Your Job or Your Rights

Continued Sex Discrimination in Mexico's Maquiladora Sector

Report

By: Human Rights Watch

Date: December 1998

Source: Humans Rights Watch. "A Job or Your Rights." 〈http://www.hrw.org/reports98/women2/〉 (accessed March 14, 2006).

About the Author: Human Rights Watch is a non-government organization that aims to protect the rights of people around the world. Established in 1978, it was originally called the Helsinki Watch. With headquarters in New York, it has branches in Brussels, Bujumbura, Freetown (Sierra Leone), Kigali, Geneva, London, Los Angeles, Moscow, San Francisco, Santiago de Chile, Tashkent, Tbilisi, Toronto, and Washington. The group initially focused on upholding civil and political rights, but in the last few years it has also taken up financial, social, and cultural rights issues. Researchers affiliated with this group conduct investigations into abuses by governments and organizations and publish their findings. With the help of United Nations, the European Union, the U.S. government, and others, Human Rights Watch recommends changes in abusive laws and policies worldwide. Human Rights Watch is funded by private individuals and organizations.

INTRODUCTION

Discrimination based on an individual's sex accounts, at least in part, for an inequality in wages, benefits, and career opportunities for men and women all over the world. Occupational segregation is not only detrimental to the economy—in light of the waste of human resources—but it also has a negative impact on the status of women in society.

Women, especially in underdeveloped and developing countries, are often subject to discrimination because of a condition that is specific to them—their ability to get pregnant. Some employers attempt to justify such discriminatory practices by claiming that their cost of hiring and retaining a female employee is higher compared to male employees, since women receive paid maternity leave.

Reports from Human Rights Watch suggest that some companies urge female job applicants to provide urine and blood samples for pregnancy tests and to reveal their contraceptive usage, sexual activity pattern, and other such information that is deemed confidential under privacy laws. Using this information, employers are able to avoid hiring women who are pregnant or who are most likely to become pregnant. Discrimination against women in the workplace has been increasingly rampant in developing nations, including Mexico, Brazil, Guatemala, and South Africa.

In the late 1990s, media reports indicated widespread discrimination against pregnant women working in export processing factories (also known as maquiladoras) along the border of United States and Mexico. The Human Rights Watch report excerpted below discusses the discrimination prevalent in maquiladoras. This report follows a 1996 report published by the same organization describing the social injustice faced by women working in Mexican factories. Fifty percent of the 500,000 people working there are women. According to the report, companies in this region, some of which are U.S.-owned, have been following gender discriminatory policies targeting women.

PRIMARY SOURCE

In August 1996 Human Rights Watch released a report on labor force sex discrimination in Mexico. The report, "No Guarantees: Sex Discrimination in Mexico's Maquiladora Sector," showed that women applying for work in Mexico's export processing (maquiladora) sector along the U.S.-Mexico border were obliged to undergo mandatory, employment-related pregnancy testing as a condition for employment. The report also found that women who became pregnant soon after being hired risked mistreatment and forced resignation. "No Guarantees" condemned the government of Mexico for failing to protect female workers from these discriminatory practices and called on the government of Mexico to acknowledge and condemn pregnancy-based discrimination as discrimination based on sex; to uphold international human rights obligations to guarantee the rights to equality before the law and to nondiscrimination; and to investigate vigorously all allegations of sex-based discriminatory employment practices and punish those responsible. In the more than two years since our report's release, the Mexican government has yet to take any meaningful action to condemn, investigate, or punish this blatant sex discrimination. As a result, as this report documents, pregnancy-based sex discrimination persists both in places we had previously visited as well as in areas we had not visited before, like Ciudad Juárez, in the state of Chihuahua, across the border from El Paso, Texas.

Pregnancy as a condition is inextricably linked and specific to being female. Consequently, when women are treated in an adverse manner by their employers or potential employers because they are pregnant or because they may become pregnant, they are being subjected to a form of sex discrimination by targeting a condition only women experience. Pregnancy discrimination is not limited to the refusal to hire pregnant job applicants and the firing of pregnant workers but also includes any behavior or practice to determine pregnancy status, such as requiring information about women's sexual activity or contraceptive use.

During investigations conducted from May through November 1997, we found that in Tijuana, in the state of Baja California (south of San Diego, California); Reynosa and Rìo Bravo, in the state of Tamaulipas (opposite McAllen, Texas); and Ciudad Juárez (across the border from El Paso, Texas), corporations, the vast majority of which are U.S. owned, forced female applicants to undergo mandatory employment-related pregnancy testing in order to detect pregnancy and deny pregnant women work. In Ciudad Juárez, in particular, we also discovered disturbing means of implementing discriminatory policies: female employees are compelled to show their used sanitary napkins to verify nonpregnancy before they receive permanent contracts. In violation of Mexican federal labor law, maquiladora operators in Ciudad Juárez reportedly also refused to pay female employees their wages during maternity leave; threatened not to allow female employees to return to work after maternity leave; and, in one instance, retaliated against a woman who complained that pregnant co-workers were breathing in noxious fumes and fainting on the job by firing her.

Rather than condemn such practices, the Mexican government has taken every opportunity to interpret and apply labor law in a way that most favors the discriminatory practices of the corporations and affords women the least amount of protection. In fact, the government has even gone so far as to excuse publicly this discrimination. The Labor Department of the state of Baja California, which is charged with enforcing the federal labor code at the state level, issued a press release (see Appendix A for original press release in Spanish and an English translation) indicating that pregnancy testing in the hiring process was legal and was in fact a corporation's fulfilment of an authority granted to it by the labor law.

The Mexican government also initiated inspections of maquiladoras in response to our findings and convened a meeting between Mexican union representatives and the maquiladora trade association to discuss the findings of Human Rights Watch's report, encouraging them to investigate and change their practices regarding on-the-job pregnancy discrimination. However, since the Mexican government does not consider the determination and use of pregnancy status in the employment process to violate its federal labor code, the government in fact ignores the most pervasive and openly practiced type of sex discrimination that exists in that sector: hiring-process sex discrimination.

Female job seekers in Mexico cannot rely on the government for protection from discrimination in the workforce. They have few tenable options for legal redress. Several Mexican states have human rights commissions charged with investigating human rights abuses involving public officials (by omission and by commission). However, private-sector labor issues are outside the legal purview of these human rights commissions. Other government mechanisms include the Inspector of Labor Office, which is responsible for ensuring businesses' compliance with federal labor law; the Labor Rights Ombudsman Office, which is responsible for offering workers free legal advice and assisting them in the resolution of labor disputes through the conciliation and arbitration process; and the local Conciliation and Arbitration Board (cab), which adjudicates worker disputes and issues binding resolutions. However, these bodies maintain they are not legally empowered to address disputes involving job applicants, arguing that such individuals have not established a labor relationship with an employer. Female job applicants who are obliged to undergo pregnancy testing as a condition for employment fall within this category of people. Unless a victim files a complaint of on-the-job pregnancy-related sex discrimination, the cabs are not authorized to initiate investigations of these practices either. Furthermore, officials from Mexico's Ministry of Labor told us that in the absence of explicit prohibitions against pregnancy testing in the federal labor code as a type of sex discrimination, such treatment was in fact permissible under the law.

SIGNIFICANCE

The United Nations has always laid emphasis on equal rights for women. When the Charter of the United Nations was signed on June 26, 1945, it established "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion" as one of the organization's three primary goals.

Although most countries have laws that prohibit inequality on the basis of gender, corporations around the world continue to circumvent the law in various ways. Discrimination against pregnant women has always been a common practice, and human rights organizations have frequently protested against such discrimination.

One of the regions known for widespread gender discrimination is the United States-Mexico border. Soon after Human Rights Watch published its initial report (in 1996), a petition was filed with the United States National Administrative Office (NAO). This petition contended that pregnancy-based discrimination existed in Mexico's export-processing factories and that this discrimination violated several provisions of national and international law. Several recommendations and appeals were made to the concerned corporations (both U.S.-owned and Mexican-owned), the Mexican government, and the U.S. government. Similar recommendations also were made in the 1998 Human Rights Watch report. However, these recommendations have failed to attract sufficient attention from the policy-makers to trigger effective action.

Mexico's Constitution and federal labor codes prohibit discrimination against women, and Mexico also is required to promote the elimination of sex discrimination by its participation in the North American Free Trade Agreement (NAFTA). However, despite these legal and regulatory prohibitions, gender-based discrimination seems only to have increased in Mexico in the past few years. Corporations and other employ-ers may use loopholes to circumvent the clear intent of the legislation or regulations. For example, if the law does not explicitly prohibit the use of pregnancy testing as a prerequisite for employment, an employer may claim he is entitled to use such testing. In the absence of clearly defined guidelines for determining gender discrimination policies, employers may interpret the existing laws to suit their own requirements and then use the law's lack of clarity as justification when confronted.

There are numerous cases of gender prejudice in the United States, too. The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, clearly states that discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination. Despite this clear legislative prohibition against pregnancy discrimination, in fiscal year 2005, the U.S. Equal Employment Opportunity Commission (EEOC) received 4,449 charges of pregnancy-based discrimination. Of these 4,449 charges, 4,321 were resolved and $11.6 million in monetary benefits was recovered for the individuals who brought the charges and other injured parties.

According to human rights activists, although women constitute about forty percent of the total workforce worldwide, they experience higher unemployment rates and lower wages when compared to men. Although almost half of the world's population is female, women are responsible for only ten percent of the total income. These statistics graphically demonstrate the need to continue working vigorously toward an end to gender discrimination and true economic equality.

FURTHER RESOURCES

Web sites

Global Policy Forum. "Dominican Republic: U.S. Trade Pact Fails Pregnant Women—CAFTA Fails to Protect Against Rampant Job Discrimination." 〈http://www.globalpolicy.org/socecon/inequal/gender/2004/0422dominican.htm〉 (accessed March 14, 2006).

―――――. "Women Still Face Pay and Job Discrimination in the Global Workplace." 〈http://www.globalpolicy.org/socecon/inequal/gender/2004/0305ilo.htm〉 (accessed March 14, 2006).

Human Development Report. "Human Development Index." 〈http://hdr.undp.org/reports/global/2004/pdf/hdr04_HDI.pdf〉 (accessed March 14, 2006).

International Labour Review. "Theories of Occupational Segregation By Sex: An Overview." 〈http://www.ilo.org/public/english/support/publ/revue/articles/ank97-3.htm〉 (accessed March 14, 2006).

U.S. Equal Employment Opportunity Commission. "Pregnancy Discrimination." 〈http://www.eeoc.gov/types/pregnancy.html〉 (accessed April 12, 2006).

U.S. Equal Employment Opportunity Commission. "Sex-Based Discrimination." 〈http://www.eeoc.gov/types/sex.html〉 (accessed March 14, 2006).

U.S. Library of Congress. "The [Mexican] Constitution." 〈http://countrystudies.us/mexico/81.htm〉 (accessed March 14, 2006).

USA Today. "Pregnant Workers Report Growing Discrimination." 〈http://www.usatoday.com/money/workplace/2005-02-16-pregnancy-bias-usat_x.htm〉 (accessed March 14, 2006).