Camilo Mutis Téllez
Brigard & Urrutia Abogados SAS, Bogotá DC
cmutis@bu.com.co

Silvia Carolina Vargas Castañeda
Brigard & Urrutia Abogados SAS, Bogotá DC
svargasc@bu.com.co

Analysis of the laws enacted on gender equality in Colombia

Even though it can be said that women have been struggling for over 80 years to achieve equity in the workplace and it is foreseeable that the fight will have to continue, it is fair to say that the overall crusade towards better employment conditions and the recognition of women’s rights has, in reality, taken more than a century. During a considerable period of the 20th century, most women in Colombia were relegated to performing either domestic duties or more manual or artistic jobs such as knitting, painting, cooking, performing basic healthcare chores or in some rare cases, political activism. It was not until 1957, after the brave campaign led by women in positions of power, that women received the right to vote. Under that scenario, we can conclude that during the first half of the last century, women’s rights were not even considered in the Colombian legal system and even less so in Colombian employment legislation. They were not a priority in the political landscape either.

In 1945, when Law 6 of 1945 was enacted, Colombian employment law introduced the first attempt to statutorily guarantee equality in the workplace. Article 5 introduced the prohibition of employers to discriminate by paying different salaries to two employees working under similar conditions. It also established that employees could not be paid differently based on nationality, gender, age and political or religious affiliations. Even though it can be presumed that the law did not have a specific intention to address the lack of equity in the workplace – since a very low number of women were formally employed at the time – it did provide the necessary statutory tools to guarantee that when working together, men and women were entitled to receive the same salary if they had the same position and worked under similar conditions.

Five years later, after a political event known as the ‘bogotazo’ which partially destroyed the city of Bogota, in 1950 the National Government issued the Colombian Labor and Employment Code. This is the labour and employment statute that is still in force today. The Labor and Employment Code, in two different sections, introduced the right for employees to be treated equally, regardless of their gender, race, sexual orientation or political affiliation; and the ‘equal job, equal pay’ principle in virtue of which two employees performing the same functions were entitled to receive the same salary.

Even though during the second part of the 20th century Colombia had new legislation that regulated private employment relationships, it was not until 1991, with the issuance of the new Political Constitution, that new and relevant modifications were introduced. Article 53 of the Constitution ordered Congress to enact a new employment statute that had to contemplate some minimum principles. As part of these new principles, the Constitution included equality of opportunities in the workplace and, remarkably, special protections for women, pregnant women and underaged employees.

With this constitutional provision, employment law principles acquired a new constitutional hierarchy that supported the relevance of employment matters in discussions that led to the issuance of the current Constitution. By establishing the principles that must be observed by Congress when passing an employment-related statute, issues such as equality in the workplace acquired a constitutional level and hence any law that contradicts it is subject to be declared as unconstitutional. As explored in the following section, this also gave the basis for the Constitutional Court to develop its jurisprudence around the above-mentioned employment law principles.

Later in 2011, Congress enacted Law 1496 of 2011 which reinforced that employees with the same job should earn the same salary, regardless of their gender. The novelty of this law was that the burden of the proof shifted to the employer. Hence, the employee only has to allege that there is inequity in the payment of salary and the employer has the burden of proving if there is indeed such a difference and if so, the objective criteria for the differentiation.

Additionally, Congress has also introduced some modifications on the regulation of maternity leave that were aimed to combat inequality in employment relationships. Since the issuance of the Labor and Employment Code, maternity leave, as well as the reinforced employment stability for the mother, was statutorily introduced. Currently, women in Colombia are entitled to 18 weeks of paid maternity leave. At first, maternity leave was paid directly by employers, but with the establishment of the Social Security System, the burden was passed on to the entities in charge of the administration of the health system.

However, Congress considered that maternity was still an element that caused discrimination towards women. On the one hand, because of the reinforced employment stability that applied during the pregnancy and 18 weeks of the maternity leave; and, on the other hand, because of the 18 weeks that the mother was out of work. Therefore, in an attempt to remedy the situation, Congress issued Law 2114 in 2021 that allowed men and women to share maternity leave. Under this new law, a woman can share maternity leave with her partner so that, for example, she enjoys ten weeks while her partner may enjoy eight weeks of maternity leave. As mentioned, this law was enacted with the purpose of reducing indirect employment discrimination towards women.

Statutory analysis conducted previously shows that since 1945, Colombia has had the necessary laws to prevent discrimination and inequality in the workplace along with the required statutory mechanisms. However, as we noted in the following section, the reality is that that the law is not sufficient and the problem is not resolved by legislative actions alone.

Analysis of gender inequality in employment matters in Colombia

Traditionally, in different social spheres, there has been a marked difference between men and women. In the employment field, the division of jobs between men and women and the assignment of certain tasks exclusively to men have hindered women’s access to the employment market as a part of equitable conditions.

As a result, a misconception was created under which masculinity is associated with the qualities of strength and power, while femininity is linked to the qualities of delicacy and weakness. Therefore, historically, men have occupied more positions of leadership and power, while women generally had to detach themselves from the perception of reproduction and domestic care to significantly increase their participation in the employment market.

In Colombia, by 2024, according to the technical bulletin prepared by National Administrative Department of Statistics (DANE stands for its Spanish acronym), for the period from January to December 2024, the employment occupancy rate was 70.1 per cent for men and only 45.7 per cent for women, which demonstrates the persistent and increase in this gap regarding access to the employment market.

Additionally, according to the report ‘Participation of Colombian Women in the Employment Market’ published by DANE in 2020, in 2019, 59 per cent of women were primarily engaged in domestic tasks, compared to 8.1 per cent of men. Similarly, on average, women work for two hours and ten minutes more than men, and the difference in average income between men and women is 12.1 per cent. This means that for every $100 earned by a man, a woman earns $87.9, a gap that increases when women have no level of education and decreases when they have a university degree.

Case law analysis

In different rulings, the Constitutional Court has addressed the issue of gender equality in employment matters.

For example, in Ruling C-586 of 2016, the constitutionality of paragraph 3 of Article 242 of the Colombian Labor and Employment Code was examined, which prohibited women, regardless of age, from being employed in underground mining jobs or in jobs requiring great physical effort. The Constitutional Court concluded that this provision involved differential treatment based on gender. The Court determined that such differential treatment, both legislatively and socially accepted, could have discriminatory effects and hinder the enjoyment of fundamental rights, such as access to employment. This was seen constituting a form of indirect discrimination.

Additionally, the Court reiterated that the international agreements ratified by Colombia, which prohibit discrimination against women, expressly forbid the use of gender stereotypes and require state parties (including Colombia) to take measures for their elimination. In addition, the Constitutional Court has not only condemned the imposition of barriers to employment based on gender but has also protected the right to work and equality of opportunities for individuals belonging to the LGBTQI+ community. Therefore, the Court decided to declare the expression ‘Women, regardless of age’ unconstitutional.

Likewise, in Ruling C-197 of 2023, the Constitutional Court, when examining a constitutional challenge regarding the difference in the number of weeks required for women to access their pension, reiterated that women face various social, cultural and economic barriers to entering the employment market. As a result, the legal framework has provided distinctions in favour of women to mitigate these gender gaps. However, these disparities continue to persist.

In other rulings, the Constitutional Court has emphasised the elimination of any discrimination based on sex or gender but has pointed out that the gap in opportunities between men and women remains quite wide. Therefore, cultural and social change is required to reduce employment inequality and to improve equality of opportunities.

Conclusion and future challenges

As we have been able to point out during this article, Colombia has a robust legal system with various statutory provisions that warrant equality in the workplace between men and women, not only to access a job but to have the same salary conditions. For over 80 years, Colombia has had laws that forbid employment discrimination and that establish that two employees doing the same job, under similar conditions of efficiency, should receive the same salary.

Since 1991, the Constitutional Court has also made huge efforts in warranting equality in the workplace. Through several decisions, the High Court has made clear that Colombia has a political Constitution that specially protects women and that neither ordinary laws nor private parties can act against the constitutional principles and treat two employees differently due to their gender. Even though some critics of the decisions of the Constitutional Court have argued that the extreme protection that has been established for pregnant women and mothers has contributed to indirect discrimination, it is clear that the jurisprudence of the Court has played a paramount role in protecting the rights of women.

Despite the above, as we also analysed, the numbers and data do not reflect all the legislative and judicial efforts that have been made in ensuring equal conditions in the workplace. Women in Colombia still have less participation in the employment market compared with men and still earn lower salaries. Nevertheless, it is important to mention that the numbers that we pointed out in this article only relate to employees being formally hired and that, in most cases, live in big cities. There are not numbers available that reflect the situation of people that work in the informal economy, ie, people that are not hired under formal employment contracts. There is also a lack of information regarding the situation in rural areas of the country were women not only have to fight for their equal rights, but even more for fundamental rights such as life, freedom and health. So, it is possible to foresee that the situation is even worse than the one shown by the official data.

Therefore, our conclusion is that efforts must focus on areas outside the legal and judicial frameworks. First, education is a cornerstone for the improvement of any social imbalance. If more girls have a proper education, especially in rural areas and low-income families, it is highly likely that there will be more women entering the formal employment market, and consequently, having better employment conditions. This effort must not only focus on the possibility of going to school, but to continue studying until graduation.

Second, the numbers of formal employment need to be improved. In Colombia, almost 55 per cent of all people working, men and women, are part of the informal employment market. This means that they do not have a formal employment contract and are not covered by the social security system. Some of those informal employees are women that perform domestic or manual duties. If they are included in the formal employment market, it is highly probable that their conditions will improve. Sadly, this conclusion contradicts the actual Employment Reform Bill that is currently being discussed in the Colombian Congress which seeks to make formal employment more expensive and more difficult to offer.

Lastly, we have to take advantage of the new forms of work. After the Covid-19 pandemic, the Colombian working environment suffered a positive change. Most companies realised that employees could work from home or outside the office and still be productive. It is not necessary to be in the office eight hours a day and five days per week. As a result of that this ‘discovery’, companies can and should adopt policies that allow employees, specifically parents with newly born or children, to work from home. The word ‘parents’ is important as this policy should not only be aimed at women but also at men, since a women-only oriented policy tends to further perpetuate stereotypes.

The idea is not to give any employee, man or woman, anything more than what they deserve and have earned. However, it is clear that there is a historical debt and a current gap with women in the workplace, that cannot be fixed with more laws. The solution is in our hands, we must act and stop looking away as if the problem does not affect us.