This summary of age discrimination law in Mexico has been prepared by Basham, Ringe y Correa, the Ius Laboris member for Mexico: www.basham.com.mx.

OVERVIEW

Article 1, Paragraph 3 of the Mexican Federal Constitution (the Constitution) prohibits discrimination. As per Article 1, rights shall not be limited based on discrimination because of ethnic origin or nationality, gender, age, different abilities, social condition, health, religion, opinions, preferences, civil status or for any other cause which is against human dignity and the annulment or diminishment of rights and freedoms of the individual.

The Federal Labour Law (FLL) prohibits discrimination in the workplace. For the same work performed under the same efficiency conditions, the same remuneration shall be granted, without distinction among employees. Article 1 of the Constitution incorporates the Federal Law to prevent and eliminate discrimination (FLPED), which Article 4 defines as any distinction, exclusion or restriction, based on ethnic or national origin, sex, age, disability, social or economic conditions, health conditions, pregnancy, language, religion, opinions, sexual preferences, civil status or any other reason whose purpose is to impede or annul the recognition or the exercise of rights and real equity for personal opportunities. This law establishes the powers and duties of the State in promoting the eradication of discrimination in Mexico. Its general scope includes private and public discrimination.

The Law for the Rights of Older Adults (LROA) establishes principles and guidelines for the Health, Education, Work, and other Federal Ministries, in order to protect senior citizen's rights. Age discrimination in employment cannot be legally justified in Mexico.

The National System for the Social Assistance Law and the General Law for the Social Development state that senior citizens are important targets for social assistance.

Article 206  of Mexico City's Criminal Code (the Criminal Code) also prohibits  discrimination against another for reasons of: age, sex, pregnancy, civil status, race, ethnic origins, language, religion, ideology, sexual preferences, skin colour, nationality, origin, social position, job or profession, economic position, physical characteristics, disability, health status and, and prohibits anyone from provoking, or inciting hatred and violence, or excluding from or denying anyone his/her labour rights.

In January 2003, the Human Rights Commission of Mexico City initiated a permanent campaign for non-discrimination. Its main activities relate to the publication of materials and the organisation of public assemblies and sensitivity training, giving special attention to the topic of sexual discrimination.

WHO'S COVERED?

The Constitution, the FLL and the FLPED state what shall be understood as discrimination. The FLPED sets out a disciplinary procedure for public authorities and private entities that discriminate.

In comparison to other groups, senior citizens are more protected.

The LROA sets out the principles and rights for senior citizens (i.e. those who are 60 years of age), including the prohibition against distinctions based on sex, economic situation, ethnicity, belief, religion or any other characteristic.

At work, senior citizens shall have equal access to job opportunities, and other options that could allow them their own income and the protection of the FLL. When unemployed, they shall receive social assistance through the federal programs “Popular Insurance” and the “Pension for Seniors Program”, which provide health and economic support for elderly people. By 2023, more than 11 million people benefit from these programs. Today in Mexico 14% of the total population is comprised of senior citizens, equivalent to 17.6 million.

WHAT ENFORCEMENT/REMEDIES EXIST?

The entity in charge of enforcing discrimination laws is the National Council to Prevent Discrimination (the CONAPRED).

If an employee is discriminated against based on age, the employee may begin a conciliation procedure as per the FLPED. If the discrimination was committed by a private employer, the employer's participation in the conciliation process is voluntary. If the discrimination was committed by the federal government or one of its agencies, the conciliation process is mandatory. Typically, the procedure would be as follows:

• Filing a complaint;

• Attempting conciliation for the purposes of reaching a settlement agreement;

• If no agreement is reached, then an Investigation process will begin;

• Once the Investigation is over, the CONAPRED will issue a resolution determining the employer has in fact, discriminated against the employee. If so, sanctions would be applied through administrative measures.

The main purpose of the conciliation process is to put an end to the discrimination. Employees are not entitled to claim for damages or compensation via this avenue.

If a criminal complaint is filed pursuant to the Criminal Code, the claim shall be heard by a criminal court judge. The penalty for discrimination in the workplace is: a) 1-3 years of imprisonment or b) 150 to 300 days of community service, and c) a fine of US$2,074.40 to US$3,124.10.

In addition, the National Institute for the Elderly (INAPAM) offers free legal advice to senior citizens to report any type of discrimination or mistreatment.

HOW COMMON ARE CLAIMS?

There is no information available regarding claims for discrimination against senior citizens. However, senior citizens have the most difficulty getting employment.

WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?

Articles 5 and 43 of the LROA establish that when a senior citizen's rights are violated by a public officer, a complaint can be presented before the competent authority. This creates a confusing duplication of the complaint procedure established by the CONAPRED.

We tend to see discrimination claims by senior citizens in the context of vacancy postings, the recruitment process, and in the general employment workplace. Although the FLL specifies that there shall be no distinctions between employees based on race, sex, age, religious belief, political opinion or social condition, it does not specify any non-discrimination standards in the recruitment process, nor in the posting of vacancies. Therefore, it is common to see job advertisements specifying the ideal age range of applicants (which could be claimed on an administrative forum at CONAPRED, not on a labour court).

We spend a considerable amount of time advising clients on the best approach to transfer senior employees in a corporate restructuring process. The most viable options when dealing with senior employees are either to: a) to terminate the employment by paying a severance amount with consideration of the employee’s seniority; or b) to transfer the employer to the new purchasing entity (with continuous service).

ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?

There are no exceptions regarding age discrimination in Mexico.

RETIREMENT AGES

There is no statutory retirement age, meaning that no employee is forced to retire at a specific age.

In order to obtain the retirement pension granted by the Mexican Social Security Institute (IMSS), employees must prove that: (i) they are no longer taking up any employment; (ii) they are at least 60 years old (for early retirement or 65 years old (full retirement); and (iii) they have 1,250 weeks enrolled at the IMSS.

There are two pension schemes available for employees. One is the “Cesantía en Edad Avanzada” (”Early Retirement”) scheme, which permits employees to access their pension at the age of 60. The “Pensión por Vejez” (”Old Age Pension”) is another scheme, which employees are only entitled access upon turning 65.

Some companies offer private retirement plans to their employees, specifying the age at which they would receive the pension. This age may vary according to the company's needs. Most plans set the age around 55 to 60, requesting at least 15 years of continuous rendering of services to the company.  Normally such pension is the amount equivalent to full severance payment as if the employee would have been terminated without cause.

INTERESTING CASES

As a result of the cases presented before the judicial authorities, a wide range of jurisprudence has been created, which is considered as a reference for the resolution of future cases. In the jurisprudence prevails the obligation of the judges to consider the special condition of the elderly for the defense of their human rights, recognizing the protection they enjoy at international level, and safeguarding their rights depending on the circumstances of each one.