Pre-hire pregnancy screening in Mexico's maquiladoras: is it discrimination?I. INTRODUCTION
Mexico has been portrayed as a patriarchal pa·tri·ar·chal
1. Of, relating to, or characteristic of a patriarch.
2. Of or relating to a patriarchy: a patriarchal social system.
3. society that requires a woman to play the traditional roles of a mother and wife who is not involved in the work force. There has been an increasing incorporation of Mexican women in the labor market labor market A place where labor is exchanged for wages; an LM is defined by geography, education and technical expertise, occupation, licensure or certification requirements, and job experience in recent decades, though, and particularly an influx of female workers in the maquiladora ma·qui·la·do·ra
An assembly plant in Mexico, especially one along the border between the United States and Mexico, to which foreign materials and parts are shipped and from which the finished product is returned to the original market. (1) industries. (2) In 1997, the National Institute of Statistics, Geography and Information reported that a total of 2,600 maquiladoras maquiladoras (mäkē'lädō`räs), Mexican assembly plants that manufacture finished goods for export to the United States. The maquiladoras are generally owned by non-Mexican corporations. employed at least 450,000 women out of a total of 873,748 workers. (3) As a result, the maquiladoras have become a main source of employment for Mexican women. (4)
Maquiladoras have purportedly pur·port·ed
Assumed to be such; supposed: the purported author of the story.
pur·port sought to recruit women workers because they are perceived as being docile doc·ile
1. Ready and willing to be taught; teachable.
2. Yielding to supervision, direction, or management; tractable. , reliable, and capable of performing monotonous and repetitive work. (5) However, single, childless women are highly preferred and many maquiladoras avoid hiring pregnant women. (6) Pregnant women workers are seen as a "drain on [company] resources and as having a potentially detrimental effect on production." Therefore, numerous maquiladoras insisted upon testing women applicants for pregnancy and refused to hire those who were pregnant. (7) There have also been reports of women being fired or forced to resign due to pregnancy. (8)
Pregnancy-based discrimination was not seriously criticized or legally examined until Human Rights Watch (HRW HRW Human Rights Watch
HRW Heathrow (London Airport)
HRW Heated Rear Window ) launched an investigation into several allegations of pregnancy discrimination This article or section may deal primarily with the U.S. and may not present a worldwide view. in 1996. Then, in 1997, a petition was filed with the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. National Administrative Office (NAO NAO National Audit Office (UK government)
NAO North Atlantic Oscillation
NAO National Astronomical Observatory (Japan)
NAO North American Operations
NAO non-asbestos organic ) (9), which contended that pregnancy-based discrimination existed in Mexico and violated vi·o·late
tr.v. vi·o·lat·ed, vi·o·lat·ing, vi·o·lates
1. To break or disregard (a law or promise, for example).
2. To assault (a person) sexually.
3. several provisions of national and international law. (10) This submission was the first case ever to come before the U.S. NAO in which sex discrimination was alleged. (11) Additionally, it sparked closer scrutiny of Mexican law as the U.S. NAO and Mexican government were required to interpret various Mexican legal sources to decide what forms of sex-based discrimination were illegal in Mexico.
This note examines whether Mexican law proscribes, or could be interpreted as proscribing, pre-hire pregnancy discrimination. Part II provides general background information about the NAO submission process, followed by a summary of the HRW Report which alleged that various forms of pregnancy discrimination occur within the maquiladora industry. Part III analyzes sources of Mexican law that pertain to pertain to
verb relate to, concern, refer to, regard, be part of, belong to, apply to, bear on, befit, be relevant to, be appropriate to, appertain to the subject of pregnancy discrimination to determine whether pre-hire pregnancy discrimination is proscribed PROSCRIBED, civil law. Among the Romans, a man was said to be proscribed when a reward was offered for his head; but the term was more usually applied to those who were sentenced to some punishment which carried with it the consequences of civil death. Code, 9; 49. under Mexican law. The sources of Mexican law analyzed an·a·lyze
tr.v. an·a·lyzed, an·a·lyz·ing, an·a·lyz·es
1. To examine methodically by separating into parts and studying their interrelations.
2. Chemistry To make a chemical analysis of.
3. include the Mexican Constitution, several international treaties and conventions, and Mexican federal law. Then, in Part IV the author will conduct a more in-depth analysis of a recently promulgated prom·ul·gate
tr.v. prom·ul·gat·ed, prom·ul·gat·ing, prom·ul·gates
1. To make known (a decree, for example) by public declaration; announce officially. See Synonyms at announce.
2. Mexican federal law which appears to prohibit pregnancy-based discrimination. Finally, Part V summarizes the author's conclusions.
II. U.S. NAO FINDS THAT MEXICO VIOLATES ITS DOMESTIC LABOR LAW labor law, legislation dealing with human beings in their capacity as workers or wage earners. The Industrial Revolution, by introducing the machine and factory production, greatly expanded the class of workers dependent on wages as their source of income. .
A. What is an NAO?
An NAO is part of the labor ministry of each North American Free Trade Agreement North American Free Trade Agreement (NAFTA), accord establishing a free-trade zone in North America; it was signed in 1992 by Canada, Mexico, and the United States and took effect on Jan. 1, 1994. (NAFTA NAFTA
in full North American Free Trade Agreement
Trade pact signed by Canada, the U.S., and Mexico in 1992, which took effect in 1994. Inspired by the success of the European Community in reducing trade barriers among its members, NAFTA created the world's ) member country that was created under the North American North American
named after North America.
North American blastomycosis
see North American blastomycosis.
North American cattle tick
see boophilusannulatus. Agreement on Labor Cooperation (NAALC NAALC North American Agreement on Labour Cooperation (North American Free Trade Agreement) ) to handle labor abuse complaints. The NAALC is a side accord to NAFTA and represents the labor rights Labor rights or workers' rights are a group of legal rights and claimed human rights having to do with labor relations between workers and their employers, usually obtained under labor and employment law. "side agreement" of NAFTA. (12) Generally, the NAALC seeks to eliminate employment discrimination (13) by "promot[ing] compliance with and effective enforcement of each party's domestic labor laws." (14) Hence, each NAFTA signatory sig·na·to·ry
Bound by signed agreement: the signatory parties to a contract.
n. pl. sig·na·to·ries
One that has signed a treaty or other document. country (15) is not required to enforce any other country's laws, but rather, is required to enforce its own domestic labor laws through appropriate government action. (16)
The NAALC created a Commission for Labor Cooperation to monitor the implementation of the obligations agreed upon Adj. 1. agreed upon - constituted or contracted by stipulation or agreement; "stipulatory obligations"
noncontroversial, uncontroversial - not likely to arouse controversy by the NAFTA signatories. (17) The Commission is composed of a Ministerial Council, Secretariat Secretariat, 1970–89, thoroughbred race horse. Trained by Lucien Laurin and ridden by Ron Turcotte, Secretariat won the Kentucky Derby, Preakness, and Belmont Stakes to capture the Triple Crown in 1973.
(foaled 1970) U.S. , and three NAOs at the federal government level in each NAFTA member country. (18) Each NAO accepts citizen submissions or complaints that charge one of the other NAFTA members with labor abuses or a failure to effectively enforce its domestic labor laws. (19) Prior to official acceptance of a complaint, though, the designated NAO determines whether the submission falls within its jurisdiction and whether the submitting party has established that it has standing to sue. (20)
If it appears that the NAALC has been violated, the submission must receive further review and examination. (21) Upon accepting a submission for review, the NAO Secretary issues a public report within 120 days that consists of a review proceedings summary, the NAO findings, and NAO recommendations. (22) Furthermore, if an NAALC violation is found that has not been sufficiently resolved since the commencement of the proceedings, the NAO Secretary may request that the parties engage in ministerial consultations with the Ministerial Council. (23)
The preceding information represents a brief synopsis A summary; a brief statement, less than the whole.
A synopsis is a condensation of something—for example, a synopsis of a trial record. of the portion of the NAO submission process that applies to Mexico's situation. (24) In 1997, the U.S. NAO accepted and reviewed a submission which asserted that widespread pregnancy discrimination occurred within the maquiladora industry. The submission was based upon an HRW report documenting pre- and post-employment pregnancy discrimination at many maquiladoras. While it appears that Mexico explicitly prohibits post-hire pregnancy discrimination, the HRW report and submission challenged the U.S. NAO and Mexico to prohibit pre-hire pregnancy discrimination as well.
B. HRW Investigation Reveals Wide-Spread Pregnancy Discrimination in the Maquiladora Industry.
On May 15, 1997, the HRW, International Labor Rights Fund The International Labor Rights Fund (ILRF) is a nonprofit advocacy organization headquartered in Washington, DC that describes itself as "an advocate for and with the working poor around the world". ILRF was founded in 1986. ("ILRF ILRF International Labor Rights Fund ") and the National Association of Democratic Lawyers (Asociacion Nacional de Abogados Democraticos) (collectively referred to as Petitioners) filed a submission with the U.S. NAO concerning pregnancy-based sex discrimination in Mexico's maquiladora sector. (25) The information in the submission, titled Submission No. 9701, was based on an August 1996 HRW Women's Rights The effort to secure equal rights for women and to remove gender discrimination from laws, institutions, and behavioral patterns.
The women's rights movement began in the nineteenth century with the demand by some women reformers for the right to vote, known as suffrage, and Project report, "Sin Garantias: Discriminacion sexual en el sector de maquiladoras de Mexico." (26) The report summarized the results of an HRW mission's investigation, in March 1995, of possible pregnancy discrimination in the maquiladora sector of several Mexican cities and states such as Tijuana, Baja California Baja California, state, Mexico
Baja California (Span.: bä`hä kälēfōr`nyä), state (1990 pop. 1,660,855), 27,628 sq mi (71,576 sq km), NW Mexico, on the Baja California peninsula. Mexicali is the capital. State, Chihuahua, Reynosa, Rio Bravo BRAVO Cardiology A clinical trial–Blockade of the GP IIB/IIIA Receptor to Avoid Vascular Occlusion– which evaluated lotrafiban in preventing strokes and acute MI. See GP IIB/IIIA. , Matamoros, and Tamaulipas State. (27) The mission interviewed numerous women maquiladora workers, maquiladora personnel, Mexican government officials, labor rights advocates, and women's rights activists This article is a list of notable women's rights activists. List
tr.v. mis·treat·ed, mis·treat·ing, mis·treats
To treat roughly or wrongly. See Synonyms at abuse.
mis·treat of pregnant workers in an effort to bring about their resignation." (29)
According to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. HRW, although the most common methods of pregnancy testing pregnancy test Any test used to detect or confirm pregnancy; in early pregnancy, all PTs measure hCG, the developing placenta's principal hormone, which is detectable as early as 6 days after fertilization; in clinical laboratories, serum levels of hCG are were medical exams and urine samples, (30) some maquiladoras employed a series of methods to determine whether women applicants were pregnant. Along with or in lieu of Instead of; in place of; in substitution of. It does not mean in addition to. urine analyses, personnel officers either questioned women directly on their pregnancy status, the extent of their sexual activity, the regularity of their menstrual cycles menstrual cycle
The recurring cycle of physiological changes in the uterus, ovaries, and other sexual structures that occur from the beginning of one menstrual period through the beginning of the next. , the type of contraceptive contraceptive /con·tra·cep·tive/ (-sep´tiv)
1. diminishing the likelihood of or preventing conception.
2. an agent that so acts. (s) used, or required women to answer questions about their pregnancy status on application forms and sign forms indicating that they were not pregnant. (31) The women applicants who admitted to being pregnant or with positive pregnancy tests were denied employment. (32)
HRW also found that, once employed, women who became pregnant were harassed, mistreated, forced to resign, or terminated without cause. (33) In some cases, employers reassigned pregnant women to tasks that required strenuous stren·u·ous
1. Requiring great effort, energy, or exertion: a strenuous task.
2. Vigorously active; energetic or zealous. physical activity or exposed them to hazardous conditions to make them quit. (34) Other employers used short-term contracts of thirty to ninety days so as not to be obligated ob·li·gate
tr.v. ob·li·gat·ed, ob·li·gat·ing, ob·li·gates
1. To bind, compel, or constrain by a social, legal, or moral tie. See Synonyms at force.
2. To cause to be grateful or indebted; oblige. to offer permanent positions to pregnant workers. (35) Altogether, the report documents the cases of approximately fifty-three women at various maqiladoras who were either subject to pregnancy testing during the hiring process or subject to discrimination on the basis of their pregnancy after being employed. (36)
Based on the HRW findings, petitioners filed Submission No. 9701 with the U.S. NAO alleging "(1) employment discrimination on the basis of gender in violation of the obligation of Mexico to enforce its labor law, including obligations related to international conventions under Article 3(1) of the NAALC; and (2) failure to ensure appropriate access to ... tribunals ... in violation of Articles 4(1) and 4(2) of the NAALC." (37) Petitioners argued that pregnancy-based discrimination violated the Mexican Constitution, international treaties ratified rat·i·fy
tr.v. rat·i·fied, rat·i·fy·ing, rat·i·fies
To approve and give formal sanction to; confirm. See Synonyms at approve. by Mexico, and federal labor law. (38) Also, petitioners claimed that no suitable institutions existed to address gender discrimination issues effectively. (39)
After accepting and reviewing petitioners' submission, the U.S. NAO found that pre-employment pregnancy screening did in fact occur in the maquiladora industry and on January 12, 1998, it issued a report regarding the prevalence of gender discrimination in Mexico's maquiladoras. (40) Although Mexico conceded con·cede
v. con·ced·ed, con·ced·ing, con·cedes
1. To acknowledge, often reluctantly, as being true, just, or proper; admit. See Synonyms at acknowledge.
2. that Mexican law prohibits post-hire pregnancy discrimination, the Mexican NAO stated "that there is no explicit prohibition in Mexican law against pre-employment discrimination. Mexican law reaches discrimination only where there is an existing employment relationship." (41) Also, the Mexican NAO disputed the allegation The assertion, claim, declaration, or statement of a party to an action, setting out what he or she expects to prove.
If the allegations in a plaintiff's complaint are insufficient to establish that the person's legal rights have been violated, the defendant can make a that pre-hire discrimination violated obligations under international treaties ratified by Mexico. (42)
The Mexican NAO position that Mexican law and international law did not prohibit pre-employment pregnancy screening raised issues concerning the interpretation of the Mexican Constitution (Constitution), Mexican Federal Labor Law (FLL FLL First Lego League (partnership between FIRST and the LEGO Company)
FLL Frequency Lock Loop (Datum)
FLL Flux Locked Loop (also see Phase Locked Loop, PLL) ) and international treaties ratified by Mexico that address gender discrimination. Is testing women job applicants for pregnancy or pregnancy-based discrimination prohibited by any or all of these sources of Mexican law? If such a prohibition is not stated explicitly, could the Mexican Constitution, Mexican federal law, or treaties ratified by Mexico be interpreted as prohibiting such discrimination? Answering these questions requires an analysis of Mexican law and international treaties ratified by Mexico.
C. The Mexican Hierarchy of Law
The Mexican hierarchy of laws is a subject of debate. The Mexican Supreme Court noted that since "Constitutional Article 133 establishes the supremacy SUPREMACY. Sovereign dominion, authority, and preeminence; the highest state. In the United States, the supremacy resides in the people, and is exercises by their constitutional representatives, the president and congress. Vide Sovereignty. of Constitutional laws and international treaties, all other Mexican laws must be subordinate to them, regardless of their federal or state nature, if a conflict arises upon their application." (43) However, while the Constitution is accepted as being the highest level under the Mexican hierarchy of law, (44) there is some controversy as to whether federal law and international law are of equal importance, or whether federal law supersedes treaties and conventions. (45) The prevalent view of the Mexican hierarchy of law, which will be the order adhered to in this note, is that of Professor Eduardo Garcia Maynez. (46) Professor Maynez assembles the laws in the following order of importance: "a) the Constitution; b) federal laws and international treaties; c) ordinary laws; d) regulatory laws; and e) individual norms." (47) Thus, federal law and international treaties are considered to be of equal importance. Due to the novelty and uncertainty surrounding the impact of a recently promulgated federal antidiscrimination law in Mexico, after examining the Mexican Constitution, this note will provide a cursory cur·so·ry
Performed with haste and scant attention to detail: a cursory glance at the headlines.
[Late Latin curs review of international treaties relevant to pregnancy-based discrimination, followed by a more in-depth inquiry into the applicable Mexican federal law, specifically the new law.
III. DOES MEXICAN LAW PROHIBIT PREGNANCY DISCRIMINATION IN THE HIRING PROCESS?
A. The Mexican Constitution Could Be Interpreted as Preventing Pregnancy Testing During the Hiring Process
Although the Mexican NAO conceded that post-hire pregnancy discrimination is unlawful, it asserted that pre-employment discrimination is permitted because it is not explicitly prohibited under Mexican law. (48) For instance, the Mexican Constitution does not specifically address the issue of pre- or post-hire pregnancy discrimination, and is not deemed to proscribe pro·scribe
tr.v. pro·scribed, pro·scrib·ing, pro·scribes
1. To denounce or condemn.
2. To prohibit; forbid. See Synonyms at forbid.
a. To banish or outlaw (a person). discriminatory dis·crim·i·na·to·ry
1. Marked by or showing prejudice; biased.
2. Making distinctions.
dis·crim practices against pregnant women in the hiring process. (49) However, the language of the Mexican Constitution could be interpreted as implicitly prohibiting pregnancy-based discrimination.
Article IV of the Constitution states: "Man and woman are equal before the law. This will protect the organization and development of the family. Every person has the right to decide in a free, responsible and informed manner, the number and spacing of his or her children...." (50) While Article IV does not explicitly prohibit pre-employment pregnancy screening, it could be interpreted as forbidding pregnancy-based discrimination since such discrimination does not treat men and women equally before the law; only women can become pregnant and be denied employment on the basis of pregnancy status.
Furthermore, pre-hire pregnancy discrimination arguably ar·gu·a·ble
1. Open to argument: an arguable question, still unresolved.
2. That can be argued plausibly; defensible in argument: three arguable points of law. impinges upon a woman's right to freely decide the number and spacing of her children. A woman is placed in the position of deciding between exercising her constitutional right to determine when to freely and responsibly bear children or obtaining employment to maintain economic subsistence subsistence,
n the state of being supported or remaining alive with a minimum of essentials. . Article IV suggests that no such determination should have to be made.
Additionally, Article V of the Mexican Constitution states that, "No person shall be impeded im·pede
tr.v. im·ped·ed, im·ped·ing, im·pedes
To retard or obstruct the progress of. See Synonyms at hinder1.
[Latin imped from practicing a lawful Licit; legally warranted or authorized.
The terms lawful and legal differ in that the former contemplates the substance of law, whereas the latter alludes to the form of law. A lawful act is authorized, sanctioned, or not forbidden by law. profession, industry, commerce, or labor ..." (51) Denying employment to a qualified applicant in the maquiladora industry solely because she is pregnant could be regarded as impeding im·pede
tr.v. im·ped·ed, im·ped·ing, im·pedes
To retard or obstruct the progress of. See Synonyms at hinder1.
[Latin imped a person from practicing within a lawful industry. (52)
On the other hand, employers may use the Mexican Constitution to their advantage to defend the assertion that obliging o·blig·ing
Ready to do favors for others; accommodating.
o·bliging·ly adv. women to undergo pregnancy screening as a condition of employment is necessary to ensure compliance with the law. (53) Article 123 of the Mexican Constitution establishes the rights and duties of employers and employees in Mexico, and Mexican federal labor law derives directly from Article 123. (54) Section A of Article 123 governs relations between employers and employees in the private sector and Section B applies to employees in the public sector. (55) Article 123 is viewed as a protective legal regime for workers, (56) but section V of Article 123 can be construed as not only permitting, but encouraging pregnancy screening during the hiring process in certain situations.
Article 123, Section V of the Mexican Constitution states,
"Women during pregnancy will not receive work that requires considerable effort, and signifies a danger to their health in relation to their pregnancy. They will get a break of six weeks before the birth, and six weeks after it, in which they will receive their entire wages or salary, and keep their position and their benefits. In their nursing period, they will have two special breaks (each day) of one half hour each, to nurse their babies." (57)
It is possible that under Article 123, section V, an employer might oblige all women applicants to undergo pregnancy testing to ensure that pregnant applicants are not assigned work that is dangerous or requires considerable effort to the detriment Any loss or harm to a person or property; relinquishment of a legal right, benefit, or something of value.
Detriment is most frequently applied to contract formation, since it is an essential element of consideration, which is a prerequisite of a legally enforceable contract. of pregnancy. Yet, even if section V could be interpreted to allow pre-employment pregnancy screening for certain work environments, it would seem to contravene con·tra·vene
tr.v. con·tra·vened, con·tra·ven·ing, con·tra·venes
1. To act or be counter to; violate: contravene a direct order.
2. the spirit of the Mexican Constitution to permit employers to deny women employment solely on the basis of pregnancy. Thus, such an interpretation should only allow pregnancy testing if an employer can demonstrate that the requisite work is particularly dangerous for pregnant women and that no temporary accommodations could possibly be made during the pregnancy period. (58)
The aforementioned a·fore·men·tioned
The one or ones mentioned previously.
Adj. 1. interpretation of Article 123, section V could also be limited by, and considered jointly with, Article 1, paragraph 2 of the Constitution. Article 1, paragraph 2 was included in the Constitution in August 2001 and explicitly prohibits certain discriminatory practices. The text of the Constitution states: "All discrimination is prohibited if motivated by ethnic or national origin, gender, age, different capabilities, social condition, state of health, religion, opinions, preferences, marital status marital status,
n the legal standing of a person in regard to his or her marriage state. or any other condition, in detriment to human dignity Human dignity is an expression that can be used as a moral concept or as a legal term. Sometimes it means no more than that human beings should not be treated as objects. Beyond this, it is meant to convey an idea of absolute and inherent worth that does not need to be acquired and and for the purpose of denying or reducing the rights and freedoms of persons." (59) Therefore, Article 1, paragraph 2 could be interpreted as implicitly prohibiting pregnancy-based discrimination in the hiring process because it is discrimination motivated by gender (since only women can become pregnant and be tested for pregnancy) for the purpose of denying the rights and freedoms of women. Consequently, Article 123, section V should probably be construed narrowly to permit pre-employment pregnancy testing in the rare circumstance that a job was particularly dangerous to pregnant women and temporary adjustments could not be made during the pregnancy period.
The latter portion of Article 123, section V, though, which includes maternity protection of twelve weeks paid leave and time off for breastfeeding, illustrates the main reason maquiladoras do not want to hire pregnant women. Many employers in the maquiladora industry want to avoid paying maternity leave maternity leave n → baja por maternidad
maternity leave maternity n → congé m de maternité
maternity leave maternity n costs or "absorb[ing] the costs of potential disruptions in production schedules due to maternity leave schedules or women workers' reduced capacity to meet physically demanding production quotas." (60) Some employers are willing to cooperate with pregnant women workers, but insist that the women have a proven work record with the company, which does not apply to pregnant women in the hiring processes. (61)
The Mexican government acknowledged the maquiladoras' business practice of not hiring pregnant women but insisted that Mexican law does not prohibit pre-employment discrimination. (62) This seems to be a matter of interpretation, though, as the Mexican Constitution can be construed as implicitly prohibiting pre-employment pregnancy testing, except in the rare circumstances of dangerous jobs that can not be modified to accommodate a woman during her pregnancy. Perhaps the addition of Article 1, paragraph 2 will provide the necessary motivation for the Mexican government to reevaluate its determination that pre-hire pregnancy discrimination does not violate the Mexican Constitution. However, as of now, the Mexican Constitution does not explicitly prohibit pregnancy discrimination during the hiring process and is not interpreted as preventing such discrimination.
B. Pregnancy-Based Discrimination During the Hiring Process Does Not Clearly Violate International Law
As mentioned, Article 133 of the Constitution refers to treaties made by the President as the Supreme Law of the Land, (63) and the prevalent view of the Mexican hierarchy of law places international treaties on at least the same level as federal law, if not higher. (64) Petitioners, in Submission No. 9701, mentioned several international conventions and standards that pregnancy-based discrimination supposedly violated including: Convention 111 of the International Labor Organization International Labor Organization (ILO), specialized agency of the United Nations, with headquarters in Geneva. It was created in 1919 by the Versailles Treaty and affiliated with the League of Nations until 1945, when it voted to sever ties with the League. (ILO ILO
International Labor Organization
Noun 1. ILO - the United Nations agency concerned with the interests of labor
International Labor Organization, International Labour Organization ) on Discrimination in Respect of Employment and Occupation, Article 11(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW CEDAW Convention to Eliminate All Forms of Discrimination Against Women (United Nations)
CEDAW Component Explosives Damage Assessment Workbook (reference for blast effects software modeling) ), the International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966 and entered into force on 23 March 1976. (ICCPR ICCPR International Covenant on Civil and Political Rights ), and the American Convention on Human Rights The American Convention on Human Rights (also known as the Pact of San José) is an International human rights instrument. It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 1969. (ACHR AChR Acetylcholine Receptor
ACHR American Convention on Human Rights (Organization of American States)
ACHR Asian Centre for Human Rights
ACHR Advisory Committee on Health Research
ACHR Albanian Center for Human Rights ). Each international law source will be discussed briefly in the listed order.
1. Convention 111 of the ILO (65)
The relevant portions of Article 1 of Convention 111 state:1. For the purpose of this Convention the term discrimination includes--
(a) any distinction, exclusion or preference made on the basis of ... sex ... which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation....
(3) For the purpose of this Convention the terms employment and occupation include ... access to employment and to particular occupations, and terms and conditions of employment conditions of employment
that part of an employment that sets out the duties, responsibilities, hours of work, salary, leave and other privileges to be enjoyed by persons employed, for example a veterinary nurse, in private practice. . (66)
Arguably, pregnancy discrimination is not a distinction, exclusion, or preference based upon sex, but a condition that is only coincidentally co·in·ci·den·tal
1. Occurring as or resulting from coincidence.
2. Happening or existing at the same time.
co·in unique to women. Article 2 of the Convention, however, obliges members to promote "equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof." (67) Testing women applicants for pregnancy does not assist in eliminating discrimination in the employment context and promotes unequal treatment amongst men and women. Such a practice may have the effect of "impairing equality of opportunity or treatment" in access to employment because only women can be tested for pregnancy. (68) Thus, Convention 111 of the ILO can be interpreted as proscribing both denial of employment to pregnant women and pre-screening women applicants to determine their pregnancy status.
On the other hand, the Convention does not explicitly refer to pre-employment discrimination and is ambiguous as it can be interpreted in different ways. Therefore, the argument that Convention 111 of the ILO only prohibits post-hire discrimination that results in unequal treatment is not without credence. As pre-hire discrimination does not clearly violate Convention 111 of the ILO, the Mexican government can credibly argue that the Convention only applies in situations of post-hire pregnancy discrimination.
2. CEDAW (69)
Submission No. 9701 also cites Article 11(1) of the CEDAW to support the argument that pregnancy-based discrimination violates an international treaty that Mexico has ratified. (70) Article 11(1)(b) states that,
"State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: ... (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment...."
The CEDAW strongly supports the position that pre-hire pregnancy discrimination is prohibited. Pregnancy-based discrimination does not ensure women the right to the same employment opportunities as men and more importantly, prescreening women applicants for pregnancy does not apply the same criteria for employment selection to both men and women.
Article 11, though, also requires that State Parties take appropriate measures to ensure that women have safe working conditions (71) and particularly, that pregnant women are provided special protection in types of work proven to be harmful to them (72). Therefore, the wording of Article 11 provides an opportunity for employers to use the CEDAW to validate testing women applicants for pregnancy. However, while employers can claim that it is necessary to screen women applicants for pregnancy to avoid assigning them to harmful tasks, this claim does not support a decision to refuse employment to applicants on the basis of a positive pregnancy test. Alternatively, Article 11 could be interpreted as implicitly maintaining that during pregnancy, employers have a duty to accommodate women assigned to harmful tasks to ensure their safety. Thus, the CEDAW is ambiguous as well, because although testing women applicants for pregnancy does not apply the same criteria for both men and women in the hiring process, pregnancy testing during the hiring process can be regarded as necessary to comply with Article 11. Overall, though, the CEDAW appears to be the best source of international law supporting the argument that pregnancy discrimination during the hiring process in Mexico violates international law.
3. ICCPR (73) and the ACHR (74)
Finally, both the ICCPR and the ACHR provide additional bases of international conventions ratified by Mexico, which according to petitioners, forbid for·bid
tr.v. for·bade or for·bad , for·bid·den or for·bid, for·bid·ding, for·bids
1. To command (someone) not to do something: I forbid you to go.
2. sex-based discrimination. Neither the ICCPR nor the ACHR, though, specifically addresses women in employment situations. Article 26 of the ICCPR proclaims, "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as ... sex ... or other status." (75) While denying employment to pregnant women could be a form of sex-based discrimination that would contravene Article 26 of the ICCPR, the ICCPR does not mention pre-employment discrimination and it is open to interpretation as to whether it even applies in the employment context. Furthermore, the ICCPR is applicable to government action but has not been regarded as regulating private discriminatory actions. (76)
Interestingly, petitioners only used the ACHR as a general source of international law that prohibits discrimination based upon sex within Submission 9701. (77) However, an area of the ACHR that was not explored by petitioners, which represents a plausible argument for the prohibition of pregnancy testing during the hiring process, is Article 11. Article 11 of the ACHR affirms a person's right to privacy and a state's obligation to respect that right. It declares that "No one may be the object of arbitrary or abusive Tending to deceive; practicing abuse; prone to ill-treat by coarse, insulting words or harmful acts. Using ill treatment; injurious, improper, hurtful, offensive, reproachful. interference with his private life, his family, his home...." (78) Arguably, subjecting women to pregnancy tests during the hiring process is an invasion of privacy invasion of privacy n. the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. as it is an arbitrary interference with a woman's private life. (79) Again, though, the ACHR sets forth State obligations and does not address discriminatory practices by private entities.
In sum, none of the mentioned international conventions specifically addresses pre-employment discrimination. Convention 111 of the ILO and the CEDAW are ambiguous and do not explicitly prohibit pre-employment discrimination. Additionally, neither the ICCPR nor the ACHR purports to regulate private entities and neither mentions pre-employment discrimination. Therefore, since pre-hire pregnancy discrimination does not unambiguously violate the preceding sources of international law, the Mexican government can plausibly contend that international law does not forbid pregnancy discrimination during the hiring process.
C. Mexican Federal Law Establishes a Protective System for Maternity. (80)
The main law that governs labor relationships in Mexico is the Federal Labor Law (FLL), which implements the constitutional protections of Article 123, section A of the Mexican Constitution. (81) The FLL was originally enacted on August 18, 1931, (82) and is applicable in all of the Mexican States. (83) Mexican labor law Mexican labor law governs the process by which workers in Mexico may organize labor unions, engage in collective bargaining, and strike. Current law reflects the historic interrelation between the state and the Confederation of Mexican Workers, the labor confederation officially tends to be protective of the rights of workers. Article 6 of the FLL "provides that all treaties executed and approved in accordance with Article 133 of the Constitution and the respective implementing laws will be applicable to labor relations to the extent that they benefit the worker." (84) The FLL presumably pre·sum·a·ble
That can be presumed or taken for granted; reasonable as a supposition: presumable causes of the disaster. attempts to address the unique needs of women without degrading TO DEGRADE, DEGRADING. To, sink or lower a person in the estimation of the public.
2. As a man's character is of great importance to him, and it is his interest to retain the good opinion of all mankind, when he is a witness, he cannot be compelled to disclose the principle of equal treatment for equal work. (85) Therefore, Article 3 prohibits discrimination on the basis of sex (86) and Article 164 provides that women have the same rights and obligations as men. (87)
Furthermore, in an attempt to address the special needs of women, Article 166 sets forth a protective system for maternity. During the pregnancy or nursing period, women have the right not to engage in unhealthy or dangerous labor without prejudice Without any loss or waiver of rights or privileges.
When a lawsuit is dismissed, the court may enter a judgment against the plaintiff with or without prejudice. When a lawsuit is dismissed without prejudice or detriment to salaries, benefits and other rights under employment contracts. (88) Pregnant employees are entitled en·ti·tle
tr.v. en·ti·tled, en·ti·tling, en·ti·tles
1. To give a name or title to.
2. To furnish with a right or claim to something: to six weeks paid leave prior to childbirth childbirth: see birth.
Childlessness (See BARRENNESS.)
(Rom. Diana) goddess of childbirth. [Gk. Myth. and to six weeks paid leave thereafter. (89) The Mexican Social Security law regulates maternity leave, and the Mexican Social Security Institute (IMSS IMSS Instituto Mexicano del Seguro Social (Spanish: Mexican Social Security Institute)
IMSS Istituto e Museo di Storia della Scienza (Italian)
IMSS InterScan Messaging Security Suite ) pays for maternity leave. (90) The female worker, however, must be employed with the maquiladora for at least thirty weeks prior to going on leave for the IMSS to subsidize sub·si·dize
tr.v. sub·si·dized, sub·si·diz·ing, sub·si·diz·es
1. To assist or support with a subsidy.
2. To secure the assistance of by granting a subsidy. the female worker's salary. (91) Otherwise, the IMSS will not pay for maternity leave and the employer must pay the female worker's salary directly. (92)
After the twelve week paid maternity leave, women are entitled to the same position and the rights acquired under their employment contract. (93) Upon returning to work, nursing mothers are entitled to two paid half-hour breaks, for the purpose of nursing their children, along with their regular breaks. (94) Furthermore, Article 172 of the FLL requires employers to supply a sufficient number of chairs for pregnant or working mothers. (95)
D. The Mexican NAO Contends that the FLL Does Not Apply to Women Who are Dicriminated Against in the Hiring Process
It is evident that the FLL explicitly protects the rights and welfare of pregnant women. In response to the allegation in Submission No. 9701 that pregnancy testing during the hiring process contravened the FLL, however, the Mexican NAO contended that Mexican law does not prohibit pre-employment discrimination because the FLL only applies to discrimination where there is an existing employment relationship. (96) At the time the petition was filed, existing government mechanisms for enforcing labor rights did not address pre-hire discrimination as part of their existing mandate. Therefore, according to the Mexican NAO, although the FLL clearly proscribes post-hire pregnancy discrimination, pre-hire discrimination is not forbidden because there is no explicit prohibition in Mexican law against pre-employment discrimination. (97)
Even though many Mexican states agreed with the Mexican NAO stance that, at the time, pregnancy-based discrimination during the hiring process was not against Mexican law, initiative was taken and advancement was made toward ending pregnancy discrimination following the HRW investigation. For instance, in October 1999, Mexico City's first female mayor, Rosario Rabies rabies (rā`bēz, ră`–) or hydrophobia (hī'drəfō`bēə), acute viral infection of the central nervous system in dogs, foxes, raccoons, skunks, bats, and other animals, and in , signed an order to the city's penal code penal code
A body of laws relating to crimes and offenses and the penalties for their commission.
the body of laws relating to crime and punishment
Noun 1. that would fine businesses that engaged in pregnancy-based discrimination. (98) The law also penalized pe·nal·ize
tr.v. pe·nal·ized, pe·nal·iz·ing, pe·nal·iz·es
1. To subject to a penalty, especially for infringement of a law or official regulation. See Synonyms at punish.
2. violators with punishments ranging from 100 hours of community service to three years in prison. Conceivably con·ceive
v. con·ceived, con·ceiv·ing, con·ceives
1. To become pregnant with (offspring).
2. , a business could even be shut down for a violation. (99) It was also reported that General Motors ended its pre-hire pregnancy tests in March 1997 and that Mexico's Education Ministry publicized pub·li·cize
tr.v. pub·li·cized, pub·li·ciz·ing, pub·li·ciz·es
To give publicity to.
Adj. 1. publicized - made known; especially made widely known
publicised that teachers would no longer be requested to take pregnancy tests as a condition of employment. (100)
Yet no revisions were made to the federal law that would make it mandatory for businesses to discontinue dis·con·tin·ue
v. dis·con·tin·ued, dis·con·tin·u·ing, dis·con·tin·ues
1. To stop doing or providing (something); end or abandon: pre-hire pregnancy discrimination. The official position of the Mexican government was that pre-hire pregnancy testing did not constitute discrimination. Accordingly, maquiladoras still had the prerogative An exclusive privilege. The special power or peculiar right possessed by an official by virtue of his or her office. In English Law, a discretionary power that exceeds and is unaffected by any other power; the special preeminence that the monarch has over and above all others, to discriminate against prospective job applicants based upon pregnancy.
IV. A NEW FEDERAL ANTIDISCRIMINATION LAW HAS BEEN PROMULGATED THAT EXPLICITLY PROHIBITS DISCRIMINATION BASED UPON PREGNANCY
In February 2001, the Citizens' Commission for Studies against Discrimination (Citizens' Commission) was established in Mexico. (101) The Citizens' Commission was composed of numerous political party representatives and proffered two important products. (102) The first was a book called Discrimination in Mexico: Toward a New Culture of Equality (103) which represented "the first systematic study of practices of discrimination and social exclusion social exclusion
Sociol the failure of society to provide certain people with those rights normally available to its members, such as employment, health care, education, etc. in Mexico." (104) The second, and more important to this note, was the preliminary draft of the Federal Law to Prevent and Eliminate Discrimination (Antidiscrimination Law). (105)
In 2002 and 2003, the Committee of Experts on the Application of Conventions and Recommendations (CEACR CEACR Committee of Experts on the Application of Conventions and Recommendations ) asked the Mexican government "to amend the Federal Labor Law to explicitly prohibit discrimination based on sex in recruitment and hiring for employment and in conditions of employment." (106) Subsequently, on June 9, 2003, Mexican President Vicente Fox signed the new Antidiscrimination Law, which was published in the Federal Official Gazette A compilation published weekly by the Patent and Trademark Office listing all the Patents and Trademarks issued and registered, thereby providing notice to all interested parties. on June 11, 2003. (107) The Law became effective on June 12, 2003. (108)
The Antidiscrimination Law explicitly prohibits discrimination based upon pregnancy and applies in the context of the private sector. Article 4 of the Antidiscrimination Law specifies that for the purposes of the Law,
discrimination will be understood to be any distinction, exclusion, or restriction that, based on ethnic or national origin, sex, age, disability, social or economic condition, health condition, pregnancy, language, religion, opinions, sexual preferences, marital status or any other reason, has the effect of impeding or annulling the acknowledgment or exercise of rights and the true equality of opportunities for people. (109)
Therefore, it could be concluded that screening women applicants for pregnancy and subsequently denying employment to those women who are pregnant is an exclusion based on pregnancy that has the effect of impairing the equality of opportunity for women. Pre-hire pregnancy testing in general has the effect of impeding equal opportunity since it is a distinction among job applicants based on sex and pregnancy.
Furthermore, Article 6 stipulates that the interpretation of the Antidiscrimination Law, along with the action of the federal authorities will be congruent con·gru·ent
1. Corresponding; congruous.
a. Coinciding exactly when superimposed: congruent triangles.
b. with applicable international instruments concerning discrimination, of which Mexico is a party, in addition to the recommendations and resolutions adopted by multilateral mul·ti·lat·er·al
1. Having many sides.
2. Involving more than two nations or parties: multilateral trade agreements. and regional organisms and other applicable legislation. (110) For the purpose of Article 6, when different interpretations present themselves, the interpretation that most effectively protects the persons or groups that are affected by the discriminatory conduct will be preferred. (111) Thus, Convention 111 of the ILO, the CEDAW, ICCPR, and ACHR would supersede To obliterate, replace, make void, or useless.
Supersede means to take the place of, as by reason of superior worth or right. A recently enacted statute that repeals an older law is said to supersede the prior legislation. Mexican law in areas that provide women with more protection from discriminatory practices. (112)
Throughout the Antidiscrimination Law, the issue of gender and pregnancy-based discrimination is addressed and prohibited in various ways. Article 9, section III concludes that the prohibition of the free election of employment or restriction against opportunities to access is a discriminatory practice. (113) Pregnancy testing during the hiring process to screen out pregnant applicants should thereby be prohibited since it denies pregnant women employment access opportunities and free election of employment. Article 9, section VI considers the impediment A disability or obstruction that prevents an individual from entering into a contract.
Infancy, for example, is an impediment in making certain contracts. Impediments to marriage include such factors as consanguinity between the parties or an earlier marriage that is still valid. of the free exercise to determine the number and spacing of children to be a discriminatory practice. (114) Article 10, section III requires that public organs and federal authorities ensure that women are guaranteed the right to decide the number and spacing of their children. (115) Article 15 obligates public organs and federal authorities to adopt measures that favor equal opportunity and prevent and eliminate the forms of discrimination articulated in Article 4 of the Antidiscrimination Law. (116) Thus, the Antidiscrimination Law reiterates the fundamental rights provided to women in the Mexican Constitution (117) and requires proper and effective implementation of Article 4 of the Antidis-crimination Law, which incorporates and prohibits other forms of discrimination, most notably, pregnancy discrimination.
Also, the Antidiscrimination Law creates a National Council for the Prevention of Discrimination (Council) to oversee its effective implementation. (118) The Council is a decentralized de·cen·tral·ize
v. de·cen·tral·ized, de·cen·tral·iz·ing, de·cen·tral·iz·es
1. To distribute the administrative functions or powers of (a central authority) among several local authorities. organ, assigned to the Secretary of State, with juridical Pertaining to the administration of justice or to the office of a judge.
A juridical act is one that conforms to the laws and the rules of court. A juridical day is one on which the courts are in session.
JURIDICAL. personality and its own resources. (119) For the development of its powers, the Council enjoys complete autonomy and has the ability to negotiate independently. (120) In the same manner, to dictate the resolutions that in terms of the Antidiscrimination Law formulate the complaint and claim processes, the Council is not subordinate to any other authority and can adopt its decisions with complete independence. (121)
For the fulfillment of its goal to prevent and eliminate discrimination, numerous powers and abilities of the Council are granted in Article 20. These include the power to design strategies and instruments (such as promoting programs, projects and actions for the prevention and elimination of discrimination), (122) to propose and evaluate the implementation of the National Program for the Prevention and Elimination of Discrimination to conform to Verb 1. conform to - satisfy a condition or restriction; "Does this paper meet the requirements for the degree?"
coordinate - be co-ordinated; "These activities coordinate well" applicable legislation, (123) to verify the adoption of measures and programs to prevent and eliminate discrimination in public and private institutions and organizations (124), and to apply the administrative measures established in the Antidiscrimination Law. (125) Altogether, Article 20 lists a total of nineteen measures that the Council may employ to prevent and eliminate discrimination.
The third section of the Antidiscrimination Law breaks down the organs of the Council Administration. The Administration consists of a Government Board and the Council President. (126) Article 23 invites a representative from several groups, including the National Institute of Women, to be a permanent nonvoting member of the Government Board (127). Additionally, a Consultant Assembly will serve as an organ of opinion and assessment of the actions, public politics, programs and projects that the Council develops. (128)
Finally, another important chapter of the Antidiscrimination Law is Chapter VI, titled "The Administrative Measures to Prevent and Eliminate Discrimination." According to Article 83, the Council stipulates the adoption of the following measures to prevent and eliminate discrimination: the education of persons and institutions that are parties to a Council decision or settlement through courses or seminars that promote equal opportunities; the posting of signs on establishments that fail to adhere to adhere to
verb 1. follow, keep, maintain, respect, observe, be true, fulfil, obey, heed, keep to, abide by, be loyal, mind, be constant, be faithful
2. the anti-discriminatory requirements of the Law; the presence of Council personnel for the promotion and verification of the adoption of measures that favor equal opportunity and the elimination of all forms of discrimination in any establishment that has been subject to a Council decision, for a time designated by the Council; and the publication of a summary of the Council decisions through various modes of communication. (129) The Council will take into account the following considerations when determining the appropriate administrative measure to apply: the intentional in·ten·tion·al
1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary.
2. Having to do with intention. character of the discriminatory conduct, the graveness of the discriminatory act or practice, and the reoccurrence of the incident. (130) Conversely con·verse 1
intr.v. con·versed, con·vers·ing, con·vers·es
1. To engage in a spoken exchange of thoughts, ideas, or feelings; talk. See Synonyms at speak.
2. , the Council may reward companies that undertake programs and measures to prevent discrimination. (131) Thus, the Council has the power to draft regulations concerning discrimination, to set penalties for those who engage in discriminatory practices and to reward those who abide by and promote antidiscrimination measures and policies.
Although the Antidiscrimination Law is fairly comprehensive and represents a major achievement and advancement in Mexican law, some believe that the law is too weak, broad, and vague. (132) Since the law itself does not create civil or criminal liabilities against those engaging in discriminatory practices, it is viewed as having narrow enforcement options. (133) However, these criticisms may be precipitous and unwarranted.
The Antidiscrimination Law is the first law, national or international, that explicitly prohibits discrimination based upon pregnancy. Testing job applicants for pregnancy as a condition for their employment is now unambiguously considered to be a prohibited form of discrimination. Today, Mexican law openly speaks to pre-hire discriminatory practices that distinguish among job applicants based on pregnancy and restrict pregnant women from obtaining employment. Also, the fact that portions of the Antidiscrimination Law are broad and vague is not necessarily a negative characteristic. The Law authorizes the Council to determine most enforcement measures, which allows the Council to remedy instances of discrimination in a creative manner; the Council can craft unique administrative measures that will most effectively address a given act of discrimination.
Finally, criminal or civil penalties are not the only solution to the problem. According to Gilberto Gallardo, (134) the long-term goal of the fight against discrimination is "to achieve social cohesion cohesion: see adhesion and cohesion.
The tendency of atoms or molecules to coalesce into extended condensed states. This tendency is practically universal. and develop a cultural atmosphere of respect for differences." (135) Therefore, conciliatory con·cil·i·ate
v. con·cil·i·at·ed, con·cil·i·at·ing, con·cil·i·ates
1. To overcome the distrust or animosity of; appease.
2. measures and actions of an administrative nature promote public awareness, education and persuasion PERSUASION. The act of influencing by expostulation or request. While the persuasion is confined within those limits which leave the mind free, it may be used to induce another to make his will, or even to make it in his own favor; but if such persuasion should so far operate on the mind , which attempt to make antidiscrimination ideals part of the foundation of a "more equitable and inclusive" Mexican society. (136) Gallardo concludes his seminar speech with the statement, "Discrimination not only deserves to be condemned con·demn
tr.v. con·demned, con·demn·ing, con·demns
1. To express strong disapproval of: condemned the needless waste of food.
2. , but also requires an alternative." (137)
While punishments and sanctions Sanctions is the plural of sanction. Depending on context, a sanction can be either a punishment or a permission. The word is a contronym.
Sanctions involving countries:
Of or relating to the structure, organization, or functioning of society.
Adj. and cultural roots. Therefore, it is too soon to determine that the administrative measures will not be as effective and efficient as the implementation of a system of judicial measures and penalties. The new law may actually be better aimed at the source of the problem and the long-term goal of social cohesion. (139)
V. CONCLUSION: MEXICAN LAW NOW PROHIBITS PRE-EMPLOYMENT PREGNANCY DISCRIMINATION.
Mexican law now prohibits pre-employment discrimination based upon pregnancy. Prior to the promulgation PROMULGATION. The order given to cause a law to be executed, and to make it public it differs from publication. (q.v.) 1 Bl. Com. 45; Stat. 6 H. VI., c. 4.
2. of the Antidiscrimination Law, Mexican law was ambiguous and not interpreted as proscribing discrimination unless there was an existing employment relationship. For instance, pregnancy discrimination probably contravenes the spirit of the Mexican Constitution, which grants women the fundamental rights of equality before the law Noun 1. equality before the law - the right to equal protection of the laws
human right - (law) any basic right or freedom to which all human beings are entitled and in whose exercise a government may not interfere (including rights to life and liberty as well as , freely deciding the number and spacing of children, and practicing a lawful profession. However, pre-employment pregnancy discrimination is not explicitly prohibited by the Mexican Constitution and has not been interpreted as preventing such discrimination.
Furthermore, pregnancy discrimination does not clearly violate several international treaties that Mexico has ratified. Both Convention 111 of the ILO and the CEDAW are ambiguous and do not explicitly prohibit pre-employment discrimination. Also, neither the ICCPR nor the ACHR purport To convey, imply, or profess; to have an appearance or effect.
The purport of an instrument generally refers to its facial appearance or import, as distinguished from the tenor of an instrument, which means an exact copy or duplicate.
PURPORT, pleading. to regulate private entities and do not mention pre-employment discrimination.
Nonetheless, pregnancy-based discrimination now violates the new Antidiscrimination Law. The broadness and vagueness allow more flexibility towards providing alternatives to discrimination through creative measures. Although it remains to be seen whether the Antidiscrimination Law will be used to eradicate Eradicate
To completely do away with something, eliminate it, end its existence.
Mentioned in: Smallpox all forms of pregnancy discrimination within the maquiladora industry, the law has the potential to effectively address this problem.
Screening applicants for pregnancy promotes discriminatory practices and may, in most cases, be unnecessary. Hopefully, the Antidiscrimination Law will encourage the Mexican government to conclude that pre- and post-hire pregnancy discrimination violates all sources of Mexican law including the Mexican Constitution and international law. Until then, it can serve as a catalyst for achieving Mexico's long-term goal of social cohesion.
(1.) "A maquiladora is a Mexican corporation operating under a special customs regime which allows the corporation to temporarily import duty-free, raw materials, equipment, machinery, replacement parts, and other items needed for the assembly or manufacture of finished goods for subsequent export." JORGE A. VARGAS ET AL., MEXICAN LAW: A TREATISE A scholarly legal publication containing all the law relating to a particular area, such as Criminal Law or Land-Use Control.
Lawyers commonly use treatises in order to review the law and update their knowledge of pertinent case decisions and statutes. FOR LEGAL PRACTITIONERS AND INTERNATIONAL INVESTORS 182-183 (Jorge A. Vargas ed., 1998). Basically, maquiladoras are export-processing factories along Mexico's border with the United States.
(2.) See IRENE CASIQUE, POWER, AUTONOMY & DIVISION OF LABOR IN MEXICAN DUAL-EARNER FAMILIES 29 (2001); see also Marta Lamas, The Role of Women in the New Mexico New Mexico, state in the SW United States. At its northwestern corner are the so-called Four Corners, where Colorado, New Mexico, Arizona, and Utah meet at right angles; New Mexico is also bordered by Oklahoma (NE), Texas (E, S), and Mexico (S). , in MEXICO'S POLITICS AND SOCIETY IN TRANSITION 129 (Joseph S. Tulchin & Andrew D. Selee eds., 2003) (noting that there has been a continuous flow of women workers into the maquiladora industry).
(3.) HUMAN RIGHTS WATCH, A JOB OR YOUR RIGHTS: CONTINUED SEX DISCRIMINATION IN MEXICO'S MAQUILADORA SECTOR BACKGROUND,(1998) [hereinafter here·in·af·ter
In a following part of this document, statement, or book.
Formal or law from this point on in this document, matter, or case
Adv. 1. HUMAN RIGHTS WATCH, A JOB OR YOUR RIGHTS], www.hrw.org/reports98/women2/Maqui98d.htm#TopOfPage.
(4.) See Lamas supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. note 2, at 129-130.
(5.) See id.
(6.) Bob McPhail Robert Low "Bob" McPhail (25 October 1905 - 24 August 2000) was a Scottish professional footballer who played for Airdrieonians and Rangers.
Born in Barrhead, Bob McPhail started his career at Glasgow Junior side Pollok, before signing for Airdrie, where at 18 he helped them , Pregnancy-Free Work, SAN DIEGO San Diego (săn dēā`gō), city (1990 pop. 1,110,549), seat of San Diego co., S Calif., on San Diego Bay; inc. 1850. San Diego includes the unincorporated communities of La Jolla and Spring Valley. Coronado is across the bay. NEWS NOTES, Apr. 1999, http://www.sdnewsnotes.com/ed/articles/1999/0499bm.htm. Several Mexicali maquiladora managers maintained that "[S]ingle in·gle
1. An open fire in a fireplace.
2. A fireplace.
[Perhaps Scottish Gaelic aingeal, fire, light. , childless women make better employees.... Domestic and child rearing responsibilities.., often interfere with optimal on-the-job performance." Id.
(7.) See HUMAN RIGHTS WATCH, NO GUARANTEES: SEX DISCRIMINATION IN MEXICO'S MAQUILADORA SECTOR (1996) [hereinafter HUMAN RIGHTS WATCH, NO GUARANTEES], at http://www.hrw.org/reports/1996/Mexi0896.htm; see also THE CENTER FOR REPRODUCTIVE LAW AND POLICY, WOMEN OF THE WORLD: LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES [hereinafter WOMEN OF THE WORLD] 67 (2001) (affirming that "in practice many workplaces continue to require a negative pregnancy test from women before giving them a job.").
(8.) See HUMAN RIGHTS WATCH, NO GUARANTEES, supra note 7; see also WOMEN OF THE WORLD, supra note 7, at 67).
(9.) An NAO is part of the labor ministry of each North American Free Trade Agreement member country. One of its functions is to accept and review complaints that charge one of the other members with labor abuses. See NORTH AMERICAN AGREEMENT ON LABOR CORPORATION BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA UNITED STATES OF AMERICA. The name of this country. The United States, now thirty-one in number, are Alabama, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, , THE GOVERNMENT OF CANADA The Government of Canada is the federal government of Canada. The powers and structure of the federal government are set out in the Constitution of Canada.
In modern Canadian use, the term "government" (or "federal government") refers broadly to the cabinet of the day and , AND THE GOVERNMENT OF THE UNITED MEXICAN STATES, Sept. 13, 1999 ]hereinafter NAALC], Annex an·nex
tr.v. an·nexed, an·nex·ing, an·nex·es
1. To append or attach, especially to a larger or more significant thing.
2. 1, www.naalc.org/english/agreement.shtml.
(10.) Human Rights Watch Women's Rights Project, Human Rights Watch/Americas, International Labor Rights Fund, and Asociacion Nacional de Abogados Demcraticos, U.S. NAO Public Submission 9701: Submission Concerning Pregnancy Based Discrimination in Mexico's Maquiladora Sector to the United States National Administrative Office (May 15, 1997) [hereinafter Human Rights Watch, Submission], www.dol.gov/ilab/media/reports/nao/submissions/Sub9701.htm.
(11.) See Press Release, Human Rights Watch, U.S. and Mexican Groups Urge the U.S. to Oppose Sex Discrimination in Mexico (Jan. 15, 1998) [hereinafter Human Rights Watch, U.S. and Mexican Groups], http://hrw.org/english/docs/1998/01/15/mexico1037.htm.
(12.) ANNA L. TORRIENTE ET AL., MEXICAN & U.S. LABOK LAW & PRACTICE: A PRACTICAL GUIDE FOR MAQUILAS & OTHER BUSINESSES 11 (1997); see also Claudio Romano, Nine Years of the Labor Side Agreements Show the Real Effect of NAFTA on Mexican Workers, at www.owcinfo.org/ campaign/FTAA/RealEfectNAFTAonMEX.htm (last visited Mar. 23, 2005).
(13.) NAALC, supra note 9; see also TORRIENTE, supra note 12, at 13 (stating that the elimination of employment discrimination is one of the fundamental labor law principles in Annex 1 of the NAALC).
(14.) NAALC supra note 9, art. 1; see also TORRIENTE, supra note 12, at 13 (summarizing the NAALC's stated objectives).
(15.) The signatory countries to NAFTA are the United States, Mexico and Canada. See NAALC supra note 9.
(16.) See id. Some examples of appropriate government action include appointing and training labor inspectors, investigating suspected violations, initiating proceedings to correct violations of each country's domestic labor laws, and providing private parties with the appropriate access to procedures for the enforcement of their country's domestic labor laws.
(17.) See id.; see also TORRIENTE, supra note 12, at 15 (describing the implementation and submission process for the NAALC).
(18.) See NAALC supra note 9, arts. 8 & 15.
(19.) See id., art. 16(3).
(20.) See TORRIENTE, supra note 12, at 16.
(21.) See id.
(22.) See id. If necessary, the 120 day period may be extended by 60 days. See id.
(23.) See id.; see also Romano, supra note 12.
(24.) For further information on the complete NAO submission process, see generally TORRIENTE, supra note 12, at 16-20
(25.) See Human Rights Watch, Submission, supra note 10.
(26.) HUMAN RIGHTS WATCH, NO GUARANTEES, supra note 7; see also Human Rights Watch, Submission supra note 10 at Appendix 1 (containing the Human Rights Watch Women's Rights Project report).
(27.) See HUMAN RIGHTS WATCH, NO GUARANTEES, supra note 7 (listing companies in Tijuana, Chihuahua, Reynosa, Rio Bravo and Matamoros that purportedly engaged in discriminatory practices against pregnant applicants and pregnant workers); see also U.S. NAT'L ADMIN See network administrator and system administrator.
admin - system administrator . OFFICE, U.S. DEP'T OF LABOR, PUBLIC REPORT OF REVIEW OF NAO SUBMISSION NO. 9701[hereinafter U.S. NAT'L ADMIN. OFFICE, PUBLIC REPORT], www.dol.gov/ilab/media/reports/nao/ pubrep9701.htm.
(28.) HUMAN RIGHTS WATCH, NO GUARANTEES, supra note 7.
(30.) See id..
(31.) Id. (summarizing the experiences of thirty-seven women who sought jobs at maquiladoras that routinely engaged in pregnancy-based discrimination throughout the hiring process).
(34.) Id.; see also McPhail, supra note 6.
(35.) See HUMAN RIGHTS WATCH, NO GUARANTEES, supra note 7; see also McPhail, supra note 6.
(36.) See HUMAN RIGHTS WATCH, NO GUARANTEES, supra note 7. The majority of the companies cited in the HRW report denied engaging in pregnancy-based discrimination or claimed to be in conformity with the local law. Only one company, United Solar Systems solar system, the sun and the surrounding planets, natural satellites, dwarf planets, asteroids, meteoroids, and comets that are bound by its gravity. The sun is by far the most massive part of the solar system, containing almost 99.9% of the system's total mass. of Troy, Michigan Troy is a city in Oakland County of the U.S. state of Michigan. It is a suburb of Detroit. As of the 2000 census, the city had a total population of 80,959, the 12th largest city in Michigan by population. , candidly can·did
1. Free from prejudice; impartial.
2. Characterized by openness and sincerity of expression; unreservedly straightforward: In private, I gave them my candid opinion. admitted to discriminating dis·crim·i·nat·ing
a. Able to recognize or draw fine distinctions; perceptive.
b. Showing careful judgment or fine taste: against pregnant women in the hiring process by asking whether women were pregnant on applications for work, requiring pre-employment pregnancy testing and then denying employment to women who were pregnant. The company promised HRW that it would discontinue discriminatory practices. See McPhail, supra note 6, at 5.
(37.) See Human Rights Watch, Submission, supra note 10.
(40.) Id.; see also Tina Faulkner, U.S. NAO Confirms Discrimination Against Pregnant Maquila ma·qui·la
A maquiladora. Workers, BORDERLINES UPDATER, at www.americaspolicy.org/updater/1998/ march2nao_body.htm (Mar. 1998).
(41.) See Human Rights Watch, U.S. and Mexican Groups, supra note 11 (stating that the Mexican NAO asserted "that there is no explicit prohibition in Mexican law against pre-employment pregnancy screening and that there is no legal mechanism by which a person may pursue a claim of pre-employment gender discrimination prior to the establishment of the employment relationship."); see also U.S. NAT'L ADMIN. OFFICE, PUBLIC REPORT, supra note 27, at 7 (stating same).
(42.) See Human Rights Watch, U.S. and Mexican Groups, supra note 11; see also U.S. NAT'L ADMIN. OFFICE, PUBLIC REPORT, supra note 27, at 7.
(43.) TORRIENTE, supra note 12, at 34 (citing Petroleos Mexicanos, Esta Obligado a Otorgar Fianza En El Amparo. (Leyes Reglamentarias de la Constitucion, Supremacia de las) Suprema Corte de Justicia de la Nacion. Queja No. 286/49. Cerda, Juan. Unanimidad 5 votos. Pdte. Vicente Santos Santos (sän`ts), city (1996 pop. 412,288), São Paulo state, SE Brazil, on the island of São Vicente in the Atlantic just off the mainland. Guajardo. 3ra. Sala. S.J.F. 22 de Octubre de 1949. V Epoca, Tomo CII CII Confederation of Indian Industry
CII Chartered Insurance Institute (UK)
CII Construction Industry Institute (University of Texas)
CII Council of Institutional Investors , p. 653.); see also VARGAS, supra note 1, at 23 (stating that Article 133 of the Constitution recognizes the principle of supremacy, giving the Constitution, along with the laws of Congress and treaties made by the President of the Republic with approval by the Senate, the status of "Supreme Law throughout the union.").
(44.) TORRIENTE, supra note 12, at 27-32; see also Vargas, supra note 1, at 38 (characterizing the Mexican Constitution as the fundamental law that guides Mexico's national policies).
(45.) See TORRIENTE, supra note 12, at 34.
(46.) Id. Professor Eduardo Garcia Maynez is regarded as "one of Mexico's foremost legal theorists." Id.
(48.) See U.S. NAT'L ADMIN. OFFICE, PUBLIC REPORT, supra note 27, at 7.
(49.) See generally MEX MEX Mexico
MEX Microsoft Exchange
MEX Materials Exchange (Recycling Council of British Columbia)
MEX Military Exchange
MEX Mobile Exploration System
MEX Mesopelagic Export Flux
MEX Mesopelagic Export Mooring . CONST CONST Construction
CONST Under Construction
CONST Commission for Constitutional Affairs and European Governance (COR) ., available at http://historicaltextarchive.com/sections.php?op=viewarticle&artid=93 (providing an English translation of the Mexican Constitution by Ron Pamachena). The original Spanish version can be found at www.cddhcu.gob.mx/ leyinfo/pdf/1.pdf.
(50.) Id., art. 4.
(53.) See McPhail, supra note 6 (maintaining that the federal and state labor officials in Mexico said that "[P]re-employment pregnancy testing allows the companies to comply with other labor laws that prohibit placing pregnant women in dangerous work environments").
(54.) TORRIENTE, supra note 12, at 27; see also VARGAS, supra note 1, at 41.
(55.) TORRIENTE, supra note 12, at 28. "Section B ... establishes the rights of employees of the federal government and of the Federal District." Id. This Note examines only Section A of Article 123, since the maquiladora industry is part of the private sector.
(56.) VARGAS, supra note 1, at 41.
(57.) MEX. CONST., available at http: //historicaltextarchive.com/sections.php?op=view article&artid=93.
(58.) For instance, a job that requires standing for long amounts of time could reasonably accommodate a pregnant woman by allowing her to sit or, if feasible, to take more breaks.
(59.) MEX. CONST., available at http://historicaltextarchive.com/ sections.php?op=viewarticle& artid=93; see also Gilberto Rincon Gallardo, Legislation and Public Policies against Discrimination in Mexico, at http://www.iadb.org/sds/doc/RGallardoEnglish.pdf (2003).
(60.) HUMAN RIGHTS WATCH, A JOB OR YOUR RIGHTS, supra note 3.
(61.) Id. (quoting an administrative office worker in a Tijuana maquiladora, "At times, the managers took the perspective that they must protect a pregnant worker, but only if she had a proven work record. Those pregnant women allowed to stay are accommodated by being changed to less strenuous work.")
(62.) See U.S. Labor Department The Department of Labor (DOL) administers federal labor laws for the Executive Branch of the federal government. Its mission is "to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working Review Finds Sex Bias at Border Plants in Mexico, at http://www.haleokala.com/NAO.htm.
(63.) See MEX. CONST, art. 133, available at http://historicaltextarchive.com/sections.php?op=viewarticle&artid=93.
(64.) See TORRIENTE, supra note 12, at 34.
(65.) Mexico became a member of the ILO on September 12, 1931. See TORRIENTE, supra note 12, at 29.
(66.) Convention Concerning Discrimination in Respect of Employment and Occupation, ILO Convention No. 111, adopted June 25,1958, art. 1,362 U.N.T.S. 31, 32-34, available at www.itcilo.it/actrav/actrav-english/telearn/global/ilo/law/con111.htm [hereinafter ILO Convention No. 111].
(67.) Article 2 of the Convention states, "Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof." ILO Convention No. 111, supra note 66, at 34. Article 3 continues by providing guidance on the implementation of the Convention for each Member. See id.
(69.) Mexico signed the CEDAW on July 17, 1980 and ratified it March 23, 1981. See www.un.org/womenwatch/daw/cedaw/cedaw/states.htm.
(70.) See Human Rights Watch, Submission, supra note 10.
(71.) See CEDAW, art. 11(1)(f), at www.un.org/womenwatch/daw/cedaw/text/ econvention.htm (stating that, "State Parties shall take all appropriate measures to eliminate discrimination against women ... in particular: (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction."
(72.) See id., art. 11(2)(d) (declaring that, "In order to prevent discrimination against women on the grounds of ... maternity and to ensure their effective right to work, State Parties shall take appropriate measures: (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.").
(73.) Mexico ratified the ICCPR on June 23, 1981. See OFFICE OF THE UNITED NATIONS HIGH COMM'R FOR HUMAN RIGHTS, STATUS OF RATIFICATION The confirmation or adoption of an act that has already been performed.
A principal can, for example, ratify something that has been done on his or her behalf by another individual who assumed the authority to act in the capacity of an agent. OF THE PRINCIPAL INT'L HUMAN RIGHTS TREATIES (2004), available at www.unhchr.ch/pdf/report.pdf.
(74.) The American Convention on Human Rights (hereinafter ACHR) was adopted at the Inter-American Specialized Conference on Human Rights in San Jose San Jose, city, United States
San Jose (sănəzā`, săn hōzā`), city (1990 pop. 782,248), seat of Santa Clara co., W central Calif.; founded 1777, inc. 1850. , Costa Rica Costa Rica (kŏs`tə rē`kə), officially Republic of Costa Rica, republic (2005 est. pop. 4,016,000), 19,575 sq mi (50,700 sq km), Central America. on November 22, 1969. See ACHR, available at www.cidh.oas.org/Basicos/basic3.htm. The date of deposit for Mexico's ratification of the ACHR was April 3, 1982 and Dec. 16, 1998 marks the date of acceptance of the jurisdiction of the Mexican court. See id., at www.cidh.oas.org/Basicos/basic4.htm.
(75.) International Covenant on Civil and Political Rights, art. 26, available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm.
(76.) Article 5 of the ICCPR, however, states that, "Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein...." Id. This article seems to incorporate non-State action under the ICCPR.
(77.) See Human Rights Watch, Submission, supra note 10. Article 1 of the ACHR obliges State Parties to the Convention to "undertake to respect the rights and freedoms recognized herein and to ensure to all persons ... full exercise of those rights and freedoms, without any discrimination for reasons of ... sex ..." ACHR, supra note 75.
(78.) See ACHR, supra note 75.
(79.) This argument was probably not asserted because Article 16 of the Constitution is translated to state that, "Nobody can be disturbed in his or her person, family, residence...except by virtue of a written order by a competent authority that is founded in and motivated by legal procedural cause." MEX. CONST, available at http://historicaltextarchive.com/sections.php?op=viewarticle&artid=93 (providing an English translation of the Mexican Constitution by Ron Pamachena). Article 16, however, does not appear to be interpreted as proclaiming a fundamental right to privacy. Furthermore, one author thoroughly discusses the individual guaranties in Mexico without mentioning the guarantee to a right of privacy. See generally, ARIEL ALBERTO ROJAS CABALLERO cab·al·le·ro
n. pl. cab·al·le·ros
1. A Spanish gentleman; a cavalier.
2. A man who is skilled in riding and managing horses; a horseman. , LAS GARANTIAS INDIVIDUALES EN MEXICO (2002).
(80.) While some Mexican scholars consider federal law to be superior to international treaties and conventions, it is generally considered to be on the same level or lower than international law within the Mexican hierarchy of law. See TORRIENTE, supra note 12, at 34.
(81.) See OCTAVIO NOVARO HOLGUIN, Labor and Employment Laws in Mexico: An Overview, COMPLYING WITH THE LABOR AND EMPLOYMENT LAWS OF THE NAFTA COUNTRIES 577, 582 (2001). Again, Article 123, section A of the Mexican Constitution regulates labor relations in the private sector.
(82.) The FLL was repealed and replaced in 1970. It has been amended numerous times throughout the years. See VARGAS, supra note 1, at 156.
(83.) See TORRIENTE, supra note 12, at 29.
(84.) Id. at 54. Therefore, the treaties and convention discussed in the previous section would apply to the extent that they benefit women maquila workers more than the FLL.
(85.) See SANTIAGO BARAJAS MONTES DE OCA Montes de Oca is the name of the 15th canton in the province of San José in Costa Rica. The canton covers an area of 15.16 km², and has a population of 53,357. The capital city of the canton is San Pedro. , CONCEPTOS BASICOS DEL DERECHO De`re´cho
n. 1. A straight wind without apparent cyclonic tendency, usually accompanied with rain and often destructive, common in the prairie regions of the United States. DEL TRABAJO 68 (1995) (stating the principle in Spanish, "[L]os propios legisladores han reglamentado el trabajo femenino, de manera que las diferencias fisiologicas con el hombre sean tomadas en cuenta, sin desatender por ello el principio de "trato igual para trabjao igual").
(86.) See TORRIENTE, supra note 12, at 54.
(87.) See id. at 86.
(88.) Id.; see also VARGAS, supra note 1, at 171.
(89.) See TORRIENTE, supra note 12, at 87; see also VARGAS, supra note 1, at 171.
(90.) See TORRIENTE, supra note 12, at 52; see also VARGAS, supra note 1, at 171. The allowable twelve weeks' maternity leave may be extended in cases of illness with an additional leave of up to nine weeks. In cases of extended leave, IMSS pays women fifty percent of the regular wages. TORRIENTE, supra note 12, at 87-88.
(91.) See TORRIENTE, supra note 12, at 100.
(92.) See id. Employers assert that this is the main reason for not hiring pregnant women; because they are an economic drain. See McPhail, supra note 6.
(93.) See VARGAS, supra note 1, at 220.
(94.) Id.; TORRIENTE, supra note 12, at 88.
(95.) See VARGAS, supra note 1 at 220.
(96.) See U.S. NAT'L ADMIN. OFFICE, PUBLIC REPORT, supra note 27, at 7.
(97.) See id.
(98.) See Mayor Tackles Discrimination of Pregnant Workers, UN WIRE, at www.unwire.org/UNWire/19991021/5428_story.asp (Oct. 21, 1999).
(99.) See id.
(100.) See id.
(101.) See Gallardo, supra note 60, at 1.
(102.) See id.
(103.) See id. The actual book title is Discriminacion en Mexico: por una nueva cultura de la igualdad. The title in the text is the English translation.
(105.) See id. "La Ley LEY. This word is old French, a corruption of loi, and signifies law; for example, Termes de la Ley, Terms of the Law. In another, and an old technical sense, ley signifies an oath, or the oath with compurgators; as, il tend sa ley aiu pleyntiffe. Brit. c. 27. Federal para Prevenir y Eliminar la Discriminacion" is translated in various ways that insubstantially Adv. 1. insubstantially - not substantially; lacking substantial expression or fullness
impalpably differ from the translation that the author has chosen, i.e. Federal Law on the Prevention and Elimination of Discrimination.
(106.) THE SOLIDARITY CENTER, Discrimination in the Workplace, in JUSTICE FOR ALL 22, 23, http://www.solidaritycenter.org/docUploads/Solidarity%20Mexico%20final% 20pdf%2011%2D17%2D03%2Epdf?CFID CFID Canadian Foundation for Infectious Disease
CFID Cold Fusion Id =12088221&CFTOKEN=53880306 (2003).
(107.) Id. at 26; Decreto por el que se expide la Ley Federal para Prevenir y Eliminar la Discriminacion, Federal Official Gazette, June 11, 2003 [hereinafter Ley], available at http://cgservicios.df.gob.mx/ prontuario/vigente/148.htm.
(108.) See Ley, supra note 108.
(109.) See id. This represents the author's translation of Article 4, which reads "Para los effectos de esta Ley se entendera por discriminacion toda distinction, exclusion o restriccion que, basada en el origin etnico o nacional, sexo, edad, discapacidad, condicion social o economica, condiciones de salud, embarazo, lengua, religion, opinions, preferencias sexuales, estado civil o cualquier otra, tenga por efecto impedir o anular el reconocimiento o el ejercicio de los derechos y la igualdad real de oportunidades de las personas Personas or personae are fictitious characters that are created to represent the different user types within a targeted demographic that might use a site or product. ." Cf. Baker & McKenzie, Discrimination in the companies, at www.maquilaportal.com/editorial/editoria1277.htm (last visited Mar. 23, 2005) (providing an additional translation that slightly differs).
(110).See Ley, supra note 108. All foregoing translations are made by the author.
(111.)See id., art. 7.
(112.)For instance, although the Mexican Constitution does not speak of a fundamental right of privacy, Article 11 of ACHR may lend support to the argument that pregnancy testing violates privacy rights. See ACHR, at www.cidh.oas.org/Basicos/basic3.htm.
(113.)See Ley, supra note 108.
(116.)See id.; see also THE SOLIDARITY CENTER, supra note 107, at 27 (asserting that, "the law obligates federal authorities to apply all measures and resources in their power to halt discrimination within their own agencies and in the public policy arenas where they have enforcement jurisdiction.").
(117.) See MEX. CONST., available at http://historicaltextarchive.com/sections.php?op=view article&artid=93.
(118.)See Ley, supra note 108; see also THE SOLIDARITY CENTER, supra note 107, at 27.
(119.)See Ley, art. 16, supra note 108.
(122.)See id., art. 20, [section] 1.
(123.)See id. art. 20, [section] 2.
(124.)See id., art. 20 [section] 3.
(125.)See id., art. 20 [section] 15.
(126.)See id., art. 22.
(127.)See Ley, art. 23, supra note 108 (explaining that members have a right to speak but not to vote).
(128.) See id., art. 31. The Consultant Assembly will incorporate at least ten and no more than twenty citizens and representatives of the social and private sector and of the academic community that, through their experience in the area of preventing and eliminating discrimination, are able to contribute to the fulfillment of the Council's goals. See id., art. 32.
(129.) See id., art. 83.
(130.) See id., art. 84. It is considered to be a reoccurrence of a discriminatory incident when the same person incurs a new violation of the prohibition of discrimination.
(131.) See Ley, art. 85, supra note 108; see also Baker & McKenzie, supra note 110 (explaining that the Council has to the power to grant awards to companies that adhere to the programs and provisions explicated in the Antidiscrimination Law. Therefore, "companies may strengthen their ethical image before the national and international community.")
(132.) See Mexico Passes Anti-Bias Law, in OUT IN NEWS, at www.outintoronto.com/Home/ news.asp?articleid=4653 (June 25, 2003) (providing that with regard to the new antidiscrimination law, some human rights groups, gay and women's activists and indigenous organizations "were concerned about what they termed its broad and vague language."); see also THE SOLIDARITY CENTER, supra note 107council true enforcement powers.").
(133.) See Mexico Passes Anti-Bias Law, supra note 133; see also Baker & Mckenzie, supra note 110.
(134.) Gilberto Rincon Gallardo is the Past President of the Citizen's Commission for Studies against Discrimination and the President of the "Contra contra
Member of a counterrevolutionary force that sought to overthrow Nicaragua's left-wing Sandinista government. The original contras had been National Guardsmen during the regime of Anastasio Somoza (see Somoza family). The U.S. Discriminacion" Civil Association (Civil Association Against Discrimination). See Gallardo, supra note 60.
(138.) See id.
(139.) Additionally, this law serves as only the minimum requirements to which companies must adhere, because Mexican states may choose to adopt laws that impose more stringent requirements and penalties. Cf. Mayor Tackles Discrimination of Pregnant Workers, supra note 100 (creating laws which prohibit pregnancy discrimination and impose relatively harsh penalties for violations). Mexican law does not prevent states from promulgating higher standards, but rather that they at least meet the federal requirements. See TORRIENTE, supra note 12, at 52 (stating that "States or municipalities are governed by state laws enacted by the legislatures of the individual states. In accordance with the criteria of each state, these laws may be patterned after the FLL ... and apply only to state ... workers in the jurisdiction of the state enacting the law").
NATARA WILLIAMS, J.D., Duke University School of Law The Duke University School of Law is the law school and a constituent academic unit of Duke University, Durham, North Carolina, United States. , expected May 2005; B.B.A. & B.A., Stetson University Stetson University is a private, co-educational, liberal arts university that consistently earns high rankings in national college guides. In the 2007 U.S. News and World Report guide, Stetson ranks 2nd (tied with Elon) in the category of Southern Masters-granting institutions.. . This paper is dedicated in memory of my brother, James Carlton Williams II, whose love, sense of humor Noun 1. sense of humor - the trait of appreciating (and being able to express) the humorous; "she didn't appreciate my humor"; "you can't survive in the army without a sense of humor"
sense of humour, humor, humour and constant support is dearly missed. Thank you for teaching me to enjoy life's blessings and to never doubt myself. Also I would like to thank Professor Donald Horowitz Donald L. Horowitz is James B. Duke Professor of Law and Political Science at Duke Law School and Duke University in Durham, North Carolina, United States. He earned his PhD from Harvard University in 1968 and also holds degrees from Syracuse University. , Steve Kessing, and the Journal staff for their guidance and assistance throughout the writing and editing of this article.