in the workplace. As a result, there are no standards regarding training methods or how to use key performance indicators to promote and assess diversity in the workplace. The general law regarding this matter is the Constitution, which provides for equal opportunities and non-discrimination.
Therefore, any specific regulations on diversity in the workplace regarding – for example – gender, race, religion, sexual orientation or political orientation can be set out by employers through internal policies. These policies may also involve training that promotes inclusion and diversity on an equal basis. The results of these measures could be evaluated internally by human resources departments. However, the disclosure of resulting data is restricted by the Law on the Protection of Personal Data (Law 29733), which classifies certain information as personal or sensitive and requires any disclosure to be authorised by the information subject.
What are the implications for global businesses working in multiple jurisdictions with different diversity laws? Do the approaches taken by domestic and multinational enterprises differ in your jurisdiction?
As each jurisdiction has different rules, global businesses that work in multiple jurisdictions must adapt their regulations accordingly. As a consequence, a company's policy can vary depending on the jurisdictions in which it operates, as it must adapt according to the specific circumstances.
As Peru has no specific regulations on many issues relating to workplace diversity, employers can internally regulate many of these issues quite freely and are limited only by the Constitution and the few dispositions on the subject. However, in practice, many local companies have policies that address these issues.
Multinational enterprises seem to approach workplace diversity from a foreign perspective, as their jurisdictions usually include broader regulations on the matter.
For further information on this topic please contact Jorge Toyama Miyagusuku or Flavia Zarins Wilding at Miranda & Amado Abogados by telephone (+51 1 610 4747) or email (j[email protected] or f[email protected]). The Miranda & Amado Abogados website can be accessed at www.mafirma.pe.