While the #MeToo movement has taken the United States by storm in recent years, it’s easy to forget that other countries are experiencing similar surges. Mexico is no exception. With the country’s close proximity to the United States and the existence of the North American Free Trade Agreement (NAFTA), many large companies in a wide range of industries outsource their manufacturing to Mexico. For companies conducting or considering doing business there, it’s important to stay apprised of the relevant workplace laws.
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Recently, Jacob Monty of Monty & Ramirez LLP and Juan Jose Díaz Miron of Bufete Díaz Mirón and Associates, S.C., teamed up to conduct a workplace investigation in Mexico involving, among other things, sexual harassment allegations. In the process, Diaz Miron was able to share his extensive knowledge about sexual harassment in Mexican employment and labor law, which is summarized here.
‘Any Abusive Exercise of Power’
In Mexico, the laws pertaining to sexual harassment and sexual violence are governed by the federal labor law, the criminal code, and the country’s general law guaranteeing women a life free from violence.
Sexual harassment is a relatively new concept for Mexican lawmakers and courts. In fact, “sexual harassment” wasn’t defined or even mentioned in federal labor law until 2012. Under the law, sexual harassment includes any abusive exercise of power that puts the victim in a state of risk regardless of position or hierarchical status.
In support of workforce relations and labor stability, every single employee is required to show mutual respect and exercise acceptable social conduct in accordance with the Mexican Constitution and social norms. Accordingly, HR departments should be strategic in planning, preventing, and addressing harassment in an efficient manner to determine whether the accused party can be terminated immediately under Article 47 of the federal labor law. Furthermore, even after a termination for cause, the victim may file a criminal claim against the perpetrator.
Employers face an administrative fine of up to $30,000 USD if (1) any sexual harassment is reported but no sufficient action is taken or (2) they permit or consent to the harassing conduct in any way. Given the hefty fine, employers should always be attentive when they receive an accusation and analyze the allegations, the parties involved, the damage, and the likelihood of a criminal claim. To protect the rights of all parties, they should make a thorough investigation and document the findings before taking action.
Since 2012, compliance laws and whistleblowing standards also have expanded in Mexico, particularly with regard to international companies. Coupled with those developments, sexual harassment claims are now one of the most common and fastest-growing workplace complaints.
Of course, everything should start with preventative policies, training, and correct execution. With the right policies and training in place, Mexican workplaces can promote productivity while still guaranteeing any inappropriate sexual conduct will be investigated, documented, and punished.
Bottom Line
Mexican employment and labor laws are complex and very different than U.S. laws. Consequently, retaining competent local counsel is always recommended when dealing with any workplace issues in that country.
Jacob M. Monty of Monty & Ramirez, LLP, practices at the intersection of immigration and labor law. He is the managing partner of the Houston firm and editor of Texas Employment Law Letter. He may be contacted at jmonty@montyramirezlaw.com.
Juan José Díaz Mirón is a partner with Bufete Díaz Mirón and Associates, S.C., which has offices in Mexico City, Guadalajara, León, and Cancun. He can be reached at jjdiazmiron@diazmiron.com.