The Mexican Commission on Human Rights issued 2015-2018 Diagnosis on Sexual Harassment which revealed that 399 cases of sexual harassment were reported by 402 victims between 2016 and 2018, but only 1% resulted in punishment for the harasser. This demonstrates how pervasive sexual harassment is in Mexico and highlights that urgent remedies should be incorporated to combat the issue of sexual harassment.
Legal definition of sexual harassment in Mexico is still developing. In fact, it wasn't until 2012 that "sexual harassment" was defined or even addressed in federal labour law. Under the law, sexual harassment is described as any abusive exercise of power that puts the victim in a state of risk regardless of position or hierarchical status.
MEXICAN STANDARD ON LABOUR EQUALITY AND NON-DISCRIMINATION
The Mexican Standard on Labour Equality and Non-Discrimination, 2015 is a voluntary program that any organization, irrespective of size or industry, can adopt. To be recognized under the Standard, an impartial third party audits businesses to ensure that their procedures and policies in the workplace adhere to equality and non-discrimination requirements. The aim is to ensure that organizations establish and implement rules to prevent workplace harassment and ensure that gender perspectives are taken into account in the recruitment, selection, mobility, and training processes
THE PROTOCOL
The "Action protocol against workplace violence, harassment, and sexual harassment, targeted to companies in the Mexican Republic" was issued by the Mexican Government in December 2017. The Protocol's objective is to promote a positive work environment within organizations, establish a voluntary action mechanism, educate the employees, and assist victims of sexual harassment and harassment at the workplace.
The Protocol, along with the Labour Law, intends to protect the following principles: dignity and defence of the individual, a harmonious and healthy workplace environment, equal opportunities and no discrimination, and confidentiality.
MEXICAN FEDERAL LABOUR LAW
According to Article 2 of the Federal Labor Law, dignified or decent work is one that fully respects the human dignity of the employee. Additionally, it is forbidden to discriminate against people on the basis of marital status, sexual orientation, ethnic origin, nationality, gender, age, handicap, social status, health issues, religion, or immigration status.
Definition of sexual harassment- Article 3 Bis of the Federal Labour Law defines:
i. harassment as the exercise of power through verbal or physical conduct, or both, in a relationship where the victim is a subordinate before the aggressor at the workplace.
ii. sexual harassment is a form of violence where power is abused, leaving the victim in a helpless and risky environment.
In addition to the provisions contained within the Labour Law, the General Law on Women’s Access to a Life Free of Violence, last amended in 2018, repeats those definitions, and it has been expressly stated that this general principle also applies in the workplace.
Article 132, section VI of the Federal Labour Law imposes the obligation on employers to show proper care for their workers, refrain from verbal or physical abuse, and ensure that there is no conduct at work that compromises the safety, integrity, or dignity of the workers.
2019 LABOUR LAW REFORM
A number of non-judicial grievance processes were developed by the 2019 Labor Law Reform to address workplace sexual harassment. Firstly, the law requires businesses to develop a procedure to prevent and address sexual harassment, violence against women, and gender discrimination, and it must include a functional grievance mechanism. Secondly, it creates a pre-judicial state-based conciliation mechanism that gives anyone who has experienced workplace sexual harassment the opportunity to present their case to a conciliator before filing a lawsuit.
The 2019 amendment provides that employers are required to publish workplace equality principles, create an anti-discrimination policy, and implement steps to address violence and sexual harassment.
REMEDIES
The Labour Law outlines the following legal remedies-
i. Under Article 47 the employees committing harassment in the workplace may be dismissed without liability to the employer;
ii. Under Article 51, Employees have the right to annul the employment relationship with their employer and request indemnification payments where the employer was engaged in harassment and/or sexual harassment;
iii. Financial penalty of US$1,000 to US$22,000 will be imposed against the employer that commits, enables or tolerates harassment or sexual harassment.
FEDERAL PENAL CODE
The Federal Penal Code of Mexico, under Article 259 Bis and Article 259 Ter. define sexual harassment and the punishment for it in the public space, not specifically within the workplace. The penal code focuses on the element of authority and the abusive use of power that places the victim in a vulnerable position. The code also defines punishment for harassing someone sexually with the threat to cause harm.
Article 259 bis, Federal Criminal Code, further provides for a financial penalty of up to US $4,000 for anyone who takes advantage of their position in a workplace hierarchy to sexually harass employees.
CONCLUSION
In Mexico, where sexual harassment is deeply rooted and legal avenues for redress are limited, non-judicial initiatives like employer protocols introduced by the 2019 Labor Law hold promise for addressing gender-based inequities and violence. Recognising that workplace harassment stems from power dynamics and systemic factors, effective solutions require a holistic approach that strengthens both judicial and non-judicial remedies, alongside preventive measures.
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