Analysis of Issues Raised in Submission 9701: Gender Discrimination and Pregnancy Based Discrimination
By: R. Leticia Cuevas
TABLE OF CONTENTS
ANALYSIS OF ISSUES RAISED IN SUBMISSION 9701:
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.
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.
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)
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:
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)
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)
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)
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.
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:
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.
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 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)
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 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)
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)
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)
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)
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)
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)
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.
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.
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.
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)
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)
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)
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)
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)
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.
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.
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.
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.
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.
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.
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)
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:
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):
The following thesis helps to clarify the issue of whether forced resignations are invalidated:
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:
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.
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:
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.
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:
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:
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)
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:
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.
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:
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.
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)
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 theoretically gives job applicants the right to act against prospective employers who denied them work on discriminatory grounds prohibited by Article 133-I. In the worst scenario, CABs could resolve that job applicants lack a substantive right, i.e., sine actione agis, because they never had a work relationship with an employer. However, CAB resolutions could be appealed through direct amparos where the appellant would cite all available constitutional grounds to obtain a favorable judgment.
The difficulty associated with exercising Article 133-I lies with the absence of a remedy. In terms of the local remedies rule, an individual must exhaust only those remedies that are available, and availability of remedies presupposes accessibility.(181) Where job applicants are denied accessibility to labor courts, on the basis of the work relationship, there is absence of a remedy. Furthermore, even if job applicants accessed labor courts on the basis of the right of action, their efforts would be futile unless the action were analogized to Article 157, the remedy provided for failure to apply preferential order in hiring. Thus, violation of Article 133-I, if applied to job applicants without a remedy, makes employers liable only for a fine. Therefore, except for the preference rights, the FLL does not provide a monetary remedy for pre-employment individuals denied work on the basis of age or sex. During the course of this report, not one judgment was found as a result of an action for amparo, where Article 133-I is analogized with preference rights in hiring to the effect of monetary damages or time limits to exercise the right. Prior to invoking the competence of international human rights mechanisms, particularly the OAS American Convention on Human Rights, available local remedies must be exhausted.(182)
For Leticia Bonifaz Alfonso, the right of action is one of the basic guarantees to exercise a subjective right. However, the right of action must also be guaranteed.(183) Alluding to Rolando Tamayo, she quotes: "Rights are not only claims or declarations. The notion of 'right' cannot be separated from a procedural and judicial use which give it meaning. In common law tradition, this idea is expressed with the maxim: Where there is a right, there is a judicial recourse. Where there is no judicial recourse, there is nothing but words, pieces of paper."(184)
This author also believes that the right of action is effective if the legal framework contains: "1) the right of the plaintiff; 2) the existence of a jurisdictional body where an action can be exercised; 3) competence and jurisdiction of such jurisdictional body as well as a procedure to follow; and in practice: 1) whether that jurisdictional body actually exists and in addition, whether it reacts promptly upon receipt of an action; 2) whether access to the jurisdictional body is guaranteed for any person who in accordance with the provision can go before it; 3) does the jurisdictional body have the necessary means to execute its decisions; 4) whether there are possibilities of appealing to another superior jurisdictional body; and whether this superior jurisdictional body will also react promptly and have the necessary means to execute its resolutions."(185)
Even when job applicants have a right to appear before the appropriate jurisdictional bodies, labor authorities uniformly comment that these cases lack merit on the basis of a work relation. Thus, it is important to note that CABs are empowered to weigh the evidence and appreciate the facts, but not to interpret the Law:
Juan B. Climent Beltrán clarifies that a fundamental exception usually opposed during a proceeding is sine actione agis. The expert says that it does not involve a lack of action because the action is a faculty to promote the labor process. Thus, the action operates independently of the relief sought, whatever the resolution or award. Consequently, sine actione agis does not mean a lack of action, but a lack of right.(186)
Persons who believe they have a claim have a right to bring an action according to the following jurisprudence:
In view of the above labor jurisprudence, and based on the right of action, a job applicant is entitled to bring an action for violation of Article 133-I. If a CAB decides against a job applicant, the decision can be redressed through an amparo. However, preference rights should be considered at this point because even where an employer did discriminate against a worker on the basis of age or sex, a defense based on preference rights could be fatal to a pretense under Article 133-I.
The following are the venues for bringing claims and the competence of labor tribunals regarding violations to Article 133-I as it relates to gender and pregnancy based discrimination.
Article 48 provides that workers can request that a CAB of their choice(187) rule for reinstatement or indemnification of three month's wages. If, during the trial, an employer is unable to prove the grounds for dismissal, a worker has a right to lost wages from the start of the action to the execution of the award.
Jurisdiction and competence are fixed according to local or federal subject matter or by territory. Article 698 stipulates that Local CBs and CABs are competent to hear cases within their jurisdiction that are not reserved for the Federal CBs and CABs. Federal CBs and CABs exclusively handle all cases pertaining to industrial branches, enterprises, or subject matter(188) enumerated in Constitutional Article 123-A, XXXI, and Article 527. Territorial competence or venue is decided according to art. 700, I-VI described in Table I in Appendix 3.2.
Under the jurisdiction of the FLWSS, workers enjoy perhaps better benefits (if not rights) than the workers under the FLL, due to the permanent status acquired after an initial six months. However, as explained earlier, the FLWSS borrows from the FLL in many circumstances not found in the FLWSS, as found in Article 11 of the FLWSS which establishes the order it applies external provisions: "Where there are no provisions or special dispositions, the following will apply to complement and in the order established: The Federal Labor law, the Federal Code of Civil Procedures, the laws of common order, custom, use, the general principles of law and equity."
Each agency maintains its own general conditions, regulations, or circulars which regulate recruitment policies. Under the authority of Constitutional Article 123-B, VII, each administrative agency must develop systems by which the skills and aptitude of applicants can be determined.
Conflicts are resolved under the authority of Article 123-B, XII. Conflicts between individual, collective, or inter-labor unions are resolved through the Federal Conciliation and Arbitration Tribunal (FCAT) in accordance with its internal regulatory framework. Conflicts arising between the Judicial Power and its public servants are resolved through the Federal Judicatory Counsel. Conflicts between employees of the Supreme Court of Justice and the latter are resolved by the Supreme Court of Justice.
In theory, to exercise a right against dismissal, the worker takes the matter for resolution to the FCAT. If the resolution is unfavorable for the worker, an action for amparo is recommended. A question in this regard came up as to first-time applicants and their access to courts when denied work on the basis of requirements for "no pregnancy" medical certificates. Typically, even though the public sector is deemed the State, a pregnant applicant would not have recourse to an amparo because the State assumes the role of an employer, and an amparo does not proceed against private persons.(189) In this situation, the public-sector applicant is left with little recourse unless she brings that claim to the FCAT. If she does, she is faced with the problem that is found in the private sector: the lack of a work relation. In theory, however, like the private-sector worker, once the FCAT resolves that she lacks the right of action, then that resolution can be used to seek relief through an action for amparo.(190)
The National Human Rights Commission as a Remedy
In the case of human rights violations in employment, the CABs would be the first presumable jurisdictional body before which exhaustion of a remedy could be sought. If the CABs resolved unfavorably, interposing an amparo would exhaust all available local remedies. Notwithstanding the above, the UN Human Rights Core Document submitted by Mexico expresses in its answer to Question B, "Remedies available to an individual who claims that any of his rights have been violated and systems of compensation and rehabilitation," that aside from the amparo mechanism, "The complainant may also appeal to National Human Rights Commission,(191) which will provide him (sic) with advice on the legal measures available to him on how to use them, or if all legal remedies have been exhausted, it will investigate the case and make a recommendation."(192) The role of the National Human Rights Commission (NHRC) is that of an executive agency authorized to act as advisor where local remedies have not been exhausted, or if exhausted, to investigate and make appropriate independent, non-binding recommendations on the issues.(193) Apparently, the local remedies rule would not apply because of the agency's administrative and discretionary role.(194) However, the NHRC and local HRCs could be viewed as exhaustible remedies particularly where they were created under the authority of Constitutional Article 102-B as organizations designed to safeguard human rights within the Mexican judicial order.
Moreover, the HRI Core document, in answer to Question A, "Judicial and administrative authorities with jurisdiction affecting human rights," makes specific reference to the NHRC, Paragraph 51: "In order to give the highest priority to individual and collective guarantees, the President established a new mechanism for the defense of human rights: by a decree of 6 June 1990 he set up the National Human Rights Commission."(195) Furthermore, the HRI Core Instrument expresses in Paragraph 64, in answer to Question F, "Institutions or national machinery with responsibility for overseeing the implementation of human rights," that "The National Human Rights Commission (NHRC), which was set up in June 1990, is the institution responsible for overseeing the implementation of human rights throughout the country."(196) In light of the indication that the NHRC oversees compliance of human rights, it would be logical to assume that exhaustion through the NHRC is necessary to exhaust all local remedies. However, aside from the administrative, non-judicial character of the NHRC and local HRCs, the answer to the question of whether exhaustion of remedies through these agencies is necessary is provided in Articles 32 of the NHRC and 31 of the Human Rights Commission for the Federal District (HRCDF) laws. Both laws indicate that, in accordance with the applicable regulatory bodies, the exercise of other rights and means of defense that claimants have a right to exercise will not be affected by the interposition of claims or accusations before the NHRC or HRCDF, nor will the accords or recommendations emitted from these agencies affect or interrupt precluding time limits for SOLs or discontinuance. Claimants are initially alerted that they can simultaneously exercise other available remedies to ensure timely actions. Nevertheless, it is important to consider that the investigations and recommendations from the HRCDF have proven effective in particular against violations by public authorities and officials requesting "no pregnancy" medical certificates as one of the requirements for work in the public sector.(197)
While claims are generally brought against authorities and public officials for violation to human rights, they are allowed against individuals only when the latter commit illicit acts that are tolerated or permitted by authorities or public officials, or when these last two do not justifiably make use of their faculties to act against offenders.(198) Hector Fix-Zamudio indicates that this new concept in Mexican law is borrowed from the German system where the Drittwirkung allows claims to be brought for individual violations in which the authority empowered to control compliance inexcusably omits to exercise the law.(199) The NHRC Regulation, Article 18 and the HRCDF Regulation, Article 14, define illicit acts as those that are characterized as criminal offenses and administrative omissions or infractions.(200) The issues raised in Submission 9701 regarding post-employment gender and pregnancy-based discrimination would not come within the competence of the NHRC or local HRCs since these bodies are not authorized to intervene in actions by and resolutions from electoral organizations and authorities, jurisdictional-type resolutions, conflicts of a labor nature, and consultations formulated by authorities, private persons, and other entities on the interpretation of constitutional and legal provisions.(201) Jurisdictional-type resolutions are judgments and final awards that conclude an instance, interlocutory judgments made during proceedings, rulings and decrees pronounced by a judge or other personnel of a court, tribunal, or body authorized to administer justice on the basis of judicial or legal evaluation and determination, and, in administrative matters, those analogized with the aforementioned enumeration.(202) The last paragraph of Article 19 of the NHRC Regulation on competence additionally states that all other procedural acts and omissions of the judicial power are considered administrative in nature in relation to Article 8 of the Law and, thus, susceptible to be claimed before the local human rights commissions through complaints or before the NHRC if an appropriate recourse is available.(203) Article 19 of the HRCDF stipulates in the last two paragraphs that all other procedural acts or omissions different from the preceding enumeration are considered to be administrative in nature and therefore susceptible to being claimed before the HRCDF. The Commission, however, will not examine any jurisdictional basis of a case under any circumstances.
Both the NHRC and HRCDF laws are not clear as to whether the Drittwirkung concept can be applied to private-sector employers when their conduct is tolerated or permitted by labor authorities or whether human rights violations occurred when the authority or public officials, in their capacity to remedy the violations, failed to do so, provided that labor authorities are aware of such violations.(204) The laws are also unclear as to how the precedent established through the HRCDF Recommendation 6/95 for human rights violations by authorities and public officials in the Federal District with respect to gender and pregnancy would affect claims from the private sector victims of human rights violations. The essence of Claim CDHDF/122/95/CUAUH/DO517.000 is undoubtedly similar to the pre-employment issues re-garding pregnancy screenings and requirements of "no pregnancy" certificates as conditions for employment found in Submission 9701. The HRCDF claim charged public officials with discriminatory conducts in hiring. Female job candidates were being asked to submit proof that they were not pregnant through medical certificates as part of their application package. The HRCDF accepted the claim for review, investigated the case, and justified Recommendation 6/95 on violations to Constitutional Articles 4, 5 and Article 11 of the CEDAW. Recommendation 6/95 was issued to public officials charged with violating human rights.(205) In the pre-employment issues of Submission 9701, Maquiladora-sector job applicants are either subjected to pregnancy screenings or asked to submit medical certificates to prove they are not pregnant. Female applicants are denied work when pregnant. Thus, women in both private and public sectors are affected by discrimination on the basis of their gender and for reasons of pregnancy.
One significant difference between the two is that while the HRCDF claim was brought against authorities and public administration officials in the Federal District who, in their roles as prospective employers, violate human rights, Submission 9701 claims that prospective employers in the private sector are violating Constitutional and FLL provisions. Is the concept of the Drittwirkung applicable to these cases as well? First, a presumption is made that it would be necessary for the HRCs to examine if prospective employer conducts constitute illicit acts as defined by NHRC and the HRCDF regulations, Articles 18 and 14 respectively. Under both regulations, illicit acts are either criminal acts or administrative omissions or infractions. Second, in order for complaints to be brought against private parties, the commission of the criminal act or the administrative omission or infraction must have been tolerated or permitted by an authority or public official who inexcusably failed to act. In terms of the pre-employment issues raised by Submission 9701, when employers in the private sector: (i) have denied job applicants work on the basis of their gender and pregnancy, (ii) have requested "no pregnancy" medical certificates, or (iii) have obtained pregnancy status through urine samples of pregnant job applicants without their consent, those conducts need to be carefully examined to determine if they are illicit according to the terms of Articles 18 of the NHRC and 14 of the HRCDF regu-lations. Fix-Zamudio points out that the Drittwirkung has been applied to extreme situations in which individuals acting as auxiliaries to the judicial police have unlawfully detained and tortured individuals.(206) Applying the Drittwirkung to issues i-iii would require evaluation of an employer's conduct as to whether it constitutes a criminal offense or an administrative failure. Next, the HRCs would have to examine whether an authority or public official, i.e., the labor inspectors, labor ombudsman, or CAB officials, who, in principle are obligated to protect the rights of post-employment individuals, would also be considered authorities outside the scope of the work relationship. If so, then it would determine whether that authority or public official tolerated or permitted an employer's conduct when such authority or official had the power to act upon an employer's conduct but inexcusably failed to act. This element is definitely found in issues ii and iii above, if labor authorities are aware of the requests for "no pregnancy" medical certificates as a condition for employment.(207) Regarding the illicit act on the part of an indi-vidual, the element may also be found when employers subject candidates to pregnancy screen-ings without an applicant's consent and then use the information to the detriment of an applicant; denying her work on the basis of the pregnancy could be considered an illicit act.(208)
Constitutional enforcement depends on constitutional controls such as the amparo which is in itself governed by Constitutional Articles 103 and 107. Constitutional Article 103 covers the type of controversies that are remedied by an action for amparo. The principles and general basis of the amparo are Constitutionally granted by Article 107. Aside from the controversies enumerated in Article 103, no others are allowed; thus an action for amparo will not proceed for controversies against individual parties. Part I provides that tribunals of the Federation must re-solve all controversies arising from laws or acts of authority which violate individual guarantees. The substantive right found here grants individuals the right to seek relief through the judiciary from laws or actions which obliterate their constitutional guarantees. Part II gives the federal sphere jurisdiction over federal laws or acts by federal authority which infringe or restrict the sovereignty of the States. Part III provides federal tribunals power to resolve controversies that arise from State laws or acts by State authorities which invade the sphere of federal authorities. Article 73-I-XVIII of the Amparo Law enumerates the grounds for dismissing an action where brought for controversies or against parties outside of the scope of Article 103.
The principles found in Constitutional Article 107 cover the basis of the amparo mecha-nism. First, amparos are petitioned by individuals who believe their rights have been violated. Amparos can be brought only through exercise of the constitutional right of action. The second principle describes the procedural substantiation of the right of amparo found in the Amparo Law which, as mentioned, is governed by Articles 103 and 107 of the Constitution. Third, the principle of relativity means that the judgments are limited to granting the claimant relief in that particular case without making general declarations in terms of a law or act that served as the basis for the amparo. Fourth, the principle of "definiteness" requires complete exhaustion of all other available remedies prior to the action for amparo. Fifth, in application of strict law, there is a need to focus solely on the issues of violation stated by the victim without the Court supplementing deficiencies through operation of law regarding the challenged acts of authorities or the concepts of violation. Exceptions to this rule authorized in Article 107 of the Constitution include penal, labor, and agrarian subject matter. The sixth principle involves admissibility. Amparos can be direct or indirect depending on the nature of the challenged law or act; the Supreme Court of Justice and the Circuit Collegiate Tribunals are competent to hear the cases involving direct amparos, whereas the District Courts are designated to resolve indirect amparos. Where the challenged law or act derives from a civil, penal, or administrative judgment, or from a labor award, the amparo is direct. The Supreme Court of Justice and the Collegiate Circuit Tribunals are competent jurisdictional bodies. Indirect amparos will be heard by District Court judges for challenged acts that are outside the scope of a trial or ruling, such as administrative acts.
Unlike the United States judicial review, Mexico gives lower courts limited authority under the authority of Constitutional Article 133. However, judges can order the suspension of acts by authorities that violate the individual and social rights guaranteed by the Constitution. Through suspensions of those acts, victims are restored full enjoyment of their rights until the underlying case is decided.(209) Higher courts interpret constitutional provisions which are vague, ambiguous, or which contain gaps but must not look into the underlying case or basis of the claim, or make a general declaration of invalidity.(210)
The individual and social rights protected by the Mexican Constitution are also reflected in separate areas of the international conventions ratified by Mexico, namely the ICCPR, the CEDAW, and the ACHR, all of which were ratified by Mexico in 1981. As discussed in Part 4, "International Conventions," each document contains provisions relating to compliance on the part of the Mexican Government. As mentioned earlier, these documents acquire the force of Mexican internal legislation after ratification and can be invoked as domestic law.
Héctor Fix-Zamudio indicates that human rights organizations originated during an evolutionary phase in Latin America; the concept of the Scandinavian ombudsman inspired the creation of local organizations to aid conventional agencies in protecting human rights while freeing up the judicial systems from excessive caseloads.(211) The organizations, precursors of the ombudsman role, were created in the State of Nuevo León in 1979 (La Dirección para la Defensa de los Derechos Humanos del Estado de Nuevo León), in the State of Colima in 1984 (La Procuraduría de Vecinos de la Ciudad de Colima), the UNAM in 1985 (La Defensoría de los Derechos Universitarios de la UNAM), in Oaxaca in 1986 (La Procuraduría para la Defensa del Indígena), in Guerrero in 1987 (La Procuraduría Social de la Montaña del Estado de Guerrero), in Aguascalientes in 1988 (La Procuraduría de Protección Ciudadana del Estado de Aguascalientes), and in Querétaro in 1988 (La Defensoría de los Derechos de los Vecinos de la Ciudad de Querétaro).(212)
The NHRC was presidentially decreed as a decentralized agency originating with the Secretary of Administration on June 5, 1990. Its regulatory framework was completed on July 9, 1997. After publication of the agency's role, the NHRC, headed by Jorge Carpizo, began proving that its mission statement was materializing. The agency's autonomy helped to create a new culture of human rights in Mexico.(213) While the agency faced some social and political criticism because it derived from the executive power, it won acceptance through its own administrative functions.(214) Notwithstanding its recent formation, the legal framework of the NHRC was raised to Constitutional level two years after the agency's inception.(215) Through a presidential initiative, the NHRC was approved by both Chambers and a majority of State legis-latures in accordance with Article 135 of the Constitution. The agency also won consensus by an ample margin among federal and state legislators.(216)
Prior to obtaining Constitutional rank, the NHRC served as model for local entities which began to emulate its objectives, setting up local HRCs as decentralized organizations that derived from the local executive powers. (217) Some of these commissions, however, applied the status conferred to magistrates in superior tribunals to their commissioners.(218) The State HRC for the State of Guerrero is an example of such a commission. The Guerrero Commission managed to incorporate its agency, Comisión Estatal de Derechos Humanos de Guerrero, into the State Constitution in Article 74 through reforming its Constitution on September 21, 1990. That agency is governed by its internal law, published only five days later. The HRC in the State of Baja California (La Procuraduría de los Derechos Humanos y Protección Ciudadana del Estado de Baja California) was created by Congressional enactment of its law on January 31, 1991.(219) Consequently, the NHRC obtained Constitutional rank through reform of Article 102-B. The provision in Part B of the Constitutional provision was used to support the Congressional expedition of the NHRC law which was published in the Diario Oficial on June 29, 1992. The Agency's regulatory framework was approved by the NHRC Council and published on November 12, 1992. Transitory Article 2 of the Constitution set a time limit for local legisla-tures to set up local HRCs. All but the Federal District complied with the one-year limit, expe-diting their internal laws which reflected the national model with only minor modifications from NHRC Law. In all, thirty-one local human rights laws were expedited.
The establishment of the HRCDF was difficult due to the complexity of its social and political sectors and a governmental restructuring that was underway.(220) In fact, the HRCDF was the last of the local agencies established under the authority of Article 102-B on June 22, 1993. The agency's regulation was published on December 16, 1993, in the Diario Oficial. Aside from the NHRC, the most immediate precursor of the HRCDF was the Procuraduría Social del Departamento del Distrito Federal, created under an accord issued by the Chief of the Department of the Federal District and published in the Diario Oficial on January 25, 1989.(221) The Organization Manual was also published in the Diario Oficial on July 17, 1990.
After examining claim No. CDHDF/122/95/CUAUH/DO517.000, based on the violation of equality rights affecting the work of women by public agencies in the Federal District, the HRCDF issued a recommendation on June 1, 1995 to the Chief of the Department of the Federal District (Departamento del Distrito Federal), the President of the Superior Tribunal of Justice (Tribunal Superior de Justicia del Distrito Federal), and to the Attorney General of the Federal District (Procurador General de Justicia del Distrito Federal). The claim was based on the requirement of negative pregnancy tests as a condition to be admitted to work.
The recommendation was legally based and motivated under express authority of Constitutional Article 102-B; Articles 1, 2, 3, 17: Sections II (a) and IV; 22 Section IX and 24 Sections I and IV of the HRCDF Law; and Article 63 of the HRCDF Regulation.
At the agency's initiative, per Article 63 of the HRCDF Regulation, an investigation of the above mentioned claim began on February 14, 1995. The investigation concerning the Department of the Federal District (DDF) began on February 15, 1995, and concluded on May 8, 1995, with a communication from the Legal General Coordinator for the DDF. On February 15, 1995, the HRCDF began investigating the Superior Tribunal of Justice. That investigation ended with a communication from the Tribunal's Director General of Administration, dated May 15, 1995. The investigation concerning the Attorney General's Office for the Federal District began on February 15, 1995, and concluded with a communication from the Director General of Human Resources, dated April 25, 1995.
The HRCDF evaluated the evidence submitted by each of the agencies in question and found that the Superior Tribunal of Justice of the Federal District, the DDF through its agencies (the Political Delegations of Benito Juárez and Tlalpan and the Mass Transportation System, or Metro), and the Attorney General's Office for the Federal District through the Institute for Professional Formation violate Constitutional individual guarantees found in Articles 4 and 5 when they require job applicants to submit proof of no pregnancy or request that they not be pregnant as a condition of employment. The HRCDF also found that the provisions of Article 11 of the CEDAW were violated by authorities in the above-mentioned agencies.
The evidence gathered from the DDF and the Attorney General's Office for the Federal District was highly contradictory. Public officials at the Political Delegations of Benito Juárez and Tlalpan, the Metro system, and the Institute for Professional Formation who were interviewed by HRCDF adjunct visitors admitted that there was a "no pregnancy" policy for employment. However, the head public officials of each agency denied such requirements. The HRCDF notes that it is not unusual for high-ranking public officials to be unaware of the discriminatory practices carried out by mid- or inferior-level authorities. The HRCDF also notes that it is precisely the authorities at those levels who have public contact and are therefore aware of the practices since they are the ones who carry out such conducts due to customs or bureaucratic misconceptions. Notwithstanding that assumption, the HRCDF also considers that perhaps one of the three human relations public officials at each of the agencies could have been untruthful. However, the agencies would have to take adequate measures to guarantee that access to work is not based on discriminatory or unconstitutional concepts. With respect to the evidence from the Superior Tribunal of Justice, the HRCDF found that the unjustified Ano pregnancy@ requirement was confirmed through an initial communication, dated May 4, 1995, from the General Director of Administration and again in his communication of May 15 to the HRCDF. The May 15 communication, however, indicates that Article 47-I of the Federal Law of Responsibilities for Public Servants is the basis for requiring "no pregnancy" as a condition of admission to employment. The HRCDF found that Article 47-I of the law does not cover the subject of conditions for admission to employment as that provision governs the obligations of public officials.
The Recommendation issued by the HRCDF concludes that the criteria applied to employment policies within the agencies of the Federal District strictly adhere to the principles of social equality between men and women. It further recommends that the agencies abstain from requiring that women not be pregnant as a condition of employment unless such work may pose a risk to a pregnant women and to her child during gestation.(222)
ILO Convention 111, and Recommendation 111
The provisions in Article 3 of ILO Convention 111 and Paragraph 3 of its Recommendation require that governments take action to ensure non-discriminatory policies are applied by all public authorities in public sector and state owned enterprises including those at the local and municipal levels. A government that has ratified Convention 111 is expected to apply the principles of non-discrimination to employment policies within the public sphere. Such measures not only set an example to the private sector, but it provides its citizens participation in national life.(223) Similarly, governments must insist in non-discriminatory employment policies regarding government contracts. Paragraph 3 of the Recommendation specifies that eligibility for public fund expenses be based on non-discriminatory practices.(224)
National policy is also affected by Article 2 of the Recommendation. The provision requires that all government agencies practice non-discriminatory policies in all their undertakings. The significance of the requirement is that while Article 3 of the Convention and 3 of the Recommendation are intended for public authorities in their roles as employers, Article 2 of the Recommendation addresses all government agencies which include, " all departments and services which deal with questions of employment and occupation, including labour administra-tions, factory inspectorates and others."(225)
As mentioned earlier, governments indicate the progress made to comply with the provisions of the conventions that they ratify through periodic reports. With respect to Convention 111, the Committee of Experts made a direct request to the Government of Mexico in 1993. The request both acknowledged Mexico's previous report and requested new information on measures taken or contemplated under the National Action Program for the Integration of Women in Development. The request also asked for statistical data on the achievements to promote equality of opportunity, treatment between men and women in employment and occupation, equal access to education, vocational training and employment and to certain occupations, and the terms and conditions of employment. In 1995, the COE acknowledged Mexico's response to the 1993 request. Mexico recently submitted its 1997 report to be examined by the Committee in November-December, 1997. The Report contains information on gender equality issues. Older reports have covered legislative and practical measures in the context of the National Action Program and the activities of the National Commission for Women. In those reports, however, the Government has emphasized gender equality.
Regarding pregnancy issues, Mexico has not ratified Conventions 3 and 103, which are directly related. Therefore, Mexico's current report does not address pregnancy. As per Article 19 of the Constitution, non-ratifying governments are required to submit reports as to the reasons for non-ratification. However, Conventions 3 and 103 do not have a General Survey because those instruments have been selected for revision by the ILO Committee. In the interim, non-ratifying Member States have been sent questionnaires to be returned at a later time.
Article 40 establishes the State=s duty to submit periodic reports through the Secretary General informing the United Nations Committee on Human Rights of the status of compliance with respect to the provisions of the Convention.
This report examines Article 2 (1) on the duty of a Member State to protect the rights of all individuals in the territory, Article 17 on the issue of privacy, and Article 26 on equality:
In its initial report to the UN Committee, Mexico reported that the guarantee of equality is granted through Articles 1, 2, 4, and 24 of the Constitution. With respect to Article 4, Mexico stated that men and women are equal before the law.(227) Mexico's second periodic report claimed that the amparo is an effective remedy against violations to the rights provided in the Covenant.(228) The third periodic report indicated that constitutional reforms have taken place, namely Articles 3, 5, 24, 27, and 130. This report indicated that Article 102 has also been reformed with an additional section, B:(229)
Mexico reported that the State legislators were given a year from the date of the publication of the decree in the Diario Oficial on January 29, 1992, to set up the agencies for the protection of human rights. The Government of Mexico also reported that several states had already established commissions following the model of the NHRC and that other states were inclined to emulate the agency in view of the National Commission’s success.(230)
Article 17 of the Covenant makes the following stipulations:
The Government of Mexico reported that Constitutional Article 16 makes this right effective:
Regarding secondary legislation, the Government initially reported that the Criminal Code contains provisions for the criminal offenses of homicide and bodily harm in Articles 302 and 288, for trespassing in Article 285, and for violation of correspondence in Articles 173 and 177. For offenses against a person's honor, Articles 348 to 359 include criminal acts such as insults, defamation, and slander. Article 344 of the Criminal Code contains the chapter "Assault and other forms of physical attacks."(231)
Mexico's second periodic report restated the information provided in the first report but added that self-determination is protected by the Penal Code under Title 18, Chapter 1, "Offenses against the peace and security of persons," regarding the self-determination of a human being when threatened or intimidated.(232)
In its third report, the Mexican Government stated that compliance with Article 17 was indicated in earlier reports regarding legislation governing arbitrary or unlawful interference with privacy.(233) This report also mentioned that the competent authorities for hearing complaints on arbitrary interference are the Attorney General of the Republic, the public prosecutors for the states and the Federal District, and the NHRC. The report covers the competence of authorities to deal with violations to Article 17 committed by public officials who can be prosecuted under the Federal Civil Servants Responsibility Act. Competent authorities include the Office of the Federal Comptroller General and the offices of the Internal Civil Service Comptroller in each of the departments for the Federal and State administrations. Complaints may be submitted in person or in writing. The Office of the Federal Comptroller has a Directorate-General for Complaints in the Office of the Attorney General, who is in charge of receiving, processing and resolving all complaints against public officials for administrative misconduct. That office, together with the NHRC, received a total of 1,759 complaints from 1988 to 1992. Out of that number, 1,598 complaints were resolved; of the 160 cases left for reconsideration, 26 were reconsidered or revised.(234)
Article 26 on equality makes the following provisions:
Mexico's initial report restated the principle of equality found in Article 1 of the Constitution, "under which all individuals are granted the equal protection of the law without discrimination of any kind. There is, therefore, no discrimination in the legal sphere or in practice on the ground of race, color, sex, language, religion, political or for any other reason."(235)
The Government’s second report contained more descriptive information on equality than the first one. Paragraph 423 expressed that the Constitution of Mexico grants the principle of equality to all inhabitants. Mexican legislation, the report indicated, has the necessary provisions to prevent and avoid discriminatory practices on account of race or any other ground expressed in Paragraph 424. Paragraph 425 states that the legal framework prohibiting discriminatory practices is provided through Constitutional Articles 1, 3, 4, 12, and 13; the provisions of the Federal Labor Act, the Criminal Code for the Federal District, and the Civil Code for the Federal District (relating to women’s civil rights regarding acquisitions); and the Regulations (relating to race) of the Federal Consumer Act and the Federal Radio and Television Act. Educationally, equality is granted in Constitutional Article 3. Article 4 of the Constitution restates equality in terms of equality between men and women; regarding the Federal Labor Law, it cites a portion of Article 3, "Distinctions may not be established between workers on the ground of race, sex, age, religious belief, political doctrine, or social status."(236)
The third periodic report submitted by Mexico indicated that the earlier information continued to apply. However, Article 3 is reformed regarding Article 18 of the Covenant concerning freedom of religion.(237)
Under Article 18 of the Convention:
Article 2 (a) of the Convention requires that States undertake measures:
In its initial report, Mexico noted that the principle of equality is reflected in several Constitutional articles, namely, Articles 1, 3, 4. Regarding equality in employment, Article 123 stipulates that, "everyone without distinction has the right to dignified and useful social employment and that for equal work, equal pay is due, without distinction as to sex or nationality."(239)
Article 2 (b) of CEDAW requires that States, "adopt appropriate legislative and other measures including sanctions where appropriate, prohibiting all discrimination against women." In regards to this Article, Mexico reported,
Subparagraph (b) of Article 2 pledges, "To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination." Mexico claimed that once equality between men and women had been legally guaranteed, the courts would be obligated to apply the law and pronounce adequate judgments in relation to a concrete case. (240)
Subparagraph (d) requires the Government "To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation." In analysis of subparagraph (d), the Government replied:
The Government also alluded to the amparo mechanism as a remedy to any human rights violations.
Article 2 (f) of the Convention requires States, "To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women." Mexico interprets this article as one assuming the existence of discriminatory laws, regulations, customs, and practices which must be abolished. In terms of discriminatory laws, the legislative power has a constitutional faculty to initiate, formulate, interpret, and repeal laws or decrees. Regarding regulations, the President has both constitutional authorization and a duty to issue them. The analysis points out, though, that discriminatory customs and practices which reflect customary attitudes are more difficult to change or control because their sociological nature can exceed the scope of legislation. However, the report indicates that although these customs and practices might not affect the recognized and protected rights of women, persons who do violate them will be forced to respect them.(243)
Article 11 of the Convention, paragraph 1, subparagraph (a) on Employment stipulates that, "the right to work is an inalienable right of all human beings." In its initial compliance report, Mexico stated that the reform of Constitutional Article 123 consisted in the addition of a first paragraph which expresses the right to work. Every person has the right to dignified and socially productive work. To that end, the State must oversee the creation of jobs and social organizations in accordance with the law.(244)
Article 3 of the Federal Labor Law is also mentioned as an obligatory provision to be applied throughout the country in labor matters. The Mexican Government restates that work is a right and a social duty, not an object of trade, that demands respect for the freedom and dignity of anyone providing it. Therefore, it must be performed under conditions that ensure life, health, and an adequate economic level for workers and their families. This Article prohibits distinctions made among workers on the basis of race, sex, age, religious beliefs, political beliefs, or social status. It also declares the training and promotion of workers as a social value.(245)
In reference to Article 11 (1) (b), the Government of Mexico reports that it stipulates women’s right to the same employment opportunities as men. This right involves applying the same selection criteria for employment.(246) The report alludes to Article 123-A, which governs the work relationship through the Federal Labor Law (Federal Labor Act), and states that Article 123-B oversees labor relations between civil servants and the State which includes the Federal District under the Federal Law for the Workers at the Service of the State (State Employees Act).(247) Next, the document refers to Section XXV of Constitutional Article 123 which concerns job locator services. Section XXV enunciates that those services are to be free whether they are run publicly or privately. Job locator services must apply the preferential order in hiring, giving priority, when all other conditions are equal, to Athose who are the sole source of family income." The government analysis justifies the preference criteria in that it, "aims at protecting the family resources and sustenance and therefore where conditions are equal preference is given to applicants who are the sole providers in a family group."(248)
The first paragraph of Constitutional Article 5 states that as long as the profession, trade, business, or work chosen by an individual is lawful, no one can be denied the right to exercise it. The exercise of that freedom can only be denied by judicial judgments when the rights of third parties are affected, or by governmental resolutions, in accordance with the law, when the rights of society are infringed. The report makes reference to Article 4 of the FLL, a restatement of Constitutional Article 5.(249)
The report also covers the right of women to job promotions in accordance with Article 159 of the FLL.(250) After discussing the rights of employers and workers to rescind the work relationship in accordance with Articles 47 and 51, it examines the grounds for rescission under Article 47-I through 47-XV. Other than restating the grounds for rescission under Article 47, no other comments are made in relation to Article 47-I regarding the thirty-day period in which an employer can terminate a worker who has submitted, directly or through the labor union, information that falsely represents qualifications, skills, or faculties.(251)
The Government of Mexico also examines its compliance with Article 11, Paragraph 2 of the Convention:
The report demonstrates compliance with the above by citing constitutional Article 123A-V, which states that women may not perform strenuous or dangerous work while pregnant and that women are entitled to full salary during maternity leaves. Under Article 123 A and B, women have a right to social insurance, including obstetrical attention, medications, provisions during the lactation period, and daycare facilities. This area of the report also indicates that the measures in Articles 165-172 of the FLL apply in terms of compliance with Article 11, Paragraph 2, Subparagraph (a).(252)
Subparagraph (a) of the Convention (above) prohibits discrimination against married women. The Mexican Government replied that marriage:
Since the Constitution stipulates and the law affirms that any person has the right to marriage, and that the Constitution demands respect for the freedom and the dignity of all workers, a worker’s martial status is irrelevant.
Mexico's First Periodic Report(253) was supplemented by a second which was submitted to the Committee to update the information of the first since that report was pending examination by the Committee at its ninth session to be held from January 22 to February 2, 1990.(254)
As expressed in President Salinas' inaugural address of December 10, 1988, updated progress includes Policy Guidelines stating the basic objectives of that policy:
The Report further states that the National Development Plan designed during the 1989-1994 period specifically addresses the participation of women in all levels of national life, including the fact that:
Updated information on Article 11 indicates that the 1982 economic recession contributes to an increase in unemployment rates. Women are continuing to contribute to the family income while still bearing responsibility for the household duties.(256)
The Third Periodic Report issued by the Government of Mexico basically restates the information provided in the Initial Report. Under Part I, General, Paragraph 18, the Government of Mexico indicates that the details of the Constitutional and secondary legislation provisions, granting equal rights and nondiscrimination against women in all aspects of national life, were provided in the Initial Report.(257) The Third Periodic Report also alludes to the First Periodic Report of January 1990 in which the Mexican Government acknowledges that national policy is to validate the rights of Mexican women.(258) However, the Government mentions that although participation by women within the different areas of national life continues to increase, as reported in the First Periodic Report, "major differences and inequalities continue to exist in the number and quality of opportunities available to women in employment, in education and within political and civic organizations." The report alludes to the objectives of the National Development Plan for 1989-1994, which contains a specific section on women's participation in order to improve living standards. This involvement can be brought about through implementing development plans and programs to combat extreme poverty and to enable women to increase their skills so that they may secure productive work.(259) The report states that the National Solidarity Program, through the National Development Plan, will be the instrument to combat poverty. The activities of the National Solidarity Program are dialogued and coordinated to define priorities and the procedure to carry out development projects. Under the National Solidarity Program, the National Program for Women in Solidarity contains objectives to aid approximately nine million women in extreme poverty. The Program is designed so that society assists these women, principally in health and education, to enable them access to employment opportunities.(260)
Regarding CEDAW Article 11 on Employment, the Third Report restates that Article 123 of the Constitution grants the right to work and that, under the Federal Labor Law, work is a right and an obligation; therefore, no distinctions may be established between workers on the grounds of race, sex, age, religious belief, political doctrine or social status.(261) The Government reports that Mexican legislation protects women’ s right to work.(262) However, the Third Report, concerning compliance and progress in terms of Article 11 of the CEDAW, also reemphasizes the persistence of differences and inequality in terms of opportunities for work. The Report refers to several factors as primary obstacles for women’s access to work, namely domestic and child care responsibilities.(263) An economic depression during the last decade has affected family incomes, prompting women's entry into the labor force. As the family income decreases, women's salary becomes a necessity.(264) The Report expresses concern for women's dual role as workers and homemakers and for the hardships associated with a lack of social facilities that bring about a double work day.(265) Notwithstanding the need for women's salary to supplement the family income, the trends (analyzed with respect to the female Economic Active Population over the last three to four decades) which can account for the differences and inequalities associated with employment for women include the following: an increasing number of female participation in self-employment occupations; gender-based division and economic recession increase female labor force, however their work and employment continues to be undervalued; women actively seeking paid employment during depression periods, finding work more readily than men in regional areas; women's economic participation does not necessarily improve their social status, instead physical and emotional stress results from a double work day; during recession periods, individuals work harder and do not necessarily live better and some of the survival strategies include the pooling of family incomes.(266) The Report notes that specific aspects of working women vary according to their family relationships and their life-cycle phases. It also notes a new trend reflecting the new attitudes of married working women; while remaining employed, changes in their occupations may still reflect child care responsibilities.(267)
The Government of Mexico expresses that it is introducing a variety of measures through the Department of Labor and Social Welfare to promote global employment to assist women to equally participate in economic activities. The Report indicates other activities that have been carried out in compliance with Article 11 of CEDAW:
General Legal Framework
The Mexican Government reports that fundamental rights granted by its Constitution and legal provisions apply to all persons in Mexico, including both resident and in-transit foreigners. Mexico has a legal system which guarantees full and complete enjoyment of human rights.(270) The Report indicates that a new mechanism for the defense of human rights was established by presidential decree on June 6, 1990, the National Human Rights Commission (NHRC). The NHRC is considered, "the main administrative body responsible for proposing and ensuring compliance with national policy of respect for and protection of human rights. To this end, it implements preventive, remedial and coordination measures to safeguard the human rights of Mexican and foreigners in Mexican territory; in the latter case its acts in coordination with the Ministry of Foreign Affairs."(271) The core document covers the creation of the NHRC and its terms of reference and mandate, found in, "the Constitution, national policies in the field of human rights, the relevant legislation, the international treaties and agreements Mexico has signed and the presidential decree establishing the Commission, which provides for its organization and clearly defines its competence, so that there is no duplication with existing bodies or organs."(272) The establishment of the NHRC began a new stage of Mexico's defense of human rights.
Human Rights are individual guarantees protected by the Mexican Constitution. Legislation and procedures are also available to protect human rights. The Report expresses that an amparo may be sought for human rights violations. An individual may also appeal to the NHRC, which has a duty to provide advice on legal remedies. When an individual has exhausted all the available remedies, the NHRC investigates the matter and can issue a recommendation.(273)
The Report refers to instances in which individual Constitutional guarantees can be suspended. In accordance to Constitutional Article 29, those times include foreign invasion, serious disruption of public peace and order, and time when society is placed in grave danger or conflict. Article 29 also stipulates that the President alone may suspend individual guarantees with approval from the Ministers of State, the Administrative Departments, and the Office of the Attorney General of the Republic, and with Congressional or Permanent Committee approval. Suspension of guarantees may be applied to the Nation or to isolated areas. The application of suspension of guarantees must apply to measures that stand in the way of immediate and unconstrained confrontation of the emergency. Similarly, the suspension must be generally declared for a limited time and thus cannot be declared against specific individuals.
Suspension of human rights with respect to Articles 6, 7, 8 (Paragraphs 1 and 2), 11, 15, 16, and 18 is not authorized under the ICCPR; however, other ICCPR provisions may be suspended as long as the measures adopted are not contradictory to international law and do not involve discrimination on the basis of race, color, sex, language, religion, or social status. Any State that makes use of the right of suspension must notify the UN Secretary General of the suspended provisions and the reasons for the suspension. When the suspension ceases to be effective, a State must again inform the UN of the date.(274) The procedure under the OAS ACHR is similar. Article 27, Paragraph 2 of the ACHR does not authorize suspension of Articles 3 (recognition of legal personality), 4 (right to life), 5 (right to personal integrity), 6 (prohibition of slavery and bondage), 9 (principles of legality and "retroactivity), 12 (conscience and religious freedoms), 17 (family protection), 18 (the right to a name), 19 (rights of children), 20 (the right to nationality), 23 (political rights), or the judicial guarantees necessary to exercise the preceding rights.
The core instrument indicates that Constitutional Article 133 grants that all treaties in harmony with the Constitution, executed by the President, and approved by the Senate are supreme law of the Union.(275)
Because human rights instruments become part of internal legislation, the core document indicates that the courts of each State, "will rule on the basis of the Constitution, laws and treaties, notwithstanding any provisions to the contrary that may exist in State Constitutions or laws."(276)
The Report indicates that the NHRC was set up in June 1990 to oversee the implementation of human rights measures throughout Mexico.
The core document points out that the NHRC has promoted human rights protection through a series of mass-media educational initiatives. In addition to radio and television references and interviews, the promotion involved 5,042 hours of public information announcements on the radio and 386 hours of television documentaries and NHRC information messages.(277) Television programs included lectures, round tables, training courses, film series, video productions, and art exhibitions.(278) By its fourth year, the NHRC had published a total of 251 documents, including 85 pamphlets, nine basic texts, 38 manuals, 25 reports, 27 primers, 46 issues of its fact sheet, Gaceta, 15 newsletters, and 12 bulletins on the latest developments. The core document claims a total distribution of 3,560,024 NHRC publications(279) and also indicates that the NHRC had issued 566 press releases and 123 supplements in the El Nacional, all by its fourth year. During that time, the NHRC also gave 33 briefings to local reporters and held 85 meetings between its officials and national and international mass-media representatives. Another important aspect of the campaign were the 90,000 posters and 30,000 brochures distributed with the slogans, "What is the NHRC?", "How do you lodge a complaint with NHRC?", and "In NHRC, we are competent."(280)
Origin and Basis for the Inter-American Commission on Human Rights
As a principal organ of the OAS, the chief objective of the Inter-American Commission on Human Rights (ICHR) is to promote compliance of and defend human rights with faculties to render consultations. The ICHR was created during the Fifth Conference of Ministers of Foreign Relations held in Santiago, Chile in 1959. Part II of Resolution VI issued at the Fifth Conference resolved that the Commission would be formed by seven members to be elected from a personal list of candidates presented by the governments. The Commission would be in charge of promoting respect for human rights. The Organization Counsel approved the Commission's statutes on May 25, 1960, and the Commission was established as an independent entity of the OAS, in accordance with Article 2 of the Statutes of the ICHR.(282) On June 29, 1960, in accordance with the Statutes, the Counsel elected the members of the Commission which represent the governments of the OAS State Members. The first ICHR session was held in Washington, D.C. from October 3 to 28, 1960. Since then, the Commission has held 95 sessions in Member Countries and at its headquarters in D.C.(283)
During an extraordinary Second Conference held in Rio de Janeiro in 1965, the ICHR Statutes were broadened and strengthened. The modification allowed the Commission, already recognized as having fulfilled its objectives to first, pay particular attention to the task of compliance with the rights provided in Articles I, II, III, IV, XVIII, XXV, and XXVI. Next, its statutes authorized the Commission to examine all communications addressed to it as well as other pertinent information. In this manner, the Commission would be able to forward that information to the Member States' governments and get feedback which would permit the Commission to make recommendations to effectively comply with fundamental human rights. The modification also required that the Commission submit annual reports addressing the Inter-American Conference or the Meeting of Foreign Relations Ministers to examine at ministerial levels the progress and protection of human rights. One of the most important aspects of the duties of the Commission became the verification, as a preceding measure, of exhaustion of available and applicable local remedies.(284)
When the Buenos Aires Protocol of Reforms was subscribed in 1967, many important provisions regarding the ICHR and human rights were incorporated into the OAS Charter. These modifications gave the Commission a quasi-conventional structure in the subject matter and it became one of the organs through which the OAS accomplishes its objectives, as indicated in Article 51 of the Charter. Transitory Article 150 of the OAS Charter provided that the Commission would be delegated the responsibility of safeguarding human rights until the American Convention on Human Rights became effective.(285) Subsequently, on November 22, 1968, the ACHR was approved by the OAS Counsel at the Specialized Inter-American Conference on Human Rights in San Jose, Costa Rica. The ACHR became effective on July 18, 1978,(286) The new ICHR statute was approved in La Paz, Bolivia in 1979 during the ninth session of the OAS General Assembly. Later, in 1980 in Washington, D.C. the ICHR Statutes were again modified in Articles 6 and 8. Article 1 of the ICHR defines the Commission as an organ of the OAS created to promote compliance of and defend human rights with faculties to render consultations. Human rights are understood as those found in the ACHR. The composition of the ICHR remains unchanged,(287) but the members of the ICHR are elected by the General Assembly to a four-year term (288) with entitlement to reelection for another term.(289) Finally, under the authority of the ICHR statutes(290) the Commission has functions and faculties with respect to OAS Member States, ACHR member States,(291) and also with respect to Member States that have not ratified the Convention.(292) In addition, the Commission is governed by its Regulation approved in 1980 and subsequently modified in 1985, 1987, 1995, and 1996.(293)
The project is a special study conducted by the Commission which during its 85th Ordinary Session, named a relater, Claudio Grossman, to undertake the task of analyzing and informing on de facto and de jure cases of discrimination that become obstacles for the exercise by women of the rights and freedoms of the American Convention of Human Rights and the American Declaration of the Rights and Obligations of Mankind. Once the relater has completed the study, he will inform the Commission. In turn, the Commission will make recommendations to the Member States to guide them towards effective compliance with the provisions of the Inter-American human rights system. The main purpose of the project is to help Member States recognize discriminatory situations that are incompatible with the guarantees found in Inter-American human rights system and to make recommendation that will provide remedies and foster women's capacity for the full and equitable enjoyment of their rights and liberties.(294)
Through individual petitions, the Commission has examined cases of violation of human rights based on gender. Some of the cases the Commission has reviewed include a complaint based on sex discrimination in the civil area and family law, and another deals with domestic violence. While protecting women's rights, the Commission acknowledges that the condition granted women in some domestic legislation and practice can actually prevent women from exercising their rights and obligations.(295)
In July, 1996, the special Realtor distributed questionnaires to Member States requesting that the questionnaires be completed by February 1, 1997. The questionnaires were to be distributed also to inter-governmental and non-governmental organizations.
The responses from the Governments are expected to be covered at the next Period for Ordinary Sessions from February 15 to March 17, 1998.
The activities of the ICHR are closely tied to those of the Inter-American Court on Human Rights. The Commission submitted five cases to the Court's jurisdiction in 1996 on advisory and contentious matters.(296)
The ICHR has cooperation relationships with other human rights specialized OAS organisms such as the Inter-American Commission of Women.(297) Cooperation with the United Nations Commission of Human Rights, the Committee of Human Rights as provided by the ICCPR Protocol, particularly with the working group of forced disappearances that help clarify some of the similarities of those cases that have been submitted to the ICHR. The Commission also maintains close ties with the Inter-American Institute on Human Rights.(298)
Article 41 of the ACHR grants the Inter-American Commission on Human Rights the faculty to, "(d) Request from the governments of Member States that they provide reports on the measures taken on human rights matters; . . . ." Article 44 authorizes any person, or group of people, or NGOs recognized by one or more OAS Member States to bring the Commission petitions that contain accusations or complaints of violations to the Convention by a Member State. In accordance with Article 41, f), Articles 44 to 51 cover the competence of the Commission and the procedure it follows with respect to petitions or other communications regarding human rights violation. However, it is important to note the requirements for admissibility stipulated in Article 46 of the Convention: "1. In order to proceed in accordance with Articles 44 and 45 of the ACHR, a) Available local remedies must have been exhausted in accordance with generally known international principles of law; b) That the petition be presented within six months of the date that the presumed victim was notified of a final decision; c) That the subject matter of the petition not be the basis pending before another international forum; d) Regarding situations based on Article 44 of the ACHR, the petition must indicate name, nationality, profession, address and signature of the person(s) or legal representative that represents an entity submitting the petition. Paragraph 2 stipulates exceptions to the exhaustion of local remedies rule: The provisions found in Paragraphs 1. a) and 1.b) will not apply when: a) The internal legislation of the Member State does not have a proper legal procedure for the protection of the right(s) allegedly violated; b) The presumed victim of human rights violations is denied access to internal jurisdiction recourses, or when the victim has been refrained from exercising them; and c)There has been an unjustified delay in the decision over the recourses mentioned. Article 47 of the ACHR covers inadmissibility: The Commission will dismiss any petition or communication presented under the terms of Articles 44 or 45: a) Absent any Article 46 requirement; b) Failure to indicate facts that characterize a violation of the rights protected by the Convention; c) That from the statement made by a petitioner or a State, the petition or communication is found manifestly groundless or that its total inadmissibility is evident; d) Where the petition is substantially a repetition of another earlier petition or communication examined by the Commission or other international organism.
The ICHR Annual Reports cover the Commission's activities which include general hearings and country visits. General hearings are those held by the Commission to determine admissibility and the basis of individual cases brought to them in accordance with Articles 44 and 45 and under the terms stipulated by Articles 46 and 47 of the ACHR.
Country visits are those which the Commission undertakes to evaluate human rights conditions as they occur in the territories of the Member States. The ICHR conducts these visit under the framework of the ACHR and that of the Commission's Regulation.
On invitation from the Government of Mexico, the ICHR visited the country from July 15-24, 1996, for the first time. The object of the mission was to evaluate human rights treatment in Mexico. The Commission reported that the information obtained and a general examination of the situation made, facilitated the ICHR's evaluation.
The Commission' Annual Reports for the periods 1982-1996(299) were examined to determine whether any earlier individual cases had been brought to the ICHR against the Government of Mexico. From the documents reviewed, there were no recorded cases regarding violations by the Government of Mexico on the issues of privacy comprised in Article 11 and equality, Article 24 of the ACHR.(300)
Mexican authorities require a formal writing be submitted to access information concerning cases and their decisions. Due to their judicial nature, the cases are considered private and therefore, not readily accessible to individuals other than those concerned in the matter.(301) Through a petition, authorities can balance the right of privacy with the need for transparency. In an attempt to collect data on the number of cases, their decisions and dispositions on the basis of violations to Article 133-I based on age or sex, and in conformity with the requirement to submit such petitions in writing, a questionnaire was designed and distributed.(302) The questionnaire was used to survey the federal, special and local CABs in Mexico to enable them to address the inquiries that would complement this report.(303)
The following information is part of an informal report regarding the research of cases before the CABs.
(1) We reproduced a questionnaire elaborated by you earlier, modifying it to some degree in parts we thought were pertinent, while emphasizing one area: the existence of lawsuits interposed before labor authorities by persons that considered they had been displaced from, or denied work for reasons of sex or age.
(2) We requested information via Internet to the National Institute of Statistics, Geography, and Data (INEGI) asking for information regarding labor lawsuits interposed before labor tribunals in the country against employers for having denied a position or dismissed a person on the basis of sex or age.
(3) INEGI replied referring us to the Local and Federal Conciliation and Arbitration Boards.
(4) First through telephone and fax, and later by postal service with receipt requested, we asked 32 local Conciliation and Arbitration Boards operating in the States including the one in the Federal District.
(5) Attached is the corresponding documentation.
(6) The information received has been limited. We have only received a reply from the President of the Local Conciliation and Arbitration Board from the State of Tlaxcala who indicates nonexistence of precedents at that board regarding any labor conflicts for reasons of sex or age.
(7) The right of petition including that of information is found in Article 8 of the Political Constitution of the United States of Mexico.
(8) The information we requested does not have a "reserved" or "secretive" characteristic and, therefore, should not be denied to any citizen that requests it from the competent authority in writing and in a respectful manner.
(9) Under the Constitutional right to petition information, an authority is obligated to reply in a timely manner and in the manner requested.
(10) In some areas of law there are legal time limits established to satisfy the requirement from the interested citizen; in others, the reply must be given within a prudent time.
(11) Although not generally specified, a prudent time has been interpreted to mean 15 days even though it can actually take one month if not more.
(12) Absence of a reply, in the case of concrete petitions that require a yes or no answer by the authority can originate two situations:
(13) In the first case, the law determines that once the time limit has transpired, an authority's reply is considered to be negative in terms of the petition made, leaving an individual with the possibility of interposing an available legal recourse.
(14) In the second case, the response is considered to be in the affirmative where the individual acquires a right or authorization in that it has not been expressly denied.
(15) The above situations do not apply to cases such as ours since we did not ask for either a positive or negative response, but a report which implies an act on part of the petitioned authority.
(16) Absence of a response to our petition, allows us to take the following measures:
(17) The procedure for amparo for violation of Constitutional Article 8 is generally a simple and -should be- fast procedure since it involves a writing to interpose the amparo, showing the petition and indicating the omission; the district judge requires that the authority to inform within 5 days, followed by a hearing in which the judge must resolve according to law.
(18) If the amparo is obtained, the effect of the judgment will be to obligate the authority to respond to the petition.
(19) On another matter, every federal, state and municipal government agency elaborates statistics that are forwarded to INEGI.
(20) In time, INEGI will be able to provide the data of the cases that we are inquiring. Unfortunately, the information does not exist, has not been classified, or perhaps has just not been made available.
This report discussed Mexican Legislation in the context of international compliance with domestic human rights issues brought before the US National Administrative Office. It also analyzed several issues contained in Submission 9701 on gender and pregnancy-based discrimination in Mexico. Female workers dismissed on the basis of pregnancy have adequate protection from the FLL, and most labor authorities seem to concur that they have access to courts for actions against wrongful dismissals, even though such cases are difficult to prove.
The issue of pregnancy screenings as a condition for admission to employment is of utmost importance to this report. Civil legislation provides an available remedy for moral injury if it can be shown that employers simply use pregnancy detection to reject applicants for jobs that would not endanger the health of a pregnant candidate or the fetus. However, this alternative involves going before civil courts, a process which requires considerable time and expense.
This report also analyzed Article 133-I in terms of its legislative history. Article 133-I was created in 1970 alongside Article 3 of the FLL to prohibit employers from refusing to accept workers on the basis of age. In 1974, Section I of Article 133 was reformed to include discrimination on the basis of sex. The problem with Article 133-I is that the legislator used the term "workers," which connotes a work relationship. For pre-employment individuals, absence of a work relationship leaves them with only a substantive right. Such individuals have the right not to be refused work but have no remedy to exercise that right. This report analogized Article 133-I with preference rights in hiring and found the two to be very similar except in terms of a remedy. Article 157 provides that a candidate whose preference rights are ignored can choose between the denied position or monetary damages. Employers who violate preference rights also risk the imposition of a fine. The right of action was discussed as an option for individuals who are denied work on the grounds of Article 133-I, meaning that they can attempt to bring complaints before the CABs. If their suits are dismissed, they can interpose an amparo on the basis of labor authorities' refusal to act or on the grounds of their decisions. Preference rights, if consistently applied by employers and labor unions as per Articles 154 and 156, would prevail over Article 133-I if one worker had a preferential right over another. Under equal circumstances, though, an employer is free to choose a worker. Article 133-I could apply at that point. This report also covered trust workers, who do not have preference rights. Article 133-I would apply to such workers.
Other options discussed in this report include insisting that labor unions assist their members in accordance with their express authorization to act as their representatives per Article 375 of the FLL. As understood, that provision applies for the defense of members' individual rights. As also discussed, labor unions can negotiate incorporation of ILO conventions into their CLAs. In particular, as the COE has indicated in their 1963 Report, ILO Convention 111 can be ideally applied.(304)
The penultimate section of this report discussed the creation of the National Human Rights Commission and local commissions (including the HRCDF) under the authority of Constitutional Article 102-B to act upon human rights violations by public officials and authorities. These commissions can exercise authority over individuals following the Drittwirkung.(305) This section discussed the authority of HRCs over individuals who violate human rights in terms of illicit acts (defined as criminal offenses or administrative infractions). Whether the HRCs can act upon private individuals and whether a labor authority who is aware of gender- and pregnancy-based violations (particularly in the maquiladoras) can be considered "a public official who had authority to act against the transgressors, but failed to do so" are questions that remain unanswered.
While not discussed in this Report, a female activist group has initiated legislation to bring about changes in terms of equality in employment. One of their five proposed changes is in the administrative sphere and involves the creation of an agency to oversee equal employment opportunities. Plans include creating a General Coordination Office for Equal Employment Opportunities within the Department of the Secretary of Labor and Social Insurance. Its function would be to investigate and analyze discriminatory practices in employment and to propose policies to eliminate such practices. A second proposal involves the jurisdictional setting. The group proposes the creation of an office in the federal CAB to oversee workplace discrimination cases. That office would include a training and development office for the legal and administrative staff of the tribunal with the goal of increasing sensibility and raising consciousness on the topic of workplace discrimination. These women have just won a major victory; a bill they initiated prohibiting intra-family violence was recently passed into law.
3. Parts I-III of Article 110 of the Social Insurance Law [Ley del Seguro Social] (SIL) require at least 30 weekly credits within a twelve-month period immediately preceding the date in which payment of the subsidy begins; that a pregnancy and an approximate delivery date be certified by the Institute; and that a worker abstain from paid activities during the pre- and post-maternity leave periods. Moreover, Article 111 of the SIL says that an employer is not liable for payment of a worker's salary as required by Article 170-V of the FLL if the worker has sufficient credits.
7. Preference rights operated under the 1931 Labor Code, however, the preferential order only included three preferences: nationality, seniority and labor union membership. The 1970 Law, provided an action for violation of the preference rights in Article 157 plus the right to sue for damages. Not until 1974 did the FLL provide a preferential rights on the basis of a family. See discussion on Preference Rights in Section 2.1.
8. Mario Moya Palencia alluded to Mexico's delayed compliance with the Convention in a statement on equality and reform of Constitutional Article 4 rendered before the Chamber of Deputies of the H. Congress of the Union, October 15, 1974, Año II.T.II. No. 19, p. 7.
12. Cámara de Diputados, Año II, T. II, No. 12, Septiembre 24, 1974, pp.13-14. Also see Section 2. for an overview of the obligations of an ILO Member State to incorporate into national law and practice the provisions of a ratified convention.
16. The International Covenant on Civil and Political Rights (ICCPR) adopted: December 16, 1966, decreed: March 30, 1981, and published: May 20, 1981; The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted: December 18, 1979, decreed: March 30, 1981, and published: May 12, 1981; the American Convention on Human Rights (ACHR), adopted: November 22, 1969, decreed: March 30, 1981 and published: May 7, 1981; and the International Covenant on Economic, Social and Cultural Rights (ICESC), adopted December 16, 1966, decreed March 30, 1981, and published May 12, 1981.
35. Note 50, infra, pp. 31-34; See also Note 22, supra, pp. 21-22; cfr. Trueba Urbina, Alberto, Nuevo Derecho Internacional Social. The topic of Labor was discussed for the first time at the Fifth OAS Conference. The original provisions refer to the principles in the Declaration of Social Rights of the Versailles Treaty. Note: The 1917 Declaration of Social Rights of the Mexican Constitution are found in Chapter XIII of the Treaty of Versailles. Enunciated in that chapter is the principle that work is not a commercial object which is traced to the removal of Labor from Mexico's Federal Civil Code and incorporated as a separate chapter in the 1917 Constitution, now Article 123. See discussion on separation of Labor from the civil code is discussed under Work as a Commercial Object in Appendix 2.
44. Note 22, supra, p. 167. The CLA became effective on August 15, 1979. Reference is made to Chapter VI, "Work Shift," Geneva Convention, "Rest Periods and Vacation," and its twenty first clause, Part I: "Company and labor union agree to regulate in accordance with Article 6 of the Law, the decree by the Federal Executive published in the Diario Oficial corresponding to 26 April of 1938, that proclaimed International Treaty No. 43 in respect to the reduction of hours at work in Vidrio Plano manufacturing plant, in accordance with the following terms: . . ."
52. International Labour Office: Fighting Discrimination in Employment and Occupation, Impremerie Corbaz, S.A., Geneva, 1968, p. 41: ILO Convention 111, Article 5, paragraph 2 and paragraph 6 of the Recommendation recognize that measures taken to protect women and minors, maternity, elder workers, physically challenged workers, or persons who belong to a certain cultural and social level, do not constitute discrimination when excluding those who do not form part of these groups.
54. Climent Beltrán, Lic. Juan B., Formulario del Derecho del Trabajo, Editorial Porrua, México, 1993, p. 129.Labor union statutes provide that associates have a right to be proposed for the first time following the preferential order when several workers apply.
60. Secretaría del Trabajo y Previsión Social, Primera Parte Tesis de Jurisprudencia de la Suprema Corte de Justicia de la Nación, Manual de Acceso a la Jurisprudencia, 1990 (México: Dirección de Documentación y Publicaciones Laborales, 1994) 751.
61. Note 50, supra, p. 727. Note: An exception is the right of employers to select workers according to Article 159, or trust workers who do not qualify for preferential rights. See applicable jurisprudence under Section 2.2, Trust Workers.
66. Note 22, supra, pp.191-92: Governments must submit compliance reports in accordance with Article 22 of the ILO Constitution. The selection of conventions to be placed on a priority list is decided by the Administrative Counsel, cfr. COE Report on Application of Conventions and Recommendations, 63rd International Labour Conference, Assembly, 1977, Report III (Part 4), International Labour Office, Geneva, Switzerland, p. 17.
81. Cirila Quintero Ramírez, "Participación femenina en las maquiladoras: reconsideraciones y nuevas hipótesis," I Congreso de Estudios de la Mujer en el norte de México y Sur de los Estados Unidos, El Colegio de la Frontera Norte, Dirección Regional de Matamoros, Monterrey, N.L., 23 al 25 de octubre de 1997, p. 3.
82. Idem, pp. 3-4. Quintero's cross regional chart on socioeconomic characteristics of workers shows that in Tijuana 45.0% of workers are between the ages of 16 and 20; and 82.3% of workers are single.
86. Idem., p. 7. The document points out that 52.3% of the maquiladora sector workers are unionized in the maquiladora by official labor unions, namely, CTM, CROC and CROM. However, there are strong opposing differences registered within the official unionism that seem to originate in the diversity of maquiladoras and the direction of regional labor unions. Cfr. Quintero Ramírez, Cirila, La sindicalización en las maquiladoras tijuanenses, CONACULTA, Col Regiones, 1990; Sindicalismo en las maquiladoras fronterizas. Balance y perspectivas, en Estudios sociológicos, El Colegio de México (en prensa), 1997b.
105. Idem, pp. 11-12. Under that arrangement, employers would bear the costs to build, maintain, equip, and finance the facilities while the IMSS would be in charge of training and hiring personnel for the centers.
112. To find whether the FLL applies to certain relationships, these can be distinguished basically applying tests to determine the type of relationship similar to the tests involving the theory of respondeat superior.
114. De Buén L., Néstor, Derecho del Trabajo, Novena ed., vol. Tomo Primero (Mexico: Editorial Porrúa, S.A., 1994) pp. 486-87. Néstor de Buén concurs with Mario de la Cueva and Alonso Garcia in that the social connotation of worker is not applicable under the FLL, while the legal one, defined in Article 8 in terms of a personal subordinated service to another, is.
118. Iniciativa de Nueva Ley Federal del Trabajo, Exposición de Motivos, XVII, Trabajadores de confianza, Nueva Ley Federal del Trabajo y Ley del Seguro Social, Segunda ed. (México: Editorial Epoca, S.A., 1970) pp. 36-38.
122. Note 26, supra, pp. 116-17. Trueba Urbina comments that Article 185 places the trust worker at a disadvantage because it allows rescissions on the presumption of lack of honesty. CABs evaluate the evidence and determine if the ground is justified. However, the status of worker is not presumed until proven.
124. Ibid. For this reason, Trueba Urbina also suggests that trust workers unionize to defend their interests. However, the ground is evaluated by the CABs, as is the status of worker which is not presumed until proven.
136. Note 114, supra, pp.87-88. Néstor de Buén comments that the right to work, however ambiguous and ineffective first appears in the preferential rights under Article 111 of the 1931 Law. Later, the 1970 Law perfects the right through Articles 154 and 157, the latter allows an action that can lead a job applicant to be awarded a work relation.
137. The term applicants is used here and not workers to avoid misinterpretation since preference rights in hiring equally apply to individuals at the hiring or post employment stages. Article 155 establishes that workers who are interested in applying for a vacancy or a newly created position must submit an application to the company or enterprise indicating their address and nationality, whether they have a family to support and the names of their dependents, whether they have previously worked for this employer and the length of time, the nature of the services rendered, and the name of their labor union. They can also apply in person as soon as the vacancy or newly created position is announced, documenting the reasons for applying.
145. Idem., p. 59. Mario de la Cueva mentions that just before completion of the 1970 Labor Law draft, a group representing private enterprise submitted a study that included three classifications of the provisions that were part of the new Law: non-objectable, objectable, and unacceptable. Because the 1931 Law had comprised probationary labor contracts, failure to incorporate them into the new law was qualified as unacceptable, but of course to no avail.
165. The Penal Code for the Federal District is the Código Penal para el Distrito Federal. It is applicable in the Federal District for local subject matter and in the Nation for federal subject matter.
168. Trueba Urbina, Alberto and Jorge Trueba Barrera, Legislación Federal del Trabajo Burocrático (México: Editorial Porrúa, 1997) pp. 24-25. Article 123-B, XIV authorizes the FLWSS to determine trust positions.
194. Note 182, supra, pp. 163-64. As in cases where the remedy is, ". . . extraordinary and of a non-judicial nature where the object is to obtain a favor and not to vindicate a right. . . . Similarly, resort need not be had to other administrative remedies of a discretionary and non-judicial nature."
198. Fix-Zamudio, Héctor, Comentarios a la Comisión de Derechos Humanos del Distrito Federal (México: Editorial Porrúa, S.A., 1996) , pp. 28-29. See Article 6-II, b) of the NHRC Law and Article 18 of the NHRC Regulation and Article 17-II, b) of the HRCDF and Article 14 of the Regulation.
203. Article 8 of the NHRC Law: Under the terms of this law, with the exception of acts or omissions by federal authorities, complaints for or disagreement with acts or omissions by judicial authorities will only be admitted when they are administrative in nature.
223. Some of the responses from public officials at the agencies in the Federal District indicated to the CHRDF that past conducts would be prohibited. As of this writing, the DDF has removed such requirements from the employment applications. See Appendix 3.4 for other information on the structure and functions of the NHRC and the HRCDF.
238. Note 229, supra, p. 85. Regarding Mexico's comment on freedom of religion, it answers a question posed by the Committee on cases regarding religious freedom. The report refers to a case submitted to the NHRC that issued Recommendation No. 16/1992. Eloy Méndez a member of the Calihualá Baptist Church in the State of Oaxaca was arrested for refusing to contribute money for the town's patron saint and improvements of the local Catholic church. The CNDH recommended that the governor investigate the matter.
282. Organización de los Estados Americanos, Comisión Interamericana de Derechos Humanos, Informe Anual de la Comisión Interamericana de Derechos Humanos, 1996, p. 5. At the time, human rights were understood as those found in the 1948 American Declaration of Rights and Obligations of Mankind in Bogota, Colombia.
300. Annual Reports examined include the following periods: 1981-1982; 1982-1983; 1983-1984; 1984-1985; 1986-1987; 1987-1988; 1989-1990; 1990-1991; 1991; 1992-1993; 1993; 1994; and 1996. See Appendix 4 regarding an overview of the Commissions finding violations by the Government of Mexico with respect to Article 11: Dignity and Honor, of ACHR and the meaning of Equality under Article 24.
301. Curtis, Paul A., Esq. and Alfredo Gutierrez Kirchner, Esq., for U.S. Department of Labor, National Administrative Office, Questions on Labor Law Enforcement in Mexico and the Role of the Federal and State Conciliation and Arbitration Boards, mimeo, p.38. National Law Center for Inter-American Free Trade, Report Submitted to the United States Department of Labor, U.S. National Administrative Office, North American Agreement on Labor Cooperation, Labor Law Enforcement in Mexico and the Role of the Federal and State Conciliation and Arbitration Boards, July 26, 1994, mimeo, p. 33.