In August 1996 Human Rights Watch released a report on labor force sex discrimination in Mexico. The report, "No Guarantees: Sex Discrimination in Mexicos Maquiladora Sector," showed that women applying for work in Mexicos export processing (maquiladora) sector along the U.S.-Mexico border were obliged to undergo mandatory, employment-related pregnancy testing as a condition for employment. The report also found that women who became pregnant soon after being hired risked mistreatment and forced resignation. "No Guarantees" condemned the government of Mexico for failing to protect female workers from these discriminatory practices and called on the government of Mexico to acknowledge and condemn pregnancy-based discrimination as discrimination based on sex; to uphold international human rights obligations to guarantee the rights to equality before the law and to nondiscrimination; and to investigate vigorously all allegations of sex-based discriminatory employment practices and punish those responsible. In the more than two years since our reports release, the Mexican government has yet to take any meaningful action to condemn, investigate, or punish this blatant sex discrimination. As a result, as this report documents, pregnancy-based sex discrimination persists both in places we had previously visited as well as in areas we had not visited before, like Ciudad Juárez, in the state of Chihuahua, across the border from El Paso, Texas.
Pregnancy as a condition is inextricably linked and specific to being female. Consequently, when women are treated in an adverse manner by their employers or potential employers because they are pregnant or because they may become pregnant, they are being subjected to a form of sex discrimination by targeting a condition only women experience. Pregnancy discrimination is not limited to the refusal to hire pregnant job applicants and the firing of pregnant workers but also includes any behavior or practice to determine pregnancy status, such as requiring information about womens sexual activity or contraceptive use.
During investigations conducted from May through November 1997, we found that in Tijuana, in the state of Baja California (south of San Diego, California); Reynosa and Río Bravo, in the state of Tamaulipas (opposite McAllen, Texas); and Ciudad Juárez (across the border from El Paso, Texas), corporations, the vast majority of which are U.S. owned, forced female applicants to undergo mandatory employment-related pregnancy testing in order to detect pregnancy and deny pregnant women work. In Ciudad Juárez, in particular, we also discovered disturbing means of implementing discriminatory policies: female employees are compelled to show their used sanitary napkins to verify nonpregnancy before they receive permanent contracts. In violation of Mexican federal labor law, maquiladora operators in Ciudad Juárez reportedly also refused to pay female employees their wages during maternity leave; threatened not to allow female employees to return to work after maternity leave; and, in one instance, retaliated against a woman who complained that pregnant co-workers were breathing in noxious fumes and fainting on the job by firing her.
Rather than condemn such practices, the Mexican government has taken every opportunity to interpret and apply labor law in a way that most favors the discriminatory practices of the corporations and affords women the least amount of protection. In fact, the government has even gone so far as to excuse publicly this discrimination. The Labor Department of the state of Baja California, which is charged with enforcing the federal labor code at the state level, issued a press release (see Appendix A for original press release in Spanish and an English translation) indicating that pregnancy testing in the hiring process was legal and was in fact a corporations fulfilment of an authority granted to it by the labor law.
The Mexican government also initiated inspections of maquiladoras in response to our findings and convened a meeting between Mexican union representatives and the maquiladora trade association to discuss the findings of Human Rights Watchs report, encouraging them to investigate and change their practices regarding on-the-job pregnancy discrimination. However, since the Mexican government does not consider the determination and use of pregnancy status in the employment process to violate its federal labor code, the government in fact ignores the most pervasive and openly practiced type of sex discrimination that exists in that sector: hiring-process sex discrimination.
Female job seekers in Mexico cannot rely on the government for protection from discrimination in the workforce. They have few tenable options for legal redress. Several Mexican states have human rights commissions charged with investigating human rights abuses involving public officials (by omission and by commission). However, private-sector labor issues are outside the legal purview of these human rights commissions. Other government mechanisms include the Inspector of Labor Office, which is responsible for ensuring businesses compliance with federal labor law; the Labor Rights Ombudsman Office, which is responsible for offering workers free legal advice and assisting them in the resolution of labor disputes through the conciliation and arbitration process; and the local Conciliation and Arbitration Board (cab), which adjudicates worker disputes and issues binding resolutions. However, these bodies maintain they are not legally empowered to address disputes involving job applicants, arguing that such individuals have not established a labor relationship with an employer. Female job applicants who are obliged to undergo pregnancy testing as a condition for employment fall within this category of people. Unless a victim files a complaint of on-the-job pregnancy-related sex discrimination, the cabs are not authorized to initiate investigations of these practices either. Furthermore, officials from Mexicos Ministry of Labor told us that in the absence of explicit prohibitions against pregnancy testing in the federal labor code as a type of sex discrimination, such treatment was in fact permissible under the law.
In response to the governments position, Human Rights Watch, along with the Asociación Nacional de Abogados Democráticos (National Association of Democratic Lawyers) (anad) and the International Labor Rights Fund (ilrf), moved to challenge Mexicos interpretation of legal provisions barring sex discrimination. In May 1997 the three organizations requested an examination of Mexicos failure to enforce antidiscrimination components of its labor law and its failure to establish accessible tribunals for the adjudication of these sex discrimination cases under the labor rights side agreement to the North American Free Trade Agreement (nafta). When we submitted the petition, the Mexican government requested that the U.S. National Administrative Office (u.s. nao) refuse to investigate our claims on the grounds that the petitioners were questioning Mexican law, not its application. Mexico argued that the law protects the rights of women but does not prohibit pregnancy exams as a requirement for a job.
The Mexican governments argument contradicts the reality of its own law. Mexicos federal labor code accords women workers the same responsibilities and duties as men, and it guarantees equality between the sexes and therefore prohibits discrimination based on sex. Furthermore, the federal labor code prohibits specifically sex discrimination in the hiring process. The federal labor code also establishes protections for expectant and new mothers (such as the right to twelve weeks of paid maternity leave and the right to return to ones previous position).
As a result of the complaint Human Rights Watch and its two co-petitioners filed against Mexico, the U.S. Department of Labor, under the auspices of the labor rights side agreement to nafta, conducted its own investigation. In January 1998, the U.S. Department of Labor released its findings and affirmed that employers in Mexicos maquiladora sector oblige women applicants to undergo pregnancy screening as a condition for employment and that the Mexican government is aware of this practice. The investigation also found on-the-job mistreatment and firing of women workers to constitute sex discrimination, in violation of Mexicos labor law. The investigation found that there was a lack of consistency and clarity in Mexican law and its application regarding the illegality of hiring-process pregnancy screening. The report did not comment on whether job applicants were protected by Mexicos labor law and therefore could seek redress before adjudicative and investigative structures established by Mexicos Ministry of Labor.
The U.S. secretary of labor and her Mexican counterpart met in October to decide on the terms of the implementing agreement for the consultations. That agreement, signed by Mexico and the U.S. and endorsed by Canada on October 21, 1998, is questionable in its intent. The agreement has been expanded to include a review of relief offered for post-hire pregnancy discrimination in all three nafta signatories. The agreement establishes a nine month time frame during which the U.S. and Mexico will meet to confer on these issues but does not mention explicitly as an issue for review hiring-process pregnancy-based discrimination. The agreement is also unclear aboutwhether the information to be disseminated and discussed at conferences and public meetings will have as its foundation respect for womens right to equality in the labor force, including in access to employment.
Pregnancy-based discrimination constitutes discrimination on the basis of sex, an invasion of a womans privacy, and, in some instances, a limit on a womans ability to decide freely and responsibly on the number and spacing of her children. In fact, by failing to address and remedy these practices, the Mexican government not only violates its own domestic laws prohibiting discrimination and guaranteeing the protection of womens reproductive health, but also fails to fulfill its international human rights obligations to protect those under its jurisdiction from human rights abuses, to promote respect for human rights within its borders, to make tribunals available for the resolution of labor issues, and to ensure that those under its jurisdiction are able fully to enjoy and exercise their rights under the International Covenant on Civil and Political Rights (iccpr), the Convention on the Elimination of All Forms of Discrimination Against Women (cedaw), the American Convention on Human Rights, the International Covenant on Economic, Social and Cultural Rights (icescr), International Labour Office (ilo) standards, and the North American Agreement on Labor Cooperation (naalc).
While the Mexican governments position on sex discrimination in the maquiladoras remains unchanged, mandatory employment-related pregnancy testing and other pregnancy-based discrimination is rampant. Some private corporations cited in our previous report, most notably General Motors, have vowed to take steps to end pregnancy-based sex discrimination in its maquiladoras (see letter in Appendix B). While we commend General Motors for unilaterally changing this policy in the maquiladoras, our follow-up research indicates that, thus far, its efforts have been inadequate.
Others, most notably Zenith Corporation (see letter in Appendix C) and Tyco International (called Carlisle Plastics in "No Guarantees"), both identified in our previous report, continue, like the Mexican government, to defend these discriminatory practices as legal. Zenith argues that Mexicos federal labor code does not explicitly prohibit pregnancy testing. Tyco International has defended its practices as protective of womens reproductive health. They argue that they have a right to require a female worker to report her pregnancy status in order to assign the female worker to less physically taxing work and to protect themselves from liability. In Human Rights Watchs opinion, corporations interest in protecting themselves from liability for on-the-job harm to pregnant workers or their fetus cannot be pursued at the expense of womens rights to privacy, to be free from degrading and humiliating treatment in the workplace, and above all to be free from discriminatory treatment by reason of their sex.
The need for government enforcement of existing law is urgent. The women affected by pregnancy discrimination in the maquiladora sector are among the poorest, least educated, and with the least formal work experience in the workforce. Screened out of the applicant pool and denied access to the only jobs available to them, these pregnant women are rendered virtually unemployable. Female workers make up more than 50 percent of the current maquiladora work force. Women applicants are often single mothers or their families primary wage earners. Their desperation to get or retain maquiladora jobs combined with ignorance of the law makes them reluctant to contest the discriminatory testing or forced resignations. Furthermore, Human Rights Watch is greatly concerned that such discriminatory treatment may directly compromise women workers regulation of their pregnancies by forcing them into a situation of fearing the loss of their jobs if they become pregnant. In cases in which women workers become pregnant, the fear of losing their jobs often compels women to hide their pregnancies and risk their and their fetuses well being. In many instances, women find themselves in the untenable position of choosing between their jobs and their rights.
This update report is based on new interviews with womens rights activists, maquiladora personnel, labor rights advocates, Mexican government officials, U.S. government officials, community organizers, and victims of sex-based employment discrimination in four cities: Ciudad Juárez, in Chihuahua state; Tijuana, in Baja California state; and Río Bravo and Reynosa, in Tamaulipas state. We interviewed fifty-four women (five of whom testified in a u.s. nao public hearing on this issue in Brownsville, Texas, in November 1997) who now work or recently worked as lineworkers or assemblers and maquiladora administrators in fifty plants along the Mexico-U.S. border. All the names of women workers have been changed, at their request, to protect them from possible retaliation. In addition, identifying information has been omitted or changed.
We interviewed women workers from the following sixteen factories in Ciudad Juárez: Howe de México (Victoria, Australia-based Howe & Co.); Zenco de Chihuahua (Glenview, Illinois-based Zenith Electronics Corp.); Industrial Hase/a.k.a. Nuevo Hase (Waukegan, Illinois-based Cherry Electrical Products); Sensus de México (Union Town, Pennsylvania-based Sensus Technologies Inc.); Itessa (Munich, Germany-based Siemens AG); Bell Eléctricos (Orange, Connecticut-based Hubbell Inc.); Río Bravo Eléctricos (Detroit, Michigan-based General Motors); NPC International (Louisville, Kentucky-based National Processing Co.); Favesa (Southfield, Michigan-based Lear Corp.); RCA Componentes (Boulogne, France-based Thomson Corporate Worldwide); Ansell Perry de México (Melbourne, Australia-based Pacific Dunlop); Berg Electric Intermex Manufactura/a.k.a. Emisiones Vacio (El Paso, Texas-based Intermex); Industrial Hase (parent company unknown); Siemens Sistemas Automotrices (Munich, Germany-based Siemens AG); Vestiduras Fronterizes (Detroit, Michigan-based General Motorsthe worker applied for a position before General Motors announced its new policy); and Promédicos de Juárez (now closed; McGaw Park, Illinois-based Allegiance Health Care).
We interviewed women workers from the following twenty-one factories in Tijuana: Maquiladora California (San Diego, California-based Alpha Southwest); Silviana (parent company unknown); Douglas Furniture de México (Redondo Beach, California-based Douglas Furniture of California); Tijuana Industrial Arcos (San Ysidro, California-based Industrial Arcos); Grupo Verde (now closed; parent company unknown); Ensambles Hyson (San Diego, California-based Rainbird); ComAir Rotron de México (San Ysidro, California-based ComAir Rotron Inc.); Tijuana Samsung Electro Mecánico (Seoul, South Korea-based Samsung Group); saft Componentes Técnicos (Romainville, France-based saft); BerthaMex (San Diego, California-based North American Communication); Microeléctrica de Tijuana (San Diego, California-based Vertek International Custom House); Marcos Calidad (San Diego, California-based American Frame Manufacturing Co.); Sanyo (Osaka, Japan-based Sanyo Electric Corp.); Tagit de México (Los Angeles, California-based Tagit Inc.); Confecciones Paolas (San Ysidro, California-based Confecciones Paolas); Matsushita-Panasonic (Osaka, Japan-based Matsushita Electric Corp.); Plásticos BajaCal (Exeter, New Hampshire-based Tyco International); Levimex de Baja California (Little Neck, New York-based Leviton Manufacturing Co.); Unisolar (Troy, Michigan-based United Solar Systems Co.); Industrias María de Tijuana (Klamath Falls, Oregon-based Jeld-Wen Inc.); and Industrias Ynos (Los Angeles, California-based Esselte Pemvaflex Co.).
We interviewed women from the following six factories in Reynosa: Delnosa (Detroit, Michigan-based General Motors); Industrias Valino (Harlingen, Texas-based Magnolia International); P.C.M. de México (Rockwell, Texas-based Precision Cable Manufacturing Inc.); Controles de Reynosa (Milwaukee, Wisconsin-based Johnson Controls); Shin Etsu (Union City, California-based Shin-Etsu Polymer America); and Zenith (based in Glenview, Illinoisnow majority owned by South Korea-based Goldstar).
We interviewed women from the following two factories in Río Bravo: Fabrica Duro (Ludlow, Kentucky-based Duro Bag Inc.) and Costuras de Río Bravo (Edcouch, Texas-based St. Marys Sewing).
For the purposes of preparing for the u.s. nao hearing held in Brownsville, Texas, in November 1997, we interviewed five women who worked in the following seven maquiladoras: Delnosa (Detroit, Michigan-based General Motors) in Reynosa; Panasonic (Osaka, Japan-based Matsushita Electric Corp.) in Reynosa; Landis and Staefa (formerly known as Landis and Gyr, owned by Zug, Switzerland-based Landis and Staefa Europe) in Reynosa; Lintel (parent company unknown) in Reynosa; Manufacturas Ilimitadas (parent company unknown); Sunbeam-Oster (Del Ray Beach, Florida-based Sunbeam-Oster) in Matamoros; and Controlam (Cleveland, Ohio-based Eaton Corporation) in Matamoros.
Human Rights Watch takes no position on maquiladoras as a vehicle of employment or as a means to stimulate economic growth and free trade. However, we believe that respect for human rights should be central to free trade and that human rights should not be compromised in pursuit of economic growth or recovery. Too often this is not the case. Nor do we take issue with the provision of reproductive and other health care by maquiladora clinics. However, provision of that care should be based on female workers voluntary requests or the very strict health-related requirements of Mexican law. Reproductive health care in the maquiladoras should not entail women losing their jobs or being penalized in any other way for their reproductive choices.
To end the widespread discrimination against women in the maquiladora sector and the related denial of their rights to privacy and, in some instances, to decide freely and responsibly on the number and spacing of their children, Human Rights Watch calls on the government of Mexico, the state legislatures, the Mexican commissions for human rights, the government of the United States, the European Union, corporations that operate maquiladoras, and corporations that use maquiladoras as subcontractors, to respond to the recommendations that follow: