By: R. Leticia Cuevas
Edited by Kathlene McDonald
December, 1997

Introduction

Mexican Legislation

1.0 Legislative History: Article 133-I of the FLL

1.1 Constitutional Sources of Article 133-I: Article 4 on Equality

Considerations for Drafting

The Meaning of Juridical Equality in the Labor Setting: Motives for Law

1.2 The Right to Work: Constitutional Article 123 Preamble

Considerations for Drafting

2.0 Hierarchy of Laws: The Constitution and General Principles of the FLL

International Documents Distinguished

The Term "Treaty" in Constitutional Article 133

ILO Conventions and the Application in Mexican Legislation and Practice

Federal and Local Authorities

The Significance of Ratification

Effectiveness

Self Executing and Promotional Conventions

Disparities between National Legislation and ILO Conventions

Necessary Measures

Obligatory Nature of ILO Conventions

The Order of Application of Laws

Interpretation of Labor Laws: Article 18

2.1 The Scope of Preferential Rights in Hiring: Articles 154-157, and Seniority and Job Promotion 158-159

Exercise of Preference Rights in Hiring

Labor Unions: Admission Clauses, Preferential Rights in Hiring, and ILO Conventions

Additional Notes on Control Mechanisms

Preference Rights vis-à-vis Article 133-I

Noncompliance with Preference Rights

.2.2 The Scope of Article 133-I

The Concept of Workers

Job Applicants for Trust Positions

The Work Relation

Analogy to Preferential Rights in Hiring

2.3 Provisional Labor Contracts and the Legality of Probationary Labor Contracts under the FLL

2.4 Justified Dismissal on the Basis of Article 47-I, II and 46-V(a) of the Federal Law for the Workers at the Service of the State

2.5 Involuntary Resignations

2.6 Pregnancy Screenings: Legal or Illegal Conducts

Medical Examinations and the Internal Work Regulation: Articles 134-X, 423

Some Background on Internal Work Regulations (IWRs)

The Legal Nature of Pre and Post Pregnancy Screenings

Maternity Protectionist Measures in the IWR

2.7 Mistreatment of Pregnant Workers by Employers

2.8 The Legality of Requirements of No Pregnancy Medical Certificates in the Public Sector

3.0 Labor Actions, Jurisdiction and Venue

Why Victims of Open and Subtle Forms of Discrimination Fail to Exercise the Right to Work

Non-accessibility to Labor Courts

3.1 The Right of Action under Labor Tribunals

3.2 Jurisdiction and Venue under Constitutional Article 123-A for Violations to Article 133-I of the FLL

Federal and Local CBs and CABs

3.3 Jurisdiction for Applicants under the Federal law for Workers at the Service of the State

3.4 Other Forums

Claims against Private Persons brought to Human Rights Commissions

The Amparo Mechanism

Human Rights Commission Background

Recommendation 6/95

4.0 International Conventions

The International Covenant on Civil and Political Rights (ICCPR)

The Convention on the Elimination of all forms of Discriminations against Women (CEDAW)

International Human Rights Core Document

Remedies for Violations to Human Rights

Human Rights covered under Human Rights Instruments

Human Rights Instruments become Part of National Legislation

Human Rights Instruments before Courts or Administrative Bodies

National Body in Charge of Human Rights Implementation

The American Convention on Human Rights

Project to Promote and Protect the Right of Women of the Hemisphere to be Free from Discrimination

Interrelationships with other International Human Rights Bodies

Competence and Admissibility of Petitions

Compliance Mechanisms

5.0 Accessibility of CAB Cases

Conclusion

End Notes

INTRODUCTION

The U.S. National Administrative Office (U.S. NAO) accepted Submission 9701 for review under the terms of Articles 1, 3, 4, 16(3) and Annex 1 of the North American Agreement on Labor Cooperation (NAALC). The Submission raises issues of gender and pregnancy-based discrimination in Mexico.

According to the Submission, the Government of Mexico fails to enforce Article 133-I of the Federal Labor Law (FLL),⁽¹⁾ which prohibits employment discrimination on the basis of age and sex. The Submission challenges the legality of pregnancy screening requirements as a condition of employment. Some company policies, including those in the public sector, require that female applicants show certificates indicating that they are not pregnant. Job applications are conduits for discriminatory practices as they contain questions on pregnancy status. In post-employment pregnancy discrimination cases, women in the manufacturing sector undergo involuntary pregnancy testing, accomplished secretly through urine samples taken during periodic medical examinations.⁽²⁾ Although employers argue that the purpose for subjecting applicants and workers to pregnancy tests is to comply with maternity laws, the Submission notes that when workers' pregnancies are detected, they are frequently pressured into resigning, claiming mistreatment and reassignment to strenuous work or night shifts as the motives for their resignations. Another discriminatory practice involves hiring female workers on a trial basis and dismissing them if they become pregnant. Employers feel justified in dismissing pregnant workers within the first thirty days of employment. Incapability, absenteeism, and dishonesty are the usual grounds stated for termination. However, the Submission reveals that pregnancy is the only reason for these dismissals because it represents high maternity costs for employers. Some hirees might not have sufficient credits in their social insurance account to cover maternity leave subsidies.⁽³⁾ Consequently, employers must pay full wages to workers on maternity leaves.

The Submission also states that women applicants denied work in violation of Article 133-I on the basis of gender due to pregnancy do not have access to labor courts or other tribunals. The general consensus among labor authorities is that Article 133-I cannot apply to job applicants absent a work relation. In this regard, the Submission includes analogies between first-time applicants and the preference rights in hiring under Articles 154 and 156.

Considering the above anomalies, Submission 9701 questions Mexico's compliance with its international obligations to promote non-discriminatory labor practices on the basis of gender and pregnancy in its territory. The Government of Mexico is signatory to the International Labour Organization (ILO) Convention 111 on Discrimination in Employment and Occupation, 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 of Human Rights (ACHR).

This Report analyzes the theoretical application of Constitutional measures. Article 4 was drafted to constitutionally safeguard equality; the Preamble to Article 123 contains the constitutional right to work. Article 133-I is a result of juridical equality and was reformed to prohibit sex discrimination in employment. The Report also analyzes the analogy between Article 133-I and the Preferential Rights in hiring governed by Articles 154-157, an analysis necessary to clarify Article 133-I and determine if job applicants fall within its scope in accordance with the analogy mandated by Article 17. To explain Federal Labor Law interpretation methods, the Report examines Article 18 and the labor principles, Articles 2 and 3.

Employer liability for mistreatment of pregnant workers and for violation of privacy when obtaining unauthorized pregnancy data is at issue. These liabilities are ascertained under Civil and Penal legislation.

In addition, the Report examines job applicants' accessibility to labor and other tribunals. It also discusses available remedies for pregnant workers dismissed on the ground of incapability, absenteeism, and lack of honesty. Other legal issues arising from Submission 9701 are probationary contracts and forced resignations.

An overview of the compliance reports submitted by the Government of Mexico in accordance with the provisions on equality and nondiscrimination is analyzed to determine its international compliance.

MEXICAN LEGISLATION

1. Legislative History: Article 133-I of the FLL

ILO Convention 100⁽⁴⁾ on equal remuneration for male and female manual labor is the earliest international document on the issue of equality. ILO Convention 111 on discrimination in employment and occupation was adopted by the Conference in 1958 and ratified by Mexico on January 3, 1961. ILO Convention 111 has been considered a part of Mexican legislation since its ratification.⁽⁵⁾ The OAS Charters on Social Rights adopted during the Fifth Conference in Santiago (1923), the Ninth in Bogota (1948), and the Buenos Aires Protocol (1967) are the source of Article 3 of the FLL, published in the official gazette, Diario Oficial (DO), on April 1, 1970. The Initiative and the Motives for Article 3 agree that Article 3 serves as one of the guiding principles for interpreting provisions under the FLL.⁽⁶⁾ Article 133-I, decreed alongside Article 3, prohibits employers from refusing to hire workers on the basis of age. Although the Initiative and Motives for the 1970 Law do not allude to the reasons for Article 133-I enactment, there is a presumption that Article 3, the 1923 and 1948 OAS Charters and the 1967 Protocol, mentioned above, and ILO Convention 111 are the sources for the prohibition in 133-I based on age. Moreover, since preference rights on the basis of supporting a family had not been enacted yet, Article 133-I seems to be the only precursor and regulator of age discrimination.⁽⁷⁾ As the 1970 Law incorporated Article 133-I to prohibit employers from refusing to hire persons based on their age, it is clear that it governs age discrimination under the FLL.

1.1 Constitutional Sources of Article 133-I: Article 4 on Equality

Considerations for Drafting

Mexico had subscribed to an earlier version of the Convention on the Elimination of Discrimination Against Women (CEDAW) by 1967⁽⁸⁾ and began drafting the 1970 Federal Labor Law in 1968. Article 133-I was created with the 1970 Law, but originally, it only forbade age discrimination. As protectionist maternity measures already limited women's equal access to work, passing legislation on sex discrimination would not have been logical. Notwithstanding those measures, legislative history indicates that national progress during the early seventies produced a social demand for equal access to work. By 1974, women comprised half of Mexico's population. However, they represented a mere 18 to 19 percent of the economically active population, with married women being only 16 percent of that figure.⁽⁹⁾ Despite the disproportion, the number of women joining the labor force continued to increase. On a national scale, a high demand for labor resulted in the employment of women in violation of the law.⁽¹⁰⁾ The Mexican Government recognized that these laws were not fulfilling their objectives, as the protectionist measures limited women's access to work and served to discriminate. Ironically, the provisions designed to protect women had become obstacles that resulted in actual exploitation of women by employers. These considerations, coupled with the impending UN proclamation of the "International Year of the Woman," hosted by Mexico⁽¹¹⁾ in 1975, partially motivated juridical equality in 1974.⁽¹²⁾

Constitutional Article 4 also granted couples the right to decide the number of and intervals between their children along with the legal obligation to provide for them. Furthermore, in 1974, the constitutional mandate originated another important provision, granting the right to preferential treatment in hiring and promotion to persons whose earnings represented the sole source of family income.⁽¹³⁾

The Meaning of Juridical Equality in the Labor Setting: Motives for Law

Legislative history also shows that the 1974 maternity reforms under the FLL were not to be understood as limiting women's access to work in any way. In fact, Articles 166, 167, and 170-I were modified to ensure women healthy pregnancies without infringing on their right to work. Prior to enactment of Constitutional Article 4 and secondary legislation, former Secretary of Government Mario Moya Palencia addressed the congressional assembly on the issue of equality:

Even in the process of creating a new being there is sharing, and even when we admit that maternity is a unique happening of womanhood, it may be the only way we can differentiate her to protect her even more and the fruit which may be male or female as do the labor laws that we have also reformed to ensure that women during pregnancy regardless of the area of work--be it industrial, commercial or any type--do not exert any activity that might injure the product. And even when we secure six pre and post partum weeks for rest and lactation, this difference based on biological principles is the only admissible one to juridically differentiate or juridically distinguish between a man and a woman.⁽¹⁴⁾

The studies rendered before the Chamber of Deputies on Reforms and Additions to the FLL and the equality granted women by Constitutional Article 4 resulted in the reform of Article 133-I. Aside from the first prohibition on the basis of age, the 1974 addition prohibits discrimination in employment on the basis of sex. The Motives for the 1974 reforms express that Article 133-I increases the possibilities of access to work.⁽¹⁵⁾

1.2 The Right to Work: Constitutional Article 123 Preamble

Considerations for Drafting

In anticipation of four major international covenants that Mexico would ratify in 1981,⁽¹⁶⁾ President López Portillo proposed to raise the right to work to constitutional level.⁽¹⁷⁾ After congressional approval, the right to work became the Preamble to Article 123. Consequently, the Constitution guarantees everyone the right to work, a guarantee confirmed by the number of statements made in support of the Preamble. The Motives for the decree express that society, as a whole, asserts work as a right and an obligation; therefore, it becomes a social right.⁽¹⁸⁾ During the congressional debates, several discourses supporting the decree, including one by Miguel Bello Pineda, Secretary of Debates, redressed the right of all persons to work. The right exists whether or not subordination or an employer figure are found in any activity; an independent worker, while not subordinated to an employer, is always subject to the mandates of an economic system.⁽¹⁹⁾ Deputy Ezequiel Rodríguez Otal, a supporter of the addition, recalled the words of Vicente Lombardo Toledano, representative for the working class during the drafting of the 1917 Constitution, in order to emphasize the significance of this right: "Nevertheless, once the Labor Law is in effect, the fundamental task will be to implement and maintain that right in force."⁽²⁰⁾ Deputy Enrique Ramírez y Ramírez expressed a great concern for enforcement and effectiveness of the constitutional mandate: "Both Society and the State, that is, the entire Nation is responsible for guaranteeing this social right because it would be incredibly irresponsible and ludicrous to incorporate into the Constitution the text of a right that will not be put into practice, that will not be exercised."⁽²¹⁾

2. Hierarchy of Labor Laws: The Constitution and General Principles of the FLL

Article 133 of the Political Constitution of the United Mexican States uses the term "treaties." How do ILO conventions fit within the context of this Article? And, can a national tribunal base its decision on the provisions of the convention? Barroso Figueroa believes that a convention must first be examined to determine if it is self-executing.⁽²²⁾

International Documents Distinguished

César Sepúlveda explains that treaties are given a variety of designations that become confusing. However, he finds that the source of their nature is an international meeting of the minds. Sepúlveda also believes that treaties are synonymous with "conventions," regardless of the secondary quality given to conventions vis-à-vis treaties. Consequently, "convention," "pact," or "treaty" are only different ways of designating the same thing.⁽²³⁾ J. L. Brierly,⁽²⁴⁾ with whom Sepúlveda agrees, says that "treaty" holds a more formal connotation than "convention" or "pact" but that these are still formal and important. He explains that an "act" synthesizes the events of a formal conference, that "declarations" are used to transform conventions into law and are also known as "covenants," and that "protocols" are minor or supplementary covenants.

The Term "Treaty" in Constitutional Article 133

According to Barroso Figueroa, "treaty," as used in Article 133, can be understood as follows: First, the drafters of the 1917 Constitution envisioned bilateral conventions only. When the Constitution was reformed in 1934, Mexico had already joined the ILO. Consequently, the intent of the original legislator becomes unimportant. Article 17 alludes to Article 6 where the term "treaties" is also used, and, even though it does not mention ILO conventions, he believes it cannot refer to any other but ILO conventions. Barroso Figueroa also cites Mario de la Cueva, who believes that Constitutional Article 133 gives treaties approved by the Senate effective binding force. Thus, if ratified conventions benefit workers, compliance can be required. Second, from a historic-evolutionary perspective, even if a lawmaker represents the people, it is their will and not the legislator's that matters as the source for legal interpretation. However, the legislator must be the one to consider the events taking place when writing the law.

For the above reasons, Barroso Figueroa believes that ILO conventions can be placed within the framework of Constitutional Article 133 and that his thesis does not modify the context of the constitutional mandate, nor any doctrine established on the subject, in any way.⁽²⁵⁾

Article 6, according to Alberto Trueba Urbina, sets the dynamics of the theory behind International Labor Law which he defines as:

One that creates labor laws through the International Labour Organization at conventions and assemblies celebrated by employers, workers and representatives of governments and it involves and renews all International Labor Law approved by our country. Once these international labor provisions are approved by the Senate of the Republic in accordance with Constitutional article 133, they become part of the laws of the Union. Their application is not dependent on the hierarchy established in this precept since, in any case, the statute that favors the worker most should apply. There can be no other interpretation, therefore the authorities in charge of enforcing labor laws, national or international should understand their spirit and their text, eminently social for the protection of the working class.⁽²⁶⁾

ILO Conventions and their Application in Mexican Legislation and Practice

Article 6 stipulates that all relevant laws and treaties that benefit workers apply to labor relations as of the date of enactment. The treaties, however, must be executed and approved under the terms of Constitutional Article 133. Under the ILO Constitution, a convention must be submitted to the authority with power to approve it before it becomes part of national legislation.⁽²⁷⁾ In Mexico, Congress has that authority.

Federal and Local Authorities

Sometimes, local governments regulate subject matter found in ratified ILO Conventions. However, their legislation does not always reflect the contents of a convention. For example, local legislation did not match the requirements of Convention No. 62 on security measures in construction work. Consequently, Mexico was the object of several observations by the Committee of Experts (COE) in Application of Conventions and Recommendation. To avoid such inconsistencies, the States must expedite subject matter regulations adhering to the provisions of the conventions.⁽²⁸⁾ To that effect, Article 19, Paragraph 7 of the ILO Constitution provides that federal authorities should consult with local governments about incorporating ILO Conventions into local legislation.

The Significance of Ratification

The Secretary of Labor and Social Insurance (Secretaría del Trabajo y Previsión Social - STPS) defines ratification as "The act by which a Member State solemnly binds itself to apply the provisions of an ILO convention to its laws and practice."⁽²⁹⁾ Barroso Figueroa finds three elements in the definition: (a) the act of ratification by the Member State, (b) an obligation that derives from the formality of ratification, and (c) the obligation acquired signifies incorporation of the convention's provisions to national legislation and practice.

Ratification requires an intervening authority with power to execute treaties. In Mexico, it involves the President of the Republic in accordance with Articles 89-X and 133 of the Constitution.

Ratification of a convention is a formal act. Therefore, Member States are subject to control by the ILO to ensure compliance in application and practice of the contents in the national sphere. The formal statements made by governments constitute ratifications and they must be free from reserves. Reserves do not allow complete ratifications unless they are authorized by the conventions. Conditional ratifications are distinguished from reserves. According to Nicholas Válticos, if the ratification with reserves is unacceptable, conditional ratifications are not because they do not question acceptance of the provisions; they simply subject the date of enactment to that of other Member States.⁽³⁰⁾ Conditional ratifications were created to offset disadvantages in international trade when workers in one country had better benefits than workers in other countries.⁽³¹⁾

As mentioned, the obligation to incorporate a convention into the national legislation and practice of a Member State arises from ratification. However, the stipulations in subparagraphs (b) and (d) of Article 19.5 of the ILO Constitution often lend themselves to be misunderstood as to the obligation of Member States; Subparagraph (b) requires that the convention be submitted to the competent authority to give it legal force or to adopt other measures. Once a Government ratifies, subparagraph (d) provides that it must adopt the necessary measures to make the provisions of the convention effective.⁽³²⁾

Effectiveness

In an international sphere, a convention needs to be ratified by at least two Member States to be in force. For this reason, a majority of conventions contain a standard clause stating that they become effective twelve months after a second ratification. Similarly, conventions adopted by Member States also become effective twelve months after their ratification has been registered with the General Director of the International Labour Office. In a national setting, the vacatio is the period between the ratification and the time the convention becomes effective. The vacatio enables governments to develop the necessary measures to comply with the convention. The convention, which becomes effective twelve months after a ratification has been registered, is actually the one considered binding on a Member State. But its obligations are only international; a Member's national obligations arise as of the date of publication. In Mexico, publication is made through the official daily gazette, El Diario Oficial de la Federación.

Self-Executing and Promotional Conventions

Self-executing conventions contain text that can be applied immediately. These conventions do not require any regulation, clarification, or other addition, nor do they require previous intermediate procedures to be put into effect. Once identified as a self-executing convention, the national constitutional system of a Member Country must be examined in order to determine whether a system gives ratified treaties legal binding force. Mexico's Constitutional Article 133 stipulates that it does and Article 6 of the FLL establishes the same.⁽³³⁾

While addressing the COE, Mexico has stated that the act of ratifying conventions demonstrates that it is already incorporating them into its legislation. Barroso Figueroa points out that the International Labour Office acknowledges that certain constitutional systems allow immediate incorporation of conventions into their law. However, the Office insists on additional measures to ensure, as the COE suggests, that all interested parties learn that a convention has been incorporated into national law. Barroso Figueroa agrees with the COE that employers, workers, labor inspectors, and judicial authorities be made aware of the incorporation. A ratified convention would otherwise lose its force if, out of ignorance, it was not applied to resolve work conflicts, regulate collective bargaining, or, generally regulate rights.⁽³⁴⁾

Notwithstanding the above, Mario de la Cueva recounts that the Organization of American States (OAS) Charter containing social provisions was designed during the Ninth Conference in 1948. The original provisions⁽³⁵⁾ concerning labor had been augmented during the Fifth Conference in 1923 and the Buenos Aires Protocol reformed the Charter in 1967, but aside from an addition made to the third paragraph of Article 43, the original provisions were left intact.⁽³⁶⁾ These rights were already enforceable as law in Mexico as they had been ratified by the Senate; however, they were being implemented into the draft for the 1970 Labor Law. Consequently, the Chamber of Deputies received a request from corporate organizations that the measures be dropped from the project. The group reasoned that additional legislation would duplicate subject matter already found in the Charter. Although they were correct, the Chamber replied that the measures were necessary should the Charter lose international effectiveness.⁽³⁷⁾

ILO Convention 111 is a promotional convention because it suggests measures rather than directly applicable provisions. The Convention requires that a Government take necessary measures to render the document effective. Specifically, Article 2 of Convention 111 provides that in order for the convention to become effective, a Member State must develop and carry out a national policy in accordance with its internal procedures. The goal of the national policy must be to promote equal opportunity and treatment in employment and occupation and eliminate any related discrimination. There are several ways in which discrimination can be abolished through national policy. Among others, Barroso Figueroa suggests cooperation from associations of workers and employers, legislation, educational campaigns, and the exclusion of any kind of discrimination in hiring or in job stability for which jobs national authorities are responsible.⁽³⁸⁾

Disparities between National Legislation and ILO Conventions

National legislation and the contents of an ILO convention may differ noticeably. When this happens, and to ensure that all who are affected by both laws are aware of them, Barroso Figueroa suggests that legislative measures be taken to integrate the convention's provisions into laws or regulations that have been previously enforced or else enforced shortly after ratification. However, for minor disparities, Barroso recommends utilizing the conflict of laws principles, which state that a later law incompatible with an earlier of the same or equal hierarchy can abrogate the earlier. Article 9 of the Civil Code for the Federal District applicable to federal matters stipulates, "The law is abrogated or derogated only by another later one that so expressly declares or that contains provisions totally or partially incompatible with the earlier law."⁽³⁹⁾ On the other hand, de la Cueva's solution, "that they harmonize with the Constitution,"⁽⁴⁰⁾ can also resolve the question. In other words, no international convention can be integrated if it contradicts the provisions of Constitutional Article 123. And, again, it may apply only where the benefits are better for workers than those in the Constitution. Similarly, Article 19.5 of the ILO Constitution also expresses this principle: "In no case will the adoption of a convention or a recommendation by the Conference, or the ratification of a convention by any Member be interpreted to demean any law, award, custom, or accord that guarantees workers more favorable conditions than those found in the convention or recommendation." ⁽⁴¹⁾

Necessary Measures

Member States must adopt necessary measures, which, aside from legislation, can include administrative practices, collective contracts, dissemination, and statistical compilations. Statutes seem effective because of their legal force, but Barroso Figueroa believes that they are not always the best method because they do not guarantee observance.⁽⁴²⁾ A combination of the previous measures, nevertheless, is considered a better way to grasp the objectives of a convention. In that respect, Recommendation 152 (c), paragraph 5, indicates a tripartite involvement: "The objective of the proceedings provided in the present Recommendation should be to execute consultations: (c) Considering national practice on elaborating and putting into practice legislative measures or another kind to make international labor conventions and recommendations effective, and, in particular, ratified conventions (including putting into practice the provisions relating to consultation or collaboration with the representatives of employers and workers)."⁽⁴³⁾

Nicholas Válticos believes that three elements must be considered. First, the legal system of the country where the labor regulation should be legislative in nature if the convention deals with matters on minimum age or social insurance. Second, the objectives of the convention, which (in the areas of employment or statistics) perhaps do not require legislation, should be taken into account. Third, the provisions contained in the convention need to be analyzed to determine if there is a need to comply through legislation, administratively, or through collective bargaining. For example, administrative compliance was the measure taken to comply with the 1938 Convention No. 63 on statistics of Wage and Hours of Work, effective June 22, 1940. Since that year and up through 1980, Mexico was still working on the compliance aspect. The National Center for Information and Statistics on Labor (CENIET) informed the International Affairs Department of the STPS that it could only give approximations. CENIET further indicated that it would take years to satisfy the requirements of the convention. Collective bargaining is another way in which the necessary measures are adopted to comply with a convention. The Independent Labor Union for Workers of Vidrio Plano de Mexico, C.T.M. used Convention 43 on glass manufacturers (1934) and Convention 49 on the reduction of hours in the bottling plants as the basis for their collective labor agreement with Vidrio Plano de Mexico, S.A.⁽⁴⁴⁾

Obligatory Nature of ILO Conventions

As mentioned above, a State Member has an inherent obligation to incorporate the convention into national law after ratification. Thus, a government must also put the provisions of that convention into practice in its territory. After adhering to a convention, the Member State is obligated to control compliance of the provisions in its territory by its people; once the convention acquires national effectiveness, its provisions can be invoked as law.⁽⁴⁵⁾ De la Cueva believes that the conventions ratified and approved by the Senate are binding law. Therefore, workers and labor unions can demand their application and compliance individually or collectively. The provisions in a convention have an unconditional mandatory nature when applied to either collective bargaining or CAB resolutions.⁽⁴⁶⁾

The Order of Application of Laws

Article 17 establishes the order in which labor laws and principles apply when there is no express law in the Constitution, in the FLL or its regulatory framework, or in the treaties referred to in Article 6. First, the provisions in the Constitution, FLL or its regulations, and treaties that govern similar cases. Hence, analogy would apply. Next, any applicable general principles of law found in those legal bodies. If none, then the general principles of social justice that derive from Constitutional Article 123. If these are not found then jurisprudence applies to the case. In the absence of jurisprudence, custom and equity would apply.

Alberto Trueba Urbina warns that the 1970 Law suppressed civil legislation as a source of substantive or procedural complementation. Therefore, unlike Article 11 of the FLWSS, under the regulatory framework of Article 123-B, allowing complementary civil legislation, provisions or principles from civil and mercantile laws and state or federal civil procedural codes are inapplicable.⁽⁴⁷⁾

According to Trueba Urbina, the general principles of social justice found in Constitutional Article 123 arise from the 1970 proposed Law. Those principles defend workers and oversee their economic improvement, and workers benefit from a wealth of natural, civil and cultural resources through them. However, social justice as expressed in labor legislation is limited because it does not go into the ideals of Article 123, which are intended to restore the rights of the working class. Regarding equity, it should always be interpreted in Aristotelian fashion, going beyond justice to improve it. When justice is improved, the principles of restitution favoring the working class are met and the legal theory behind Article 123 is confirmed.⁽⁴⁸⁾

Interpretation of Labor Laws: Article 18

Article 18 provides: "When interpreting labor laws, the objectives found in articles 2 and 3 must be considered. When in doubt, the interpretation that most favors a worker must prevail."

De la Cueva says that Constitutional Articles 4 and 123 point out to a general principle: "Any provision that makes any distinctions in gender must be considered derogated because it cannot have legal effect. Likewise, labor laws must be interpreted with equality of gender in mind. In any event, it is convenient to assert that the legislator was highly meticulous. Apparently, there was no room left for the slightest possibility of an aberrant interpretation."⁽⁴⁹⁾ De la Cueva insists on setting the conventional methods aside when interpreting Labor laws and following the solution adopted by the 1970 Drafting Commission that created Article 18. He says this was done precisely to give "a goal-oriented interpretation, one in harmony with the nature and the objectives of Labor Law."⁽⁵⁰⁾ Furthermore, the interpreter has to eliminate the formal aspect which, in his words, "isolates law from the reality that gave it life." To understand the object of a labor law, the nature of its material origin must be examined, for this explains why the law was created.⁽⁵¹⁾

2.1 The Scope of Preferential Rights in Hiring, Articles 154-157, and Seniority and Job Promotion, Articles 158-159

Preference rights in hiring do not constitute discriminatory conduct and are protectionist measures⁽⁵²⁾ set out in Article 154, first paragraph, to protect workers who meet the order of preference requirements. The doctrine of the application of preference rights is not limited to hiring, but in satisfaction of the principle of job continuity, these rights apply mostly to post-employment matters. Thus employers have a duty to train and develop the skills of the workers in accordance with Article 123-XIII of the Constitution. The mandate is regulated under the FLL in Articles 3 of "General Principles" and under Title Four, Rights and Obligations of the Workers and Employers in Articles 132-XV, "Employer Obligations," Chapter I, and Articles 153A-153X, "Training and Development of Workers," Chapter III Bis. Employers and labor unions are compelled to hire or propose workers from within the company in order to create job stability. Article 159 provides that, if employers have complied with training and development, positions must be granted according to aptitude. If employers have failed to do so, then those positions would be given on the basis of seniority. Article 158 covers the seniority chart developed and controlled by a mixed⁽⁵³⁾ commission that records seniority and determines which workers are entitled to a vacancy or newly created position(s). However, under CLAs and the terms of admission clauses (if found), when hiring from within is not possible, employers are free to hire anyone for such positions per Article 159.

Obviously, new corporations are subject to preferential rights in hiring, as employers are expressly obligated by them absent a CLA. An exception to the preference of unionized individuals over non-unionized is reasoned in the following labor jurisprudence, in which employers (particularly new companies) are not obligated to find out if there are labor unions in the geographical area to apply the preference rights to their members.

Preference, right of workers to. Non-existence when there is no labor contract. Free workers. The obligation in Part I of Article 111 of the Federal Labor Law points out that unionized workers must have preference over non-union workers and is applicable only where through a collective labor agreement an employer has agreed to contract unionized workers for the employer is not under a legal duty to find out if in the area where the company is established there is a labor union with employable members which would exclude workers at the company who in any event have the same rights and cannot be displaced from their jobs because this would go against the freedom to work guaranteed by constitutional article 4. Jurisprudencia: Apéndice 1975, 50 Parte, 40 Sala, Tesis 167, p. 163.

Depending on whether there is a CLA and whether it contains an admission clause as provided in the second paragraph of Article 154, the burden of liability for vio-lation can shift between employer and labor union. However, if there is an admission clause, preference rights in hiring will be subject to the stipulations of the CLA and the labor union statutes⁽⁵⁴⁾ in accordance with the second paragraph of this article. In this respect, aside from the provision in Article 395, first paragraph, the clause results in a limitation to an employer's freedom to choose workers whenever a CLA containing the clause has been executed. This means that an employer has a duty to accept workers proposed by that labor union, thus excluding others who do not fall under the preference rights in hiring due to non-membership in the labor union.⁽⁵⁵⁾ In the absence of a CLA or if the CLA does not have an admission clause, an employer is still limited in the freedom to choose workers and must apply the preferential order of Article 154, first paragraph: "Employers are obligated to prefer under equal circumstances Mexican workers in relationship to those who are not, those who have previously and satisfactorily served them for the longest period, those who while not having another source of income have a family and unionized in relationship to non-unionized workers."

Vacancies or newly created positions can be filled by interested workers through submitting a completed application to the company. In accordance with Article 155, workers from within the company or first-time applicants⁽⁵⁶⁾ must indicate if they have a family and identify their family dependents.

If the applicants are temporary workers or substitutes, or the work involves contracts for special jobs or designated work, Article 156 stipulates that the same provi-sions in Article 154 apply.

As indicated above, failure to comply with the preference rights in hiring results in liability. Article 157 imposes sanctions which stipulate reinstatement of the worker to the position applied for or three months' salary plus lost wages from the date the position should have been granted to the date the award is executed.

In the event that an employer fails to act according to the stipulations in Articles 154 and 156, an employer is responsible for the penalties imposed in Article 157. If an employer fails to accept a worker proposed by a labor union when there is a CLA with an admission clause, that employer will be in breach of the CLA.⁽⁵⁷⁾ However, if the labor union fails to propose a worker based on the preferential order, only the labor union will be liable and the affected worker may bring suit against the labor union.

Exercise of Preference Rights in Hiring

Violations of Articles 154 and 156 give workers a right to go before the Conciliation and Arbitration Board of their choice to request that the corresponding position be awarded or be indemnified with three months' salary. Workers are also entitled to the payment provided in the second paragraph of Article 48 regarding lost wages. Labor unions are also obligated to apply the preference rights when proposing their affiliates.

Preference, right of workers to. Labor union propositions in application, by majority reasoning, of article 111 of the Federal Labor Law. In the case in which the exclusion clause for admission exists, the labor union holder of the collective labor agreement, when proposing workers, should respect the preferential order alluded by article 111 of the Federal Labor Law, since those obligations are imposed on the employers, they should also be applicable, by majority reasoning, to labor union organizations. Jurisprudencia: Apéndice 1975, 50 Parte, 40 Sala, Tesis 169, p. 165.⁽⁵⁸⁾

According to the following jurisprudence, preference rights in hiring can be exercised through paraprocedure despite the right to ordinary procedure. Preference rights based on seniority, however, are processed through special proceedings:⁽⁵⁹⁾

Paraprocedure Proceedings may be initiated to exercise Preferential Rights established by Arts. 154 and 155 of the FLL: Even where Arts. 154 and 155 of the Federal Labor Law determine that the workers have the burden of presenting the employment application to the company or establishment, or in terms of the collective contract, to the labor union through which the right to occupy a vacancy can be made effective without intervention from the CAB in that action, the workers' presumption is rightly founded in that the latter, in accordance with Arts. 982 and 983 of the same legal body, should be the one to notify the recipients because according to the enumeration, the Paraprocedure medium (founded on the same legal grounds that govern the common voluntary jurisdiction, according to the Motives for law of the decree that originated it) was created not only to attend to the supervening acts on which the following enumeration are found, but, in general, to any other case where the board's intervention is required, and in the order, it is reasonable to accept that the board's intervention is required as an organ with certifying functions given the importance of the matter imposed on the workers to avoid future evidentiary difficulties with which they might be confronted where their right could be the basis of controversy resulting from deficiencies or irregularities in the reception of the application with the understanding that the legal basis for this proceeding is not subject to proof from the workers before the board that the employer or labor union have refused to rightly accept the application for under the principle of good faith, in extent, it is presumed that workers will only bring before it, the cases where they were not able to solve their matter directly.

Contradiction de Tesis 15/89. Entre las sustentadas por el Primer y Segundo Tribunales Colegiados en Materia de Trabajo del Primer Circuito. 4 de junio de 1990. Unanimidad de 4 votos. Ponente: Juan Díaz Romero. Secretaria: Adriana Campuzano de Ortíz.

Tesis de Jurisprudencia 8/90 aprobada por la Cuarta Sala de este alto Tribunal en sesión privada celebrada el cuatro de julio de mil novecientos noventa.- unanimidad de cuatro votos de los señores ministros: Presidente Juan Díaz Romero, Ulíses Schmill Ordoñez, Carlos García Vázquez, y Jose Martínez Delgado.⁽⁶⁰⁾

Labor Unions: Admission Clauses, Preferential Rights in Hiring, and ILO Conventions

De la Cueva makes an interesting observation regarding employers' inability to choose workers with some exceptions.⁽⁶¹⁾ He says that, through the use of the admission clause granted labor unions by Article 395, employers' freedom to select workers is suppressed by law and the labor unions can decide who gets hired. In this manner, he sees that the labor union movement has managed to take an old prerogative away from employers, the freedom to choose personnel.⁽⁶²⁾ For this reason, it is very difficult to discern why employers turn job applicants away based on their gender or pregnancy if an admission clause is found in a CLA. Under an admission clause, women workers, regardless of pregnancy, should be proposed by the labor union, which, theoretically, has the power to admit them to work. In this respect, it is evident that labor unions are not pressuring companies to comply with the preferential order established in the CLA.⁽⁶³⁾

As mentioned, labor unions can bargain to incorporate the contents of ILO conventions. In fact, this is an effective alternative measure to comply with the provisions of a ratified convention. The COE has even pointed out that, in regard to Convention 111, anti-discrimination clauses can be inserted into collective agreements as other countries have done. Incorporation of a convention into CLAs would reflect that progress is made to comply with the convention in government reports.⁽⁶⁴⁾

The role of some Mexican labor unions is quite passive with regard to the issues of gender and pregnancy discrimination.⁽⁶⁵⁾ ILO Convention 111 is on the list of priority conventions that must be redressed every two years.⁽⁶⁶⁾ According to ILO Constitutional Article 23, employers' and workers' organizations receive copies of the government compliance reports to the COE.⁽⁶⁷⁾ The International Labour Office requests that, along with the detailed compliance reports, comments from employers' and workers' organizations on government compliance with respect to ILO conventions be submitted as a package.⁽⁶⁸⁾ Surely with the required feedback, labor union roles acquire a vigilant and safeguarding nature regarding the rights of their associates on the basis of age, sex and pregnancy. Compliance reports are ILO control instruments⁽⁶⁹⁾ which, in the case of promotional conventions such as Convention 111,⁽⁷⁰⁾ require more than the information regarding the measures taken by a government to reach the objectives or curtail obstacles to comply with the Convention.⁽⁷¹⁾ In this regard, government reports should also contain a spectrum of data that involves not only the required comments from employers' and workers' organizations but also, "a general description of the way in which the convention is applied in practice with extracts from the inspectors' reports, data on the number of infractions, and other minor issues."⁽⁷²⁾

Additional Notes on Control Mechanisms

When a Member State does not send the corresponding report or submits it without detail to the COE, it is subject to a shortening of the period given to answer. The same thing happens when there are serious problems of application or when the State has been issued observations as follow up to a communication by international or local workers' organizations.⁽⁷³⁾ Observations are forwarded in the most serious cases of noncompliance and the governments are asked for detailed reports.⁽⁷⁴⁾

The COE also forwards direct requests to governments. Direct requests deal with secondary or technical aspects, asking that some points be clarified to enable a better appreciation of the provisions.⁽⁷⁵⁾

Labor unions have standing to promote claims through a special procedure. As a control mechanism, the procedure is for special circumstances in relation to compliance of a convention or to omission of the principles established by the ILO. The first of the procedures is through direct contact; the second is by means of an administrative procedure brought about through claims and complaints and the special procedures that protect freedom of association.⁽⁷⁶⁾

Preference Rights vis-à-vis Article 133-I

Through their capacity to represent workers, labor unions are empowered to seek compliance of all FLL provisions. Article 375 authorizes labor unions to represent workers in individual actions, including seeking action where Article 133-I violations occur. If preference rights were always observed, gender and pregnancy-based issues in the maquiladora industry would be kept in check by labor unions. If preference rights are the only legal standard recognized by CABs in pre-employment actions, where applicants to those positions are denied a job based on age, gender, or pregnancy, employers and labor unions alike would be required to show that another individual had a better preferential right, to the position. Consequently, in principle, prior to evaluating gender and pregnancy-based discrimination issues under the framework of Article 133-I, any such cases would first need to be examined in application of preferential rights in hiring. Preference rights were drafted with a tendency toward equality, albeit a relative one, but, as de Buén believes,⁽⁷⁷⁾ they ironically defeat the principle of equality. De Buén views preference rights for hiring and seniority as legal instruments that gradually divert from the principle of equality, however uncertain, found in the FLL. In terms of salary, equality is on even ground. At the start of a work relation based on preference rights, equality is barely considered. With respect to seniority, it is completely absent.⁽⁷⁸⁾ Furthermore, the preference given to some individuals prejudices the rights of others, such as trust workers who do not have a right to job stability.⁽⁷⁹⁾

Notwithstanding the above concept, De Buén also supports the purpose for enacting the third preference in 1974 which claims that preference rights will operate to protect older workers with families to support in accessing jobs.⁽⁸⁰⁾ There is some validity found in the assumption that older workers have a better preference than younger persons who, were it not for preference rights, supposedly displace the first. Cirila Quintero's paper on female participation in the maquiladora industry shows that an earlier generation of female maquiladora workers migrating to border cities was profiled for salary purposes as "young, pretty, and cheap."⁽⁸¹⁾ That profile no longer matches current regional female maquiladora workers, except in Tijuana.⁽⁸²⁾ Aside from social characteristics, the paper also records changes in salaries which reflect actual family demands. Earlier studies showed that a large percentage of female workers spent their income on personal attire and recreation since they could rely on other sources of income from spouses or parents.⁽⁸³⁾ Now, the income deriving from maquiladora female workers, particularly in Ciudad Juárez and Matamoros, is the principal family income. In addition, a large number of maquiladora female workers are heads of households; in Ciudad Juárez, a majority are single parents.⁽⁸⁴⁾

Noncompliance with Preference Rights

In theory, preference rights should operate absent CLAs and admission clauses. In practice, legal mechanisms such as preference rights are not sufficiently effective to enforce the right to work. Although the reasons are not altogether clear, they reflect some labor unions' lack of concern for the welfare of their members. One possible answer may be found in the Quintero document.⁽⁸⁵⁾ Labor conditions reflect the strength of collective negotiations undertaken by labor unions. For the most part, labor union demands continue to revolve around basic labor benefits, CLA signing, and salary increases rather than production or gender issues.⁽⁸⁶⁾ Regional labor unions under a restructuring phase are divided into "traditional" and "subordinated."⁽⁸⁷⁾ Traditional labor unions are those seeking participation in new industries through collective bargaining for better benefits, as long as their members' basic interests and their own roles as labor representatives are not undermined. In contrast, subordinated labor unions subject their membership to government and corporate needs in exchange for recognition as collaborators in regional or national development.⁽⁸⁸⁾ Quintero believes that two determinants initially affect all workers equally but later have an impact based on gender alone: job stability (including personnel management) and industrial stability.⁽⁸⁹⁾ Quintero says that because traditional labor unions fight for job stability from within a company, their members rely on the stability and benefits derived from negotiations with management.⁽⁹⁰⁾ Subordinated labor unions, on the other hand, often claim to have won benefits that are the result of earlier CLA negotiations⁽⁹¹⁾ and rarely provide new rights or benefits. Moreover, when benefits are granted, they are subject to company policies alone.⁽⁹²⁾ In terms of industrial stability, the traditionalists have safeguarded permanence by demanding that companies guarantee indemnities to workers through bonds. Subordinated labor unions allow companies to close down at the onset of minor conflicts.⁽⁹³⁾

Gender-related benefits obtained by traditional labor unions are highly significant; pregnant workers in Matamoros, Tamaulipas, have a right to temporary labor contracts gained through union negotiation.⁽⁹⁴⁾ The 1990 CLA gives temporary workers and those with more than three months' employment the right to remain employed until the end of their pregnancy. In addition, under the 1990 CLA, the company and labor union agree to cover disability periods when a worker's social insurance credits are insufficient for maternity coverage.⁽⁹⁵⁾ Negotiations for the 1990 CLA even won paternal leaves for expectant fathers.⁽⁹⁶⁾ Quintero finds that although Matamoros is one if the cities that continues to have a high number of women workers in the maquiladora sector, female workers there have far more benefits than women do in other regions.⁽⁹⁷⁾ For example, despite a higher percentage of women than men employed in the States of Baja California and Chihuahua,⁽⁹⁸⁾ the subordinated labor unions there have obtained no significant benefits for women. Moreover, the lack of interest in the welfare of their female associates is evident. In a survey of 173 Tijuana women, 50.3% of the women interviewed indicated that negative pregnancy tests were required for admission to work.⁽⁹⁹⁾ Because hiring and firing is conducted by the company, workers ignore their labor unions.⁽¹⁰⁰⁾ This type of passiveness on the part of labor unions sets the stage for employer discrimination.⁽¹⁰¹⁾ Consequently, Quintero shows that subordinated labor unions have not only failed to obtain extralegal benefits for workers but have even allowed a reduction of the minimum legal standards.⁽¹⁰²⁾ The practice of subordinated labor unions to allow employers to fix benefits according to worker productivity is one such example of reducing minimum legal standards.⁽¹⁰³⁾

A more evident example of subordinate labor union inefficiency is the lack of daycare facilities set up for their affiliates.⁽¹⁰⁴⁾ The law requires that, under social insurance, day care centers be set up as mandated by Constitutional Article 123-XXIX. Article 171 of the FLL specifies that daycare center services are provided by the IMSS under the terms of its Law and Regulation. However, as Quintero notes from a 1991 survey of female workers in Tijuana, not one of the 127 interviewees indicated that her employer had daycare facilities. Furthermore, despite the existence of a 1983 covenant between the IMSS and employers to build daycare centers, the numbers of facilities are still limited. Even when employers were offered a tax-deductible arrangement, only 11.6% of the thirty maquiladoras surveyed in 1989 responded to the proposal.⁽¹⁰⁵⁾ Quintero points out that, due to the weakness of the subordinated labor unions in Tijuana, employers acquire primary importance.⁽¹⁰⁶⁾ Consequently, employers provide bonuses for punctuality, productivity, etc. In fact, these are the ways that employers draw workers' attention from central labor conflicts. Thus, companies become the center of attention of not only work but also all recreational activities including sports and beauty contests. The bonuses and "extralegal" benefits that these companies provide are actually the benefits negotiated by most traditional labor unions in their CLAs.⁽¹⁰⁷⁾ Interestingly, the traditional labor union in Matamoros is responsible for all sport-oriented and recreational activities, whereas elsewhere the company has the responsibility.⁽¹⁰⁸⁾

2.2 The Scope of Article 133-I for Job Applicants

The Concept of Workers

The work relation is theoretically necessary for the FLL to be adequately applied, i.e., it is not applicable to independent contractor relationships governed by contracts in the civil codes. There are several notable doctrines regarding the applicability of the work relation to all matters encompassed by the FLL. The concept of workers needs to be simultaneously discussed for two reasons: (1) the FLL addresses workers in its provisions and (2) the concept of workers intertwines with that of the work relation.

Article 8 defines a worker as, "The physical person that renders another, physical or moral a subordinated personal service." Its second paragraph states, "To that effect, work is understood as all human activity, intellectual or material, independent of the grade or technical preparation required for each profession or occupation." The 1931 Law defined worker in its Article 3 as, "every person who renders another a service, material or intellectual or both through a labor contract."⁽¹⁰⁹⁾ These definitions have been highly criticized by Alberto Trueba Urbina and Rubén Delgado Moya. Trueba Urbina believes that "subordinated" should not be applied to characterize the nature of work if work is a right and a social obligation, stressing that the only inherent duty on the part of a worker is to work efficiently. As to Delgado Moya's view, he interprets the definitions under both laws and finds that, "worker is the person (sic) that sells his (sic) work energy to whoever unlimitedly exploits it." He feels that as inhumane as his definition may sound, it is closer to reality than the one provided in the Law.⁽¹¹⁰⁾ Delgado Moya also compares his concept of "worker" to others; according to the concept formed by Manuel Alonso García,⁽¹¹¹⁾ from a contractual relation perspective, the status of "worker" is not an antecedent reality, but one that follows the execution of the contract, i.e., a person acquires the status of worker through subjectivity and participation in the work relation, but there is no permanent worker status.

For De la Cueva, according to Delgado Moya, there are two solutions. The first, that a worker is such by belonging to the working class just as executives belong to higher management. The second coincides with Alonso García's opinion that a worker is a subject of the work relation. But de la Cueva confirms that not all physical persons are workers and that is why there are requirements such as subordination to acquire a worker status. He explains that it is not the worker that is subordinated, but because of the different types of services, the FLL regulates only subordi-nated work. Therefore, subordination is the element of human activity used in Labor Law to distinguish⁽¹¹²⁾ among those who can benefit from the FLL and those who cannot. Nevertheless, he clarifies, the concept of subordinated work is an essential aspect of the definition that should not be used to designate a status but to exclusively distinguish between the two types of work.⁽¹¹³⁾

Article 157 grants an applicant the right to sue for damages under preference rights. Although de Buén claims that the term has two connotations, social and legal,⁽¹¹⁴⁾ he says that "worker," as used in Article 157, accepts the social meaning of the term as opposed to only the legal because in that supposition, the worker is trying to constitute a work relation.⁽¹¹⁵⁾

Preference rights are an excellent example of FLL application despite absence of a work relation. De la Cueva mentions that when preference rights were originally drafted, legislators did not foresee the extent of enterprise growth and development. Therefore, the drafting commission for the 1970 law had to create a double system to enable persons who had either worked previously for an employer or were first-time applicants with preference rights. The first component of that double system is for workers not rendering services in a company with Article 154 applying in their situation. However, under this system, employers are not expected to look for workers who can benefit from preference rights under Article 154. Consequently, Article 155 requires that a job application be filled out with data that will be the basis for preferential hiring or that candidates apply in person when a job vacancy is announced. In the second part of the system, Article 156 provides that workers who do not have permanency in a company, but have previously rendered temporary services are entitled to preference rights.⁽¹¹⁶⁾ As a result, provisional workers' seniority is considered and incorporated into a seniority table controlled by a mixed commission in accordance with Article 158.

Job Applicants for Trust Positions

Background:

Trust workers were designated trust "employees" under the Law of 1931 which distinguished them from manual workers. The 1970 law did away with that term and now applies to all workers, whether manual or intellectual.⁽¹¹⁷⁾ Except for the stipulations in the special provisions, under Title Six, Special Jobs, Chapter II, Articles 182-186, the law does not distinguish trust workers from other workers as outlined in the Motives for Law.⁽¹¹⁸⁾

Although they have rights under the FLL, trust workers are barred from exercising some of the rights that are available to regular workers. For example, Article 183 stipulates they cannot join the labor union of other workers, meaning they are not allowed to join the labor union holding a CLA in the workplace and they cannot participate in the recount procedure or become labor union representatives.⁽¹¹⁹⁾ The reason is that trust positions are linked to management, and so their intervention in labor union matters are considered prejudicial. The functions of trust positions entail direction, inspection, vigilance, and control. Trueba Urbina says that, as described by Article 11, genuine trust workers direct, administer, and manage a company.⁽¹²⁰⁾ Thus, Article 11 has a dual purpose. It grants higher management a worker status but conceives of these workers as representatives of the company which is liable to the workers. This was arranged in the 1970 project to avoid circumvention of the law by employers who claimed no responsibility under a principal-agent theory.⁽¹²¹⁾

Article 185 authorizes employers to rescind labor contracts if they have a reason to believe that their employee lacks trust. The rescission can be based on grounds⁽¹²²⁾ other than the ones enumerated in Article 47.⁽¹²³⁾ If trust workers were allowed to benefit from preference rights, they would enjoy job stability and their dismissals would be allowed only under Article 47.

Access to Work:
The following labor jurisprudence excludes trust workers from the preference rights.⁽¹²⁴⁾

Trust worker, Preference Rights of. Regarding trust positions, an employer has liberty to choose the worker that is to represent him or her and whose acts will have direct repercussion to his benefit or detriment depending on the degree of confidence that the candidates deserve; therefore, whether a worker obtained the best grades in a training course and has the longest seniority, these do not compel the employer to grant the trust position because training and seniority can be selection criteria to be considered by an employer but are not binding. Amparo directo 4572/85. Guadalupe Valderrama Sánchez. 16 de abril de1986. Unanimidad de 4 votos. Ponente: Ulíses Schmill Ordoñez, Secretaria: María del Rosario Cienfuegos. Amparo directo 8032/82.-Ferrocarriles Nacionales de Mexico. 19 de marzo de 1984.-5 votos. Ponente: María Cristina Salmorán de Tamayo. Secretaria María del Refugio Covarrubias de Martin del Campo. Amparo directo 5974. Vicente Rámos Rámos. 14 de abril de 1982. 5 votos. Ponente: Julio Sánchez Vargas. Secretario: Raúl Ortíz Estrada. Amparo directo 4600/80. Alfredo A. Paniagua López. 16 de febrero de 1981. 5 Votos. Ponente: Juan Moisés Calleja García. Secretaria: Catalina Pérez Barcenas. Amparo directo 1606/76. Manuel Ortíz Rueda. 2 de agosto de 1976. Unanimidad de 4 Votos. Ponente: Jorge Saracho Alvarez. Secretario: Eduardo Aguilar Cota.⁽¹²⁵⁾

Article 9 indicates that the designation of trust worker depends on the functions and the nature of the work. Trust positions involve a bonding with management that stems from the nature of the work and services. That bond can be determined by the type of services performed by a worker for an employer. With respect to an individual employer, a bond undoubtedly exists if the services are personal, such as those performed by a chauffeur. A bond can also be measured by the degree of confidence that a position requires as opposed to another, as in the case of a secretary with access to confidential data versus an office clerk with little or no access to confidential information.⁽¹²⁶⁾ As a consequence of the existing bond between employers and trust workers, the latter seem to be worse off than their manufacturing counterparts. Bear in mind that the law does not allow trust workers to join the labor union in the workplace for that same reason. The above Labor jurisprudence reasons that the bond bars trust workers from exercising preference rights. Thus, that jurisprudence allows employers to choose their trust workers freely, which may also explain why administrative job offers contain discriminatory requirements. Trueba Urbina points out that, notwithstanding the stipulations in Article 183, trust workers are not barred from starting or joining their own labor unions in accordance with Constitutional Article 123-XVI.⁽¹²⁷⁾ Assuming that a CLA with admission clause had been executed,⁽¹²⁸⁾ if trust workers were to join their own labor unions,⁽¹²⁹⁾ an employer would have to admit them. By the same token, in conformity with Article 154, a labor union, by virtue of an admission clause, would be liable to the trust workers if it did not follow the preferential order. However, in the absence of a CLA with admission clause, the freedom to select trust workers would revert to the employer. Consequently, the above hypothesis shows that if trust workers can start and join their own labor unions, the employer loses his freedom to select trust workers even when labor jurisprudence does not bind employers to preferential hiring.

Nevertheless, unlike the beneficiaries of preferential rights in hiring, trust workers have a genuine right to invoke Article 133-I regardless of the above jurisprudence. That jurisprudence refers to an employer's freedom to select trust workers who cannot invoke preference rights. Articles 133-I prohibits age and sex discrimination, and jurisprudence on this subject matter was not available.

The Work Relation:

Article 20 provides that the work relation is,". . .to be understood as any act that originates the rendering of a personal subordinated service to another through the payment of a salary.

The second paragraph defines an individual labor contract as: "Whatever its form or designation, it is that by which a person is obligated to render to another a personal subordinated service through the payment of a salary.

The rendering of a service referred to in the first paragraph and the labor contract produce the same effects.

De la Cueva says that the work relation is a requirement for the application of labor statutes. Notwithstanding the reasoning for the work relation as a prerequisite for the FLL to apply, can Article 133-I be used by job applicants? Constitutional Article 4 is the source of Article 133-I. The objective of enacting Article 4 was to grant women equality under the law and to eliminate sex discrimination. Pregnancy is a biological condition of womanhood and falls under the protective measures in Articles 132-XXVII and 166-172. Pregnancy-based discrimination is understood to be gender discrimination because legislative documents show that it is an inherent condition of womanhood.⁽¹³⁰⁾ In this regard, the Motives for Article 133-I on the basis of gender discrimination restate legislative intent: women should enjoy the same employment opportunities as men and should have access to and liberty for work without distinctions. Other than the provisions to preserve women's health during gestation and lactation, none exist to prevent access to work.⁽¹³¹⁾ Moreover, the Motives for Article 133-I express, "The possibility to access work is strengthened. Thus, Article 133-I forbids employers to refuse to provide a person work on the basis of age or sex, . . . ."⁽¹³²⁾ Legislative history clearly states that Article 133-I was created to strengthen the possibilities of work access.

Analogy to Preferential Rights in Hiring

The legislative documents mentioned earlier indicate that one of the sources of Article 133-I is Constitutional Article 4 and that Article 133-I was created to comply with CEDAW.⁽¹³³⁾ The Preamble of Constitutional Article 123 raised the right to work to Constitutional level in 1981. Furthermore, Article 133-I can be viewed as a necessary measure to give ILO Convention 111 effectiveness. On the strength of the foregoing alone, it is evident that Article 133-I was created to protect individuals during both pre- and post-employment phases. Thus, Article 133-I is substantively clear because legislative documents support and acknowledge why it was created. However, the right of action for job applicants to exercise Article 133-I remains ambiguous. On one hand, individuals have a right to work which can be invoked on the authority of Article 123-Preamble, that is, not to be refused by employers on the basis of age or sex. On the other hand, Article 133-I, or any other provision, fails to provide action against violations. Where the work-relationship theory is applied it precludes job applicants from labor tribunals. Therefore, in principle, there is no medium for exhaustion of the substantive right provided by Article 133-I. The use of analogy with the preference rights can provide an outlet for airing actions for violations to Article 133-I. However, as discussed, preference rights in hiring could defeat Article 133-I actions based on equality.⁽¹³⁴⁾

De la Cueva warns that the provision used to analogize must have the same objectives found in the ambiguous law; it should not restrict any of the benefits derived from the law.⁽¹³⁵⁾ In that sense, analogizing preferential rights to Article 133-I would not distort the objectives of the latter because preference rights allow individuals in or outside a work relationship access to job vacancies.⁽¹³⁶⁾

Examining the preferential order can provide insight into what happens to the prerequisite of a work relation when preferential rights are applied to applicants.⁽¹³⁷⁾ Article 154 releases employers from having to comply with preferential hiring when an admission clause is found in a CLA. Here, de Buén sees preference rights as acquiring a secondary role because admission clauses subject the preferential order to whatever is laid down by the CLAs and labor union bylaws.⁽¹³⁸⁾ Nonetheless, even where CLAs establish the manner in which workers are proposed to employers, members have a right to be proposed following a preferential order.⁽¹³⁹⁾ When several associates apply for the same position under equal circumstances, those with no other source of income and a family to support must be preferred.⁽¹⁴⁰⁾ De Buén also finds that Article 154 originates a new work relationship in the absence of a CLA or admission clause. However, job candidates must be preferred under equal circumstances, or employers may be free to choose individuals when all candidates have equal preference rights.⁽¹⁴¹⁾

De la Cueva observes that the 1970 law divides liability for violation of preference rights into "individuals not rendering services" for a company and "individuals who are." Absent an admission clause, employers must accept workers who have better rights or be liable for noncompliance. As mentioned, Article 157 grants persons whose preference rights have been ignored the option of getting the job that was denied or a monetary remedy.⁽¹⁴²⁾ Thus, the coercive nature of Article 157 grants pre-employment individuals action to sue despite the absence of a work relationship.

De Buén explains that the 1974 enactment of a third preference, which gives applicants preference rights when they support a family, favors older individuals who would otherwise be displaced by younger, less experienced applicants. The measure is justified on the belief that some individuals can survive on other family income while a head of household depends solely on income deriving from work to support a family. Moreover, the measure somewhat deters negative and illegal practices by companies favoring younger workers over older ones. De Buén feels that although these practices are not justified, they can be better tolerated in countries with mandatory retirement systems. In Mexico, the trouble with emulating such negative practices is that liability for such conduct is not readily assumed.⁽¹⁴³⁾

In summary, the 1974 preference on the basis of having a family to support, which is third in the preferential order, deters age discrimination. Preference is given to heads of household who are older, as opposed to younger applicants who can still depend on the family income. Since one of the objectives of preference rights is to prevent age discrimination, it is undoubtedly similar to Article 133-I expressly prohibiting employers from refusing to accept workers on the basis of age. Furthermore, both precepts are similar in that they presuppose persons applying for work.

Article 17 calls for analogy when a case not foreseen by the legislator (Article 133-I) requires clarification through the use of a provision that regulates a similar matter (preference rights).⁽¹⁴⁴⁾ Consequently, the analogy of the preference rights to Article 133-I seems adequate.

2.3 Provisional Labor Contracts and the Legality of Probationary Labor Contracts under the FLL

Article 47-I of the FLL exonerates employers when they rescind a labor contract on the grounds that workers or the labor unions that proposed them deceived employers by means of false certificates or references that misrepresent their capacity, aptitude, or faculties. This ground is not effective against workers after the first thirty days of employment. In addition, and regardless of the grounds enumerated in I-XV, the last two paragraphs of Article 47 mandate that employers must notify workers in writing of the reasons for and the date of the rescission. However, if a worker refuses to accept the notification, the employer must notify the appropriate CAB within five days following the notification of rescission and include the worker's address so that the CAB may notify the worker of the termination. Dismissals will be considered unjustified if either workers or CABs are not notified.

When employers attempt to circumvent indefinite labor relations, they might stipulate thirty days on individual labor contracts. Mexico's labor legislation, however, does not recognize probationary contracts to test workers' abilities.⁽¹⁴⁵⁾ According to de Buén, though, the law does accept probationary periods within contracts.⁽¹⁴⁶⁾ Under this method, in the cases of Article 47-I, the contracts are for an indefinite duration but subject to revocation. Under Title Six, Special Jobs, Chapter XIII, Article 343 allows employers to terminate the work relation within thirty days from employment without employer liability and at any time without having to show cause upon proper indemnity stipulated in Articles 49-IV and 50. In CLAs, however, there is a tendency to negotiate clauses that allow thirty days to test workers' capacities and terminate them without employer responsibility.⁽¹⁴⁷⁾ Climent Beltrán notes that employers are not liable for rescissions based on a worker's inability to do the work.⁽¹⁴⁸⁾ De Buén explains that this is proper under seniority promotions, authorized by Article 159, where the positions are filled according to a seniority chart. In these cases, where the workers filling these jobs are chosen according to their seniority, the positions are filled on thirty-day probationary periods. If employers find workers incompetent, they are removed and returned to their old positions and the next worker on the seniority chart is called to fill the position. According to de Buén, in situations involving false technical aptitude, employers have managed to bargain in the CLA that they will not be held responsible for rescinding the contracts of workers who are inefficient as long as they do so within thirty days. To that effect, an older labor judgment issued by the Court in 1941 authorizes employers to rescind contracts on the basis of incapacity without liability (Cuarta Sala, 14 de julio de 1941, Amparo Directo 2055/37/1a). However, the 1941 judgment was superseded by another in 1980, which De Buén believes applies to individual labor contracts in which the court found that, "probationary contracts are legally nonexistent where an employer evaluates the aptitude of workers within a given time to grant or deny indefinite labor contracts, and therefore the contract must be understood as one for an indefinite period since there is no legal cause to justify the limitation of its duration." (Amparo Directo 867/79. Brenda Tern Román, 17 de marzo de 1980, Informe de la Cuarta Sala, 1980, p. 44).⁽¹⁴⁹⁾

While temporary contracts are recognized, they must be in writing and specify the term or the specific task for which the worker was hired. If the contract lacks this information it will be interpreted as indefinite per Articles 24, 25-II, 25-III, and 35. Furthermore, Article 36 requires that a contract for specific work must express the nature of the work to be done. Article 37 states that contracts for a specific duration must specify that the nature of the work requires that the work be performed within such time or that such a time is necessary to substitute an absent worker, or any of the other cases established by law. Consequently, for a 30-day labor contract to be valid, it must express the reasons for that period or else indicate that its object is to substitute an absent worker for that period, etc. If, at the end of a time contract, work is available to be performed by that worker, the contract must be renewed for as long as such condition continues, as per Article 39.

2.4 Justified Dismissal on the Basis of Article 47-I, II and 46-V(a) of the Federal Law for the Workers at the Service of the State (FLWSS)

The grounds to dismiss a worker without employer responsibility are found in Article 47-I. The provision applies to conduct by a worker or a labor union which involves supplying an employer with false certificates or misrepresenting the aptitude, skills, or capacity of a worker in order to gain admission to a job. De Buén points to the element of deceit as justified grounds for dismissal. Moreover, because the work relation was originated through deceit, the labor relationship is voidable when such defect is discovered. Nevertheless, older jurisprudence interprets the meaning of capacity as used at present in Article 47-I and under the 1931 law in Article 122-I:⁽¹⁵⁰⁾

Capacity, Rescission of the Labor Contract Due to Lack of: According to Article 122-I provision of the Federal Labor Law, the company has a right to, as long as it can show in the corresponding trial the cause for rescinding the labor contract that it had with the worker who does not have the necessary capacity to perform the work that was contracted. Amparo directo 7186/1967. José Guadalupe Camelo Hernández. Abril 4 de 1968. 5 votos. Ponente: M. Ramón Canedo Aldrete, 4a. Sala, Sexta Epoca, Vo. CXXX, Quinta Parte, p. 11.

While the present legislation does not contemplate probationary contracts, the above labor jurisprudence allows employers to terminate a worker on the basis of incapacity. Terminations based on incapacity would definitely make the period in which an employer can act a trial period. However, the question is whether an employer can exercise the right to terminate on the basis of lack of capacity within a thirty-day period. De la Cueva tells us that the original legislation contained two provisions⁽¹⁵¹⁾ which allowed employers and workers to rescind a labor contract. Both situations involved the manifestation of deceit found when employers falsely stated working conditions or whenever certificates or references were used to falsely credit workers with capacity, aptitude, or faculties. The provisions encompassed the principle of honesty and good faith and Article 329-I of the 1931 Law governed the statute of limitations (SOLs). Article 329-I provided that actions to invalidate a contract executed through mistake, deceit, or intimidation ran out in one month. The 1970 drafting commission decided to preserve the essence of those older provisions in Articles 47-I and 51-I. The commission, however, excluded from the new law actions to invalidate labor contracts, maintaining those for rescission or termination of the labor contract. The drafters also elected to abrogate Article 329-I since 47-I and 51-I include their own SOLs.⁽¹⁵²⁾

Even though the above jurisprudence on capacity indicates that a company has a right to terminate a worker on the ground of incompetence, it also includes, "as long as it can show in the corresponding trial the cause for rescission. . . ." Employers cannot fire a pregnant worker on the pretext of incompetence unless they can show during the proceedings that the worker was, in fact, incompetent. And, as mentioned, the worker must be notified of the cause for dismissal. The thirty-day stipulation of Article 47-I applies, as it did to the old SOLs, to the time allowed for discovering that the references or certificates falsely represented the worker's abilities.

Article 47-II of the FLL and 46-V(a) of the FLWSS both contain the elements of lack of probity and honesty as grounds for dismissal. According to de la Cueva and de Buén, lack of probity and honesty have been interpreted in a number of different ways, some of which are incongruent.⁽¹⁵³⁾ De Buén says that the Court in Amparo Directo 2817/73 Transportes Papantla, S.A. Cuarta Sala, Informe 1973, p. 54, found that absence of probity and honesty comprise a lack of goodness, rectitude, righteousness, and honest conduct. De Buén believes that lack of honesty always implies a lack of probity, but the latter can manifest itself in different ways.⁽¹⁵⁴⁾

Due to the number of incongruent interpretations, lack of probity and honesty lend themselves to application in cases where women submit false "no pregnancy" certificates with their job applications. This is seen later in a discussion under Section 2.8 (The Legality of "No Pregnancy" Medical Certificates in the Public Sector). If a worker is absent without permission or just cause for more than three days within a thirty day period, it will give rise to the grounds for dismissal expressed in Article 47-X. The following jurisprudence clarifies justified absences and the period in which the absences occur:

In order for the absences from work incurred by a worker do not give rise to dismissal, the worker must notify the employer of the causes for the absence and certify upon returning to work that it was not possible to attend work for if this is not done then the rescission of the labor contract by an employer will be justified. Therefore, later proof of the reason for absences will not be effective before the Conciliation and Arbitration Boards. Jurisprudencia. Suprema Corte de Justicia (Apéndice al Semanario Judicial de la Federación, 1965, Quinta Parte, Pag. 85).

De la Cueva comments that the above may not be altogether clear. In order for a worker to be deemed justifiably absent, he or she needs to have notified the employer prior to the absence and to certify the absence upon return to work. Otherwise, the employer can justifiably rescind the contract. If the above means that an employer's decision is final and a worker has no access to the CAB, then, as de la Cueva expresses, there would be another denial of justice because it would place the employer in a position to ultimately decide a work conflict.⁽¹⁵⁵⁾

Article 46-V(a) of the FLWSS contains the same provision in terms of absences. However, please note the following awards from the Federal Conciliation and Arbitration Tribunal (FCAT):

Absences (in four consecutive days). Art. 46-V(b): When a worker obtains verbal permission from the immediate supervisor and written authorization is later denied after the absence, termination is not appropriate if in the proceeding the worker can show that he had obtained verbal permission. (Laudo: Exp. No. 429/49. Srio. de Hacienda y C.P. Vs. María del Carmen Gámez Ramírez)

Absences. Those sanctioned administratively. Art. 46-V(b): Absences that are administratively sanctioned cannot be taken as grounds for authorization to dismiss an employee without State liability. (Laudo: Exp. No. 76/55. C. Secretario de Educación Pública Vs. Federico Niño Rodríguez)

Lack of general conditions and internal work regulation. This circumstance does not authorize a worker to be absent, or arrive work with systematic tardiness within the legal schedule that the superiors have set for the worker. (Laudo: Exp. No. 99/949. Srio. Educación Pública Vs. J. Melquiades Vergara)

2.5 Involuntary Resignations

The following thesis helps to clarify the issue of whether forced resignations are invalidated:

Resignation. When it is Affected by a Defect of the Will, Lacks Validity. If the worker can show that he or she was incommunicated and threatened into signing the resignation, then such circumstance makes the writing that terminates the relationship be affected by a defect of the will, since the subordinated, when stamping the signature was under a state of intimidation, that is translated into moral coercion for which the contents of the merit worthy document lack validity since it was not spontaneously placed by the undersigned. TRIBUNAL COLEGIADO EN MATERIAL DE TRABAJO DEL TERCER CIRCUITO. Amparo directo 126/90. Genaro Baltazar Alvarado. 23 de mayo de 1990. Unanimidad de votos. Ponente: Alfonsina Bertha Navarro Hidalgo. Secretario. Jorge Umberto Benítez Pimienta.

2.6 Pregnancy Screenings: Legal or Illegal Conducts

Medical Examinations and the Internal Work Regulation: Articles 134-X, 423-VIII

Article 134-X of Chapter II, "Worker Obligations" of Title Four, Rights and Obligations of Workers and Employers, stipulates that workers must undergo physical examinations. The stipulation concurs with Article 423-VIII which is one of eleven stipulations that the IWR must contain. The objective of VIII is to learn if workers are afflicted by a contagious or incurable occupational incapacity or disease. In order to analyze if the IWR is a legal means for employers to obtain unauthorized information on pregnancies of women workers, the motives of the 1931 and 1970 laws on the obligation of workers to submit to medical examinations were reviewed. The 1970 motives for Article 134-X alludes to the earlier 1931 motives for Article 113-IX. In the earlier law, motives for Article 113-IX on workers' obligations to submit to medical examinations at the start of and during the work relation is silent on pregnancy detection as part of a medical examination. There is no significant divergence from the original 1931 provision to the present Article 134-X. However, an older Supreme Court judgment invalidated by 1975 jurisprudence sheds some light as to the original purpose for medical examinations. In that judgment it was held that where the worker developed an illness that was not comprised in the table of occupational diseases per Article 326 of the 1931 Law, a medical examination resulting in a clean bill of health proved that a worker was healthy at the start of a work relationship. Thus, the burden of proof shifted to the employer to show that the worker's illness was not occupationally related (Ejecutoria 20 septiembre 1934. Amparo María Frías vda. de González).⁽¹⁵⁶⁾

Notwithstanding the above, employers are constitutionally obligated, under the authority of Article 123-XV, to:

observe, in accordance with the nature of the business, the legal provisions on hygiene and security in the installations within the workplace, and adopt adequate measures to prevent accidents in the use of machinery, instruments and work tools, as well as to organize the workplace in such a way that it results in the best possible guarantee of the health and life of the workers, and of the product of conception when it relates to pregnant women workers. To that effect, the laws will contain applicable sanctions for each case.

Another obligation of workers is the duty to inform their employers as soon as they learn that they suffer from a contagious illness or disease, as stipulated in Article 134-XI.

Some Background on IWRs

Most IWRs are drafted under the guidelines of a CLA and, in this sense, they are considered complementary laws.⁽¹⁵⁷⁾ However, in the absence of CLAs, IWRs should also be drafted by a mixed commission of workers and employers. The commission, as stipulated by Article 424-I, sets the rules under which work is to be per-formed under the principle of the majority of represented workers.⁽¹⁵⁸⁾ The IWR must contain stipulations indicated in 423, Parts I-XI. Part VIII imposes medical examinations for workers and also provides that the Commission is responsible for deter-mining the time and the manner in which workers are to undergo medical checkups. Once workers and management have agreed on an IWR, it should be filed with the appropriate CAB within eight days of the signing. If deficiencies are found, the provisions of the IWR can later be modified, but if they are contrary to Law, or CLAs and Law-Contracts, they will be ineffective (Art.424, II-IV). Also, the provisions within the IWR will not be effective until the document has been filed with the appropriate CAB as per Article 425. The following judgment covers situations where either parties invoke the IWR during a CAB proceeding:

EJECUTORIA. Internal Work Regulation, obligation to invoke and exhibit during trial. Authorities are not under a duty to know that they exist, nor apply them, unless the parties invoke, exhibit, or indicate the file under which they are located in the CAB. D. 6349/58. Luis Chirón Muciño, 10 de agosto de 1959.

Thereafter, the IWR is to be published and posted in a highly visible place on the work premises. Alberto Trueba Urbina comments that the IWR is not binding unless workers have received a copy of the regulation or have had a chance to see it posted at the workplace.⁽¹⁵⁹⁾

De Buén explains that, because IWRs are drafted in accordance with CLAs, there are misconceptions that IWRs are necessarily linked to CLAs or that they are uni-lateral disciplinary measures imposed by employers only marginally following legal standards. In any event, Article 424-I mandates that IWRs be drafted bilaterally and that it is up to the mixed commission to set the standards under which work is to be carried out, keeping the requirements of Article 423 in mind. However, de Buén sees difficulties in this. For one thing, a temporary coalition of workers might find it hard to accept the disciplinary measures that an employer wishes to impose on them. Consequently, employers resort to other means, such as inclusion of disciplinary standards in CLAs, creating further confusion, or drafting a regulation with labor unions but without the workers input. Nevertheless, because the IWR is, theoretically, an agreement subject to the "meeting of the minds," it can be negotiated. Furthermore, Part XI of Article 423 practically lends itself to discretionary bargaining by the parties.⁽¹⁶⁰⁾ With all this in mind, if the IWR is, as de Buén believes, a negotiable instrument, Article 423-VIII could be negotiated to exclude pregnancy testing in the workplace.

The Legal Nature of Pre- and Post-Pregnancy Screenings

Under Constitutional Article 123-XV, employers must ensure the health and safety of workers through adopting adequate measures. Articles 132-XVI, XVII, and XXVII reflect this constitutional mandate. Employers who violate measures that govern women's work are subject to a fine from 3 to 155 times the general daily minimum salary per Article 995. The sanctions for violation of Article 132-XVI and XVII, according to Article 1002, subject employers to a greater general fine than for violations to provisions that govern women's work. In the former case, the fine is from 3 to 315 times the general daily minimum salary. Because the constitutional provision authorizes employers to apply the necessary measures to ensure health and safety in the workplace, and as it specifically makes employers liable for not only the health and life of pregnant women workers but also the product of conception, employers could feel justified in requiring pregnancy screenings and requesting "no pregnancy" medical certificates. In fact, employers could interpret the constitutional measure as authorization to conduct pregnancy screenings. Nevertheless, the constitutional mandate is obviously intended only to guarantee health and safety in the workplace. Mexican legislation is silent as to employers' right to test for pregnancy. However, employers who test for pregnancy and are legitimately concerned about the health of women applicants and that of their fetuses could be justified if the work is classified as dangerous or unsanitary per Article 423-VII, which concurs with Articles 166 and 167. In this regard, ILO Convention 111 and Recommendation 111 have made "distinction", "exclusion", or "preference" exceptions to discriminatory conduct when the job contains inherent requirements.⁽¹⁶¹⁾

Mexican civil or criminal legislation does not specifically prohibit an invasion to the right to privacy per se. The Civil system is silent as to moral injuries arising from violation to the right of privacy with respect to pregnancy screenings. However, the Civil Code for the Federal District contains obligations that arise from the commission of illicit acts. Article 1910 of the Civil Code states, "Whomever acts illicitly or against good custom causes another harm, is obligated to repair, unless it can be shown that the harm results from inexcusable fault or negligence by the plaintiff." Article 1912 of the same Code stipulates, "When exercising a right that causes harm to another there is an obligation to indemnify if it is shown that the right was only exercised to cause harm without any usefulness to the holder of the right." Article 1915 of the Code stipulates the remedy for illicit conducts that result in harm: "The reparation of the harm must consist in, at the election of the plaintiff, the restoration of the previous situation whenever possible, or payment for damages." The same provision covers civil responsibility for conduct that gives rise to harm that causes or produces death or disablement. However the FLL provisions regarding coverage for loss of life or limb are applied whether or not the matter concerns a Labor action. The same provision determines the monetary damages, calculating the base as four times the highest daily minimum salary in effect in the region and extending it to the number of days allotted for each disablement covered under the FLL.

In Article 1916, the Code defines moral harm as:

the affliction that a person is subjected to in their feelings, beliefs, self-esteem, honor, reputation, private life, appearance, and physical aspects, as well as the image that others have of the person. Whenever an illicit act or omission produce a moral harm, the responsible person will be obligated to repair it by means of monetary damages, regardless of whether or not material harm was also caused, whether contractual or ex-contractual liability exists. . . . The measure of damages will be determined by the judge considering the violation of rights, the degree of liability, the economic situation of the respondent, and of the plaintiff, as well as other circumstances of the case. When the moral injury affects the plaintiff's self-esteem, honor, reputation, or regard, the judge will order, at the plaintiff's request and at the expense of the liable party, the publication of an extract of the resolution that adequately reflects the nature and the scope of the same using whatever available media the plaintiff considers convenient. In the cases where the judge considers that the injury arose from a conduct that has already been disseminated through mass media, the judge will order that the same channels be used to publicize the resolution's extract with the same relevance as the original dissemination.

Article 1916-Bis does not establish liability for whomever exercises the rights of opinion, critic, expression, or information along the terms and limitations of Articles 6 and 7 of the Constitution. However, whoever demands reparation for moral injury arising from contractual or non-contractual relations must duly accredit the illicitness of the conduct and the resulting damages. Article 1917 stipulates joint and several liability for damages that result from moral injury according to the provisions of the chapter on obligations. Corporations, as juridical persons, are liable for damages caused by the conduct of their legal representatives in the exercise of their functions, according to Article 1918 of the Code. Article 1927 stipulates that whoever pays damages caused by servants, employees, or operators can demand restitution. Article 1928 covers liability of the State for damages caused by officials in the exercise of their functions. However, the liability is supplementary in that it becomes effective against the State only when the official has little or no estate to cover the damages.

Under legislation of the State of Tabasco, a judgment in favor of the appellant for moral injury held the following:

The value of moral injury cannot be accurately measured. It is not possible to measure its economical repercussion with precision and its monetary amount and significance cannot be subjected to any evidence. It would be absurd to leave the price of pain, honor, or shame to the appreciation of expert witnesses. It is up to the judges to indicate the amount of indemnity through prudent judgment taking into account the economic ability of the obligor, the nature of the injury, and the relevant records in the proceeding. A.D. 8491/62. Eleuzinque Flóres Hernández. 19 de agosto de 1963. Unanimidad de 5 votos. Ponente: Mtro. Manuel Rivera Silva. Primera Sale, Informe de 1963, página 42.⁽¹⁶²⁾

In the absence of labor legislation regarding an employer's right to know if an applicant is pregnant and with the exceptions to discriminatory conduct based on the inherent requirements of a job, an employer's conduct becomes the only aspect considered in applying civil legislation. After receiving pregnancy test results, what an employer does with the information determines if that conduct violates the law. If the employer is attempting to comply with the imposed legal standards regarding pregnant workers, then the conduct is not illegal, provided there is an absolute right to that information. Some employers argue that they test for pregnancy for the sake of compliance,⁽¹⁶³⁾ and it could be interpreted that way absent labor legislation on the matter. However, when employers use pregnancy tests results to deny applicants employment, to mistreat pregnant workers, or to dismiss them on account of their pregnancy, i.e., without any usefulness to the holder of the right, their conduct could be found to be illicit in accordance with Article 1915 of the Civil Code. In those circumstances, the provisions and remedies for moral injury of the Civil Code would apply, provided harm can be shown in a civil action.

Mireya Scarone, former General Secretary for Telmex Workers Labor Union of the State of Sonora, confirms that pregnancy screenings are a common practice in both private and public enterprise in Mexico. According to Scarone, Telmex does not formally require pregnancy testing, only a general health exam which includes a urine sample. The lab, however, tests for pregnancy without the express consent of the applicants. If test results are positive, the company refuses to hire applicants and gives other reasons for rejecting them, such as failed aptitude tests. Scarone said that Telmex acknowledges that its policy and practice are wrong, and when she objected to the company's practice, some of the cases that she had reviewed were reconsidered and the applicants subsequently hired.⁽¹⁶⁴⁾ However, the conduct of other companies and public-sector enterprises are not as covert as Telmex. Some, including the Secretary of Education, Banks, and the DDF (Departamento del Distrito Federal), which are public-sector and State-owned enterprises, openly require a no-pregnancy status for job applicants.

The Penal Code for the Federal District⁽¹⁶⁵⁾ and a majority of the penal codes of the States contemplate other modalities for violations to the right to privacy, such as trespassing, illegal searches and entries, violation of correspondence, and defamation, which under Mexican legislation is "a fraudulent communication to one or more persons regarding another person physical or private in the cases provided by law of a fact whether true or false, determined or undetermined that can cause the person dishonor, discredit, prejudice, or exposure to rejection by another."⁽¹⁶⁶⁾

Maternity Protectionist Measures in the IWR

As mandated in Article 423-VII, concurring with Articles 166 and 167, an IWR must include jobs unsuitable for pregnant workers because of the hazardous or unsanitary nature of the work. Article 167 defines hazardous or unsanitary jobs as:

those that due to the nature of work, the physical, chemical and biological conditions under which they are performed or because of the composition of raw materials used can be harmful to the life and physical and mental health of a pregnant woman or the fetus. The regulations generated are to determine the jobs that fall under the previous definition.

An IWR must also include provisions that concur with Article 170, I-VII in respect to jobs that do not require physical exertion, maternity leave, rest periods for lactation, wages, the right to hold the same position upon returning from leave, and seniority. Article 171 covers nursery services through social insurance and Article 172 mandates sufficient seating for pregnant workers and new mothers.

The law does not indicate whether an employer has a right to inquire as to the pregnancy status of a worker prior to the work relation. Therefore, such conduct may be validly excused if doing so is based solely on the inherent requirements of the job. In that case, and in the cases specified by Article 167, refusing to hire a pregnant woman who applied for a job of that nature would not constitute a discriminatory action.

2.7 Mistreatment of Pregnant Workers by Employers

Aside from the obligations indicated above, Article 132, XXVII provides that employers must protect pregnant women in accordance with the regulations. Moreover, in the case of mistreatment, Article 51-II provides a worker with the grounds for rescission without liability for the worker where, "an employer, his or her family, its managerial or administrative personnel, while in service, become liable for lack of probity or honesty, violent acts, threats or insults, mistreatment, or other analogies against the worker, spouse, parents, children, or siblings." A worker has a right to separate from employment within thirty days following the day in which the grounds originated and will also have a right to indemnification by an employer in accordance with Article 50.

Aside from the sanctions applicable for violating Article 51-II, violations to any of the provisions that regulate women's work will be sanctioned by Article 995 imposing a fine of from 3 to 155 times the daily minimum general wage calculated in the terms of Article 992. Article 992 stipulates that, regardless of the liability imposed for violating a provision, workers and employers will be sanctioned according to Title XVI. The daily minimum wage in effect of the time and place in which the violation occurs will be used as the basis for calculation.

Additionally, an employer could be found criminally liable in accordance with the Penal Code for the Federal District for insults, threats, and miscarriage, which is characterized as abortion if it results from a deliberate act:
Insults (Article 348): Constitute a criminal offense and are defined as all proffered expression or all acts carried out to manifest contempt for another, or with the object of offending another.
Threats (Article 282): Whoever threatens another with causing bodily harm, or harm to another's property, honor or rights, or bodily harm, or harm to the honor, property, or rights of someone with whom the victim is bonded. Whoever, by means of threats of any type, tries to prevent another from doing what he or she has a right to do.
Abortion (Article 329): Abortion is the death of the product of conception at any time during pregnancy. (Article 330): Whoever makes a woman abort is subject to imprisonment of from one to three years, whatever means are used as long as it is done with her consent. Absent her consent, imprisonment will be from three to six years, and if moral or physical violence were used, the offender is liable for six to eight years imprisonment.

2.8 The Legality of Requirements of "No Pregnancy" Medical Certificates in the Public Sector

Regarding public-sector requirements that first-time applicants not be pregnant, the first consideration is if the job applied for has inherent requirements.⁽¹⁶⁷⁾ If so, as already stated, such a requirement would not be held as discriminatory conduct. Under public administration policies, base workers acquire a permanent status after six months of service in accordance with Article 6 of the Federal Law for Workers at the Service of the State (FLWSS). Base workers are all workers not enumerated in Article 5, which refers to trust workers. Except for coverage regarding salary and social insurance benefits, trust workers are excluded from the FLWSS.⁽¹⁶⁸⁾ In addition to the FLWSS, public-administration work is also governed by general conditions of work, internal regulations, or circulars on personnel activities. Though seldom, dismissals based on pregnancy occur. One case dealt with a school teacher who had been admitted to work after presenting medical evidence to that she was not pregnant.⁽¹⁶⁹⁾ However, after repeated absences during the first three months of work, she was terminated because she was found to be pregnant. Article 46,V (a) was cited for dismissal, based on a lack of probity and honesty. The former director of Legal Affairs for the Secretary of Education (SEP) in the State of Morelos admitted that even though the termination was technically proper, it was wrongful conduct on the part of the State. He indicated that the position taken by the State is based on the six-month waiting period to obtain the status of "immobile" that grants job permanency. Due the teacher's pregnancy, the Education Department considered she would not fulfill the remainder of the period to acquire permanency. Moreover, lack of probity and honesty were evidenced by the false medical certificate she used to show that she was not pregnant when she was admitted to work.

Article 46, V(a) of the FLWSS and Article 47-II of the FLL concur on the lack of probity and honesty, as discussed under Justified Dismissals in Section 2.4.

3. Labor Actions, Jurisdiction and Venue

Why Victims of Open and Subtle Forms of Discrimination Fail to Exercise the Right to Work

The ILO points out that even when discrimination is prohibited or when equality is constitutionally or legislatively guaranteed, the effectiveness of those provisions is measured by the ability of victims to assert their constitutional and legislative rights.⁽¹⁷⁰⁾ A sociological aspect which the ILO confirms as "deeply rooted" despite legislation is the generalized custom and practice by employers to reject applicants on the basis of sex, although this happens in Mexico on the basis of age and marital status as well.⁽¹⁷¹⁾ Mireya Scarone said that, while some victims of discrimination are willing initially to take their issues to court, they later abandon the idea because of the time, expense, and frustration of pursuing an action that will most likely amount to nothing in the end.⁽¹⁷²⁾ Mercedes Barquet⁽¹⁷³⁾ suspects that the absence of cases for violation to Article 133-I is due to feelings of unworthiness, ignorance, and fear on the part of discrimination victims.⁽¹⁷⁴⁾

Non-accessibility to Labor Courts

One of the principal issues of Submission 9701 lies with non-accessibility to labor courts or other tribunals for violations to Article 133-I. The inaccessibility is not limited to women applicants who are discriminated against on the basis of gender or pregnancy. Other applicants refused work on the basis of age face the same situation as do applicants who are denied work on the basis of their marital status.⁽¹⁷⁵⁾ It is difficult to establish the likelihood of any cases registered or pending before any labor jurisdictional body as a majority of labor authorities concur that Article 133-I is applicable to post-employment issues only. Thus, it was not surprising to find that none of the labor officials interviewed by Human Rights Watch cited in Submission 9701⁽¹⁷⁶⁾ accepted that Article 133-I could be exercised by job applicants who were denied work on the basis of gender and pregnancy. In principle, the FLL is designed to regulate all matters arising from a work relation, that is, basically, the relationship between employers and workers. However, the FLL also extends to other areas that do not require a work relation, such as matters among labor unions, between labor unions and employers regarding collective labor agreements, and between labor unions and their members under collective labor agreements.⁽¹⁷⁷⁾ The FLL also regulates matters that are administrative in nature such as labor union registrations⁽¹⁷⁸⁾ and voluntary jurisdiction through para-procedural, an administrative proceeding,⁽¹⁷⁹⁾ such as notifications by applicants exercising preferential rights in hiring.⁽¹⁸⁰⁾ Nevertheless, even where labor authorities indicate that job applicants cannot exercise Article 133-I, the victim of discrimination has a right to go before the jurisdictional bodies to ask for relief. After all, as discussed later, the right of action is a substantive right which is independent of the substantive right sought to be exercised through Article 133-I. Thus, the right of action theoretic