Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - El Salvador (Ratification: 1995)

Article 1(1)(a) of the Convention. Discrimination on grounds of sex. Enforcement. For a number of years the Committee has been referring to cases where women are obliged to provide pregnancy tests in order to apply for or remain in employment and to the dismissal of women with disabilities, particularly in the maquila (export processing zones) and in the industrial, trade and services sectors. The Committee notes the Government’s statement that between June 2009 and July 2012 the Special Unit on Gender and the Prevention of Discriminatory Labour Practices carried out 701 inspections in export processing zones, 186 of which gave rise to procedures for the imposition of fines. The Committee notes that inspections were also carried out at the request of the interested parties following the dismissal of pregnant women. In 2009, six out of 41 such inspections gave rise to fines, and the remainder of the cases were shelved; in 2010, nine complaints on the same issues were shelved; and between July 2011 and June 2012, fines were imposed in 15 cases out of 46 complaints. The Unit also undertook activities to disseminate Ministerial Circular No. 001/05 prohibiting employers from requiring HIV or pregnancy tests from women. The Committee observes that the Government has not provided any information on the dismissal of women with disabilities or on the programme for the full development of working women in the maquila, to which it referred in previous comments. The Committee recalls that the discriminatory nature of distinctions based on pregnancy and related medical conditions is demonstrated from the fact that they only affect women. The Committee also emphasizes the importance of governments, in collaboration with the social partners, adopting specific measures to combat this kind of discrimination effectively (see the General Survey on equality in employment and occupation, 1988, paragraph 41, and the General Survey on fundamental Conventions, 2012, paragraph 784). The Committee also notes that women can suffer multiple discrimination based on sex and disability (see General Survey, 2012, paragraph 748). The Committee requests the Government to continue providing information on the inspections carried out by the Special Unit on Gender and the Prevention of Discriminatory Labour Practices of the Ministry of Labour and Social Welfare in the maquila, industrial, trade and services sectors and on the penalties imposed, as well as on judicial proceedings in this respect. The Committee also requests the Government to provide information on the implementation and impact of the programme for the full development of working women in the maquila, and other measures to promote awareness of this type of discrimination among employers and workers in all productive sectors.

Article 1(1)(b). Real or perceived HIV status. The Committee notes the Government’s indication that work is continuing on the amendment of the regulations to guarantee protection against all forms of discrimination on the ground of HIV status, to which it referred in its previous observations. Several governmental and civil society bodies are engaged in the revision process. It is planned to submit a draft of the amended text shortly for discussion in the appropriate committees of the Legislative Assembly. The Committee draws the Government’s attention in this connection to the HIV and AIDS Recommendation, 2010 (No. 200). The Government adds that between June 2009 and June 2011, the Special Unit on Gender and the Prevention of Discriminatory Labour Practices conducted awareness-raising campaigns on relevant national and international provisions, and particularly on Ministerial Circular No. 001/05 prohibiting employers from requiring women to provide HIV and pregnancy tests. The Committee hopes that the future legislation will guarantee public sector workers effective protection against discrimination based on real or perceived HIV status and requests the Government to continue providing information on any developments in the adoption of the relevant legislation and its implementation in the private sector, and on any other measures to combat discrimination on grounds of the real or perceived HIV status of workers.

Article 2. Equality of opportunity and treatment for men and women. The Committee notes with interest the adoption of the Act on equality, equity and the elimination of discrimination against women (Decree No. 645 of 4 April 2011). The Committee notes that the Act is of general application and adopts a transversal approach to the elimination of both direct and indirect discrimination in law and practice. The Act also provides that the Office of the Public Prosecutor shall be responsible for defending, guaranteeing and promoting equality and non discrimination against women, and will accordingly establish an appropriate department as part of its structure and organization. The Government adds that its gender equality policy is being implemented through its Five-Year Development Plan 2009–14, (which includes the national policy for women), updated and adopted by the El Salvador Institute for Women’s Development (ISDEMU). The Government also refers to the incorporation of the gender perspective in municipal planning, so as to create the necessary conditions for women to participate in all spheres of the development process. Local governments are implementing policies and action to promote gender equality in vocational training and local development and have adopted specific institutional capacity-building measures to foster gender equality (the creation of women’s units at the municipal level, the formulation of municipal gender equality policies). The Committee notes, however, that the statistics supplied by the Government show that a serious gap exists in the participation of men and women in management positions in both the public and the private sectors and in both urban and rural areas. The Committee requests the Government to provide information on the implementation in practice of the Act on equality, equity and the elimination of discrimination against women, especially on the creation of the department responsible for defending, guaranteeing and promoting gender equality and non-discrimination against women. The Committee also requests the Government to indicate what impact the adoption of the Act has had, particularly with respect to the participation of women in the labour market and in management positions. Further, the Committee requests the Government to provide detailed information on the implementation of the gender equality policy and of the national policy for women adopted under the new Act on equality, equity and the elimination of discrimination against women, its impact in practice and the relationship between them.

Indigenous peoples. The Committee notes the Government’s indication that a number of measures have been taken to facilitate the identification of indigenous peoples and their members. The Committee notes especially the cooperation agreement signed by the Directorate for Indigenous Peoples with the Office of the Public Prosecutor, the National Registry of Natural Persons and the Corporation of Municipalities of El Salvador. The Government states that the measures adopted are intended to eradicate discrimination against indigenous peoples and to offer them access to national services, such as labour inspection and employment services. Measures have also been adopted to improve the productive capacity of women in craftwork. The Committee requests the Government to provide information on the impact of the measures adopted on improving access of indigenous peoples to the labour market and their access to education and vocational training. The Committee also requests the Government to provide statistical data disaggregated by sex in this regard.

Sexual harassment. In its previous comments, the Committee requested the Government to consider adopting specific provisions guaranteeing protection against sexual harassment at work. The Committee notes the adoption of the Special Comprehensive Act on a life free from violence for women (Decree No. 520 of 25 November 2010), which covers harassment at work and physical, sexual, psychological, emotional and work-related violence where there exists a relationship of power or trust. The Committee notes that the ISDEMU is the body responsible for implementing the Act, preparing a framework policy and ensuring its enforcement. The Act stipulates that the offences it covers are subject to criminal action and lays down procedural guarantees for women who are the victims of acts of violence, together with specific penalties for the various offences. The Committee also notes that the ISDEMU, along with other institutions, has adopted a strategy for preventing sexual harassment which involves public awareness and information measures and the modification of institutional regulations. The Committee notes, however, that the Act does not define sexual harassment at work clearly, in terms of including both quid pro quo and hostile working environment sexual harassment. It is also unclear whether the Act covers harassment by colleagues at work (see the general observation of 2002 on sexual harassment). The Committee requests the Government to provide information on the implementation in practice of the Special Comprehensive Act on a life free from violence for women in relation to the lodging of complaints of sexual harassment at work and how adequate protection is ensured both against quid pro quo and hostile working environment harassment, whether in the context of hierarchical relationships or between co workers. The Committee also requests the Government to provide information on the operation of the procedure established for examining complaints of sexual harassment at work, and specifically on the provisions dealing with the burden of proof and the possibility for victims to obtain reinstatement and compensation. The Committee also requests the Government to provide statistics on the number of complaints lodged and their outcome, and to provide information on any awareness and information measures on sexual harassment in general and on the Act in particular. Further, the Committee requests the Government to provide information on the applicable provisions in cases of sexual harassment against men.

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