Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - El Salvador (Ratification: 1995)

Article 1(1)(a) of the Convention. Discrimination on the basis of sex. For a number of years, the Committee has been referring to the practice of compulsory pregnancy testing for women as a condition for acquiring or retaining employment and to the dismissal of women with disabilities, especially in the maquila (export processing) sector and in the industrial, trade and services sectors. The Committee notes the Government’s indication in its report that in 2013–14 the Special Unit for the Prevention of Labour Discrimination (UEPALD) examined 77 cases in the maquila, industrial, trade and services sectors. Of these, 54 cases were shelved, fines were imposed in seven cases and nine cases are in progress. The Government does not specify the type of infringements detected relating to pregnant women and women with disabilities, but indicates that cases were shelved because the discrimination ceased, or the workers concerned dropped the cases or resigned from their jobs. The Government adds that in 2015 the Directorate-General for Labour Inspection and Social Welfare detected 55 cases involving the dismissal of pregnant women and 22 cases involving discrimination towards pregnant women. The Government does not indicate what action was taken concerning those cases or the penalties imposed. The Government adds that in 2014 a workplan was drawn up for verifying the labour rights of women in the maquila sector. The Committee recalls that distinctions in employment and occupation based on pregnancy and maternity are discriminatory as by definition they only affect women. While noting the steps taken by the Government to improve the situation of pregnant women and women with disabilities in the maquila, industrial, trade and services sectors, the Committee considers that shelving the investigation proceedings where the worker reporting the discrimination has resigned from her job does not appear to offer adequate protection against discrimination, particularly where resignation from the job stems from the act that is considered discriminatory. The Committee requests the Government to take the necessary steps to ensure that women workers enjoy effective protection against dismissal and any other acts of discrimination on the grounds of pregnancy or maternity in the public and private sectors, including in the maquila sector, and to supply information on any developments in this respect. The Committee requests the Government to continue providing information on the number of complaints filed, indicating the grounds for the complaints, sectors concerned, proceedings instituted, remedies granted and penalties imposed.

Sexual harassment. In its previous comments, the Committee referred to the Special Comprehensive Act on a Life Free from Violence for Women (Decree No. 520 of 2010), which covers harassment at work and physical, sexual, psychological, emotional and work-related violence, and observed that the Act does not clearly define sexual harassment at work in terms of including both quid pro quo and hostile working environment sexual harassment. The Committee notes the Government’s indication that the possibility of integrating sexual harassment as a psychosocial risk in the framework of the Act on the prevention of work-related risks of 2010 is being examined, with the aim of improving the prevention, identification, addressing and eradication of sexual harassment. With regard to the protection provided for victims, the Government indicates that: from 2013 to the end of 2016, only seven complaints concerning sexual harassment were registered, which shows, according to the Government, the reluctance to submit complaints; the Ministry of Labour and Social Welfare has competence for conducting workplace inspections in the case of autonomous official institutions; the Salvadorian Institute for Women’s Development (ISDEMU) deals with complaints relating to harassment in the workplace; and the Gender Unit at the Attorney-General’s Office provides assistance (advice and representation) for victims and that the Office provides assistance in the defence of human rights. According to the Government, the judicial remedies available in the case of work-related harassment and sexual harassment are amparo (protection of constitutional rights) proceedings and criminal proceedings (section 165 of the Penal Code). However, the Committee observes that the Government indicates in its 2014 report on the application of the Beijing Declaration and Platform for Action (page 11) that access to justice remains a major challenge for women. The Committee recalls that amparo proceedings are an exceptional remedy and that addressing sexual harassment only through criminal proceedings is normally not sufficient, owing to the sensitivity of the issue, the higher burden of proof and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not the full range of behaviour that constitutes sexual harassment in employment and occupation (see 2012 General Survey on the fundamental Conventions, paragraph 792). The Committee trusts that the Government will take the necessary measures without delay to include in the Act on the prevention of work-related risks of 2010 a provision that: (i) defines and prohibits both quid pro quo and hostile environment sexual harassment; (ii) provides access to remedies for all workers, men and women; and (iii) provides for sufficiently dissuasive sanctions and adequate compensation. The Committee requests the Government to provide information on any development in this regard, and on the number of complaints concerning sexual harassment in the workplace received and their follow-up, and the action taken, penalties imposed and compensation awarded. It also requests the Government to provide information on the measures adopted to prevent sexual harassment and to raise awareness among workers and employers.

Article 1(1)(b). Real or perceived HIV status. The Committee previously noted that Decree No. 611 of 2005 reforming the Labour Code incorporated a new section 30, which prohibits discrimination against workers on the basis of their HIV status and also prohibits compulsory HIV testing as a condition for acquiring or retaining employment. However, the Committee noted that the Civil Service Act of 1961 regulating employment in the public sector provides that any person who suffers from an infectious/contagious disease may not enter the administrative career service. In its previous comments, the Committee noted the draft legislation to ensure protection from any discrimination on the basis of HIV status. The Committee notes the Government’s indication that the Bill has not yet been adopted, but that a draft bill has been submitted on a “Comprehensive Response to HIV/AIDS epidemic” which prohibits HIV tests and discriminatory practices, establishes proceedings and provides penalties in the event of violations. The Committee trusts that the new legislation to be adopted will provide adequate protection for all workers in both the public and private sectors against discrimination on the basis of real or perceived HIV status, with such protection including the prohibition of compulsory HIV testing as a condition for acquiring or retaining employment. The Committee requests the Government to supply information on any developments in this respect.

The Committee welcomes the ILO project funded by the European Commission (DG Trade) to provide support for countries benefiting from GSP+, a component of the Generalized Scheme of Preferences, aimed at the effective application of international labour standards, which focuses on four countries, including El Salvador.

The Committee is raising other matters in a request addressed directly to the Government.