New Legislation Widens Protection Against Harassment and Discrimination

Ecuador has introduced two new pieces of legislation as part of the government’s drive to eliminate discrimination and harassment in the workplace.

Regulations for the Eradication of Discrimination in the Workplace

Ecuador’s Ministry of Labor (Ministerio Del Trabajo) has published “Regulations for the Eradication of Discrimination in the Workplace,” which establishes principles to avoid discrimination during recruitment and the employment relationship.

The regulations state that all individuals should have equal opportunities and rights and be free from discriminatory practices of any kind. They also specify specific prohibitions for the employer.

During the employee selection process, the regulations expressly prohibit employers from requesting the following information or documentation from an applicant:

• pregnancy tests and/or results;
• information regarding marital status;
• personal photographs;
• HIV/AIDS tests results;
• judicial and criminal background records; and
• private insurance policies for degenerative or catastrophic diseases.

According to the legislation, employers may not allow recruitment decisions to be affected by an applicant’s age, sex, ethnicity, gender identity, religion, judicial background, or other protected characteristics.

The legislation also prohibits employers from prohibiting employees from dressing in attire that reflects the individual’s culture or gender identity while in the workplace.

The legislation also prohibits an employer from degrading a worker through intimidation or harassment, assigning tasks that are not in accordance with the employee’s abilities, or using aggression.

An employee who thinks they have been discriminated against can file a complaint with the Ministry of Labor. Complaints that are upheld could result in a fine for the employer of between 3 and 20 unified basic monthly salaries. One unified basic monthly salary is currently US$386.

Organic Law Reform

The second key piece of legislation is the Organic Law Reform of the Public Service and Labor Code, which Ecuador’s National Assembly has enacted to prevent workplace harassment. It expressly prohibits employers from committing, authorizing, or allowing acts of harassment, whether by action or omission.

Furthermore, the reform establishes two new possibilities for the termination of an employment contract:

1. One possibility is an administrative procedure, initiated by the employer for approval of termination for just cause due to harassment by the employee. If approved by the administrative authority, the employee will not receive compensation for the termination of the contract.
2. Another possibility is an administrative procedure, initiated by the employee who claims to have been harassed, as the basis for the termination of the employment contract. If the employee proves that he or she has been harassed by the company or by another employee of the company, he or she is entitled to compensation for untimely dismissal and an additional compensation award equal to 12 months’ salary. 

Comment

These reforms are an important step forward, allowing authorities to penalize employees or employers when discriminatory acts occur and providing a useful legal tool to strengthen the employment environment in Ecuador.

Written by Patricia Andrade Patricia Andrade Vásconez of Paz Horowitz and Roger James of Ogletree Deakins