This summary of age discrimination law in Argentina has been prepared by Funes de Rioja & Asociados, the Ius Laboris member for Argentina: www.funes.com.ar
OVERVIEW
Argentinian national employment law provides that all workers should be granted equal protection and treatment. This includes protection against age discrimination. The equal treatment principle is included in the National Constitution and related to the employment contract by the Labour Contract Act. The Civil Act (n* 23.592) (‘Civil Act’) also protects employees (and non-employees) against discrimination. There is no specific regulation covering age discrimination and it is not included in the list of grounds of discrimination set out in the act (which are race, religion, nationality, ideology, political or union affiliation, sex, economic status, social condition and physical appearance), but is nevertheless considered a prohibited ground of discrimination.
An employer can in any case terminate an employee's contract of employment, provided he/she has satisfied conditions regarding age and years in service making social security contributions. If these conditions are met, the employment contract can be terminated without payment, allowing the employer to force the employee to retire.
WHO'S COVERED?
There are general rules regarding discrimination in the Labour Contract Act and in the civil law, so no worker, whether employed or self-employed, is excluded. There is a fiscal benefit for employers who take on employees between 55 and 65 years of age. There are also rules prohibiting minors from working.
WHAT ENFORCEMENT/REMEDIES EXIST?
The Civil Act allows an employee who feels that he/she has been discriminated against to ask for "moral and material damages", as well as reinstatement to the position the employee had before the act of discrimination occurred.
As with any other forms of discrimination, the victim can go to the Labour Court if he/she is an employee, or to the Civil Court in any other case. If an independent criminal act is committed, directed towards a group of persons who could be identified by a race, religion etc. or possibly by age, criminal sanctions could apply.
HOW COMMON ARE CLAIMS?
Although some isolated cases have been brought before our courts, age discrimination claims are rare. This is mainly because written policies in multinational companies tend to set an earlier retirement age than that prescribed by the law.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
There have been no cases related to discrimination in the recruitment process. Some of the cases involve claims by senior executives who have been dismissed because they are too expensive compared to younger colleagues. These claims of age discrimination are always added to existing claims of wrongful dismissal, with a view to increase the moral damages payable.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
There are no exceptions in relation to the minimum wage. Minors (who can work with parental authorisation from 14 years of age) are entitled to the same minimum wage as those over 21 and older employees. Minors between 14 and 18 years old may work for no more than 6 hours per day. In terms of retirement ages, women can retire at 60 while men can be retired at 65, although both can choose to continue working until 70.
RETIREMENT AGES
Since December 2017, the new act, n* 27.426 stipulates that both men and women can opt to continue working until they are 70 years of age. Prior to the employee attaining the age of 70, an employer cannot require the employee to retire.
Employers may only terminate the employment of an employee if the employee has reached the age of 70 and if the employee has completed at least 30 years' employment with social security contributions. The employee will be entitled to receive one year of paid salary.
INTERESTING CASES
In a case brought by a union of airline pilots, the union brought a claim to the Labour Court against the company policies, which did not permit the promotion of pilots over the age of 57. The opportunity for the pilots to put themselves up for promotion was limited to pilots with experience but younger than 57 years of age. The court decided that this restriction was discriminatory and that age should not be an obstacle to promotion "if the pilot is fit". This was an important precedent as it was brought by the union rather than directly by the employee. It also affected the profile of employees to be appointed to the most senior positions in the company.