Pregnancy-Based Sex Discrimination in the Dominican Republics Free Trade Zones: Implications for the U.S.-Central America Free Trade Agreement (CAFTA)
A Human Rights Watch Briefing Paper
Women in the free trade zones in the Dominican Republic face widespread sex discrimination on the basis of reproductive status. Nearly two thirds of the thirty-one women free trade zone workers whom Human Rights Watch interviewed in January 2004 reported being subjected to mandatory pregnancy testing as a condition for access to work or as a condition for maintaining their jobs.1 The Dominican government has done little to curb or end this practice, and certainly nothing that would compel companies to stop mandatory pregnancy testing.
Mandatory pregnancy testing as a condition for access to work constitutes sex discrimination in the workplace, prohibited by several international human rights treaties to which the Dominican Republic is a party. Sex discrimination in the workplace is also prohibited by the countrys own laws. The Dominican governments failure to act decisively to end such mandatory testing, investigate testing practices, and punish those who engage in them constitutes a breach of the countrys obligations under these treaties.
The recently negotiated U.S.-Central America Free Trade Agreement (CAFTA), to which the United States intends to add the Dominican Republic, provides no additional incentive to curb this practice. Although the accord calls on countries to enforce their labor laws, it exempts anti-discrimination provisions from this requirement, allowing the Dominican Republic to continue to turn a blind eye to illegal pregnancy-based discrimination.
Free Trade Zones in the Dominican Republic
In 2001, free trade zone exports accounted for 32 percent of the Dominican Republics total exports of goods and generated net exports of nearly U.S.$1.7 billion, or 7.9 percent of the GDP.2 Those numbers have been increasing in recent years and are likely to continue to do so.
In 2002, the free trade zones employed approximately 171,000 persons, 70 percent of them in the textile manufacturing sector.3 Women constitute the majority of the workforce in free trade zone industries, including pharmaceuticals, textile manufacturing, electronics, tobacco, and plastic products.4 Jobs in the free trade zones are an important source of employment for women nationwide, but have only a marginal impact on employment rates for men, who have many more employment opportunities within other sectors of the Dominican economy.
The Role of the United States
The United States is an important source of investment for companies operating in the Dominican Republics free trade zones, with U.S.-based organizations and individuals investing U.S.$723 million in 2002, constituting 60 percent of total investment in the zones.5 The United States is also the main export destination for Dominican goods, importing approximately U.S.$4.2 billion in products annually and, in 2001, 87 percent of all free trade zone exports.6 Exports from the textile manufacturing companies in the free trade zones, generating over half of the zones total exports,7 rank second only to Mexico when it comes to U.S. textile imports from Latin America and the Caribbean.8 The Dominican Republics exports to the United States and U.S. direct investment in the country are likely to grow further if CAFTA enters into force with the Dominican Republic as one of the parties.
Pregnancy Testing in the Free Trade Zones
I went to the free trade zone. They sent me to do a pregnancy test. . . . They send you to a laboratory. They take your blood. . . . Then they send the results to the boss. . . . Then the boss tells you there is no work.
Judelka de la Cruz, thirty-one years old, five children ages one to eleven.9
We do many different tests for the free trade zones: pregnancy, . . . hepatitis C. . . . All women at the free trade zones get tested for pregnancy to see if they[the companies] can fire them [pregnant employees]. We send the results to the company. We do not send a note to the persons themselves, nor do we advise them [of the results] over the phone.
Manager, laboratory that carries out pregnancy testing for free trade zones.10
Pregnancy testing as a condition for employment is a form of sex discrimination. Sex discrimination is prohibited both by domestic law and by international human rights treaties ratified by the Dominican Republic.11 Yet, in a recent investigation, Human Rights Watch found that many companies operating in free trade zones in the Dominican Republic routinely require women to undergo pregnancy testing as a condition for employment. Some companies that implement mandatory pregnancy testing deny work to all pregnant women, whereas others take different actions depending on the stage of the woman workers pregnancy. Almost two thirds of the women workers Human Rights Watch interviewed reported being subjected to pregnancy testing as a condition for work.
Although testing is common, not all companies in free trade zones test for pregnancy all the time. We were told that some companies adopt this policy for a period and suspend it later.12 The result for many women who may be pregnant is that they simply stop applying for jobs for fear of being tested and denied work. Generalized pregnancy testing discourages female job seekers from looking for work not only at companies that are known to test, but also at companies that might test. This chilling effect exacerbates an already unusually large gender gap in employment figures. In fact, women are more than twice as likely to be unemployed as men.13
Forty-two-year-old Aracela Lantigua, who has worked at four different companies in two free trade zones in Santo Domingo over the past two decades, told us about common application procedures at these zones: They give you a list of analyses, and they send you to a laboratory. . . . If you look for work and you are more than three months pregnant, they throw you out; if less, they let you in.14
Other women described consequences of testing positive that were more consistently dire. Sergia Báez, thirty-three years old, told Human Rights Watch: I worked in the [free trade] zone, and they did the pregnancy test, which is the most important thing for them. . . . They always do the pregnancy test.15 Báez noted that pregnancy automatically resulted in exclusion from jobs, either before or immediately after the child was born.
In some cases, companies also discriminate against pregnant women already in the workforce. Juana Díaz, a twenty-year-old mother, reported being fired by her employer in a free trade zone when she was just a few weeks pregnant. The company allegedly told Díaz they had to reduce the staff by one person, though they were not doing a general reduction. Díaz told Human Rights Watch that her ex-boss brother later explained to her that the company had learned that she was pregnant from her friend and that her pregnancy was the cause of her termination.16
Human Rights Watch research suggests that companies operating in free trade zones use a variety of means to test female job seekers for pregnancy. The two most common, we were told, are the use of either a private laboratory within the zones or a private laboratory in a nearby city. Human Rights Watch spoke to representatives from commercial laboratories in two cities in the northern part of the Dominican Republic, the area with the largest concentration of free trade zones.17 Both laboratory representatives confirmed that they are contracted by companies in the nearby free trade zones to carry out pregnancy testing of female job seekers. One explained that companies require female employees to do periodic post-hire pregnancy tests to see if they can fire them.18
The government has not intervened in any meaningful manner to prevent or respond to this blatant violation of womens right to equality in the workforce. For example, though domestic law prohibits sex discrimination, the government has not invested sufficiently in public information campaigns to inform workers about their right to refuse pregnancy testing and about complaint mechanisms available to report illegal testing. As a result, employees and job seekers may not be aware of their rights in this area. Human Rights Watch spoke to several women who did not know they could refuse pregnancy testing as a condition for access to work, or who did not know where to make a complaint if they were tested.19
Elimination of employment and workplace discrimination is one of the four core labor rights identified by the International Labor Organization Declaration on Fundamental Principles and Rights at Work (ILO Declaration).20 According to the ILO Declaration, these four rights are so basic that all ILO members, including the Dominican Republic, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights.21 ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation (ILO Convention 111) fleshes out this right and explicitly prohibits sex discrimination with respect to access to employment, which the ILO Committee of Experts on the Application of Conventions and Recommendations has interpreted to include pregnancy discrimination.22
Sex discrimination in the workplace is also prohibited by several international human rights treaties to which the Dominican Republic is a party, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and ILO Convention 111.23 As a state party to these international human rights treaties, the Dominican Republic has an obligation to prevent human rights abuses carried out by private actorssuch as the companies operating in the free trade zonesand to punish those responsible for any abuses.24
CEDAW specifically requires states to take appropriate measures to prevent discrimination on the grounds of maternity by, inter alia, prohibit[ing], subject to the imposition of sanctions, dismissal on the grounds of pregnancy.25
The Dominican Republics Labor Code prohibits all forms of discrimination based on sex, apart from exceptions explicitly stipulated by law to protect womens rights, for example, maternity privileges.26 The Labor Code also specifically declares it unlawful to terminate the contract of a pregnant woman or a woman who has given birth within the past six months, if this termination is declared to be caused by the pregnancy or birth by the local Labor Department or relevant authorities.27 The domestic legislation currently governing the operation of the free trade zones in the Dominican Republic explicitly stipulates that all domestic and international labor rights protections are fully applicable to the companies operating in the free trade zones.28
Sex Discrimination under CAFTA
In January 2004, the United States and the Dominican Republic began the first of three rounds of negotiations designed to add the Dominican Republic to the recently concluded U.S.-Central America Free Trade Agreementan accord among the United States, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua.29 The negotiations between the United States and the Dominican Republic concluded March 15, and on March 25, President George W. Bush notified Congress of his intent to include the Dominican Republic in the already-negotiated CAFTA. According to U.S. law, the president must wait ninety days from the date of notification before signing a trade agreement and can send it to Congress for a vote any time thereafter.30
If CAFTA included strong, enforceable labor rights protections, it could provide meaningful leverage to promote workers rights generally and, specifically, to combat the widespread practice of illegal pregnancy-based discrimination in the Dominican Republics free trade zones. However, the substantially finalized version of CAFTA, made public on January 28, 2004, does not include adequate workers rights protections and, in particular, fails to protect women workers against discrimination.31
CAFTAs only enforceable labor rights provision requires countries to effectively implement existing labor laws. The accord establishes that [a] Party shall not fail to effectively enforce its labor laws, through a sustained or recurring course of action or inaction, in a manner affecting trade between the Parties and allows for the invocation of a dispute settlement mechanism if a party violates this provision.32
Although CAFTAs definition of labor laws includes statutes or regulations governing five explicitly enumerated internationally recognized labor rights,33 it excludes those laws related to the elimination of employment and workplace discrimination.34 Therefore, under CAFTA, states are not required to ensure that their domestic anti-discrimination laws comport with international standards, nor even to enforce their existing laws. As a result, under CAFTA, the Dominican Republic would not be required to implement its prohibition on sex-based discrimination and, instead, could continue to allow the widespread practice of illegal pregnancy-based sex discrimination in its export processing zones without violating the accord.
CAFTA negotiators made an inexcusable mistake by excluding anti-discrimination laws from the ambit of the agreement. As the case of the Dominican Republic shows, employment and workplace discrimination persist, harming the very people that CAFTA, if properly crafted, could most benefitwomen workers in free trade zones. CAFTA should not go forward until this mistake is fully remedied.
In theory, CAFTA countries executive branches could still agree to amend the accord to require parties to effectively enforce their anti-discrimination laws. In practice, however, they have shown little political will to do so and have, instead, sent strong signals that all CAFTAs labor-related provisions are final. As a result, two options likely remain for protecting workers right to nondiscrimination in CAFTA: a new administration in one of the CAFTA countries refusing to sign the accord unless it is amended to include such protections; and parties legislatures rejecting the trade pact and sending it back for renegotiation, asserting that they will not pass a CAFTA that leaves workers vulnerable to discrimination.
Conclusion and Recommendations
Women seeking employment in the Dominican Republics free trade zones are discriminated against on the basis of their reproductive status. In order to secure a joband, in some cases, to keep a jobmany women have to submit to mandatory pregnancy testing. The apparent purpose of these tests is to exclude pregnant women from the workplace. Mandatory pregnancy testing as a condition for employment constitutes sex discrimination and as such is prohibited by international human rights law. The Dominican government, however, has failed to protect women from this abusive practice. If CAFTA enters into force, with the Dominican Republic among the parties, little will likely change, as the accord does not require countries to enforce anti-discrimination laws. Instead, the Dominican Republic will enjoy ever-greater trade benefits, while continuing to violate women workers human rights.
Recommendation to All CAFTA Partners:
- Renegotiate CAFTA to define labor laws to include those statutes and regulations directly related to the elimination of discrimination with respect to employment and occupation, thereby requiring countries, including the Dominican Republic, to enforce effectively their anti-discrimination labor laws.
Recommendations to the Government of the Dominican Republic:
- Publicly condemn pregnancy discrimination as discrimination based on sex;
- Ensure that labor inspectors conduct proactive and vigorous investigations of allegations of sex-based discriminatory employment practices and sanction those responsible for such practices;
- Conduct timely and periodic unannounced visits to free trade zones to investigate hiring practices; and
- Ensure that all inspectors and other officials in the Ministry of Labor receive timely and periodic training in gender-specific labor rights issues and investigative techniques.
1 Human Rights Watch has previously documented widespread pregnancy testing as a condition for access to work or maintaining employment in other countries, including Guatemala. See Human Rights Watch, From the Factory to the Household: Sex Discrimination in the Guatemalan Labor Force (New York: Human Rights Watch, 2002).
2 Economist Intelligence Unit, Dominican Republic: Country Report October 2003 (United Kingdom: The Economist Intelligence Unit, October 2003), data used from table on p. 5.
3 Consejo Nacional de Zonas Francas de Exportación de la República Dominicana (National Council of Export Free Trade Zones of the Dominican Republic) (CNZFE), Informe Estadístico 2002 (Statistical Report 2002), 2002, [online] http://www.cnzfe.gov.do/documentos/informes/Informe_Estadistico_2002_en_Espanol.pdf (retrieved March 23, 2004), p. 3.
4 Ibid., p. 30.
6 Office of the United States Trade Representative (USTR), Zoellick to Visit the Dominican Republic January 14 as Free Trade Negotiations Begin, January 13, 2004, [online] http://www.ustr.gov (retrieved February 23, 2004); Economist Intelligence Unit, Dominican Republic: Country Report October 2003, data used from table on p. 5.
7 CNZFE, Informe Estadístico 2002, p. 47.
8 Centro de Investigación Económica de las Antillas (Center for Economic Research of the Antilles) (Cesantillas), Carta Económica (Economic Letter ), vol. IV, no. 5 (Santo Domingo: Pontificia Universidad Católica Madre y Maestra (Mother and Master Catholic University), October/November 2001), [online] http://rsta.pucmm.edu.do/cenantillas/cartas/material/5_Oct_01.PDF (retrieved March 10, 2004), p. 6.
9 Human Rights Watch interview with Judelka de la Cruz, La Romana, January 12, 2004. All names and identifying information of the women interviewed have been changed to protect their confidentiality. For the same reason, certain identifying information has been withheld, in some cases, for other interviewees.
10 Human Rights Watch interview with [name withheld], Laboratorio García & García, Santiago, January 19, 2004.
11 International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, arts. 2(1), 22, ratified by the Dominican Republic in 1978; International Covenant on Economic Social and Cultural Rights (ICESCR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, arts. 2(2), 6, 7, 8, ratified by the Dominican Republic in 1978; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46 (1979), art. 11, ratified by the Dominican Republic in 1982; and ILO Convention 111 concerning Discrimination in Respect of Employment and Occupation, June 25, 1958, 362 U.N.T.S. 31, ratified by the Dominican Republic in 1964.
12 Human Rights Watch conversations with thirty-one women workers at free trade zone, Puerto Plata, January 22, 2004.
13 World Bank Caribbean Country Management Unit, A Review of Gender Issues in the Dominican Republic, Haiti, and Jamaica, Report No. 21866-LAC (Washington D.C.: World Bank, 2002), [online] http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2003/03/ 22/000094946_03030704005682/Rendered/PDF/multi0page.pdf (retrieved December 20, 2003), pp. 21-25.
14 Human Rights Watch interview with Aracela Lantigua, Santo Domingo, January 11, 2004.
15 Human Rights Watch interview with Sergia Báez, Santo Domingo, January 15, 2004.
16 Human Rights Watch interview with Juana Díaz, Santo Domingo, January 30, 2004.
17 Human Rights Watch interview with [name withheld], Laboratorio García & García, Santiago, January 19, 2004; Human Rights Watch interview with [name withheld], Laboratorio Clínico, Puerto Plata, January 22, 2004.
18 Human Rights Watch interview with [name withheld], Laboratorio García & García, Santiago, January 19, 2004.
19 Human Rights Watch interviews with Aracela Lantigua, Santo Domingo, January 11, 2004; with Guillermina Moreno, Dominga Céspedes, and Judelka de la Cruz, La Romana, January 12, 2004; with Gabriela López, La Romana, January 13, 2004; with Rosa Polanco, Santiago, January 17, 2004; and with Juana Díaz, Santo Domingo, January 30, 2004.
20 International Labour Conference, ILO Declaration on Fundamental Principles and Rights at Work, 86th Session, Geneva, June 18, 1998.
22 International Labor Office, Conditions of Work Digest, vol. 13 (Geneva: International Labor Office, 1994), p. 24.
23 ICCPR, arts. 2(1), 22; ICESCR, arts. 2(2), 6, 7, and 8; CEDAW, art. 11; ILO Convention 111.
24 See, e.g., ICCPR, art. 2; CEDAW, art. 2.
25 CEDAW, art. 11.2(a).
26 Ley 16-92, Código de Trabajo (Law 16-92, Labor Code), May 29, 1992, principle VII.
27 Ibid., art. 233.
28 Ley 8-90 del 10 de enero de 1990 sobre Fomento de Zonas Francas (Law 8-90 of January 10, 1990, on the Promotion of Free Trade Zones), January 15, 1990, art. 41.
29 On December 17, 2003, the United States and four Central American countriesEl Salvador, Guatemala, Honduras, and Nicaragua, concluded CAFTA negotiations. Negotiations with Costa Rica were finalized on January 13, 2004. USTR, U.S. & Central American Countries Conclude Historic Free Trade Agreement, December 17, 2003, [online] http://www.ustr.gov (retrieved February 23, 2004); USTR, U.S. and Costa Rica Reach Agreement on Free Trade, January 25, 2004, [online] http://www.ustr.gov (retrieved February 23, 2004); USTR, Zoellick to Visit the Dominican Republic January 14 as Free Trade Negotiations Begin.
30 Trade Act of 2002, sec. 2105(a)(1)(A), (C). The Trade Act of 2002 requires the President to notify Congress at least ninety days prior to entering into a free trade agreement. Once Congress receives the accord, however, it cannot amend the text and can only vote to approve or reject it as submitted. See, e.g., The White House, President Signs Trade Act of 2002: Remarks by the President at Signing of the Trade Act of 2002, August 6, 2002, [online] http://www.whitehouse.gov (retrieved February 26, 2004).
31 See Human Rights Watch, CAFTAs Weak Labor Rights Protections: Why the Present Accord Should be Opposed, A Human Rights Watch Briefing Paper,March 2004.
32 U.S.-Central America Free Trade Agreement, art. 16.2.
33 Ibid., art. 16.8. CAFTA defines labor laws as those statutes or regulations directly related to: the right of association; the right to organize and bargain collectively; a prohibition on the use of any form of forced or compulsory labor; a minimum age for the employment of children and the prohibition and elimination of the worst forms of child labor; and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.
34 CAFTAs definition of labor laws is based on the definition of core labor standards in the U.S. Bipartisan Trade Promotion Authority (TPA), part of the Trade Act of 2002 signed into law on August 6, 2002. TPA establishes U.S. negotiating objectives for all future free trade agreements, including workers rights-related objectives. The law lists those workers human rights that compose core labor standards, under TPA, and omits the elimination of employment and workplace discrimination from that list. This is consistent with earlier U.S. trade legislation, which has historically defined internationally recognized worker rights as also excluding the right to nondiscrimination. TPA, sec. 2113(6); see, e.g., 19 USC 2467(4).