Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Pregnancy tests and other similar discriminatory practices in export processing enterprises. For a number of years, the Committee has been examining allegations received concerning a series of systematic discriminatory practices against women in access to employment in export processing zones (maquiladoras). These practices relate to the requirement of pregnancy tests and other similar discriminatory practices as a precondition for access to employment in export processing zones, with such practices also being applied against women who are already employed in these zones. In its previous observation, the Committee noted the comments made by the International Confederation of Free Trade Unions (ICFTU) according to which there exist grave cases of discrimination against pregnant women, particularly in export processing enterprises, where they are denied leave and other statutory rights related to maternity, or are compelled to work under hazardous and difficult conditions to dissuade them from continuing to work. The ICFTU also indicates that many employers require pregnancy tests prior to the recruitment of women and that in many cases the authorities are accomplices to these practices.

2. In its previous comments, the Committee once again reiterated that the alleged practices referred to in paragraph 1 would constitute discrimination in employment and occupation on the ground of sex and it requested the Government to investigate the existence of these practices and, where found, to take the necessary measures to punish and eliminate such discriminatory practices. In this context, it requested the Government to consider the possibility of amending the Federal Labour Act (LFT) to prohibit explicitly discrimination based on sex and maternity in relation to recruitment and hiring for employment and in conditions of employment. The Committee also requested the Government to provide detailed information in its next report on any measures adopted and the progress achieved in eliminating such discriminatory practices, and it requested it to provide information on the cases lodged with local and federal conciliation and arbitration boards, or with Mexican courts alleging discrimination on grounds of sex.

3. The Committee notes the Government’s reply on the various aspects of the issue that have been raised. It notes with interest the Government’s indication that in 2002 the Secretary of Labour and Social Insurance and the President of the National Council of the Maquiladora Industry, A.C. (CNIME), concluded an agreement for concerted action to contribute to the continued improvement of labour conditions for women at work in the maquiladora industry. Through this agreement, the CNIME undertook, among other actions: to promote in each of its member maquiladora enterprises in the country the dissemination of national legislation and international treaties on the rights of women workers; to promote national and regional campaigns with the support of the services of the Secretariat of Labour; to recommend to its member enterprises that no kind of pregnancy test should be required; to promote working time arrangements which allow women who are mothers to be with their children for longer; and to promote and raise awareness that enterprises must not dismiss or exert pressure on woman workers on grounds of maternity. In the context of the above agreement, 15 further agreements have been signed with governments of federal States, employers’ associations and associations of professional women, through which the Secretariat of Labour and Social Insurance is seeking to achieve an improvement in the working conditions of women. The Committee would be grateful if the Government would provide information on the implementation of this agreement, the number of workers covered by the agreement and the results achieved.

4. The Committee also notes the information provided by the Government on the activities of the National Institute for Women, and particularly that emphasis has been placed on eliminating the requirement of pregnancy tests as a condition to obtain a job. The Government adds that the project More and Better Jobs for Women in Mexico, undertaken in collaboration with the ILO, launched a second project phase in December 2003 in Chiapas, Chihuahua, Veracruz and Yucatán. Its objective is to promote new job opportunities for women in the informal economy in Chiapas, Veracruz and Yucatán and to improve the labour rights of women employees in the maquiladora industry in Chihuahua and Yucatán by means of: awareness-raising campaigns on labour rights and obligations; training focusing on gender, human and vocational development, technical and administrative skills, and safety and health; and the establishment of micro-enterprises and sales outlets for products. The Committee would be grateful if the Government would continue to provide information on the activities of the National Institute for Women, including providing a copy of its annual report, and the results achieved by the project, particularly in maquiladora enterprises.

5. While noting with interest the policies implemented by the Government to promote equality of opportunity and treatment and to eradicate the requirement of pregnancy tests and similar discriminatory practices in maquiladoras, the Committee regrets to note that the report does not contain information on the investigations carried out on such practices, and the penalties imposed or envisaged. The Committee hopes that the Government will develop mechanisms to investigate, and assess the extent and trends of such practices. Although the Committee is aware of the efforts made by the Government to prevent these practices, it considers that it would be appropriate to establish means of assessing the impact of the measures adopted by the Government and the progress achieved in this respect. It therefore once again requests the Government to provide information on any investigations carried out, the means of monitoring the situation and trends, and the penalties imposed or envisaged.

6. The legislation. The Committee also notes that, in its reply, the Government once again indicates that sections 3(2) and 133 of the Federal Labour Act already prohibit employers from refusing to accept workers or from establishing distinctions on grounds of age or sex. The Government indicates that, in the framework of the "New Labour Culture", work is being carried out on a legislative reform which is intended to promote training, participation and the fair remuneration of workers. The Committee hopes that the Government will take the opportunity of this reform to establish an explicit prohibition of discrimination on the basis of sex and maternity in relation to recruitment, hiring for employment and conditions of employment, and that it will keep the Committee informed in this respect.

7. The Committee notes with interest the adoption on 10 June 2003 of the federal Act to prevent and eliminate discrimination. This Act contains measures for the prevention of discrimination, for affirmative action and compensation to promote equality of opportunity and establishes a National Council for the Prevention of Discrimination. The Government indicates that section 4 of the Act provides that, for the purposes of the Act, discrimination shall mean any distinction, exclusion or restriction based, inter alia, on sex and pregnancy. Section 9(III, IV and V) of the Act considers to be discriminatory conduct, inter alia, the restriction of opportunities for access to, remaining in and progression in employment. The Committee notes that the Act does not establish penalties or sanctions, but rather promotional administrative measures, and that section 83, which governs these measures, provides that their imposition on individuals shall be conditional upon them having accepted the corresponding conciliation agreement. The Committee requests the Government to specify the private sector workers to whom these sections of the Act apply, including information in this respect on maquiladoras.

8. Complaint procedures. The Government also indicates that complaints relating to the application of the Convention have so far not been lodged with the competent authorities. The Committee requests the Government to provide information on the complaints which have been made, the procedures that are available and the penalties applicable for the imposition of pregnancy tests and similar practices in the maquiladoras referred to in paragraph 1, and on the investigations carried out in this connection.

9. Vacancy announcements that are discriminatory on grounds of race and colour. The Committee notes the Government’s observations on the comments made by the ICFTU, to which the Committee referred in the second paragraph of its previous observation. These comments indicated that vacancy announcements establish specific profiles of candidates, which often include light skin. In its reply, the Government states that, in addition to being a general and groundless allegation, no explanation is provided as to how the indigenous population is being discriminated against. The Committee refers to Article 1, paragraph 2, of the Convention, under the terms of which any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination, while paragraph 1(a) of the same Article sets forth the grounds on which the Convention explicitly prohibits any distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. As colour is one of the grounds explicitly prohibited by the Convention, a vacancy announcement which requires light skin would be discriminatory on the basis of a criterion prohibited by the Convention. In paragraph 33 of its General Survey of 1988, the Committee indicated, with reference to race and colour, that what is really at issue is the negative aspects that the author of the discrimination imputes to the person who is the object of discrimination. The Committee would be grateful if the Government would indicate whether this type of announcement is prohibited and requests it to provide information on any measures adopted or envisaged in this respect.

10. The Committee notes that the Government has provided comments on the communication of the Mexico Union of Electricians dated 28 September 2001. The Committee will review these comments when it examines the application of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

The Committee is raising other points in a request addressed directly to the Government.