We accept and know that there is pregnancy testing, but there is no way to combat it.
Carlos Martín Gutiérrez Ruiz, labor rights ombudsman, Tijuana, Mexico, May 23, 1997
Response of the Government of Mexico
Since the publication of our August 1996 report, "No Guarantees: Sex Discrimination in Mexicos Maquiladora Sector," the Mexican government has taken no substantive and consistent action to investigate, condemn, and end pregnancy-based sex discrimination in the maquiladoras, despite having acknowledged since 1994 and as recently as January 1998 that women face such discriminatory treatment in the hiring process.212 In fact, Mexican authorities have done just the opposite. Soon after the publication of "No Guarantees," the state Labor Department in Baja California issued a press release (see Appendix A for original press release and an English translation) indicating that pregnancy testing in the employment process was not illegal, but was in fact a corporations "fulfilment of an authority foreseen by the labor law."213 The press release went on to say that if an employed woman was fired for being pregnant, she was perfectly protected by the federal labor code and only had to come forward to report the abuse. Both of these assertions are inaccurate. First, hiring-process pregnancy testing is clearly inconsistent with the federal labor codes guarantees of equality between men and women and its specific prohibition against sex discrimination in the hiring process.214 Second, based on our information, the existing labor rights mechanisms are unwilling to hear complaints of pre-hire discrimination and rarely sanction employers for discrimination that occurs once a woman is employed.215 Third, the Baja Californian governments press release is belied by the fact thatcorporations openly admit to subjecting women applicants to pregnancy tests in order to deny them work and thereby avoid paying legally-mandated maternity benefits. The Baja Californian governments short statement completely ignores corporations admission of discriminatory motivation and intent.
Furthermore, in a July 1997 memo from the Mexican National Administrative Office (mnao) to the U.S. National Administrative Office (u.s. nao), the Mexican government sought to avoid responsibility for this issue first, by complaining that the petition Human Rights Watch and others filed against Mexico was without merit under the labor rights side agreement to nafta; second, by misinterpreting existing statutes in a way that would permit pre-hire pregnancy testing; third, by arguing that Human Rights Watchs documentation was insubstantial; and last, by failing to provide concrete information about the ways in which they seek to prevent and remedy sex discrimination in the workplace.216
Mexico argued that our petition against them questioned Mexican law and was therefore not acceptable under the labor rights side agreement to nafta. The Mexican government stated in this memo, "Giving pregnancy tests as a prerequisite for giving work is not prohibited." However, our petition, which was accepted and investigated by the u.s. nao, argued that Mexico was failing to enforce clear guarantees of equality and prohibitions against sex discrimination already contained in the Mexican federal labor code. In short, we argued that Mexico was not applying its labor laws.
Second, Mexico has interpreted a provision in its labor code that permits pre-hire medical exams as permitting pre-hire pregnancy exams. In the July 1997 memo, the mnao asserts that the federal labor code assures that workplace standards be issued by employers regarding "the carrying out of prior and periodic medical exams." The mnao implied that this statute gives employers the right to perform any type of medical test they wish to give to job applicants, including pregnancy tests to exclude pregnant job applicants. To make this argument, the mnao cites Article 423 of the federal labor code regarding the content of workplace regulations. This article states that workplace regulations will contain the time and form in which workers should submit to prior [to hire] and periodic medical exams, and the protective measures ordered by authorities. However, the mnao cites this article in isolation. This article cannot be read independent of other articles in the federal labor code, such as Article 134(X). The only reasons specified in an express manner for a worker to submit to medical examinations are those in Article 134(X). Article 134(X) states, in part, that a worker (job applicant) must submit to workplace regulations on medical exams to establish that they are not suffering from "some disability or workplace illness, contagious or incurable . . ." The mnao selectively cites the portion of the federal labor code that makes it seem that employers are permitted to practice any tests they wish, which is misleading.
Third, the mnao argued that Human Rights Watchs findings were not relevant because they covered only a small portion of all the maquiladoras. However, Human Rights Watchs documentation shows a clear pattern of discrimination and clear government negligence to remedy this sex discrimination. There was no need for Human Rights Watch to establish the practice in every maquiladora in Mexico for Mexico to be in violation of the nafta labor rights side agreement.
Last, the July 1997 memo relays information about the governments inspection of 30 percent of the maquiladora plants by mid-1997. The mnao asserted that of the 138,712 women covered under their investigation, 3,414 women workers were pregnant and 484 were lactating. The memo also indicates that they found some violations, which were being remedied.
However, their statistics did not address workplace harassment based on pregnancy status or tell how many women were in fact fired or, more likely, forced to resign. Most important, these statistics do not tell how many women were not hired in the first instance. Furthermore, since the Mexican government holds that obligatory hiring-related pregnancy testing is not discrimination, nothing that it did with regard to informing women (and manufacturers) of government prohibitions against sex discrimination condemned mandatory pregnancy testing in the hiring process.
While the Mexican federal government has done little to remedy pregnancy-based sex discrimination in the maquiladoras, the Mexican Congress has turned its attention toward this problem. On June 23, 1997, a group of congresswomen from eight political parties in Mexico signed an agreement vowing to seek explicit federal regulations banning layoffs due to pregnancy and compulsory pregnancy tests. While this legislative clarification would be welcome, such practices already clearly contravene domestic and international law. This should in no way be understood to suggest that Mexicos existing law does not already prohibit such discriminatory practices. To our knowledge, at the date of publication of this report, no new legislation has been adopted in Mexico to remedy pregnancy-based sex discrimination.
Failure to Enforce Existing Domestic Prohibitions
Mexicos domestic law guarantees equality between men and women, prohibits sex discrimination, protects women workers during pregnancy, and guarantees the right to decide freely and responsibly on the number and spacing of ones children. Article 4 of the Mexican constitution reads, in part: "[M]en and women are equal before the law." Article 4 of the constitution also protects the "organization" and "development" of the family, including the fact that "[e]very person has the right to decide in a free, responsible and informed way on the number and spacing of [her] children." Article 3 of the federal labor code reads, in part: "There shall not be established distinctions among workers for motives of race, sex, age, religious creed, political doctrine or social condition." Article 133(I) of the federal labor code prohibits employers from "refusing to accept a worker for reason of age or sex." Article 164 of the federal labor code reads, "Women enjoy the same rights and have the same obligations as men." Article 170(1) of the federal labor code states, "During the period of pregnancy, [a woman worker] will not perform work that requires considerable force and signifies a danger for her health in relation to gestation, . . . " Article 18 of the federal labor code states, "In the interpretation of the norms of work one will take into consideration the purpose of Articles 2 and 3. In cases of doubt, the interpretation most favorable to the worker will prevail."217
Despite these clear domestic prohibitions against sex discrimination, Mexican Ministry of Labor officials told us that practices to determine pregnancy status are perfectly legitimate because they are not explicitly prohibited under the labor code.218 Even officials at the highest levels of the Ministry of Labor upheld this position. Under Secretary of Labor "A" Javier Moctezuma Barragán indicated that while post-hire pregnancy discrimination was very clearly prohibited by the law, there was no specific federal labor code provision that prohibited pregnancy testing in the hiring process.219 This is also the point of view of others who work in the Ministry of Labor, including those in the inspectorate system who are charged with ensuring that companies are operating in accordance with the federal labor code. Isabel Wong, a labor inspector in Ciudad Juárez, told Human Rights Watch that pregnancy testing was notcontemplated in the federal labor code and nowhere was it specified as being illegal.220 The labor rights ombudsman in Tijuana, who is responsible for giving workers free legal advice and, if requested by the worker, shepherding their cases through the Conciliation and Arbitration Board (cab) process, agreed, telling us, "What is not explicitly prohibited in the law is permitted."221
However, as argued, pregnancy testing intended to exclude women from the hiring process is already prohibited in the federal labor code under general guarantees of equality between men and women and under a specific prohibition against sex discrimination in the hiring process. The federal labor code explicitly states that an employer cannot refuse to hire someone for reasons of either sex or age. 222 Furthermore, pregnancy testing violates the spirit of the law. María Estela Ríos of the Asociación Nacional de Abogados Democráticos (anad) (National Association of Democratic Lawyers) has argued that pregnancy testing, although not expressly addressed, flatly contravenes the spirit of the labor law, which in part seeks to achieve social justice in relations between workers and employees.223 According to Ríos, labor law operates under the norms of public order, which means that one cannot commit acts that contravene the spirit or the letter of the law. Furthermore, Ríos argues, practices that are not expressly addressed within the federal labor code should be analyzed and decided on by analogy to determine prohibitions. One should look to the federal labor code for similarly situated people or situations for guidance.224 If there is a conflict on the law, the principle that most benefits the worker must prevail.
Given both the spirit and the letter of Mexicos federal labor code, obligatory hiring-related pregnancy testing contravenes the law. Mexican officials should act decisively to enforce these provisions of the law and guarantee womens right to nondiscrimination in the hiring process.
Failure to Make Available Mechanisms for Investigation or Adjudication
The government-run mechanisms that investigate and resolve cases of private sector labor disputes, which include disputes within the maquiladora sector, are the Office of the Inspector of Labor (Inspección de Trabajo); the Office of the Labor Rights Ombudsman (Procuraduría de la Defensa del Trabajo); and the Conciliation and Arbitration Board (Junta Local de Conciliación y Arbitraje). All are empowered to enforce the federal labor code.225 Human Rights Watch is concerned that in the areas we visited none may function effectively for women victims of pregnancy-based sex discrimination and its related abuses.226
According to Under Secretary "A" Javier Moctezuma Barragán at the Ministry of Labor, a woman alleging hiring process pregnancy-based sex discrimination would not be able to use these labor adjudicative structures because she had not established a labor relationship.227 No effective domestic protection of any sort exists for these women in Mexico. State-established dispute mechanisms disavow jurisdiction over such cases, although as the law is written, these cases fall within their scope. In practice, where individuals have not established a labor relationship, they cannot access such mechanisms for adjudication.228 Therefore, to seek a remedy for discrimination in the hiring process, a woman would have to hire a private attorney to sue a company, the cost of which would render this option inaccessible to the vast majority of those most affected.229
In practice, women alleging hiring process pregnancy-based sex discrimination have not been able to challenge such practices through the adjudicative structures established by the Mexican Ministry of Labor. Nor have the courts challenged the acquiescence of the executive in this area. These obstacles would not exist if the law were applied as written. Some relevant provisions of the federal labor code already address the period of negotiation to establish a labor relationship and indeed regulate the establishment of a labor relationship. Article 134(X and XI) establishes that employers have a right to subject workers to pre-hire medical exams to verify that the worker does not suffer from "some disability or workplace illness, contagious or incurable . . . " Article 133(I) establishes that an employer cannot refuse to hire someone for reasons of age or sex. This latter article enunciates and regulates a de jure prohibition against hiring-process sex and age discrimination derived from the constitution. Both these articles govern practices and conduct in a pre-hire situation and address protections for those who have yet to establish a labor relationship.
Mexicos federal labor code guarantees and establishes a right to redress for job aspirants in some instances.230 The federal labor code stipulates that even in a situation in which the individual has not established a labor relationship, that individual is entitled to access to labor tribunals and redress for violations of the code. The federal labor code sets out in Article 154 the conditions under which an employer is "obliged," where the job applicants have comparable qualifications, to prefer a "Mexican over a non-Mexican, those who have served satisfactorily for a great time, those having no other source of economic earnings and have in their charge a family and those who are unionized over those who are not . . ."231 Article 157 gives individuals meeting the qualifications stipulated in Articles 154 and 156 (on the definition of a union) and who have not established a working relationship the right to present a case before the cab for indemnization or reinstatement.
Similarly, women job applicants who are denied work because they are pregnant, like an individual having no other source of economic earnings and having in her charge a family, would expect that the government would remedy this breach of the federal labor codes guarantee of equality between men and women and prohibition against sex discrimination in the hiring decision. With the provisions of Articles 154, 156, and 157, the federal labor code already contemplates that those who have not established a labor relationship will have access to adjudication and that those adjudicative structures will receive and investigate the allegations fully.
Clearly a lack of an established labor relationship in other instances, such as the one explained above, does not impede access to legal redress in Mexico. Mexico should equally enforce the law regarding sex discrimination and offer female job applicants the rights and protections the federal labor code affords them.
Mexican Ministry of Labor officials' failure to investigate and address pregnancy testing is a failure of political will, not of legal mandate. Pregnancy testing as practiced in the maquiladora context constitutes a form of sex discrimination and as such violates the federal labor code's guarantees of equal treatment and its prohibition against sex discrimination in the hiring decision. The labor code establishes rights and obligations during the formation of a labor relationship, so job seekers should expect to be protected by its terms. A component of that protection is access to labor adjudication mechanisms to remedy instances of sex discrimination against them, just as the federal labor code provides for those who have not established a labor relationship in other instances in which its terms are violated. The law itself creates the expectation that there will be a remedy.
International Human Rights Obligations232
Pregnancy as a condition is inextricably linked and specific to being female. Consequently, when women are treated adversely by their employers or potential employers because they are pregnant or because they may become pregnant, they are being discriminated against on the grounds of sex. Thus pregnancy-based treatment constitutes a form of sex discrimination: it targets a condition only women experience. Such treatment penalizes women exclusively.
Pregnancy-based adverse treatment, including testing to determine pregnancy status, has both the intentional and unintentional consequence of discriminating against women. Sex discrimination is prohibited under the International Covenant on Civil and Political Rights (iccpr);233 the Convention on the Elimination of All Forms of Discrimination Against Women (cedaw);234 the American Convention on Human Rights,235 and the International Labour Offices(ilo) Convention 111 on Discrimination in Respect of Employment and Occupation,236 all of which Mexico has ratified.237
The Mexican government is obligated to ensure for the people under its jurisdiction the full exercise and enjoyment of their human rights. This includes ensuring that women do not suffer sex discrimination in the workplace and remedying such discrimination whenever and wherever it occurs. Assuring full exercise of those human rights entails, at a minimum, promulgating and enforcing statutes that prohibit discrimination. Nevertheless, passing legislation is not enough. A States obligation to guarantee the rights of those within its jurisdiction also entails actively investigating the hiring processes of maquiladoras to ensure that these processes are in conformity with international standards and Mexicos labor code and therefore free from discrimination. Assuring freedom from discrimination also entails establishing effective mechanisms to enforce equality and to remedy sex discrimination when it occurs.
Failure to Guarantee
Through its negligence, the Mexican government has failed to guarantee that female workers and job applicants do not face sex discrimination, in violation of Mexicos international human rights obligations. The iccpr238 and the American Convention on Human Rights239 explicitly set out the positive duties of the State to ensure that those under its jurisdiction are protected from violations of their human rights. The concept of state responsibility has evolved to recognize that states are "obligated to investigate every situation involving a violation of the rights protected by[international law]."240 For example, the Inter-American Court of Human Rights in the late 1980s241 offered commentary on the scope of states duties "to ensure" the rights within the treaty to all persons within their jurisdiction. The Court stated that a State "has failed to comply with [this] duty . . . when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention."242 Moreover, the Court required governments to "take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation."243 This includes "ensur[ing] that any violations are considered and treated as illegal acts."244
Consistent with this reasoning, Human Rights Watch believes Mexico should be held accountable for persistent patterns of failure to guarantee equality before the law and protection against discrimination based on sex. If the state persistently fails to take reasonable measures to prevent, investigate, prosecute, or punish acts of discrimination, especially sex discrimination, when committed by private actors, this violates womens rights to nondiscrimination. Thus, what would otherwise be wholly private conduct is transformed into a constructive act of the state. "An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or respond to it as the [American Convention on Human Rights] requires."245 The government of Mexico first fails to enforce its law and second fails to make existing mechanisms available to remedy the sex discrimination.
Furthermore, in order to ensure that the human rights of people within a countrys jurisdiction are protected, cedaw obliges the Mexican government to set up effective mechanisms to remedy the abuse as well as enforce the remedywhich Mexico clearly has not done, given that women suffering preemployment sex discrimination, as the government admits, have nowhere to turn for legal redress.
Right to Privacy
The Mexican governments failure effectively to remedy pregnancy-based sex discrimination violates women workers equal protection rights and denies them their right to privacy as guaranteed under international law. Information related to prospective workers pregnancy status, their contraceptive use, or their menses schedule is irrelevant to their employment, and obliging disclosure of such information, as a condition of employment, invades womens privacy. The International Covenant on Civil and Political Rights (iccpr),246 the Universal Declaration ofHuman Rights,247 and the American Convention on Human Rights248 guarantee a right to privacy, which has been interpreted by the U.N. Human Rights Committee as "guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to give effect to the prohibition against such interferences and attacks as well as to the protection of the right."249 The Human Rights Committee has interpreted the right to privacy to mean that states have an obligation to "provide the legislative framework prohibiting such acts by natural or legal persons."250
As the right to privacy has been interpreted by the Human Rights Committee, the state has a duty not only to refrain from violating the privacy of those under its jurisdiction, but also a duty to prohibit and remedy such invasions by private actors. Derogation from this duty can only occur in accordance with "the aims and objectives of the Covenant (iccpr) and should be reasonable in the particular circumstances."251 Questions about sexual activity, menses schedule, etc., are in no way relevant to job qualifications and rather introduce impermissible criteria into the employment decision. The potential costs to employers of pregnant employees do not amount to "reasonable" justification, especially given that Mexican law itself requires employers to incur these costs, as discussed below. The Mexican government has a duty to protect its citizens from invasions of their privacy by such private actors as maquiladora personnel.
U.S. NAO Process
This [sex discrimination in Mexico] is a serious issue, and we need to consult with Mexico as to the implementation of its employment discrimination laws. . . . This is exactly the kind of consideration that was intended in adoption of the nafta labor rights side agreement. The process is working and working well.
U.S. Secretary of Labor Alexis Herman, January 12, 1998, Washington, D.C.
Apart from Mexicos international human rights and domestic obligations to investigate and remedy sex discrimination in the workplace, Mexico has obligations under the North American Agreement on Labor Cooperation Supplemental Agreement (naalc) to the North American Free Trade Agreement (nafta). The naalc calls on the U.S., Mexico, and Canada, among other things, to "promote, in accordance with their respective laws, high-skill, high-productivity economic development in North America by. . . encouraging employers and employees in each country to comply with labor laws and to work together in maintaining a progressive, fair, safe and healthy working environment . . ."252 The naalc mandates accessible tribunals to enforce domestic labor law, stating, "Each party shall ensure that persons with a legally recognizable interest under its law in a particular matter have appropriate access to administrative, quasi-judicial, judicial or labor tribunals for the enforcement of the Partys labor law."253
On May 16, 1997, Human Rights Watch, the International Labor Rights Fund (ilrf),254 and the Asociación Nacional de Abogados Democráticos (anad) (National Association of Democratic Lawyers)255 submitted a complaint petition0 against Mexico that detailed widespread pregnancy-based sex discrimination in the maquiladora sector and alleged that the Mexican government was not enforcing its labor law to end these practices and had not established effective tribunals to remedy this discrimination, in violation of its naalc obligations.
As a part of the U.S. National Administrative Office (u.s. nao) fact-finding work, it held a public hearing in Brownsville, Texas (on the border with Matamoros, Mexico), on November 19, 1997,1 to gather information for its pending decision. During the hearing, women workers testified to the prevalence of pre- and post-hire pregnancy-based sex discrimination in companies along the border, including General Motors,2 Panasonic, and Landis & Gyr (now operating as Landis & Staefa). In addition, nongovernmental organization (ngo) experts from the U.S. and Mexico testified to the widespread and longstanding existence of pregnancy testing in the maquiladora sector and the failure of existing adjudicative structures to remedy it; Mexicos domestic prohibitions against sex discrimination; Mexicos obligations under international human rights law to remedy sex discrimination; and Mexicos obligations under the naalc to end workplace sex discrimination and to establish effective tribunals to achieve this end.
To date, this u.s. nao process has been limited by the government of Mexicos unwillingness to discuss enforcement of existing prohibitions against hiring-process pregnancy-based sex discrimination and insufficient political will on the part of the U.S. to be more demanding in its interaction with Mexico on this issue. As a result, both the findings of the u.s. nao in response to our petition and the subsequent terms that were established to govern the consultation process are disappointing and inadequate to the task at hand. There is still no clear understanding regarding how Mexican enforcement of prohibitions against pregnancy-based sex discrimination, especially in the hiring process, will be achieved.
On January 12, 1998, the u.s. nao issued a report of its findings on the petition. We welcome the reports affirmation that pre-hire pregnancy testing is widespread and its concurrence that discrimination on the basis ofgender is illegal under the Mexican constitution and federal labor code. At the same time, the findings fell short by failing to recognize
that the practice of mandatory pre-hire pregnancy testing is a contravention of Mexican law.
The u.s. nao found
(1) The Mexican constitution and the federal labor code prohibit discrimination on the basis of gender.
(2) Preemployment pregnancy screening is practiced in Mexicos maquiladora sector. There are differing opinions within the Government of Mexico on the constitutionality and the legality of the practice.
(3) Post-hire pregnancy discrimination, in the form of unjustified dismissal for reason of pregnancy or pressure exerted on pregnant women to resign, violates Mexican law and may be challenged through the appropriate tribunals. In some cases it is apparent that relief has been obtained. However, it is also evident . . . that additional efforts need to be directed toward awareness programs for women workers, the protection they are afforded by the law, and the means and procedures by which they may seek redress.
(4) ilo Convention 111, which has been ratified by Mexico, defines employment to include access to employment and has been interpreted to equate pregnancy discrimination with gender discrimination by the Committee of Experts. Pregnancy screening, however, has not been explicitly addressed by ilo authorities. cedaw, similarly, has no explicit jurisprudence or interpretation on pregnancy screening.3
Unfortunately, the u.s. nao review findings left several central points of our petition unanswered.
First, our petition argues that Mexicos labor code protects those who have not established a labor relationship, and therefore women who face hiring-process pregnancy-based discrimination should have access to adjudicative bodies for redress.
The u.s. nao failed to issue any conclusions or findings regarding whether by law those who have not established a labor relationship are in fact protected by Mexicos federal labor code and therefore have a right to use adjudicative and administrative bodies established by Mexicos Ministry of Labor to resolve labor issues. Resolution of this question is essential to establishing the right to redress before administrative or adjudicative bodies for women discriminated against in the hiring process and to establish whether Mexico is meeting its obligations under the naalc requiring access to tribunals for enforcing domestic law.4 Without this access, women are denied redress for sex discrimination in the hiring process.
As the Mexican government itself has admitted, there is no legal mechanism for women seeking recourse for preemployment gender discrimination.5 This is because, according to the Mexican government, only individuals with an established labor relationship are protected by the labor code. Whether or not this category of people has the protection of the labor code is not based on the nature or merit of their claims but rather on whether the labor code protects job aspirants against discrimination for reasons of sex.
Second, the u.s. nao overvalues Mexicos argument that what is not explicitly prohibited in the labor code is permissible. There are explicit guarantees of equality in Mexicos labor code. Moreover, the labor code clearly anticipates that situations will arise that are not explicitly treated therein. In this instance, the federal labor code offersclear instructions on what should happen in the absence of a specific prohibition: Article 17 of the federal labor code states, in part, that where there is not a specific prohibition against the practice being considered, "one will take into consideration measures that regulate similar cases, general principles from these ordinances (or regulations), the general principles of law, the general principles of social justice that derive from Article 123 of the constitution [enumerates categories over which the Mexican Congress should promulgate laws], jurisprudence, custom and fairness (emphasis added)." Article 18 of the federal labor code states, "In the interpretation of work norms one will take into consideration purposes signaled in Articles 2 [equilibrium and social justice between worker and employer] and 3 [work is a right and respect for the liberty and dignity of the person providing work is required]. In the case of doubt, the interpretation most favorable to the worker will prevail (emphasis added)." The u.s. nao report is silent on how Mexico interprets and applies these provisions of the labor code that could afford women greater protection against sex discrimination.
Third, we argue that Article 133(I) of Mexicos federal labor code explicitly prohibits sex discrimination in the hiring process. Article 133(I) forbids an employer from "refusing to accept a worker for reasons of either sex or age," explicitly applying to a pre-hire situation. The u.s. nao failed to require Mexico to account for its interpretation and application of this critical statute.
Fourth, we argue in our petition that labor department officials at the cab level in the areas we researched are biased and ill-informed about the illegality of post-hire pregnancy discrimination. One cab official, in fact, argued that firing pregnant workers was legal. The u.s. nao report concurred that post-hire pregnancy discrimination occurs and violates the law, but is subject to redress in the appropriate tribunals. However, the u.s. nao report fails to comment on the quality of redress provided through these tribunals and to consider that bias in the resolution system and misinterpretation of the law may render this venue an ineffective avenue of redress for women victims of on-the-job pregnancy discrimination. Ignoring the bias of cab officials, the u.s. nao then fails to make recommendations to remedy it. Moreover, the u.s. nao puts almost entirely on women workers the burden to know their rights and to exercise them, disregarding how a biased adjudicative process might in fact deter women from exercising their rights. On one hand, the findings urge the Mexican government to inform women of their rights with an information campaign. However, the findings do not acknowledge that those responsible for enforcing the labor law in Mexico do so inconsistently with regard to on-the-job sex discrimination and are themselves in need of explicit instructions from the federal government about what their duties and obligations are as officers of the state.
Human Rights Watch found cases of pregnant workers being targeted for mistreatment that was designed to force them to resign. Moreover, in investigations conducted in 1996 and 1997, we found ample evidence of inconsistency and bias in the adjudicative bodies that are charged with receiving complaints about on-the-job sex discrimination. Yet, to our knowledge, the u.s. nao has requested from the Mexican government no proof of how it enforces its prohibitions of on-the-job sex discrimination and seems to think that existence of the prohibition is enough. The Mexican government claims that it investigated the maquiladora sector for post-hire pregnancy discrimination, found few violations, and corrected the violations it found.6 The u.s. nao accepts without further inquiry or comment the Mexican governments contention that it has conducted adequate inspections in the maquiladora sector for compliance with prohibitions against on-the-job sex discrimination, without requiring any substantive proof of the results (or the exact nature) of those investigations and how the violations were remedied.
Last, the u.s. nao states that there is no clear prohibition under either cedaw or the ilo regarding pregnancy testing specifically as a form of sex discriminationas distinct from clear prohibitions against pregnancy discrimination (emphasis added). This is a false distinction.
In 1996 the ilo Committee of Experts clarified its understanding of the word "discrimination" indicating that it included treatment "based on marital status or, more specifically, family situation . . . as well as pregnancy and confinement (emphasis added)."7 It also characterized "indirect" discrimination as a practice that "refers to apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics."8 With regard to work in the maquiladora sector, pregnancy status is irrelevant to the ability to perform the work. Further, the evidence is incontrovertible that pregnancy tests are used as a screening device and result in the denial of work opportunity for women. Mandatory pregnancy testing is a tool of sex discrimination.
The ilos Convention 111 on Discrimination in Respect of Employment and Occupation9 does not refer to pregnancy testing, per se. Instead, it categorizes pregnancy discrimination as impermissible sex discrimination. Furthermore, on two separate occasions, the ilo Committee of Experts has indicated concern about pregnancy testing as a condition for employment by applauding countries enactment of legislation prohibiting pregnancy testing as a condition for employment. In 1993 the committee noted with interest a Brazilian municipalitys law that imposed sanctions on entities that required female applicants to provide proof of pregnancy status to obtain or retain work.10 In 1995 Colombia adopted a resolution that restricted the use of pregnancy tests as a condition of employment in both the public and the private sectors.11
Nevertheless, rather than list various potential forms of sex discrimination, Convention 111 defines sex discrimination as follows: "For the purpose of this Convention the term discrimination includes (1) any distinction, exclusion or preference made on the basis of race, colour, sex, religion . . . which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation (emphasis added); . . ." Article 1(3) states, "For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment (emphasis added)." The requirement that all women job applicants undergo procedures or reveal information to determine their pregnancy status is based on womens reproductive abilities. Pregnant women are then denied work based on their pregnancy status. On the most basic level, those reproductive abilities cannot be decoupled from being female. Only women can give birth. Therefore, such requirements are gender-based and have the effect of excluding women from job opportunities. In Mexico, pregnancy status, as determined through examination of the uterus, revelation of information about sexual activity, menses schedule, or birth control use, or testing of urine, functions as an abusive and arbitrary term or condition of employment.
The scope of Convention 111's Article 1(1) is to address conduct and practices that nullify or impair equality of opportunity or treatment in employment or occupation. Pregnancy screening is gender specific and hence a discriminatory hiring criteria. The express purpose of pregnancy testing of female job applicants is to detect pregnancy and deny women work on that basis. Using pregnancy tests as a condition for employment thus nullifies womens equal opportunity for employment.
While cedaw makes no specific reference to pregnancy testing, its intent is to provide authoritative and comprehensive guidance on governments obligations to remedy sex discrimination against women in all spheres of womens lives. cedaws definition of discrimination, like that of the ilo, is comprehensive:
For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field (emphasis added).12
cedaw seeks to remedy practices and conduct that either intentionally or unintentionally result in womens exclusion or result in the impairment of womens ability because of their sex to enjoy all their human rights. All women who are required to undergo pregnancy screening as a condition for employment are being discriminated against since pregnancy is a condition specific to females and the fact of pregnancy is irrelevant to whether the female applicant can perform the job. Male applicants are not asked about their reproductive decisions, nor is work granted to them on that basis. Second, the express and intended function of such exams is to weed out pregnant workers, to exclude them on the basis of their positive pregnancy status. The pregnancy exams are the tools to facilitate pregnancy discrimination. They are inextricably linked to this purpose. Consequently, any distinction made between pregnancy testing and pregnancy discrimination is indefensible.
Furthermore, the cedaw Committee has criticized countries for reports that women are expected to provide proof of pregnancy status as a condition for employment. The committee paid particular attention to Mexicos January 1998 cedaw compliance report. The committee wanted to know how Mexican law sanctioned [prospective] employers who "condition womens hiring on their nonpregnancy or unmarried status." The Mexican government responded disingenuously that the law provided for sanctions against such violations.13 In its concluding observations about Mexicos 1998 periodic report, the cedaw Committee suggested that " . . . action be taken against employers who discriminate against women on the grounds of pregnancy. The women concerned should be supported, and society sent a clear signal that such discrimination is not to be tolerated."14 Regarding Mexico, the cedaw Committee expressed "concern over reports that pregnancy tests were being used as a prerequisite for employment" and called such practices "flagrant discrimination against women." The committee went on to say, "The economic progress of Mexico could not be bought at the expense of young and pregnant women."15
As a next step, the u.s. nao recommended the case for ministerial consultations between the heads of the labor departments in Mexico and the U.S.16 The consultation process is meant to ". . . clarify the law and practice in Mexico on preemployment pregnancy screening and post-hire discrimination on the basis of pregnancy. The issues for consultation include the differing views of officials of the Mexican Government on the legality and extent of pregnancy screening and the extent of relief for post-hire pregnancy discrimination."17
On October 21, 1998, Mexico and the U.S. entered into an agreement (see Appendix J) that outlines the terms and conditions of the consultation process. This consultation process will last nine months, will include a public report on the conferences and outreach sessions, and has been endorsed by Canada. The implementing agreement, as it is written now, leaves very little hope that the consultations will result in sufficient action to end pregnancy-based sex discrimination in Mexicos maquiladora sector.
First, the process of consultation has been so broadened that it loses its focus. What began as a petition against Mexico and a review of how and whether Mexico meets its naalc obligations through the enforcement of its labor law and through making adjudicative bodies available to those whose labor rights have been violated has been turned into a general discussion about "(1) pregnancy discrimination in the workplace; (2) the extent for relief of post-hire pregnancy discrimination in Mexico, the United States, and Canada; (3) the legal mechanism by which laws against discrimination for reason of gender are enforced in the three countries; and (4) an exchange of views among the National Administrative Offices (naos) on the u.s. nao Public Report of Review of Submission No. 9701 on which basis the United States sought ministerial level consultations (emphasis added)."
Second, preemployment pregnancy testing appears nowhere in the agreement as an explicit subject for consultation. While it is understood that the consultation process includes "the issues raised in Submission 9701," failure to include in a more specific manner the labor practice that affects the most women in Mexico and around which there is the most intransigence on the part of the government of Mexico does not facilitate achieving clarification on this issue. Leaving this practice out makes it appear that Mexico is not being scrutinized for its own enforcement failings. While the U.S. government may have some political rationale for this omission, this strategy threatens process transparency and increased accountability.
Third, whether the labor rights side agreement is ultimately a meaningful avenue for redress will be determined by its ability to respond swiftly to press offending parties to enforce local labor law. "Outreach sessions" and a "conference" are important vehicles for the dissemination of information on sex discrimination. However, the beginning point for these public fora must be respect for womens rights in the work force, including in access to employment. Equally important, these outreach sessions and conferences do not seem to allow for the direct participation of nongovernmental organizations, which might be offering opposing views to those of the government of Mexico.
It will be counterproductive ultimately to hold public meetings or conferences on this subject if there are no guarantees that the Mexican government is willing to change its position and begin to enforce its prohibitions against preemployment pregnancy-based discrimination. What must happen first is that Mexico changes its position and enforces its law. Otherwise, the U.S. government will facilitate Mexicos continued flouting of womens right to equality by appearing to be open to a reexamination and potential redefinition of behavior that constitutes sex discrimination. Human and labor rights standards and laws do not permit the Mexican government to redefine sex discrimination to escape its obligations. The U.S. government must not stand by idly while Mexico refuses to recognize and defend womens right to equality in the work force.
By failing to exercise greater leadership sooner through the u.s. nao process, the U.S. government may have missed a historic opportunity to promote womens rights in the nafta context. Accepting this case for review, holding a public hearing, and corroborating the fact of pregnancy testing as a condition for employment were good initial steps. However, as they stand now, the plans for the consultation process seem unjustifiably limited. The results of the consultation process should not provide an opportunity only for conferences, tri-lateral meetings, exchange of technical information, or any other measures that do not begin from the premise that pregnancy testing is sex discrimination and illegal under Mexican law. The U.S. must use the consultation process to persuade Mexico to interpret and apply its domestic labor law in a nondiscriminatory manner.
The U.S. and Mexican governments are now involved in a consultation process that has no clear benchmarks for success and offers no real transparency on any issue except those of outreach sessions and conferences, the contents of which will be covered in a public report. The nao is not a tribunal charged with rendering binding interpretations of Mexican law. However, to the extent that the u.s. nao lays out a strong argument for why pregnancy testing should be considered illegal and discriminatory, even as it recognizes the Mexican governments assertions to the contrary, the better positioned the entity will be to urge the government of Mexico to remedy the problem during ministerial consultations. The results of the consultation process should be a clear and public commitment by Mexico to start enforcing the antidiscrimination provisions of its labor code in a way that remedies one of the most flagrant types of sex discrimination being practiced in Mexico today: pregnancy discrimination.
U.S. Government Response
In the past, the State Departments Country Reports on Human Rights Practices noted that pregnancy-based sex discrimination was a problem in Mexicos public sector and that nongovernmental organizations (ngos) had investigated and complained about pervasive pregnancy-based sex discrimination in Mexicos private maquiladora sector. Nevertheless, the U.S. government has failed to condemn these practices vigorously or to take significant steps to hold U.S. corporations accountable for practicing sex discrimination abroad.
Separate from the u.s. nao process, the U.S. government has refused to exert any pressure on the Mexican government to end its tolerance of widespread sex discrimination in Mexico. In fact, the U.S. government passed up a key opportunity to press for better labor rights protection at an April 1997 meeting on women and work hosted by the Mexican government for all signatories to nafta. In this venue, the U.S. government failed to speak out against or even to mention pervasive pregnancy-based sex discrimination in Mexicos private sector.
Not until a full year and one-half after the release of our first report did the U.S. raise this with the Mexican government. In August 1997, Deputy Assistant Secretary Steven J. Coffey, of the Department of States Bureau of Democracy, Human Rights, and Labor, raised the issue of widespread pregnancy testing along the border in meetings with Mexican government officials, including the foreign minister and the head of Mexicos office on womens affairs. The Mexican government acknowledged the practice but promised only to look into setting up a study of the problem.18 To our knowledge, no such study has yet been initiated.19
Response of Corporations
Most maquiladora corporations in Mexico have not changed their policy with regard to this discrimination. Based on the evidence Human Rights Watch has documented, General Motors, which did pledge to discontinue testing women applicants for pregnancy and denying them work based on that status, seems not to have thoroughly implemented its policies. When contacted by Human Rights Watch about information found for this report, the vast majority of the corporations implicated in this report did not respond. The few that did respond either denied using pregnancy exams as a condition for employment, maintained that the use of mandatory pregnancy exams as a part of the hiring criteria and the denial of work based on that status was not illegal under Mexican law, or promised to investigate (see sample letter from Human Rights Watch in Appendix H and a sample response from a corporation in Appendix I).
The background section of this report discussed the way in which pregnancy-based sex discrimination is fueled in part by corporations desire to avoid paying the costs associated with complying with the Mexican Social Security law mandating maternity leave and maternity leave wages for pregnant workers20 and as a way to ensure that women workers will physically be able to meet high-pressure production goals. This was confirmed by the women workers themselves. Julia Muñoz, who works in the administration at BerthaMex21 in Tijuana, told Human Rights Watch that only women applicants for assembly line work are required to take pregnancy tests and that pregnancy discrimination is linked to high production demands: "Pregnant women are not contracted because they will ask for time off from work, either for visits to the doctor [for prenatal care] or for maternity leave. It is all about meeting production. In this factory, they calculate how many workers and how many hours it will take to complete a certain job. Each line worker has a certain amount that she must produce. Pregnant women cannot work when the quota is too high. There is no room for people to miss work, or not work to their fullest capacity."22
However, in the wake of our previous report, another rationale has emerged. As discussed in the section above on discriminatory practices, some corporations, such as Plásticos BajaCal in Tijuana,23 argued that pregnancy testing is necessary to comply with Mexican labor law mandating special protections for pregnant workers and their fetuses. They argued that in order to give pregnant workers physically less demanding or seated work, as is contemplated in Mexicos federal labor code, they had to know whether the worker was pregnant. Again, if corporations want to protect women workers, they should provide them with safe working environments and complete information on possible harm to their or their fetuss health and on the availability of work more suitable for pregnant women. This will create a work environment in which women will be able to decide when and if to reveal information about her reproductive status, without fear that revelation of such information will lead to their dismissal or other retaliation.
Notwithstanding corporations arguments, workers experiences also appear to contradict claims that corporations test women workers for pregnancy so they can be protected. A former line supervisor at Matsushita Electric Componentes de Baja California 24 in Tijuana explained corporations haphazard approach to safety:
There was a health and safety program at the factory. The company wanted to appear to be complying with the law. The company made no special provisions for pregnant women. As a supervisor, it was up to me to provide protection for pregnant workers. The supervisors were the ones who were responsible for protection policies, and policies concerning personnel issues, and this was a very individual thing. Some supervisors cared; other did not. No one ever monitored us for what were doing.25
Maquiladora worker activists whom Human Rights Watch researchers interviewed also discounted corporate arguments that compliance with Mexican labor law justified pregnancy testing. Gloria Tello, a labor and womens rights activist in Mexico City expressed her skepticism: "Pregnancy testing after employment to protect workers? Thats not what its forits just for discrimination."26
212 Secretaría de Gobernación (Government Ministry), Alliance for Equality: National Program for Women, 1995-2000 (Mexico City: Secretaría de Gobernación, 1996). Alliance for Equality is a five-year policy guideline prepared by the Government Ministry in Mexico, a cabinet level government agency. Alliance for Equality reports, "Women workers often see themselves subjected to discriminatory practices, as much in terms of being contracted as from dismissal in the case of pregnancy or breast-feeding" (p.89).
In June 1995, the Commission for Human Rights of Mexico City (cdhdf) urged that several entities in the capital cityincluding the Superior Tribunal of Justice, the Office of the Institute of Professional Formation of the Attorney General of Justice of the Federal District, and the Institute of Training and Development of the Collective Transportation System (metro)stop requiring proof of pregnancy status for applicants. The commission concluded that to require that women provide such information is " . . . a sexist act that violates the principle of social and legal equality between a man and a woman." Carta del Presidente de la (cdhdf) al Jefe del Departamento del Districto Federal (Letter from the President of the cdhdf [Human Rights Commission of the Federal District] to the Head of the Federal District), in La Gaceta (Mexico City), June 1995.
In addition, a 1994 National Commission for Human Rights (cndh) study that focused on the human rights of women in Mexico generally and examined the impediments to women enjoying full exercise of their human rights noted that "[a] recurrent discrimination is the requirement made of women of certificates of nonpregnancy at the time of hiring." From "Los Derechos Humanos de las Mujeres en México" (The Human Rights of Women in Mexico), National Commission for Human Rights, Mexico City, Mexico, July 1994, p. 26.
213 Boletín Informativo, Dirección de Comunicación Social, August 26, 1996, Tijuana, Comunicado No. 221 (Informative Bulletin, Direction of Social Communication).
214 Article 133(I) of the federal labor code establishes that an employer cannot refuse to hire someone for reasons of either sex or age.
215 None of the Ministry of Labor officials with whom we met was able to offer anything other than vague recollections about successful cases of women alleging on-the-job pregnancy discrimination.
216 July 11, 1997 memo from the director of the Mexican National Administrative Office (mnao) to the director of the U.S National Administrative Office (u.s. nao).
217 Article 2 of the federal labor code states, "The norms of work tend to achieve equilibrium and social justice in relations between workers and patrons." Article 3 states "Work is a right and a social duty. It is not a commercial article, and requires respect for the liberties and dignity of the person who lends his services and it should be carried out in conditions that assure life, health and a decorous economic level for the worker and his family. Distinctions cannot be established between workers for motives of race, sex, age, religious creed, political doctrine, or social condition . . ."
218 Human Rights Watch interviews, Antonio Ortiz Gutierrez, president, cab, Tijuana, May 23, 1997; Carlos Martín Gutiérrez Ruiz, labor rights ombudsman, Tijuana, May 23, 1997; and Isabel Wong, inspector of work, Ciudad Juárez, May 19, 1997.
219 Human Rights Watch interview, Javier Moctezuma Barragán, under secretary "A," Mexican Ministry of Labor, Mexico City, May 27, 1997.
220 Human Rights Watch interview, Isabel Wong, inspector of labor, Ciudad Juárez, May 19, 1997.
221 Human Rights Watch interview, Carlos Martín Gutiérrez Ruiz, labor rights ombudsman, Tijuana, May 23, 1997.
222 Article 133(I).
223 See Article 2 of the federal labor code.
224 Human Rights Watch interview, María Estela Ríos, anad, Mexico City, May 27, 1997. anad is a co-sponsor with Human Rights Watch of the petition against Mexico to the u.s. nao.
225 As they are chartered, both the Office of the Inspector of Labor and the cab are impartial investigative bodies and act under the authority of the Secretary of Labor and Social Security. The Office of the Labor Rights Ombudsman is intended to act as a workers advocate, using federal labor codes as guidance in advising workers of their rights. The Office of the Inspector of Labor is charged generally with ensuring that companies are in compliance with Mexican federal labor law and investigating allegations of noncompliance with the federal labor statutes.
The Office of the Labor Rights Ombudsman is obliged, among other things, to represent workers or unions, whenever they are asked to do so, before any authority on issues which relate to the application of labor law. The labor rights ombudsman is responsible, in principle, for offering workers whatever legal advice is necessary to resolve a labor dispute, without any financial cost to the worker. If this office cannot resolve the dispute or the worker wants to go before the cab, the office is obliged to help workers prepare and present their cases before that board. See "No Guarantees" for a more detailed analysis of these offices.
226 Human Rights Watch interviewed the following Ministry of Labor officials: Luis A. Alonso Siqueiros Pérez, president of the cab in Ciudad Juárez; Hugo Gamboa Amores, labor rights ombudsman in Ciudad Juárez; Isabel Wong, inspector of labor in Ciudad Juárez; Antonio Ortiz Gutierrez, president of the cab in Tijuana; Carlos Martín Gutiérrez Ruiz, labor rights ombudsman in Tijuana; Javier Moctezuma Barragán, under secretary "A" at the Ministry of Labor in Mexico City; and Joaquin Blanes Casas, general director of the general division of the Federal Inspection of Work section of the Ministry of Labor inMexico City, all in May 1997.
227 Human Rights Watch interview, Javier Moctezuma Barragán, under secretary "A" at the Ministry of Labor, Mexico City, May 27, 1997. This practice was reaffirmed by the Mexican government itself in an October 14, 1997 memo from the Mexican National Administrative Office to the U.S. National Administrative Office, in which the Mexican government stated that there was "no legal mechanism by which a person may pursue a claim of preemployment gender discrimination prior to the establishment of the employment relationship" as stated in "Public Report of Review of NAO Submission No. 9701," January 12, 1998, U.S. National Administrative Office, Bureau of International Labor Affairs, U.S. Department of Labor, p. 10.
228 Based on Human Rights Watch interviews with Luis A. Alonso Siqueiros Pérez, president of the cab in Ciudad Juárez; Hugo Gamboa Amores, labor rights ombudsman in Ciudad Juárez; Isabel Wong, inspector of labor in Ciudad Juárez; Antonio Ortiz Gutierrez, president of the cab in Tijuana; and Carlos Martín Gutiérrez Ruiz, labor rights ombudsman in Tijuana, May 1997.
229 In practice, recourse to the civil court system is not an effective remedy for people without economic resources. The government of Mexico itself recognizes that in practice there is no effective judicial remedy for hiring-process sex discrimination, as stated in "Public Report of Review of NAO Submission No. 9701," January 12, 1998, U.S. National Administrative Office, Bureau of International Labor Affairs, U.S. Department of Labor, p. 10. October 14, 1997 memorandum from the Mexican National Administrative Office to the U.S. National Administrative Office.
230 ilo Convention 111 defines employment to include access to employment. Article 1(3) reads, "For the purpose of this Convention the terms 'employment' and 'occupation' include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment (emphasis added)."
231 Article 154 of the federal labor code.
232 See "No Guarantees" for a more detailed analysis of Mexicos international human rights obligations.
233 Article 26 reads, "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion . . ."
234 Article 2 reads, "States parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: . . . (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protections of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women."
Article 11(1) reads, "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: . . . (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment . . ."
cedaw prohibits intentional and unintentional sex discrimination.
Furthermore, the standard by which cedaw measures and defines sex discrimination ". . . moves from a sex-neutral norm that requires the equal treatment of men and women by looking at measurements as between how men and women are treated to a specific recognition of the particular nature of discrimination against women, the particular obstacles that women face in trying to enjoy their rights on the same basis as men," Alice Miller, director, Womens Rights Advocacy Program of the International Human Rights Law Group, u.s. nao testimony for public hearing regarding case No. 9701, Brownsville, Texas, November 19, 1997.
235 Ratified by Mexico on April 3, 1982. Article 24 states, "All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law."
236 ilo Convention 111 in its entirety prohibits discrimination on several grounds and outlines government obligations to enforce this. ilo conventions and recommendations bind governments and provide international legal guidance for the formulation or revision of domestic labor laws. ilo expert opinions are meant to provide authoritative interpretation of conventions and recommendations.
237 Mexico acceded to both the ICCPR and the ICESCR on March 23, 1981, ratified CEDAW on March 23, 1981 and Convention 111 on September 11, 1961.
238 Article 26 reads, "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Article 2(1) reads, "Each State Party to the present Covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
239 Article 1(1) reads, "The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any distinction for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or other social condition."
Moreover, in its yearly review of the human rights situation in Mexico, the Inter-American Commission on Human Rights noted the pregnancy-based sex discrimination that maquiladora workers faced and urged the government of Mexico to "[e]nsure strict compliance by employers with national and international norms relating to employment in order to prevent the occurrence of discrimination against women in hiring and to promote a wholesome working environment which would provide greater safety for women and enhance their on-the-job performance." "Report on the Situation of Human Rights in Mexico," September 24, 1998, paragraph 640.
240 Velásquez Rodríguez (July 28, 1988), Inter-American Court of Human Rights (series C) No. 4, para. 176 (specifically discussing rights contained within the American Convention on Human Rights).
241 Ibid. The Court offered this commentary in three cases decided in 1988-1989. The Tribunal found in these cases that the government of Honduras was responsible for a series of forced disappearances carried out between 1981 and 1984 by members of the Honduran military. It extended its commentary to cover the full scope of Article 1(1), which reads "The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition."
242 Velásquez Rodríguez, para. 176 (referring to the American Convention on Human Rights).
243 Ibid., para. 174.
244 Ibid., para. 175.
245 Ibid., para. 172.
246 Article 17 states, "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation."
247 Article 12 states, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. . . "
248 Article 11 of the American Convention on Human Rights reads, "(1) Everyone has the right to have his honor respected and his dignity recognized. (2) No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. (3) Everyone has the right to the protection of the law against such interference or attacks."
249 "Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," General Comment 16 to Article 17, U.N. Document HRI/GEN/1/Rev.1, July 29, 1994, p. 21.
250 Ibid., p. 23.
251 Ibid., p. 21.
252 North American Agreement on Labor Cooperation Supplemental Agreement to the nafta, preamble, p. 1.
253 Ibid., p. 3.
254 ilrf is a Washington, D.C.-based nonprofit nongovernmental organization representing human rights, labor, religious, consumer, academic, and business groups dedicated to ensuring that all workers labor under humane conditions with adequate protection of worker rights. It was founded in 1986 and concentrates heavily on issues of workers rights and international trade.
255 anad is a network of legal professionals in Mexico committed to providing legal services, analysis, and litigation in the defense of democracy and human rights. Its approximately 230 members include some of the most prestigious human rights authorities in Mexico, including noted specialists in labor law, arbitration, and collective bargaining.
0 This petition was submitted for review on May 16, 1997, and accepted for review by the u.s. nao on July 14, 1997. In a memo sent three days before the u.s. nao accepted the petition from George Castañón Lara, director of the Mexican National Administrative Office (mnao) to Irasema Garza, director of the U.S. National Administrative Office (u.s. nao), Castañón Lara argues that the petition against Mexico submitted by Human Rights Watch et al. should not be accepted for review because the petition questions Mexican labor law and not its application, which goes beyond the realm of the North American Agreement on Labor Cooperation. In this memo, Castañón Lara pointed out that pregnancy exams for the concession of a job have not been prohibited by law. The memo acknowledges that the government of Mexico does not consider pregnancy testing in the hiring process to constitute a violation of its labor law.
The July 1997 memo from the mnao misrepresents the basic facts of the petition Human Rights Watch and others submitted. Given the widespread nature of hiring-process and on-the-job pregnancy discrimination in the maquiladoras, Mexico is failing to enforce the anti-discrimination components of its federal labor code. Existing labor tribunals are not accessible to people who have not established a labor relationship (of which pregnant women, or any other woman, denied work because of actual or imputed pregnancy status fall) and the heads of these tribunals have displayed biased attitudes regarding post-hire pregnancy discrimination, that is adjudicable in these fora. Our petition finds that Mexico clearly fails to apply its own federal labor code.
1 This hearing was called at the request of the petitioners.
2 This worker began working at a General Motors-owned plant before their new nondiscrimination policy was announced in March 1997.
3 Public Report of Review of NAO Submission No. 9701, U.S. National Administrative Office, Bureau of International Labor Affairs, U.S. Department of Labor, January 12, 1998, pp.43-44.
4 naalc, Article 4(1).
5 This practice was reaffirmed by the Mexican government itself in an October 14, 1997 memo from the Mexican National Administrative Office to the U.S. National Administrative Office, in which the Mexican government stated that there was "no legal mechanism by which a person may pursue a claim of pre-employment gender discrimination prior to the establishment of the employment relationship" as stated in "Public Report of Review of NAO Submission No. 9701," January 12, 1998, U.S. National Administrative Office, Bureau of International Labor Affairs, U.S. Department of Labor, p. 10.
6 July 1997 memo from George Castañón Lara, director of the Mexican National Administrative Office (mnao) to Irasema Garza, director of the U.S. National Administrative Office (u.s. nao). This memo did not specify the nature of the violations sought or uncovered or the remedial measures taken.
7 International Labour Conference, 83rd Session, Report II (part B) Special Survey on Equality in Employment and Occupation in Respect of Convention No. 111 (Geneva: International Labour Office, 1996), p. 15.
8 Ibid, p. 13.
9 Ratified by Mexico on September 11, 1961.
10 International Labour Conference, 80th Session, Report III (Part 4A), Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva: International Labour Office, 1995), pp. 321-322.
11 International Labour Conference, 82nd Session, Report III (Part 4A), Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva: International Labour Office, 1995), p. 300. Colombia adopted a resolution in November 1994 that specified that "high risk" employment referred only to those occupations listed in two 1994 decrees.
12 cedaw, Article 1.
13 "Answers of the Government of Mexico to the Consultation of the Committee on the Elimination of Discrimination Against Women" (CEDAW/1998/CRP.1/ADD.4), January 30, 1998, New York, New York, English version, p. 44.
14 Concluding observations of the Committee on the Elimination of Discrimination Against Women: Mexico. 14/05/98.A/53/38, paras. 354-427. (Concluding Observations/Comments, para 416.)
15 United Nations Press Release, WOM/1020, 30 January 1998.
16 Following the consultation process, should there be disagreement about the course of action needed, any party may request that an independent Committee of Experts be established to evaluate the record of the country making the request and that of the country that is the object of the request.
17 Public Report of Review of NAO Submission No. 9701, U.S. National Administrative Office, Bureau of International Labor Affairs, U.S. Department of Labor, January 12, 1998, p. iii.
18 Department of State NGO briefing, Steven J. Coffey, Principal Deputy Assistant Secretary, Bureau for Democracy, Human Rights, and Labor, Washington, DC, August 27, 1997.
19 Human Rights Watch wrote to and telephoned Steven Coffeys office in January 1998 to try to determine what actions the Mexican government had taken and how the U.S. government had followed up since his August 1997 visit to Mexico but was never able to reach Coffey. Human Rights Watch tried reaching Coffeys office again in mid-June to find out details, with little success. In August 1998, Coffeys office responded to our inquiries with a letter informing us of Labor Secretary Hermans request for ministerial consultations on this issue with her counterpart in Mexico. His letter referred additional queries to the U.S. Department of Labor.
20 Also see Appendix B: Responses from Corporations in "No Guarantees."
21 Owned by North American Communication of San Diego, California. This factory is divided into two sections. One section sews garments and the other folds and organizes promotions from banks.
22 Human Rights Watch interview, Julia Muñoz, Tijuana, May 22, 1997.
23 Human Rights Watch interview, Martha Harmon, general manager of Plásticos BajaCal, Tijuana, May 21, 1997.
24 Owned by Matsushita Electric Corp. of Osaka, Japan. Manufactures batteries and television components.
25 Human Rights Watch interview, Artemio Osano, Tijuana, May 24, 1997.
26 Human Rights Watch interview, Gloria Tello, director, Womens Project, Servicio, Desarrollo y Paz (sedepac) (Service, Development and Peace), Mexico City, May 26, 1997.