III. INTERNATIONAL STANDARDS AND GUATEMALAN LAW
Under the Guatemalan Constitution, international law takes precedence over national law with respect to human rights. International labor agreements establish the minimum rights workers shall enjoy in Guatemala.1 The Guatemalan government has obligations under international human rights law to protect those living under its jurisdiction from human rights abuses, to promote respect for human rights, and to ensure that those living under its jurisdiction can enjoy and exercise their human rights. As a party to international human rights treaties, Guatemala has committed itself to eliminate de jure discrimination, prevent discriminatory practices in both the public and the private sectors, and provide effective remedies to those who have suffered abuses. To achieve these commitments, among other things, Guatemala has the duty to ensure that its national laws are in conformity with international human rights law. Our research found that, in law and in practice, the rights of women who work in the domestic and maquila sectors to equality and privacy are routinely violated.
Right to Nondiscrimination
All international human rights instruments prominently include a nondiscrimination provision that states that the enjoyment of all the rights enumerated in the document belong to all people without any distinction. The Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR)-collectively referred to as the international bill of rights-share the general prohibition of distinctions based on "race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."2 The ICCPR also establishes the right to equality: Article 26 asserts that "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..." According to ICCPR expert Manfred Nowak, this article imposes the obligation on States Parties to ensure substantive equality by way of legislation."3
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), respectively, develop the specific prohibitions of distinctions on the basis of sex and on the basis of race, color or ethnic origin. Both treaties proscribe "any distinction, exclusion...restriction" based on sex or race, respectively, that has the effect or purpose of nullifying or impairing "the recognition, enjoyment or exercise...of human rights and fundamental freedoms."4 The CERD Committee, created to oversee implementation of the convention, has clarified that its provisions apply to indigenous peoples, such as the Maya of Guatemala. 5 Having ratified both treaties in the early 1980s, Guatemala must not only refrain from sex-based and race-based discrimination, but also must prevent and punish this conduct by private individuals within its jurisdiction. In particular, Guatemala must "take all appropriate measures...to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women,"6 and repeal laws and regulations that "have the effect of creating or perpetuating racial discrimination wherever it exists."7
Although CERD does not directly address gender discrimination, and CEDAW only addresses racial discrimination in its preamble, 8 there is a growing consensus that these two conventions complement each other. Thus, in 1999 the CERD Committee amended states parties' reporting guidelines, asking that in the future reports "describe, as far as possible in quantitative and qualitative terms, factors affecting and difficulties experienced in ensuring for women the equal enjoyment, free of discrimination, of rights under the Convention."9 In 2000, the CERD Committee issued a General Recommendation, or authoritative interpretation, on the gender-related dimensions of racial discrimination in which it recognized that "certain forms of racial discrimination may be directed towards women specifically because of their gender...[and] some forms of racial discrimination have unique and specific impact on women."10 The committee pledged itself to examine the relationship between gender and racial discrimination by giving particular consideration to: a) "the form and manifestation of racial discrimination; b) the circumstances in which racial discrimination occurs; c) the consequences of racial discrimination; and d) the availability and accessibility of remedies and complaint mechanisms for racial discrimination."11
The international women's human rights movement has long advanced the need to examine the intersection of gender and race. The concluding documents of both the U.N. Fourth World Conference on Women in Beijing, China, in 1995, and the special session of the U.N. General Assembly on "Women 2000: Gender Equality, Development and Peace in the 21st Century," known as Beijing +5, in New York City, United States, in 2000, acknowledged the barriers built on race, language, ethnicity, culture, among others, that impede women's empowerment and full equality.12 The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará), the only regional human rights treaty devoted to violence against women, notes "the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons."13 In a background paper published in preparation for the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in South Africa in 2001, the United Nations Development Fund for Women (UNIFEM) wrote that "women often experience compounded or intersectional discrimination, in which their experience of gender discrimination intersects with racism and related intolerance."14
The awareness that gender and race or ethnicity are grounds for discrimination that often compound and mutually reinforce each other is particularly relevant in the case of domestic workers in Guatemala. Ethnicity was a factor in the drafting of the labor code provisions: the fact that paid domestic work has traditionally been performed by indigenous women in Guatemala directly influenced the rights domestic workers were afforded in the labor code.
Disparate Impact Discrimination
International human rights law recognizes that discrimination is not always intentional. Facially neutral laws, regulations, policies, and practices can have a discriminatory impact. As discussed above, CEDAW proscribes explicitly discrimination on the basis of sex. The CEDAW Committee has clearly stated that the definition of discrimination inArticle 1 of the convention covers both direct and indirect discrimination by public and private actors. 15 However, to date it has not articulated its understanding of discriminatory impact. The CERD Committee, however, has argued that distinctions that have an "unjustifiable disparate impact" on a group distinguished by race, color, descent, or national or ethnic origin, and which have the effect of impairing enjoyment of human rights and fundamental freedoms, are discriminatory within the meaning of the CERD.16 By analogy, one could argue that a law or policy that has an unjustifiable disparate impact on a group distinguished by sex, having further the effect of limiting their enjoyment of human rights, could be read as discrimination within the meaning of CEDAW. This reading would be consistent with the CEDAW Committee's interpretation of gender-based violence as a form of discrimination. In its General Recommendation No. 19, the CEDAW Committee held that gender-based violence is "violence that is directed against a woman because she is a woman or that affects women disproportionately."17
The CERD Committee has not elaborated on the precise meaning of "unjustifiable disparate impact." However, the European Court of Justice (ECJ), whose rulings are not binding on Guatemala, has expressed an instructive opinion. In its application of a Council of the European Union directive that "the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly,"18 the ECJ found that indirect discrimination "arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men" and that measure is not "attributable to factors which are objectively justified." 19 To be considered objectively justifiable, these factors cannot be related to any discrimination based on sex.
For its part, the International Labor Organization (ILO), in Convention No. 111 concerning Discrimination in Respect to Employment and Occupation (Discrimination Convention), proscribes conduct, practices, or laws that have the "effect of nullifying or impairing equality of opportunity or treatment in employment or occupation."20 The ILO Committee of Experts (COE), a panel created to provide authoritative readings of ILO conventions and recommendations, has stated that indirect discrimination within the meaning of Convention No. 111 includes that which is based on "archaic and stereotyped concepts with regard to the respective roles of men and women...which differ according to country, culture and customs, [and] are at the origin of types of discrimination based on sex." 21 Guatemala ratified Convention No. 111 on October 11, 1960.
Convention No. 111 allows only a "distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof."22 The COE has further urged that exceptions be interpreted strictly to avoid "...undue limitation of the protection which the Convention  is intended to provide."23 Among the protections the convention provides is freedom from discrimination in the enjoyment of hours of work, rest periods, annual holidays with pay, and social security measures in connection with employment. 24
Using the general criteria discussed above, facially neutral labor legislation or policies that have a disproportionate impact on women and which are not justified by the inherent requirements of the job could be considered impermissible disparate impact discrimination. The exclusions in the Guatemalan labor code with respect to domestic workers have a disproportionate impact on women, who constitute 98 percent of paid household workers. There are no legitimate reasons for the different rules that regulate domestic work. Rather, the different treatment of domestic workers appears to be based on stereotypical notions of women's roles and functions in Guatemalan society.
Labor relations in Guatemala are regulated by the constitution, the labor code, ministerial accords, and separate regulations.25 The Guatemalan labor code has a separate section to regulate domestic work.26 Domestic workers are those who "dedicate themselves habitually and continuously to the work of cleaning, assistance and other tasks proper to a home or other type of residence or private house, that does not involve profit or business for the employer."27 These workers are effectively excluded from key labor rights protections enjoyed by most Guatemalan workers. Domestic workers do not have:
· the right to an eight-hour workday. They can legally be obligated to work for fourteen hours per day;
· the same right as other workers to a full day's rest on Sundays and national holidays;
· the right to the minimum wage; or
· the right to a written employment contract, nor are employers required to register them with the labor ministry;
In addition, the labor code establishes unequal rules governing their rights and treatment in case of illness.28 (See the Abuses section for a more detailed discussion of these exclusions.)
The chapter regulating domestic work has remained unchanged since the labor code was first adopted in 1947. The entire code was written and adopted in two weeks with a great sense of urgency. According to the code's author, Costa Rican Oscar Barahona Streber, the Guatemalan Congress "trusted me, and approved [the code] with very little debate" and the specific chapter on domestic work was approved "without further ado."29 To Human Rights Watch's knowledge, no legislative history of the code exists.30
Guatemala is not alone in offering domestic workers inferior protections under the labor code, and while justifications may vary from country to country, an ILO survey of legislation on domestic work in sixty-eight countries revealed the frequency of three core justifications for the separate treatment of domestic workers in labor legislation.31 First, domestic work occurs in private households. Second, domestic work entails an intimate relationship between employer and employee that is not comparable to other occupations. And last, household obligations know no time limits.
While some different regulations for this kind of paid work may be appropriate, these should not adversely affect the rights of domestic workers. In Guatemala, domestic workers are excluded from core, nationally-recognized labor rights. The reason for this appears to be that domestic work is considered the natural extension of women's role in the family and society. Paid domestic workers essentially perform for wages the tasks the woman of the house is socially expected to perform for free.
Paid domestic work is located within private households, beyond the reach of public scrutiny and control. In most respects, occupants of private residences enjoy strong privacy rights. Amanda Pop Bol, a social psychologist who has researched domestic work in Guatemala, argues that the labor code was written to exclude domestic workers because "to give rights to domestic workers was to assault the family."32 The fact that workers perform their duties within this protected realm has militated against standard forms of regulation. One practical problem that arises from the tension between the privacy rights of employers and worker rights is the limitation on the ability of labor officials to enter households to monitor working conditions of domestic employees.33 It is important to note that the nature of the household changes fundamentally with the hiring of a domestic worker. The household is now someone's place of employment. There may be a need to adopt inspection procedures that acknowledge family privacy but also allow for verification that the worker's rights are being respected.
Taking place as it does in private households, domestic work is perceived to give rise to a special, intimate relationship between employer and employee. Live-in workers, in particular, occupy a singular role within the household: they are outside wage laborers who are nonetheless privy to the households' most intimate details. In families with children, especially young children, or elderly members, domestic workers engage in intense care-taking that can produce strong emotions on all sides. Because the work itself is so bound up with the maintenance of the household, and because the work is perceived to be a natural function of female members of the family, the rhetoric surrounding paid domestic work is that the worker becomes "part of the family." This is especially true for younger workers. Family-like relationships do sometimes develop, and in these cases the workers themselves sometimes find solace in them. Several of the workers Human Rights Watch interviewed, when describing good treatment, said things like "they treated me like a daughter."34
The personal nature of the relationship between employer and domestic worker is cited to justify, for example, the right in many countries, for employers to fire their domestic employees without just cause.35 This discretion reflects the assumption that the relationship is one of trust and affection, which, once broken, means the relationship can and should be concluded immediately. In Guatemala, domestic workers are ostensibly protected by the just cause provisions for dismissal established in the labor code;36 however, the specific chapter on domestic work has a catchall provision allowing employers to fire domestic workers for "disrespectful behavior."37 The authors of the ILO survey considered this provision in the Guatemalan labor code to have "feudal overtones."38 This approach to the labor relationship also explains the paternalistic provisions in the Guatemalan labor code relating to health care for the worker. Domestic workers are not members of the family. A contractual employment relationship exists between employer and employee. Emotional attachment or animosity should in no way adversely affect the rights and obligations of either party to the contract.
Finally, domestic work is considered outside the limited workday paradigm because it takes place within the family unit. Members of households are held to perform certain obligations according to the habits, needs, and desires of the family. The female members of households in most societies, including Guatemala, are charged with tasks relating to cleanliness, childcare, and food preparation, among other responsibilities. These obligations do not normally conform to a specified time frame, nor can they be interrupted for a period of time without special arrangements being made. This logic has been transferred to paid domestic work. Countries responding to the ILO survey of legislation on domestic work often cited the "difficulty of laying down mandatory hours for persons who live and work within the family unit." 39 Once a paid employee is engaged to perform household and childrearing tasks, arrangements must be made to both accommodate the family's schedule and needs and the worker's right to reasonable hours of work. Having a live-in domestic worker cannot mean that the worker is permanently available to the family. When domestic workers are asked to work beyond the eight-hour workday, they should be duly compensated at an overtime rate in accordance with national law.
The exclusion of domestic workers from key labor rights protections in Guatemala is based fundamentally on the fact that domestic work is considered women's work and not "real" work. Alfonso Bauer Paiz, the nation's first labor minister from 1948-1950, maintains that "The fact that the vast majority of domestic workers were women decisively influenced the perception of domestic work and its regulation in the Labor Code."40 In a communication with Human Rights Watch, Barahona, the labor code's author, elaborated:
It was necessary to include domestic service in the labor code because not to do so would have been unjustified, but to give them the same treatment as industrial or commercial workers would have constituted a bigger mistake, which would have created a general animosity toward the labor code among thousands of housewives. Remember that the domestic servant becomes a part of the family, which does not happen with any other type of workers.41
The fact that paid domestic work in Guatemala is associated specifically with indigenous women appears to have also played an important role. Barahona implied that ethnic discrimination limited the rights he was able to draft for domestic workers. He described the Guatemala he found in 1947:
A country with a very large indigenous mix, and domestic work and indigenous women were very looked down upon...Indians sold themselves by the truckload for ten cents a piece, they were treated like animals. That was the atmosphere at that time...with such a cultural ancestry, a very complicated political situation, and an economic polarization like there was in Guatemala, one had to be realistic.42
Bauer Paiz, his contemporary, said the ethnic divide was so great at the time that the "majority of indigenous people living in the capital were women who came from the pueblos to work in homes, under a cultural pattern of servitude."43 Pop believes that domestic workers were excluded from key rights in the labor code in large part "because that work is eminently linked to ethnicity."44
Proposals for Change
The Guatemalan government has made a commitment to bring national legislation into conformity with all international labor standards. The current administration has prioritized freedom of association. Thus, Minister of Labor Juan Francisco Alfaro Mijangos submitted a package of reforms to Congress in June 2000 designed to bring the labor code into line with international standards on freedom of association (ILO Convention 87). These reforms are critically important for all workers in Guatemala. However, the government has a duty to comply with the full range of its commitments acquired through ratification of ILO conventions, such as the Discrimination Convention, as well as the 1996 peace accords.45
The peace accords, brokered by the United Nations and grounded in international law, include specific commitments to revisit the country's labor legislation, in particular those provisions concerning women's employment. The Agreement on Social and Economic Aspects and Agrarian Reform (Social and Economic Agreement) commits the government to "revising labour legislation to guarantee equality of rights and opportunities between men and women,"46 and enacting "laws to protect the rights of women who work as household employees, especially in relation to fair wages, working hours, social security, and respect for their dignity."47 The reference to social security is further strengthened by another commitment in the same accord to facilitate universal coverage of all workers.48 According to the United Nations Mission in Guatemala (MINUGUA), reform of the labor code to give domestic workers the right to the minimum wage would mean compliance with "an important commitment of the peace accords" and would correct "a flagrantly discriminatory practice."49 Guatemala has recognized the right of all individuals to "an adequate standard of living"50 as well as "remuneration which guarantees, as a minimum...dignified and decent living conditions for them and their families and fair and equal wages for equal work, without distinction."51 The U.N. mission has singled out the lack of progress in the review of labor legislation relating to women and urged that reforms, and in particular those with regard to domestic workers, be enacted as quickly as possible. 52
In the past two years, a few proposals have been introduced in Congress to rectify the unequal protection of domestic workers in the labor code. The Support Center for Household Workers (Centro de Apoyo para las Trabajadoras de Casa Particular - CENTRACAP), a domestic workers' association, has long lobbied for a separate law to regulate paid household labor. A draft bill written by CENTRACAP was first introduced into Congress on April 13, 1999, and promptly got mired in commission due to "lack of political will," according to Imelda Hernández, the director of CENTRACAP.53 "They are all employers [of domestic workers] in Congress, and they are the most stingy." Their mentality is, "if it's going to affect us [negatively], we won't do anything," complained Hernández. 54
The free-standing law would establish the right of domestic workers to standard rights contained in the labor code: the eight-hour workday, the forty-eight hour workweek, overtime pay for all additional hours, 55 and social security.56 The bill clarifies the right of domestic workers to all maternity protections in the labor code,57 the right to national holidays,58 and the right to freedom of association. 59 Employers are expressly forbidden from using discriminatory or racist language, and from committing "any act that implies physical, psychological, moral or sexual violence against the person of the household worker or her family."60
Importantly, the bill requires employers to permit inspection by officials from the labor ministry inspectorate 61 and envisions the creation of a special division within the ministry to oversee the implementation of the law, investigate violations, and intervene in disputes: the Special Department for Attention to Household Workers (Departamento Especial de Atención a la Persona Trabajadora de Casa Particular).62 Finally, the bill calls for a state-sponsored and financed campaign to sensitize the general population about violence against domestic workers.63
In an alternative effort to address the problems that plague the domestic work sector, congresswoman Nineth Montenegro, the former president of the congressional Commission on Women, introduced legislation in May 2000 to reform the labor code in a variety of ways. Her bill, which was deposited with the Commission on Labor Issues but never taken up for review, would amend the labor code to clarify that domestic work "enjoys all of the labor rights and benefits recognized in the Code, its regulations and all other laws and provisions of work and social security."64 The bill establishes the obligation of employers to register their workers with IGSS.65
In July 2000, Minister of Labor Alfaro convened a meeting of representatives from the congressional Commission on Women, the Center for Human Rights Legal Action (Centro de Acción Legal de Derechos Humanos - CALDH), CENTRACAP, and several other interested NGOs to negotiate a joint proposal for reforms to the labor code. The goal of the process is to arrive at a consensus legislative proposal that the executive branch, at the behest of the minister of labor, could send to Congress. CENTRACAP has actively participated in an effort to ensure that whatever proposal is eventually submitted reflects the goals identified in their own proposal for a special law. The process of negotiations has continued in fits and starts. As of March 2001, the participating NGOs had arrived at a consensus proposal and were seeking the minister's support.66 None of the parties involved with whom Human Rights Watch spoke were optimistic about the likelihood of getting a bill through Congress. Representative Montenegro explained that due to the make-up of Congress and the current political crisis, the legislature is "semi-paralyzed, so no commission is working at the moment, especially those led by the opposition...everything is blocked, there is no chance for social change."67 Asked to explain the reluctance to address the plight of domestic workers in particular, Montenegro said, "I imagine it's due to a lack of awareness, lack of knowledge about the situation of these workers, and the fear of the middle class because we need that help in our homes. They don't want to give up their privileges."68
Discrimination on the basis of reproductive status, whatever form it takes, is discrimination on the basis of sex. Pregnancy testing as a condition for employment is a clear example. Failure to abide by maternity protections also constitutes sex discrimination. 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. Pregnancy-based discrimination extends beyond the hiring process to affect women's lives on the job: demotion, disadvantageous transfer, and, in the worst cases, dismissal of pregnant workers, as well as denied or limited maternity leave and/or breastfeeding arrangements. Discrimination on the basis of reproductive status constitutes a form of sex discrimination by targeting a condition only women experience. Such treatment penalizes women exclusively.
International law has codified minimum protections for maternity in order to ensure that women's reproductive abilities do not infringe on their full equality in the workplace.69 Guatemalan law reflects this view, yet there is in practice widespread discrimination on the basis of reproductive status in both the maquila and domestic work sectors. Guatemala has the duty under both international human rights law and its own national laws to take active steps to redress this barrier to women's equal participation in the labor force.
CEDAW directly addresses employment discrimination, requiring governments to take "appropriate measures to eliminate discrimination against women in the field of employment" by ensuring the rights to work, to equal employment opportunities "including the application of the same criteria for selection for matters of employment," and to equal remuneration and equal treatment for work of equal value.70 CEDAW specifically addresses the issue of reproductive rights in the workforce: states parties must ensure an effective right to work by preventing discrimination against women on the grounds of maternity. Article 11(2) of CEDAW specifically bars dismissal on the grounds of pregnancy. 71
Similarly, ILO Convention No. 111 prohibits discrimination on the basis of sex with respect to access to employment and conditions of employment. The ILO Committee of Experts has interpreted the convention to prohibit pregnancy discrimination as a form of sex discrimination.72 The new Maternity Protection Convention No. 183, adopted in May 2000 to revise the 1952 maternity convention, calls explicitly on ratifying member states to eradicate pregnancy testing as a form of employment discrimination based on sex.73 Guatemala ratified Convention No. 103, but voted against the newly adopted Convention No. 183.74 The new convention is therefore not directly binding on Guatemala, though it illustrates that pregnancy testing related to employment is considered impermissible by large sectors of the international community.75
The Guatemalan labor code does not prohibit excluding job applicants on the basis of their reproductive status per se. However, Article 151 of the code prohibits employers from specifying sex, race, ethnicity or civil status in job announcements in most cases, and from making any differentiation between single and married women and/or women with family responsibilities. The labor ministry interprets this article to prohibit pregnancy questioning and pregnancy testing as a condition for employment:
[G]iven that rights and obligations inherent to the working woman derive from pregnancy and maternity, which the State protects and whose strict enforcement [the state] ensures in a special manner, every act or document through which an applicant for a job is required whether she is pregnant [sic] or that intends to give her an exam related to that status, are nulos ipso jure and do not obligate those applicants [to comply].76
ILO standards exist to protect pregnant women and new mothers on the job; these standards attempt to acknowledge and accommodate women's reproductive abilities, and in no way justify disadvantageous treatment of women workers as a result of pregnancy or motherhood. A variety of ILO conventions prohibit termination of employment due to pregnancy.77 Convention No. 183, the revised maternity protection convention adopted in 2000, which is applicable to domestic workers, 78 requires that measures be taken to ensure the health of the pregnant worker and the child.79 Guatemala is bound by the previous Convention No.103, as it has not ratified No. 183. Measures required under No. 183 include alternatives to eliminate risk and adapt conditions of work for pregnant and nursing workers. If this is not possible, transfer to another post, without loss of pay, or paid leave should be made available.80 Certain kinds of work, including work that involves heavy lifting, physical strain due to prolonged sitting, standing or extreme temperatures, or exposure to hazardous biological, chemical or physical agents, would give rise to the measures listed above.81
The convention stipulates that new mothers should enjoy maternity leave of no less than fourteen weeks, during which time the worker cannot be fired.82 Once a new mother has returned to work, she should have one or more daily breaks to breastfeed her child. Alternatively, she should have a daily reduction in work hours. The length of the daily breaks, or the number of hours of reduction of work time per day, can be determined by national law, but these hours must be fully remunerated.83
The ILO Committee of Experts has consistently supported the right of domestic workers to maternity protection. In comments on reports from Bolivia, Ecuador, and Italy, among others, in the late 1980s and early 1990s, the COE urged states that ratified the preceding convention on maternity protection to ensure that domestic workers could not be fired for pregnancy and received maternity leave.84
Guatemalan law seeks to protect women from maternity-based discrimination. Article 151 of the labor code prohibits the firing of pregnant and breastfeeding women, except with just cause and special authorization from a labor judge.85 To enjoy the right of "immobility," pregnant women must first advise their employers verbally and then within two months provide a medical certificate confirming their status.86 By law, a woman fired while enjoying her right to immobility only has thirty days to file charges against her employer.87 Human Rights Watch believes that pregnant women should not be fired because they are pregnant, which is always an impermissible reason, regardless of whether or not they have informed their employer of their status.88
The labor code prohibits physically strenuous work during the last three months of pregnancy.89 Working women have the right to 100 percent of their salaries during the mandated 84-day maternity leave. Where the worker is affiliated with IGSS, this institution pays for the salary during the maternity leave; otherwise, the employer is solely responsible. The worker is guaranteed the same job or one of equal pay and grade upon her return to work.90
New mothers have the right to either take two half-hour breaks during the workday to breastfeed their babies in an appropriate place, or work one hour less than usual to compensate. This hour shall be paid. This right takes effect the day the worker returns to her job after maternity leave and continues for ten months, except in cases of medical dispensation to prolong the period.91 Furthermore, the labor code requires all employers with more than thirty female employees to provide a daycare center for children up to three years of age.92
In response to a query from Human Rights Watch, the Ministry of Labor clarified that all maternity protections are applicable to domestic workers: "Even though the legal dispositions relating to work subject to special regimens, within which domestic workers are included, do not establish it expressly, these workers enjoy the rights and obligations that derive from maternity, because these are contained in norms of general applicability" in the Guatemalan Constitution and the labor code.93
The discrimination on the basis of reproductive status Human Rights Watch documented against maquila line operators and domestic workers is thus in clear violation of both national and international law.
The Guatemalan government has obligations under international law to combat sexual harassment in the workplace as both sex discrimination and gender-based violence. Although CEDAW does not explicitly address sexual harassment, the CEDAW Committeeconsiders this kind of behavior to be gender-based violence prohibited under the convention. In its General Recommendation No. 19, the committee stated that gender-based violence is "a form of discrimination which seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men."94 According to the committee, sexual harassment, defined in the following manner, directly affects equality in employment:95
Sexual harassment includes unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment and promotion, or when it creates a hostile working environment.96
The committee urges all states parties to institute measures, legal and otherwise, including "penal sanctions, civil remedies and compensatory provisions, to protect women from sexual harassment, among other kinds of violence, as well as to pursue preventive measures.97
The Convention of Belém do Pará, a regional instrument ratified by Guatemala in 1995, explicitly includes sexual harassment in the workplace as a form of violence against women, although it does not precisely define the term.98 The Convention of Belém do Pará requires ratifying nations to "include in their domestic legislation penal, civil, administrative and any other type of provisions that may be needed to prevent, punish and eradicate violence against women and to adopt appropriate administrative measures where necessary," and to "ensure that women subjected to violence have effective access to restitution, reparations or other just and effective remedies."99
The ILO has addressed sexual harassment as a form of sex discrimination prohibited in the Convention No.111. According to ILO experts, sexual harassment occurs when an employee justly perceives certain acts to be a condition of continued or secured employment, and the incident(s) must influence decisions affecting the employee, undermine the employee's professional performance, or humiliate, insult, or intimidate the employee.100
The ILO is also the only international body to acknowledge explicitly in a binding treaty the convergence of gender and race bias against indigenous women, with specific reference to sexual harassment. ILO Convention No. 169 on Indigenous and Tribal Peoples, adopted in 1989 and ratified by Guatemala June 5, 1996, mandates governments to adopt measures to prevent discrimination between indigenous and non-indigenous workers, and specifically to ensure that indigenous workers "enjoy equal opportunities and equal treatment in employment for men and women, and protection from sexual harassment."101
Guatemala has yet to fulfill the promise of the peace accords and adopt legislation prohibiting and punishing sexual harassment. The 1995 Agreement on the Rights and Identity of Indigenous People, one of the accords signed during the peace process that went into full effect on December 29, 1996, committed the government to "promote legislation to classify sexual harassment as a criminal offence, considering as an aggravating factor in determining the penalty for sexual offences the fact that the offence was committed against an indigenous woman."102
There have been several attempts to enact specific legislation to prohibit sexual harassment. The Women and Legal Reform Project, a now-concluded initiative funded by the U.N. to review discriminatory legislation and propose legislative reform; the congressional Women's Commission; and two congresswomen, Olga Camey de Noack and Flora Escobar de Ramos, all developed bills on sexual harassment. The proposals differed in the definition of sexual harassment (whether, for example, there are two types: where there exists a situation of hierarchy, and where the behavior takes place among colleagues), the area of application (whether restricted to the workplace, or extended to educational facilities and public spaces such as public transportation), the proposed administrative procedures and sanctions, and the jurisdiction and sanctions.103 None of the bills was ever debated in Congress.
Binding international law is admittedly vague on the precise elements of sexual harassment, and is completely silent on whether the offense would be dealt with as a criminal, civil, or labor matter. This has led to a variety of definitions as well as a variety of methods for dealing with sexual harassment. The Guatemalan drafters of the ill-fated bills looked to neighboring Costa Rica, which in 1995 adopted the pioneering Law against Sexual Harassment in Employment and Education.104 The law defines sexual harassment as "all sexual conduct that is unwanted by the person to whom it is directed, that is recurring and that provokes harmful effects in: a) the material conditions of the workplace or educational establishment; b) the victim's working or educational performance, or; c) the general state of personal well-being."105 The law clarifies that any single act, without recurrence, can constitute sexual harassment if it harms the victim in the described ways.106 The law obligates employers to establish internal complaint mechanisms that guarantee confidentiality and envision administrative sanctions for perpetrators of sexual harassment.107 Once workplace remedies have been exhausted, victims can seek recourse to labor courts,108 as well as criminal courts when the behavior rises to the level of a criminal offense.109
The United States and Europe have developed their own approaches. In the United States, sexual harassment is considered a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC), which was created to enforce the Civil Rights Act, established guidelines in 1980 that defined sexual harassment as ""[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature."110 According to the EEOC and subsequent federal court decisions, there are two types of sexual harassment. First, quid pro quo harassment: sexual demand in return for keeping or obtaining a job or benefits. Second, harassment in the form of unwelcome sexual advances that creates a hostile working environment that interferes with job performance.111 U.S. law provides for civil remedies for victims of sexual harassment. It should be noted, however, that Title VII is only applicable to employers with fifteen or more employees, thus limiting its reach, and does not provide for criminal remedies. If the act rises to the level of assault, the state can prosecute the act as a crime.
The European Council of Ministers, the primary decision-making body of the European Union, adopted a Resolution on the Protection of the Dignity of Women and Men at Work in 1990, stating that conduct of a sexual nature "affecting the dignity of women and men at work" is unacceptable if:
a) such conduct is unwelcome, unreasonable and offensive to the recipient;
b) a person's rejection of, or submission to, such conduct on the part of the employers or workers (including superiors or colleagues) is used explicitly or implicitly as a basis for a decision which affects that person's access to vocational training, access to employment, continued employment, promotion, salary or any other employment decisions; and/or
c) such conduct creates an intimidating, hostile or humiliating working environment for the recipient.112
On the basis of this definition, the European Commission, the institutional arm of the European Union, developed a Code of Practice on Measures to Combat Sexual Harassment. The code is not binding on the fifteen member states of the European Union, but rather serves as a guide for national legislation.
Until the Guatemalan government adopts legislation to implement its commitments under international law and the peace accords, Guatemalan workers who are exposed to sexual harassment will have no legal recourse for redress. This serves as a serious deterrent to women who might otherwise step forward to demand justice. Legislation aimed at preventing and punishing sexual harassment should include, at a minimum, employer obligations to establish workplace complaint mechanisms and administrative sanctions, and the ability of victims to pursue both civil and criminal remedies where warranted. It is especially important that such legislation take into account the situation of women in nontraditional work settings, such as domestic workers and agricultural workers. 113
Right to Health
Upon acceding to the ICESCR, Guatemala recognized the right of all individuals to "the enjoyment of the highest attainable standard of physical and mental health" and undertook to take the necessary steps to create "conditions which would assure to all medical service and medical attention in the event of sickness."114 The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), ratified by Guatemala, as well as CERD and CEDAW, among other international instruments, also recognize the right to health. The Committee on Economic, Social and Cultural Rights (ICESCR Committee) considers the right to health to contain both freedoms, such as "the right to control one's health and body, including sexual and reproductive freedom," and entitlements, such as "the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health."115
Reproductive health is a component of the right to health. The 1994 International Conference on Population and Development in Cairo, Egypt, defined reproductive health as "a state of complete physical, mental and social well-being...in all matters relating to the reproductive system and to its functions and processes." According to the final consensus document, women and men have the right to "appropriate health-care services that will enable women to go safely through pregnancy and childbirth and to provide couples with the best chances of having a healthy infant."116 In its General Comment No. 14 on the right to health, the ICESCR Committee stated that the obligation on states parties to the covenant to provide for the reduction of the stillbirth rate and of infant mortality, and for the healthy development of the child, can be understood broadly to require measures to "improve...sexual and reproductive health services, including access to family planning [and] pre- and post-natal care."117
Realization of the right to health, including the right to reproductive health, is to a large extent dependent on enjoyment of the right to nondiscrimination. CEDAW explicitly calls on states parties to "take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning."118 The ICESCR contains a general nondiscrimination article; the ICESCR Committee, in General Comment No.14, stated that the covenant also proscribes discrimination in access to "the means and entitlements for [the] procurement" of health care.119 As discussed above, the concept of prohibited discrimination encompasses impact discrimination: disadvantageous consequences for women, in this case, of purportedly gender-neutral acts. For this reason, the CEDAW Committee has asked states parties to CEDAW to report on the impact that health policies, procedures, laws and protocols have on women when compared to men.120
In Guatemala, domestic workers and maquila line operators encounter serious obstacles to the enjoyment of the right to health, specifically the right to reproductive health. In both cases, facially gender-neutral regulations or practices have gender-specific consequences for these women workers. Domestic workers are denied the right to the employee health care system because of a policy that only employers with three or more employees are required to enroll them in the system. Although some workers in other sectors are also excluded from IGSS, domestic work as a sector is effectively excluded because very few domestic workers are employed as part of a team of three or more. The current labor code recognizes that employers have a duty to provide for domestic workers' health care, but does so in an unenforceable way that renders domestic workers wholly dependent on their employers. The code requires employers to assume all medical costs for minor health problems and contagious diseases contracted within the household, as well as to pay for transportation to the nearest hospital and for emergency care, when necessary. Maquila workers do have the right to the employee health care system, but find their access is routinely blocked. Factories often fail to enroll workers in the system and, when workers are enrolled, routinely refuse to provide the necessary certificates and time-off to facilitate access to health care. As a consequence of these policies and practices, both sets of women workers are substantively denied access to critical reproductive health care, such as pre- and post-natal care.
The government of Guatemala has a positive duty to rectify this situation in order to respect the right to health by ensuring access to health services, and to protect the right to health by taking the necessary steps to prevent and sanction actions of third parties that violate the right to health of these workers.
Just as working women should not be punished for becoming pregnant, they should not be penalized for having family responsibilities. ILO Convention No. 156 concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (Workers with Family Responsibilities Convention), adopted in 1981 and ratified by Guatemala in 1994, establishes the goal that each member state will adopt a national policy oriented toward ensuring that workers with family responsibilities are not subject to discrimination, and that they may pursue work "without conflict between their employment and family responsibilities."121 The convention, which applies to all categories of workers, unequivocally states that "[f]amily responsibilities shall not, as such, constitute a valid reason for termination of employment."122 The accompanying recommendation elaborates that ratifying states should take steps to ensure that the terms and conditions of employment allow workers to reconcile family responsibilities with their employment.123 The recommendation also clarifies that workers should be able to take a leave of absence in case of illness of a dependent child.124
These provisions have special relevance for working women around the world and in Guatemala in particular because women bear the primary responsibility for the care and rearing of children. The ILO Committee of Experts considers Convention No. 156 and Recommendation No. 165 to form "an intrinsic part of any measures to promote equality of opportunity and treatment between men and women," and as such should be read in tandem with the Equal Remuneration Convention (No. 100) and the Discrimination Convention (No. 111).125 CEDAW calls on states to encourage "the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities...in particular through promoting the establishment and development of a network of child-care facilities."126 The Protocol of San Salvador also calls on states to "implement and strengthen programs that help to ensure suitable family care, so that women may enjoy a real opportunity to exercise the right to work."127
Legislation and public policy that accommodate workers' family responsibilities is in keeping with international protection of the family and the child. Both the ICCPR and the ICESCR recognize the family as the "fundamental group unit of society" entitled to state protection.128 The ICESCR further states that the family should be accorded the widest possible assistance "particularly...while it is responsible for the care and education of dependent children."129 The Convention on the Rights of the Child (CRC), ratified by Guatemala on June 6, 1990, asserts that "the best interests of the child shall be a primary consideration" in all actions concerning children undertaken by, among others, legislative and administrative bodies, and obligates states parties to "respect the responsibilities, rights and duties of parents...to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention."130 Under the treaty, states parties should render "appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities."131
Live-in domestic workers have an extremely difficult time attending to their family responsibilities. There are no guidelines in the law or labor policy on how to accommodate live-in domestic workers who have children. In practice, domestic workers who have children leave them with their parents or other family members, often in areas far removed from the capital where they work, because they cannot bring them to live in the household where they work. They then often have difficulty securing time off to visit their children, even when they are sick.
Right to Privacy
Obliging disclosure of information related to prospective workers' pregnancy status, as a condition of employment, invades women's privacy. The UDHR,132 the American Convention on Human Rights,133 and the ICCPR134 guarantee a right to privacy, which has been interpreted by the U.N. Human Rights Committee (HRC) 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 rights."135 The HRC 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."136 The Guatemalan government has a duty to protect its citizens from invasions of their privacy by such private actors as maquila personnel.
Right of Girls to Protection from Hazardous Work
Girls have the right to protection from harmful or hazardous work under international law. In general, the ICCPR guarantees that "[e]very child...shall have the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the State."137 The Convention on the Rights of the Child (CRC) and the ILO Worst Forms of Child Labour Convention provide for particular protections for child who work, protections which Guatemala is obligated to afford to girls employed as domestic workers or maquiladora line operators.138 The Guatemalan government ratified the Worst Forms of Child Labour Convention in November 2001, after Human Rights Watch conducted the research for this report. We therefore did not use that convention as a standard for assessing the government's response to child labor issues.
Under the CRC, children have the right "to be protected from economic exploitation and from performing any work which is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development." In particular, all states parties to the convention are obligated to "[p]rovide for appropriate regulation of the hours and conditions of employment."139
The ILO Worst Forms of Child Labour Convention requires the prohibition and elimination of "work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children," along with other types of work that it characterizes as the "worst forms" of child labor. In consultation with workers' and employers' organizations, states parties determine what constitutes hazardous work prohibited by this convention "taking into consideration relevant international standards, in particular...the Worst Forms of Child Labour Recommendation, 1999."140
The Worst Forms of Child Labour Recommendation calls on states to give special attention to girls and "the problem of hidden work situations, in which girls are at special risk." States should consider, among other types of labor, "work which exposes children to physical, psychological or sexual abuse" and "work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer" for inclusion among the types of work that comprise the worst forms of child labor. Children under the age of sixteen may not work under conditions that may expose them to such risks, and those who are sixteen and older may only perform such work "on condition that the health, safety and morals of the children concerned are fully protected, and that the children have received adequate specific instruction or vocational training in the relevant branch of activity."141
In addition, the Convention on the Rights of the Child requires that states establish a minimum age or ages for admission to employment.142 The ILO Minimum Age Convention states that the minimum age for employment shall not be less than the age of completion of cumpulsory schooling and, in any case, shall not be less than 15 years." This convention makes an exception to the minimum age of fifteen only for "a Member whose economy and educational facilities are insufficiently developed," which may "initially specify a minimum age of 14 years."143
Guatemalan law sets fourteen as the minimum age for employment, although the Ministry of Labor Inspectorate may allow younger children to work in apprenticeships, as part of an educational program, or if they have economic need.144 In general, children may not work more than seven hours each day and forty-two hours each week.145 Nevertheless, these limitations on the length of the working day and week do not apply to children who are domestic workers; girls who engage in such work do so under the same conditions as their adult coworkers.146 In 1996, the Guatemalan Congress began to consider a proposed Childhood and Youth Code that included additional protections for working youth, but the bill does not address the inequities between domestic workers and those who work in other types of employment.147 Lawmakers have postponed action on the measure four times, most recently in February 2000.148
1 Article 46 of the Guatemalan Constitute states, "There is established the general principle that in matters of human rights, treaties and conventions that have been accepted and ratified by Guatemala take precedence over domestic law." Article 102(u) reads: "The State will be a party to international or regional conventions and treaties that concern labor matters and will provide workers better protection and conditions. In such cases, what is established in such conventions and treaties will be considered as part of the minimum rights enjoyed by the workers of the Republic of Guatemala." Unless otherwise noted, all translations from Spanish to English are those of Human Rights Watch.
2 Universal Declaration of Human Rights (UDHR), G.A. Res.217A(III), U.N. GAOR, 3d. Sess., pt. 1, at 71, U.N. Doc. A/810 (1948), Article 2; International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171, Article 2(1), ratified by Guatemala on May 6, 1992; and the International Covenant on Economic, Social and Cultural Rights, December 16, 1966, 993 U.N.T.S. 3, Article 2(2), ratified by Guatemala on May 19, 1988.
3 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Strasbourg: N.P. Engel, 1993), p. 469. Emphasis in the original.
4 CERD, Article 1; CEDAW, Article 1. Guatemala ratified CEDAW on August 12, 1982, and CERD on January 18, 1983. Guatemala has not made the declaration under Article14, para.1, granting CERD Committee the competence to receive and consider individual or group communications/petitions.
5 CERD General Recommendation XXIII on the rights of indigenous peoples (Fifty-first session, 1997), Date, U.N. Doc. A/52/18, Annex V.
6 CEDAW, Article 2(f).
7 CERD, Article 2, Para I, (c ).
8 In its preamble, CEDAW states that "the eradication of all forms of racism [and] racial discrimination...is essential to the full enjoyment of the rights of men and women." CEDAW, Preamble, cl.10
9 CERD/C/55/Misc.3/Rev.3 (August 26, 1999).
10 CERD Committee, General Recommendation XXV on gender-related dimensions of racial discrimination (Fifty-sixth session, 2000), March 20, 2000, U.N. Doc A/55/18, Annex V, paras. 2-3.
11 Ibid, para.5.
12 United Nations, Report of the Fourth World Conference on Women, Beijing 4-15 September 1995, (New York: United Nations Publications, 1996), E.96.IV.13, Beijing Declaration, resolution I, annex I, para. 32; United Nations, "Further actions and initiatives to implement the Beijing Declaration and Platform of Action," para. 5, in. Report of the Ad Hoc Committee of the Whole of the twenty-third special session of the General Assembly, GA Official Records, Twenty-third special session (New York: United Nations, 2000),. Supplement No.3 (A/S-23/10/Rev.1).
13 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará), Article 9.
14 United Nations Development Fund for Women (UNIFEM), "Integrating Gender into the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (South Africa 31 August - September 7, 2001," http://www.unifem.undp.org/hrights.htm (September 26, 2000), para.1
15 See for example CEDAW Committee Concluding Comments to the Belize initial report, cited in United Nations/Division for the Advancement of Women, Assessing the Status of Women: A Guide to the Reporting Under the Convention on the Elimination of All Forms of Discrimination Against Women (New York: United Nations, 2000), p.102.
16 CERD Committee, General Recommendation XIV on Definition of discrimination (Art.1, par.1). (Forty-second session, 1993), U.N. Doc. A/48/18. In General Recommendation XX , the CERD Committee noted that states must take special caution to ensure that any restriction on the rights listed in Article 5 of the Convention is "neither in purpose nor effect...incompatible with Article 1 of the Convention." Article 5 enumerates a long list of civil, political, economic, social, and cultural rights, including the right to just and favorable conditions of work and the right to just and favorable remuneration. CERD Committee, General Recommendation XX (Forty-eighth session, 1996), U.N. Doc. A/51/18.
17 CEDAW Committee, General Recommendation No. 19, para 6. Emphasis added.
18 Council of the European Union Directive 76/207/EEC, 9 February 1976, Article 2(1). The equal treatment directive was issued by the council in 1976 to direct Member States on the implementation of the principle of equal treatment for men and women in regard to access to employment, vocational training and promotion, and working conditions.
19 R v. Secretary of State for Employment, ex prate Seymour-Smith and another, All ER (EC) 97, Case C-167/97 (1999), para. 107; J.P. Jenkins v. Kings gate, Ltd., ECR 911, Case 96/80 (1981); see also Secretary of State for Employment, All ER (EC) 97, Case C-167/97, paras. 117, 120; Ender by v. Frenchman Health Authority and Another, 1 CMLR 8, Case 127/92 (1993), para. 37.
20 ILO Convention No.111 concerning Discrimination in Respect to Employment and Occupation (the Discrimination Convention), June 25, 1958, 362 U.N.T.S 31, Article 1(1). This Convention predates both CERD and CEDAW.
21 International Labor Conference, Equality in Employment and Occupation, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 75th Session, 1988, Report III (Part 4B) (Geneva: International Labor Office, 1996), para.38.
22 ILO Convention No.111, Article 1(2).
23 International Labor Conference, Equality in Employment and Occupation, p.138.
24 ILO Recommendation No. 111 concerning Discrimination in Respect of Employment and Occupation. Article 2 (b) (vi), in ILO, International Labour Conventions and Recommendations 1919-1981 (Geneva: ILO, 1982), pp.49-51.
25 Labor Code, Decree 1441 (Código de Trabajo, Decreto Número 1441), published in the Diario Oficial (No.14, Tome CLXII) on June 16, 1961, and came into force August 16, 1961.
26 Labor Code, Articles 161-166.
27 Labor Code, Article 161.
28 Guatemalan Labor Code, Articles 161-166.
29 Human Rights Watch telephone interview, Oscar Barahona Streber, San José, Costa Rica, November 7, 2000.
30 Ibid.; Human Rights Watch telephone interview, Ricardo Changala, MINUGUA verification officer, Guatemala City, November 3, 2000.
31 ILO, The Employment and Conditions of Domestic Workers in Private Households, (Geneva: ILO, March 1970).
32 Human Rights Watch telephone interview, Amanda Pop Bol, social psychologist, Guatemala City, November 17, 2000.
33 Ibid, p.49. A number of countries that responded to the survey mentioned this issue.
34 Human Rights Watch interviews, María Pelico Calel, Guatemala City, June 18, 2000; Elisabeth González, Guatemala City, Guatemala, June 24, 2000; Marta Julia López, Guatemala City, Guatemala, June 18, 2000.
35 ILO, Employment and Conditions, pp.43-45. The survey does not specify which countries allow this.
36 Labor code, Article 77. This article allows employers to fire workers, without incurring any legal responsibility, among other reasons, if the worker behaves in an openly immoral manner or engages in libel or slander against the employer or the employer's representatives; if the worker commits any of these acts against a colleague while on the job and as a result, discipline and work are interrupted; and if the worker, outside of the workplace and working hours, engages in libel or slander against the employer or the employer's representatives in such a manner that working together in harmony is no longer possible.
37 Ibid., Article 166.
38 ILO, Employment and Conditions, p.45.
39 Ibid., p.28.
40 Communication (email) from Alfonso Bauer Paiz, congressman, November 24, 2000. Emphasis added.
41 Communication (fax) from Oscar Barahona Streber, November 29, 2000.
42 Human Rights Watch telephone interview, Oscar Barahona Streber, San José, Costa Rica, November 7, 2000.
43 Human Rights Watch telephone interview, Alfonso Bauer Paiz, congressman, Guatemala City, November 20, 2000.
44 Human Rights Watch telephone interview, Amanda Pop Bol, social psychologist, Guatemala City, November 17, 2000.
45 See the Background section for a discussion of the peace accords.
46 Social and Economic Agreement, Article 13(e) and (e) (ii).
47 Ibid., Article 13(e)(iv).
48 Ibid., Article 24(g).
49 MINUGUA, Informe de Verificación. Situación de los compromisos laborales de las acuerdos de paz (Verification Report. The Situation of Labor Commitments in the Peace Accords) (MINUGUA: Guatemala City, June 2000), para. 24.
50 ICESCR, Article 11.
51 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), OAS Treaty Series, No. 69, November 17, 1988, Article 7(a). Guatemala ratified the Protocol of San Salvador on October 5, 2000.
52 MINUGUA, Quinto Informe del Secretario General de las Naciones Unidas sobre la Verificación de los Acuerdos de Paz en Guatemala (Fifth Report of the Secretary General of the United Nations on the Verification of the Peace Accords in Guatemala) (MINUGUA: Guatemala City, August 2000), para. 47.
53 Once introduced, bills are immediately sent to the relevant congressional commission for review. Only once a bill has been approved in commission is it reintroduced to the plenary for debate.
54 Human Rights Watch interview, Imelda Hernández, director, CENTRACAP, Guatemala City, May 30, 2000.
55 CENTRACAP, Anteproyecto de Ley: Ley Reguladora del Trabajo de Casa particular. Exposicón de Motivos (Bill: Law to Regulate Domestic Work. Exposition of Motives). Mimeograph, Article 13.
56 Ibid., Articles 17 and 18. The bill clarifies that the only health-related justification for termination of employment is if the domestic worker has a contagious disease and refuses treatment.
57 Ibid., Article 19.
58 Ibid., Article 16. The list of national holidays is similar to that contained in Article 127 of the labor code, with some modification. The bill provides for half-day on Ash Wednesday and Mother's Day off, and omits December 31.
59 Ibid., Article 23(g).
60 Ibid., Article 24(c).
61 Ibid., Article 23(i).
62 Ibid., Article 28.
63 Ibid., Article 30.
64 Reforms to the Labor Code, Decree 1441 of the Congress of the Republic. Introduced by Representative Nineth Montenegro on May 11, 2000, Article 11.
65 Ibid., Article 13
66 Human Rights Watch telephone interviews, Imelda Hernández, CENTRACAP, Guatemala City, March 7, 2001; Floridalma Contreras, CALDH, Guatemala City, March 15, 2001.
67 Human Rights Watch telephone interview, Nineth Montenegro, representative in Congress, former president of Women's Commission, Guatemala City, November 14, 2000.
69 ILO standards relating to women and work can generally be divided into those based on an equality paradigm and those that seek to protect women from certain kinds of work or working conditions. Maternity protection can be understood as both a nondiscrimination and a protective measure. See Valerie L. Oostervald, "Women and Employment," in Kelly D. Askin and Dorean M. Koenig, eds., Women and International Human Rights Law, Vol. 1, (New York: Transnational Publishers, Inc., 1999), pp. 367-402; See also Lance Compa, "International Labor Standards and Instruments of Recourse for Working Women," Yale Journal of International Law 17, pp.151-172.
70 CEDAW, Article 11, Para. 1 (a), (b), and (d).
71 CEDAW, Article 11, Para. 2.
72 International Labor Office, Conditions of Work Digest, Volume 13, 1994 (Geneva: International Labor Office, 1994), p.24.
73 Convention No. 183 concerning the Revision of the Maternity Protection Convention (Revised), 1952 (Maternity Protection Convention 2000). International Labour Conference. Provisional Record, 88th Session, Geneva, 2000, ILC88-PR20A-293-En.Doc. The Convention will enter into force twelve months after two ILO member states have ratified it. Article 9(1) reads: "Each Member shall adopt appropriate measures to ensure that maternity does not constitute a source of discrimination in employment, including - notwithstanding Article 2, paragraph 1 - access to employment.
Article 9(2) goes on to say: "Measures referred to in the preceding paragraph shall include a prohibition from requiring a test for pregnancy or a certificate of such a test when a woman is applying for employment..."
74 Convention No. 183 was adopted with broad support: 304 member states voted in favor; 22 against; and 116 abstained.
75 Jurisprudence from the ECJ leaves no doubt that pregnancy testing constitutes sex discrimination. In a 1991 case, the ECJ ruled against a Dutch company that sought to avoid hiring a woman because she was pregnant. The court ruled that "only women can be refused employment on the grounds of pregnancy and such refusal therefore constitutes direct discrimination on the grounds of sex." Case C-177/88, Dekker v. stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus 1990 E.C.R.3941.The court went on to establish that a refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to financial loss that an employer who appointed a pregnant woman would suffer for the duration of her maternity leave. The court found the company to be in breach of Directive 76/207/EEC of the European Council on equal treatment. The ILO supported the ECJ decision as consistent with international standards prohibiting sex discrimination and "...consistent with the position of its Committee of Experts on the Application of Conventions and Recommendations concerning the scope of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which notes the discriminatory nature of distinctions based on pregnancy, confinement and related medical conditions." ILO, Conditions of Work Digest, p. 24.
76 Communication (letter) from José Girón Cano and Jacqueline Ortíz Morales, Consejo Técnico y Asesoría Jurídica (Technical and Legal Counsel Department), Ministry of Labor, dated August 10, 2000, Dictamen 250/2000. See Appendix A, first paragraph.
77 Article 5 of Convention No. 158 Concerning Termination of Employment at the Initiative of the Employer reads, in part: "The following, inter alia, shall not constitute valid reasons for termination:...d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin..." Guatemala has not yet ratified this convention. Article 8 of Convention No.156 concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities states that "Family responsibilities shall not, as such, constitute a valid reason for termination of employment." Guatemala ratified Convention No. 156 on January 6, 1994.
78 The previous convention, No.103, also included explicitly domestic workers in the category of non-industrial occupations to which the convention was applicable (Convention No. 103, Article 1(3)(h)). However, that convention allowed a ratifying state to exclude this category of work through an accompanying declaration (Convention No. 103, Article 7(1)(c)). Guatemala ratified Convention No. 103 on June 13, 1989 without any accompanying declaration. Convention No. 183 does not allow this exclusion, but it does allow ratifying countries to "exclude wholly or partly" from the convention "limited categories of workers when its application to them would raise special problems of a substantial nature" (Convention No. 183, Article 2).
79 Convention No. 183, Article 3. The old convention, No. 103, did not have an article devoted to health measures; the accompanying Recommendation No.95 did, however, specify prohibited types of work for pregnant and nursing workers (Article 5).
80 Recommendation concerning the Revision of the Maternity Protection Recommendation, 1952 (Maternity Protection Recommendation, 2000), Article 6(2).
81 Ibid., Article 6 (3). Maternity Protection Recommendation, 2000 states that pregnant or nursing women should not be forced to perform night work (Article 6(2)); the previous Recommendation No. 95 prohibited nighttime work and overtime for pregnant and nursing women (Article 5(1)).
82 Convention No. 183, Articles 4 and 8. The previous convention, No. 103, mandated at least 12 weeks
83 Ibid., 2000, Article 10. The previous convention, No. 103, dictated daily breaks but did not envision a reduction in working hours (Article 5). The accompanying Recommendation No. 95 said, however, that the break(s) should amount to a total of one-and-a-half hours per day (Article 3(1)). Maternity Protection Recommendation, 2000, simply states that the "frequency and length of nursing breaks should be adapted to particular needs" (Article 7).
84 Adelle Blackett, "Making domestic work visible: the case for specific regulation," http://www.ilo.org/public/english/dialogue/govlab/legrel/papers/domestic/1_htm (May 18, 2000).
85 Labor Code, Article 151(c).
86 Labor Code, Article 151(d).
87 Labor Code, Article 260. A packet of proposed reforms to the labor code introduced into Congress in June 2000 by the executive branch would lengthen this statute of limitations to two years. Article 19 of reform packet.
88 The Chilean labor code was recently modified to stipulate that workers who are fired while pregnant have the right to get their jobs back, regardless of whether the employer knew of her pregnancy. In addition, the worker has the right to remuneration for the time she was out of work. Chilean Labor Code, Article 201. The code states clearly that this is not applicable to domestic workers.
89 Labor Code, Article 151(e).
90 Labor Code, Article 152, (b). Pregnant women are entitled to take up to thirty days before the due date, and fifty-four days after the birth. Workers can choose to take their entire maternity leave after the birth. The right to paid maternity leave is also guaranteed in the Guatemalan Constitution (Article 102 (k)).
91 Labor Code, Article 153.
92 Labor Code, Article 155. Legal experts and women's rights activists alike pointed out the need to amend this article to require all businesses with thirty employees, whether male or female, to provide daycare facilities.
93 Communication (letter) from José Girón Cano and Jacqueline Ortíz Morales, Consejo Técnico y Asesoría Jurídica (Technical and Legal Counsel Department), Ministry of Labor, dated August 10, 2000, Dictamen 250/2000. Articles 151-155 in the labor code covering maternity rights and protections do not exclude any category of workers in the text. See Appendix A, second paragraph.
94 CEDAW Committee, "Violence Against Women," General Recommendation No. 19 (Eleventh session, 1992), U.N. Doc. CEDAW/C 1992/L.1/Add.15, para. 1.
95 CEDAW Committee, General Recommendation No. 19, para.17.
96 Ibid., para. 18.
97 Ibid., para.24(t).
98 Convention of Belém do Pará, OAS/ser.L/II.2.27, CIM/doc.33/94, June 9, 1994, Article 2(b).
99 Ibid., Article 7 (c) and (g).
100 International Labor Conference/Committee of Experts, Equality in Employment and Occupation: General Survey of Reports on the Discrimination (Employment and Occupation) Convention (No.111) and Recommendation (No.111) 1958, 75th Sess., rep.III, pt.4B, para.45 (1988), cited in Jane Aberhard-Hodges, "Sexual harassment in employment: Recent judicial and arbitral trends," International Labour Review, Vol. 135 (1996), No. 5, p.507. The ILO lists the following as potentially constitutive of sexual harassment: insults, remarks, jokes, insinuations and inappropriate comments on a person's dress, physique, age, family situation, and a condescending or paternalistic attitude undermining dignity, unwelcome invitations or requests that are implicit or explicit whether or not accompanied by threats, lascivious looks or other gestures associated with sexuality, unnecessary physical contact such as touching, caresses, pinching or assault.
101 Convention concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, ILO, 76th Sess. III, Article 20(3)(d)). ILO, International Labour Conventions and Recommendations: 1977-1995, p. 324.
102 Agreement on Identity and Rights of Indigenous Peoples, Article II, B, 1(a).
103 It should be noted that the Convention of Belém do Pará addresses gender-based violence, including sexual harassment, in the workplace, educational institutions, health facilities, "or any other place," and clearly states that this kind of violence can be perpetrated by any person, not just superiors in an hierarchy (Article 2(b)).
104 Law Number 7476, of February 3, 1995 against sexual harassment in employment and education. Published in La Gaceta on March 3, 1995, No.45, pp.1-2.
105 Ibid., Article 3.
107 Ibid., Article 5.
108 Ibid., Article 18.
109 Ibid., Article 25.
110 29 C.F.R. _ 1604.11(a) (1990); see also Meritor Savings Bank v. Vinson, 477 U.S. 57, 66 (1986).
111 For a discussion, see Jane Aberhard-Hodges, "Sexual harassment in employment: Recent judicial and arbitral trend," International Labour Review, Vol. 135 (1996), No. 5; see also Robin Phillips, "Violence in the Workplace: Sexual Harassment," in Kelly D. Askin and Dorean M. Koenig, eds., Women and International Human Rights Law, Vol. 1. (New York: Transnational Publishers, Inc., 1999).
112 Official Journal of the European Communities (Brussels), Vol.33, No. C.157, 27 June 1990, at 3-4. Cited in Robin Phillips, "Violence in the Workplace."
113 Human Rights Watch interview, Fidelia Vásquez, Angélica Pérez, and Marisol Chávez, Comisión Nacional Permanente para los Derechos Humanos de la Mujer Indígena of COPMAGUA, Guatemala City, May 29, 2000.
114 ICESCR, Article 12.
115 Committee of Economic, Social and Cultural Rights (ICESCR Committee), "The right to the highest attainable standard of health," General Comment No. 14, (twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000), para.8.
116 Cairo Programme of Action of the International Conference on Population and Development, U.N. Doc A/Conf.171/13, September 1994, para.7.2.
117 ICESCR Committee, General Comment No.14, para. 14.
118 CEDAW, Article 12.1.
119 ICESCR Committee, General Comment No. 14, para.18.
120 CEDAW Committee, "Women and Health," General Recommendation No.24, (twentieth session, 1999), U.N. Doc. A/54/38/Rev.1, para.19.
121 Workers with Family Responsibilities Convention, Article 3.
122 Ibid., Article 8.
123 Recommendation No.165 concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, Section IV, para.17.
124 Ibid., Section IV, para.23(1): "It should be possible for a worker, man or woman, with family responsibilities in relation to a dependent child to obtain leave of absence in the case of its illness."
125 International Labour Conference, Workers with Family Responsibilities, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 80th Session, 1993, Report III (Part 4B) (Geneva: International Labour Office, 1993), para. 254.
126 CEDAW, Article 11(2)(c).
127 Protocol of San Salvador, Article 6(2).
128 ICCPR, Article 23(1); ICESCR, Article 10(1).
129 ICESCR, ibid.
130 CRC, Articles 3(1) and 5.
131 CRC, Article 18(2).
132 Article 12 of the UDHR states: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation..."
133 Article 11 of the American Convention on Human Rights, "Pact of San Jose, Costa Rica" states: "(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."
134 Article 17 of the ICCPR 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."
135 United Nations, "Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," General Comment 16 to Article 17, U.N. Document HRI/GEN/I/Rev.I, July 29, 1994, p.21.
136 Ibid., p. 23.
137 ICCPR, Article 24(1).
138 The Convention on the Rights of the Child defines a child as "every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier." The Worst Forms of Child Labour Convention defines "all persons under the age of 18" as children, without limitation. Convention on the Rights of the Child, Article 1, adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49), p. 167, U.N. Doc A/44/49 (1989) (entered into force September 2, 1990); Convention concerning the Prohibition and Immediate Elimination of the Worst Forms of Child Labour (ILO Convention No. 182), Article 1, adopted June 17, 1999, 38 I.L.M. 1207 (entered into force November 19, 2000). Guatemala acceeded to the Convention on the Rights of the Child on June 6, 1990, and ratified the Worst Forms of Child Labour Convention on October 11, 2001.
139 CRC, Article 32.
140 Worst Forms of Child Labour Convention, Article 3(d), 4.
141 ILO Recommendation 190: Recommendation Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, Article 2(c)(iii), 3(a) and (e), 4.
142 CRC, Article 32(2)(a).
143 Convention concerning the Minimum Age for Admission to Employment (ILO No. 138), Article 2, adopted June 26, 1973 (entered into force June 19, 1976). Guatemala ratified the Minimum Age Convention on April 23, 1990.
144 Labor Code, Article 148(e).
145 Ibid., Article 149(a).
146 Ibid., Article 164.
147 Proposed Childhood and Youth Code, Articles 69-77, 102-108, July 25, 1996.
148 See "Future of Children's Rights Law Uncertain in Guatemala," CNN. Com, February 23, 2000.