Violence based on gender and diversity and discrimination at work

Mercedes Balado Bevilacqua
MBB Abogados, Buenos Aires
mercedes.balado@baladolaw.com.ar

Analia Duran
MBB Abogados, Buenos Aires
analia.duran@baladolaw.com.ar

Cecilia Acosta
MBB Abogados, Buenos Aires
cecilia.acosta@baladolaw.com.ar

Introduction

In the past years, different social movements were born aiming to bring those inequalities down and trying to bring equal opportunities for women and other minorities, in addition to increased protection against any kind of violence and increased participation in all social areas, through the fostering and adoption of different measures. In this vein, the analysis of issues relating to violence in the workplace, equality and gender parity and diversity in employment relationships has gained much popularity.

Currently, companies have started echoing social claims on these topics, through the adoption of internal policy towards ensuring a work environment free of hostilities and discriminatory treatment, in addition to participation in rankings or international awards and mentions that attest to the organisational culture of a given company. This relates to the fulfilment of employers’ duty to ensure a safe work environment, the handling of which will be addressed in due course and, on the other hand, it has a direct positive impact on the reputation and corporate image of a company in the current scenario, where these issues have become relevant.

However, there is still lots to do, since discriminatory acts towards females still take place. This paper explores the topic in light of the legal framework and recent case law on the matter.

We need more than words: non-discrimination and equal pay principles

Argentinian legislation includes remarkable legal tools created to tackle and eradicate discrimination in the employment arena. We can find important examples of these tools in the roots of the republic, the Argentinian National Constitution. The main question here is to evaluate to what extent social stakeholders were able to effectively trigger non-discrimination principles and laws. At first glance, employees, especially women not only in Argentina but also In Latin America, are still struggling to cut the gender and pay gap.

The following principles are enshrined in the Constitution: (1) fundamental ‘equal pay’ principle of employment law;^[1] (2) legal equality principle ^[2] from which the non-discrimination principle derives; and (3) the principle of competence and qualifications as the only condition for eligibility to the job.^[3]

Furthermore, subsection 22 of section 75 of the Constitution grants constitutional status to certain international human rights treaties. A vast number of guidelines, rights, recommendations and obligations relating to the topic under discussion can be found in said treaties. Some of the treaties are: (1) the American Declaration of the Rights and Duties of Man; (2) the Universal Declaration of Human Rights; (4) the Convention on the Elimination of All Forms of Discrimination Against Women; and (4) the International Covenant on Economic, Social and Cultural Rights, among others.

As an example, the Universal Declaration of Human Rights provides: ‘Everyone, without any discrimination, has the right to equal pay for equal work’^[4] and ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion...’^[5]

​​​​​In turn, the Argentinian Anti-Discrimination Act (Law No 23,592) forbids discriminatory acts and reflects a view in rejection of any discriminatory act inside and outside the workplace.
Particularly in relation to the work environment, the National Employment Law^[6] (NEL) has different sections referring to the non-discrimination principle, which includes the employer’s duty to not discriminate on the basis of gender, religion, marital status, race, political opinion, union membership, age and others (sections 17, 70, 72, 73, 81, 172 and 187).

In this vein, the NEL outlaws arbitrary discrimination, that is, discrimination which is not based on objective criteria.^[7] Affected employees have to prove that there are instances of unequal treatment and the employer has then to prove the objective reasons. Unequal treatment shall be found when arbitrary discriminations based on gender, religion, race, nationality, age and political and union-related reasons.^[8]

​​​​​​​The obligation to afford equal treatment to employees in equal circumstances and the chance to reward an employee’s accomplishments besides the compensation provided for by the applicable collective bargaining agreement on the basis of objective reasons was settled in the following decisions by the Argentinian Supreme Court of Justice: Ratto, Sixto and others v Productos Stani S.A. (06/28/1966) then confirmed in Fernandez, Estrella v Sanatorio Güemes SA (8/23/1988), among others.

Despite all the vast and rich anti-discrimination legislation and case law, in Argentina we still see many legal actions claiming for discrimination due to wage inequality, pregnancy, illnesses, age and gender.
So we need more than words – we need social commitment to effective fight against discrimination.​​​​​​​

International Labour Organization and international treaties and its key role promoting anti-discrimination actions.

The International Labour Organization (ILO) is in charge of promoting employment rights, fostering decent work opportunities, improving social protection and strengthening dialogue in employment-related matters, regulating the issue particularly through the following conventions, which the Argentine Republic ratified, and thus are part of statutory law: (1) Convention No 111/58 on discrimination in the field of employment and occupation; (2) Convention No 190/19 on violence and harassment; and (3) Convention No 100/51 on equal remuneration.

These underscore the employer’s obligation to afford its employees equal treatment and to provide a hostility-free work environment in order to discharge its duty to provide a safe environment. An important point to stress is that the Argentinian labour courts take in account ILO Conventions and recommendations in their court ruling, providing clear evidence of the effectiveness of global ILO action.

Employers’ duty of safety

As mentioned, the NEL imposes the duty of safety on the employer. This includes the bundle of measures and technical resources that the employer must adopt for performance of the tasks in order to protect the employee's physical and mental health as well as her/his dignity to avoid their suffering harm.

It is meant to prevent work related accidents and professional hazards, which is why it is also known as duty of prevention. In this vein, employees are under the obligation to adopt the necessary measures to protect the physical and mental integrity of employees, as well as their dignity.^[9] 

It then becomes evident that the scope of the duty to provide a safe work environment has been broadened by case law. Currently, it involves not only the fulfillment of occupational health and safety rules and measures adopted to prevent physical harm to employees but also the duty to provide a healthy workplace free of moral or sexual harassment. 

All employers’ duty of safety should include clear equal gender and anti-harassment policies as well as compliance measures to accomplish the goal of work without violence, and as a way to prevent the violation of the principle of equal pay for equal work. ​​​​​​​

Gender-based violence and discrimination in the workplace

Broadly, since the Argentinian Integral Protection of Women's Act was passed (Law No 26,485) in 2009, violence against women is understood as: ‘any conduct, action or omission occurring in the public or private industries or spheres, that is, either directly or indirectly, based on an unequal power relationship, affecting a woman's life, freedom, dignity, physical, psychological, sexual, economic or pecuniary integrity, as well as her personal safety’.^[10] Pointing to the workplace, the Office of Assistance in Violence at Work (OVAL) employs this definition and adds that violence at work takes place when the harm is caused to an employee, by means of a threat or a consummated action.

Moreover, it should be highlighted that, in the first place, the Government has a duty to prevent, punish and eradicate violence against women, as arises from the harmonisation of the provisions in the Convention on the Elimination of All Forms of Discrimination Against Women, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women and the aforementioned Argentinian Integral Protection of Women’s Act.

Unfortunately, in spite of the vastness of statutes available protecting women from discriminatory acts or conduct and violence at work, employers face employment claims on grounds of failure to provide an environment free of hostility and/or abusive or discriminatory behaviour towards women. The following court decisions are a reflection thereof, where the provisions in force were applied in order to sanction such reprehensible practices.

The quintessential element of the discrimination issue is found in the court decision in Pellicori, Liliana Silvia v Bar Association in and for the Federal Capital on an Action for the Protection of Constitutional Rights or Safeguards,^[11] where the plaintiff requested the nullity of the dismissal and her reinstatement, invoking section 1 of Law No 23,592 for her cause of action and alleging that she was unfairly dismissed on discriminatory grounds. The Supreme Court referred to the burden of proof and held that the respondent should have to prove that the dismissal was based on objective and reasonable grounds and that it was not due to discrimination. It is evident that the Supreme Court ruled in favour of victims of discrimination.

The Attorney-General before the Supreme Court in and for the province of Santa Fe issued a similar opinion, considering that:

‘discrimination is generally not openly manifested, and it is not clearly identifiable [...] In most cases, it is a presumption, hard to prove. [...] It is sufficient for the party raising such an accusation to prove the facts that are, prima facie, appropriate to infer the existence of discrimination, so that respondent, the party being accused of having committed the challenged treatment, should then prove that dismissal was based on objective and reasonable grounds and that it was not due to discrimination’.^[12] 

In addition, Division VI of the Federal Court of Appeals in Labour and Employment Matters in and for the Autonomous City of Buenos Aires held that ‘pressuring a pregnant woman to work or threatening to fire her constitutes gender violence’.^[13]

​​​​​​​In light of this, it becomes evident how the definition of gender violence at work is molded through court decisions.

Lastly, another relevant case, Chamber X of the Federal Court of Appeals in Labour and Employment Matters ordered a restraining and no-contact order against a boss in relation to the employee. It was proved through witness evidence that the plaintiff was the victim of violence at work because of persecutory, discriminatory, abusive and injurious conduct. Consequently, the court ordered the employer company to make the necessary arrangements to reinstate a hostility-free environment, preserving the employee's integrity and dignity, guaranteeing her safety, making any violence cease and preventing any future violence as well. As for the respondent, he was ordered to cease all acts that were to perturb or intimidate the victim directly or indirectly, and to refrain from coming to work the days and times on which she was at the workplace.^[14]

Conclusion, prevention and the future

In Argentina, many measures were adopted in the past years, through legislative instruments and court decisions, to raise awareness, repeal and punish gender-based violent and/or discriminatory conduct with the aim of preventing and eradicating this type of behaviour in all places, especially at work, so as to ensure compliance with the employers’ duty of providing a safety workplace and the eradication of any kind of discrimination based on subjective reasons.

Notwithstanding the aforementioned measures available, there are outstanding circumstances that reflect their insufficiency, such as is evidenced by the included court decisions. 

Therefore, it is necessary to raise awareness among all actors in society in order to eradicate and fight against any kind of discrimination on a daily basis. It is especially necessary that those of us who are part of a minority group raise the flag on equality. In addition to legislative initiatives, we need to motivate businesses to include these issues in their daily dynamics through their deepening and to put in practice human resources policies and codes that focus on the creation of a workplace free of hostility that thrusts equal opportunity.