On October 27 2015 the Ministry of Labour and Social Welfare, together with the National Institute for Women (INMUJERES) and the National Council to Prevent Discrimination (CONAPRED), published the Mexican Standard on Equal Employment Opportunities and Non-discrimination (NMX-R-025-SCFI-2015). The non-binding standard is intended to:
- serve as a guideline to evaluate and certify equal employment opportunity and anti-discrimination practices in the workplace; and
- ensure compliance with national and international laws on employment discrimination.
INMUJERES made the first attempt to systematise equal employment opportunity practices in 2003 with the introduction of the Equal Gender Model, which was created to promote, institutionalise and certify gender equality policies in the workplace. The Equal Gender Model has been validated by the United Nations Development Programme. In 2009 the Ministry of Labour and Social Welfare published the Mexican Standard for Equal Employment Opportunities between Women and Men (NMX-R-025-SCFI-2009), which was updated in 2012.
On June 10 2011 the Constitution was amended to strengthen protection of human rights, including the application of international treaties to which Mexico is a party. On November 30 2012 the Federal Labour Law was amended, introducing new provisions on non-discrimination, substantive equality and harassment. Further, the Federal Law to Prevent and Eliminate All Forms of Discrimination was amended on March 20 2014.
The new standard was issued as a result of these reforms and in order to align Mexican standards with international and national regulations. Its scope is ambitious: it addresses topics hitherto unknown in Mexico, such as gender gaps, diversity and labour inclusion, equal employment opportunities, harassment and workplace violence, work-life balance, reasonable accommodations and affirmative action.
The new standard can be implemented in all workplaces (in the public and private sectors), regardless of industry, economic activity or size. Certification of compliance with the new standard is intended to positively affect companies' value chain and improve brand positioning through use of the designation 'equal employment and anti-discrimination'. Moreover, certified employers will be given additional points in public tenders.
Companies wishing to obtain certification of compliance with the new standard must register with the Inter-institutional Council (comprising the Ministry of Labour and Social Welfare, INMUJERES and CONAPRED), which includes submission of a letter of commitment signed by the company's chief executive officer or legal representative.
Companies must fulfil the following requirements established by the new standard:
- Eligibility requirements – the company must submit official records issued by the Ministry of Labour and Social Welfare and CONAPRED stating that, during the preceding six months, no Federal Labour Law breaches were committed in the workplace and no complaints under the Federal Law to Prevent and Eliminate All Forms of Discrimination were filed against the company.
- Critical requirements for certification include:
- implementing and publishing a written equal employment and non-discrimination policy;
- establishing an equal employment and non-discrimination committee comprising an equal number of women and men;
- ensuring a non-discriminatory recruitment process (eg, by posting non-discriminatory job advertisements, not subjecting employees to pregnancy and HIV tests and instituting an organisational chart with job profiles and descriptions for each position, including wage scales);
- conducting internal audits; and
- conducting a work environment assessment.
- General requirements for certification include:
- implementing a code of ethics prohibiting all forms of discrimination and harassment and setting out the respective disciplinary measures in case of breach;
- establishing an equal pay policy;
- ensuring equal opportunities for promotion and continuation of employment;
- training personnel on an equal basis;
- training personnel on equal employment and non-discrimination policies;
- using inclusive and non-sexist language in all communications;
- ensuring work-life balance (eg, providing a breast-feeding room, daycare centres and flexible work shifts);
- making reasonable accommodations for employees with disabilities; and
- implementing mechanisms to prevent, resolve and penalise discriminatory practices and workplace violence.
To obtain certification, companies must hire an authorised certification organisation to audit their workplace for compliance. Certification is granted in one of four categories, depending on the score obtained. The minimum score to pass is 70 out of 100 points. Certification is valid for four years.
'Equal employment and anti-discrimination' designation
Companies must obtain authorisation from the Inter-institutional Council to use the designation 'equal employment and anti-discrimination'.
Continuous improvement action plan and inspection visits
Companies must implement an affirmative action plan, including the following provisions:
- At least 40% of the company's total headcount must be women.
- At least 40% of executive positions must be held by women.
- At least 5% of the company's total headcount must comprise employees with disabilities.
- An ombudsman position must be established within the company.
- Equal opportunities and non-discrimination practices must be promoted.
In addition, an authorised certification organisation must conduct an inspection visit after two years in order to verify compliance with the new standard and renew authorisation to use the 'equal employment and anti-discrimination' designation.
The Mexican Standard on Equal Employment Opportunities and Non-discrimination reflects the government's concern over prevailing discrimination and inequality in employment opportunities, which are closely related to Mexican culture. The new standard is intended to combat employment discrimination and promote best practices that will hopefully permeate into companies' work culture, eliminating prejudices in the long term.
However, to incentivise employers to seek certification of compliance with the new standard, more generous benefits should have been established, such as tax benefits and exemption periods from inspection visits by the Ministry of Labour and Social Welfare.
From a legal point of view, the new standard seems insufficient, as it is not binding. Moreover, employment non-discrimination provisions under the Federal Labour Law and the Federal Law to Prevent and Eliminate All Forms of Discrimination lack enforceability; they are widely considered 'laws without teeth'. There is still no specific remedy against discrimination available to employees under the Federal Labour Law. Most of the existing employment discrimination rulings in Mexico derive from civil claims for damages that were filed by job candidates, rather than actual employees.
For further information on this topic please contact Nadia Gonzalez Elizondo at Santamarina y Steta by telephone (+52 81 8133 6007) or email (email@example.com). The Santamarina y Steta website can be accessed at www.s-s.mx.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.