CMS Expert Guide on discrimination in the workplace in Mexico

In Mexico, Article 1 of the Constitution prohibits any discrimination based on ethnic or national origin, gender, age, disabilities, social status, health conditions, religion, opinions, sexual preferences, marital status or any other action that harms human dignity and has the purpose of nullifying or undermining the rights and freedoms of individuals. Laws must regulate this constitutional principle.

The main laws on discrimination in the workplace are the following: 

• Federal Labour Law (Ley Federal del Trabajo): labour standards aim to achieve balance between production and social justice, as well as the promotion of decent work in all labour relationships. Its purpose is to protect a dignified and decent workplace in which workers’ human dignity is dully respected and preserved. It effectively prohibits discrimination based on ethnic or national origin, gender, age, disability, social status, health conditions, religion, migratory status, opinions, sexual preferences or marital status. It also promotes access to social security and the reception of a rewarding salary as well as optimal health and safety conditions to prevent workplace hazards. 
• Federal Law to Prevent and Eliminate Discrimination (Ley Federal para Prevenir y Eliminar la Discriminación): its purpose is to prevent and eliminate all forms of discrimination against any person and to promote equal opportunities and equal treatment for all. Governmental authorities, within the scope of their powers, have the duty to take action, promote, respect, protect and grant respect of all human rights. It also states effective measures to prevent discrimination, promotes inclusion programmes as well as complaint mechanisms for discrimination victims. 
• Mexican Standard on Labour Equality and Non-Discrimination (Norma Mexicana en Igualdad Laboral y No Discriminación): its purpose is to incorporate a gender and non-discrimination perspective in recruitment, selection, and training processes; guarantee equal pay; implement actions to prevent and address workplace violence; and carry out actions for joint responsibility between work, family and the personal lives of workers, with equal treatment and opportunities. 
• Mexican Standard on psychosocial risk factors at work-Identification, analysis and prevention (Norma Oficial Mexicana Factores de riesgo psicosocial en el trabajo-Identificación, análisis y prevención): its purpose is to promote the implementation of actions, guidance and programmes for the prevention of psychosocial risk factors, the promotion of a favourable organisational environment and the prevention of workplace violence. Furthermore, it binds workplaces to incorporate policies to address all cases related to mockery and mistreatment for discrimination reasons and, if necessary, to apply effective sanctions. 

In accordance with Article 1 of the Constitution, these laws protect individual characteristics such as ethnic or national origin, gender, age, disabilities, social status, health conditions, religion, opinions, sexual preferences, and marital status. Mexican laws mainly focus on the protection of employees and promotion of employment growth. 

The worker may file a legal suit that will be resolved in local conciliation and arbitration boards. In addition, an employee can also request an audit from the Ministry of Labour and Social Welfare (STPS).

Likewise, the worker may also file a complaint before the National Board for the Prevention of Discrimination (CONAPRED). If the worker choses to petition the National Human Rights Commission (CNDH), the Commission shall issue recommendations for the company in order to stop the discriminatory attacks. If the company ignores said recommendations and the attacks do not stop, the worker may be able to petition the Federal Labour Defense Attorney's Office (Procuraduría Federal de la Defensa del Trabajo) (Prodefet), where the worker shall get advice regarding the remedies that he or she has against the company. 

Litigation shall be resolved in the local conciliation and arbitration board and the procedure shall last up to one year depending on the conflict. Compensations and fines are fixed according to minimum wages and, depending on the offense, the penalty for the company ranges from MXN 1,728 to MXN 17,287.

Federal Labour Law states employers are bound to develop, taking into consideration its employees, a protocol to prevent gender-based discrimination and attention to cases of violence and sexual harassment, as well as to eradicate forced labour and child labour. 

Some steps of the practices included in the Mexican Standard on Labour Equality and Non-Discrimination (Norma Mexicana en Igualdad Laboral y No Discriminación) are: equal opportunity recruitment, selection and training processes; measurement of the work environment; equal pay and benefits; use of inclusive, non-sexist and accessible language; breastfeeding rooms; flexible working hours; paternity leave; measures to support care needs that take in consideration the diversity of families and homes; accessibility of work spaces; mechanisms to prevent, address and punish discrimination and workplace violence.

Furthermore, Mexican Standard on psychosocial risk factors at work-Identification, analysis and prevention (Norma Oficial Mexicana Factores de riesgo psicosocial en el trabajo-Identificación, análisis y prevención) encourages the implementation of actions and programmes for the prevention of psychosocial risk factors, the promotion of a favourable organisational environment and the prevention of workplace violence. Likewise, leadership and working relationships shall include guidelines to prohibit discrimination and promote equality and respect. Programmes shall be adopted and followed by all the employees who are obliged to participate in establishing and implementing said programmes in their workplace. Everyone has the right to exercise their individual freedoms, and everyone shall respect their beliefs or practices and meet their needs related to race, sex, religion, ethnicity or age or any other condition that may give rise to discrimination. 

In Mexico, a D&I Policy is a legal requirement. According to fraction XXXI of article 132 of Federal Labour Law, employers are legally bound to develop, taking into consideration their employees, a protocol to prevent gender-based discrimination and to focus attention on cases of violence and sexual harassment, as well as to eradicate forced labour and child labour.

There are no legal sanctions for employers stated in the Federal Labour Law for not having a local D&I policy. 

Nonetheless, not having a local D&I policy may involve many reputational risks and may represent many financial or intangible losses for the company. Employers facing reputational risks in Mexico can be costly for the company since reputation affects their ability to do business in the marketplace, appeal to new customers and make profits. Reputational damage can decrease a company's overall performance. 

Finally, even if Mexico has no D&I Policy and no legal sanctions for employers entrenched in the Federal Labour Law, the country's diverse and inclusive work environment has many benefits such as: (i) an understanding of consumer’s needs; (ii) a culture for building trust; (iii) a culture open to different perspectives and opportunities; (iv) equality and diversity that encourages individual contributions and responsibility; and (v) an improved and growing business sector, among other attributes. 

In Mexico, there are no legal obligations for employers to report on pay transparency or report on gender/ethnic/disability pay gap reporting. 

Nonetheless, article 56 of Federal Labour Law states that labour benefits shall be based on the principle of equality and attributed proportionally to the importance of the employee’s provision of services. Differences and/or exclusions based on ethnic origin or nationality, sex, gender, age, disability, social status, health conditions, religion, opinions, sexual preferences, pregnancy conditions, family responsibilities or marital status are strictly forbidden. 

Yes, in Mexico diversity data are considered to be sensitive personal data, protected and regulated by Law for the Protection of Personal Data in Possession of Individuals (Ley Federal de Protección de Datos Personales en Posesión de los Particulares). 

Likewise, sensitive personal data are defined as those affecting the most intimate sphere of its owner, or whose improper use may give rise to discrimination or entail serious risk for their owner. In particular, data that may reveal aspects such as racial or ethnic origin, present and future health status, genetic information, religious, philosophical and moral beliefs, union membership, political opinions, sexual preference are considered sensitive.

When sensitive data are involved and revealed by their owner to the receiving party, the receiving party is obliged to obtain the express written consent of its owner for its processing, through his or her autographic signature, electronic signature, or any authentication mechanism established for such purpose. 

Databases containing sensitive personal data may not be created without justifying its creation for legitimate, specific and suitable purposes, according to the activities or explicit purposes attended by the regulated subject. Likewise, if privacy notices settle sensitive personal data, it shall be expressly stated for its special treatment. Mistreatment of sensitive personal data can lead to severe penalties. 

Unfortunately, in Mexico there are no quotas at the board level or below. 

In Mexico, there are no corporate governance rules that relate to D&I.