This year at Legal Leader, we are highlighting the role of women, both in the legal industry and in society as a whole. From this platform, we seek to advocate for the path toward true and substantive equality between men and women. Latin America, despite having made progress in protecting women compared to previous eras, has not yet reached the levels of protection and equality it deserves.
Women need quality jobs that guarantee them a sufficient wage to escape poverty, provide them with self-sufficiency and economic security, and ensure social protection benefits. However, faced with this inequality, we must ask ourselves some questions. What factors affect women’s labor force participation? What laws are needed to achieve greater female participation? How can we achieve a more inclusive Latin America in terms of gender equality and reducing the wage gap? What labor-related issues remain unresolved in Latin America regarding the protection of women?
To address these questions and understand the landscape in Latin America, but especially in Colombia, Mexico, and Peru, we spoke with Diana Zuleta Martínez, director of the labor law area at DLA Piper Martínez Beltrán (Colombia); Sonia González, associate at Mijares, Angoitia, Cortés y Fuentes (Mexico); Alfredo Chávez Delgado, consultant at AVA Firm (Mexico); Aracelli Gaella Morales Arenas, associate in the labor law area at Miranda & Amado Abogados (Peru); Cristina Oviedo Alva, partner at Estudio Payet, Rey, Cauvi, Pérez Abogados (Peru); Alicia Jiménez Llerena, associate in the labor law area at Philippi Prietocarrizosa Ferrero DU & Uría – PPU (Peru); and Ana Lucía Castillo Beltrán, associate in the labor law area at Estudio Rubio Leguía Normand (Peru). and Marilú del Pilar Merzthal Shigyo, senior associate in the labor area of the Rubio Leguía Normand Study (Peru), who from their experiences express and agree on the need to generate commitments and agreements for the protection of women in work environments, where they are guaranteed dignified, equitable treatment and a remunerative salary, propose to regulate harassment and sexual harassment and create and implement public policies that really promote the employment of women.
What factors in your country affect female labor force participation? And why?
Diana Zuleta Martínez, partner at DLA Piper Martínez Beltrán (Colombia): “One factor could be pregnancy and maternity leave. Colombian law provides for 18 weeks of maternity leave. However, paternity leave is only 8 days long. Therefore, the leave for men and women is substantially different. This difference can lead to unequal treatment of women in accessing the labor market.”
Another factor could be that women, due to their physical condition, are unable to perform certain jobs. For example, the Colombian Labor Code stipulated that companies’ internal regulations in Colombia must establish “specifications of the tasks that women should not perform.” This provision was declared unconstitutional only on February 25, 2021, by the Colombian Constitutional Court. The Court’s main argument was that this regulation violated the right to work and equality. This decision opens a door that will allow women to access other employment sectors.
Sonia González, associate at Mijares Angoitia (Mexico): “Mainly the stereotypes deeply rooted in society and the gender role associated with family responsibilities that dictate that women have to stay at home and be caregivers for the children and family. As a result, there are many Mexican women who, despite having a professional career, face the dilemma of choosing between their career and their family. And instead of supporting them, both the government and society, so that they don’t have to choose between these and can fully develop in both, on many occasions they are forced to choose one.”
Alfredo Chávez Delgado, consultant at AVA Firm (Mexico): “A) Lack of information. This is mainly due to a lack of awareness among many employers who hold the misconception that hiring women creates more problems than solutions. They believe that in the event of pregnancy, a woman will be absent for at least three (3) months, and they think they will have to pay for this period out of their own pockets, when in reality the Mexican Social Security Institute (IMSS) is responsible for covering it. b) The culture in our country. Another related problem is the machismo that has been ingrained for years, with the false belief that a man, simply by virtue of being a man, can and should work harder. Therefore, long workdays are only considered suitable for men, automatically excluding women.”
Aracelli Gaella Morales Arenas, Associate at Miranda & Amado (Peru): “One of the main factors affecting women’s labor force participation in Peru is cultural barriers, as there are shared values and beliefs that have generated stereotypes and defined certain behaviors and social norms. As a consequence, situations such as the following arise: (i) significant segments of the labor market that are predominantly male and others that are predominantly female; (ii) unequal distribution of domestic and/or caregiving tasks; (iii) the penalization of motherhood in the workplace; (iv) greater female presence in precarious employment and/or unemployment; and/or (v) lower participation of women in management positions.”
This is particularly relevant because, according to the document entitled “Thematic Labor Overview 5: Women in the World of Work. Pending Challenges Towards Effective Equality in Latin America and the Caribbean”, the main barrier to female labor participation is the burden of unpaid work, which – in turn – leads to women opting for discontinuous employment relationships, working fewer hours and/or accepting precarious jobs in their search to reconcile family responsibilities and work obligations.”
Cristina Oviedo Alva, partner at Estudio Payet Rey (Peru): “A primary factor affecting women’s labor force participation is informal employment, which encompasses approximately 70% of the Peruvian population. While Peru currently has labor laws favorable to women workers—for example, the Law that Prevents and Punishes Sexual Harassment in the Workplace or the Equal Pay Law—these are enforceable and subject to oversight in the formal sector, which represents less than 70% of the Peruvian labor market. This means that there is a large group of women working in the informal sector, and their chances of having their employers enforce equal pay or sexual harassment laws are slim. Consider the case of a woman working informally, earning less than the minimum wage, who suffers sexual harassment in the workplace. It is highly likely that this woman will not report these acts to her employer for fear of losing her job.” or because there are no reporting channels in the workplace.
In addition, informality can also be found within formal companies when they engage in disguised employment through civil contracts. In these scenarios, we can also find potential violations of the Equal Pay Law between the employer and the worker performing the same function, but only the latter is on the payroll.
Alicia Jiménez Llerena, associate at PPU (Peru): “Without a doubt, informal employment is the first and most serious factor affecting the labor market in Peru, with special emphasis on women.
The World Economic Forum has indicated that Peru has one of the highest rates of informal employment. According to the National Institute of Statistics and Informatics (INEI), informality affected approximately 72% of the Peruvian workforce before the pandemic, with 75% of that group being women.
Women immersed in informal work lack the protection contemplated in labor regulations such as working hours and wages, are exposed to unsafe conditions, violence and sexual harassment, and, in addition, do not have access to social benefits such as health coverage and subsidies of their wages during pregnancy.
Adding to this worrying reality, in a context of global crisis due to COVID-19 that has significantly affected the economy, indicators of informal employment have worsened and are estimated to be around 80%.
On the other hand, the sexist behavior and attitude that is still present in our social life limits women’s participation in the workforce, as they bear the brunt of unpaid domestic work, and conditions the role that women play once they are within organizations.”
Ana Lucía Castillo Beltrán, associate at Rubio Leguía Normand (Peru): “I believe that one of the main factors is the machismo that has historically prevailed not only in Peru, but also in Latin America. In this sense, by not recognizing the fundamental role of women in the workplace, because they are considered in some cases “less capable” or to have “less economic influence,” their participation is not promoted and, on the contrary, they are considered dispensable within any company or institution, whether public or private.
Similarly, another obstacle and challenge for society as a whole is the continued pigeonholing of women into certain types of jobs, which, in turn, are poorly paid compared to those offered to men. As the ILO points out, “recent data confirm, in fact, a sharp increase in the proportion of the economically inactive population.”[…] This contraction has not been uniform across the population, but has been more pronounced among women, young people, and individuals with lower levels of education, amplifying existing gaps in economic participation. Similarly, it has become much more evident that women are overrepresented in some of the sectors severely affected by this crisis, such as hotels and restaurants, and domestic service.
Marilú del Pilar Merzthal Shigyo, Senior Associate at Rubio Leguía Normand (Peru): “I fully agree with Ana Lucía, and I believe that this sexism manifests itself in many ways in the workplace. On the one hand, sexism affects girls and adolescents who do not have access to such a fundamental right as the right to education, whether due to family responsibilities, limitations within their families, preferences for sending men to be educated, among many other reasons. It is already very difficult for women to enter the labor market if they are not on equal footing with men; the rules of the game are not the same. At a deeper level of analysis, even when a man and a woman are equally qualified (even when women have greater training or work experience), prejudices and biases about women’s abilities are very strong. This is evident not only in the well-known gender pay gap but also in the lack of women in the workforce.” in executive positions, boards of directors, or senior business positions
This was confirmed by the “First Study on Women Members of Boards of Directors of Companies in the Stock Market 2018,” which found that only 41% of all companies listed on the Stock Exchange have at least one woman on their board, and that only 9.2% of all director positions are held by women. This 41% is far from the figures at the regional level, as the study indicates that this percentage rises to 74% regionally and 82% globally, according to the ILO.
Women’s participation in the labor market is an essential part of a country’s growth and productivity equation…What laws are needed to achieve greater female participation?
Marilú del Pilar Merzthal Shigyo, Senior Associate at Rubio Leguía Normand (Peru): “I believe that while the enactment of laws is an important and necessary step to help improve women’s participation in the labor market, it is insufficient on its own. Support mechanisms are needed within public policies that address not only the legal aspect but also the social one. For example, strengthening programs to eradicate violence against women is crucial, as violence against female workers affects companies, impacts their productivity, and generates significant absenteeism. It is also essential to reinforce the inspection system to ensure effective oversight of existing regulations and any new ones that may be implemented. This support is vital, because without it, regulations risk becoming meaningless.”
Ana Lucía Castillo Beltrán, associate at Rubio Leguía Normand (Peru): “In Peru, laws have been passed that show some progress in highlighting the role of women in a work environment, always considering the special circumstances that accompany them, such as their status as mothers.
In this regard, there is, for example, Law No. 28983, the Law on Equal Opportunities between Men and Women, and Law No. 30709, the Law that Prohibits Wage Discrimination between Men and Women, which seek to promote equal pay and employment opportunities between men and women; likewise, it is relevant that these regulations have specified the special circumstances that a female worker may eventually experience (maternity leave, breastfeeding breaks), to emphasize that this should not be an impediment to the merit or rating given to her performance.”
Diana Zuleta Martínez, partner at DLA Piper Martínez Beltrán (Colombia): “Mechanisms must be implemented to equalize the rights of men and women. Excessive protectionism can lead to a lack of protection. Consequently, if workers, regardless of their gender, have the same rights, this will prevent discrimination in employment. In this sense, one possibility could be that maternity leave be granted to the father or the mother, or shared between the father and mother according to their agreement. They could also consider temporarily establishing quotas for women in management positions.”
Sonia González, associate at Mijares Angoitia (Mexico): “The Mexican government has committed to taking actions to reduce the injustice that affects women, and in recent decades has taken a series of actions to guarantee them equal access to social, educational and labor opportunities. The gender perspective was included for the first time in Mexico as a cross-cutting objective of the National Development Plan (PND) during the 2013-2018 term, and from there the creation of the National Program for Equal Opportunities and Non-Discrimination against Women emerged.
The Mexican Standard NMX-R-025–SCFI-2915 on Labor Equality and Non-Discrimination was developed, which is currently responsible for promoting the fight against discrimination in public, private and social workplaces, in order to establish the basis for the implementation and execution of practices to promote equality for workers through certification.
Through ILO Convention 100, which aims to promote women’s access to paid work, decent employment and productive resources, within a framework of equality, Mexico has committed itself to the international community to promote equal pay and the advancement of women in the public sector.
Likewise, the maternity leave regulated in the Federal Labor Law was reformed, which grants six weeks of rest before and six weeks of rest after childbirth, and paternity leave granting male workers five (5) working days with pay for the birth of their children, as well as other legal provisions contained in said legal order that make the protection of women broader.
Despite the legal mechanisms created, situations of inequality between men and women still persist in the workplace. The reasons why inequality continues are many, whether due to the design, planning and execution of programs, as well as the existence of legal gaps and the inapplicability of the norm.
I believe that both inside and outside of workplaces, whether public or private, there should be greater promotion, dissemination and awareness on this matter, since society is increasingly in need of solutions that recognize the equality enshrined in the regulations and allow for development in all areas of life, especially for working women in Mexico.”
Alfredo Chávez Delgado, consultant at AVA Firm (Mexico): “Currently, laws exist to combat discrimination, although their dissemination and application have been lacking. Therefore, rather than creating a new law, it would be essential to monitor the application and compliance with the existing regulations.”
Aracelli Gaella Morales Arenas, associate at Miranda & Amado (Peru): “Laws are needed that start from the premise that men and women share family responsibilities and/or that there should be co-responsibility in caregiving and, consequently, that promote behaviors consistent with these premises. Along these lines, laws that equalize maternity and paternity leave can contribute to promoting female labor force participation because they would eliminate the costs associated exclusively with hiring women and, at the same time, prevent women from bearing the double burden of housework and childcare, which has a direct relationship with their participation in the labor market.”
I also believe it would be important to enact laws that allow for flexible work arrangements, both in terms of location and hours, as these also promote shared responsibility for caregiving and contribute to eliminating barriers such as unpaid workloads.”
Cristina Oviedo Alva, partner at Estudio Payet Rey (Peru): “One questionable aspect of our labor legislation is related to maternity and paternity leave. Women are entitled to 98 days of maternity leave, while men are entitled to only 10 calendar days of paternity leave, which can be extended in cases related to the newborn or complications in the mother’s health. Although there are biological reasons that may justify a longer maternity leave for the mother, it is questionable that men are only entitled to 10 days of leave. This regulation may be based on biases related to the idea that women are solely responsible for caring for the newborn, reinforcing gender roles and resulting in a slower return to work for women compared to men. This is a point we believe should be analyzed and modified.”
Alicia Jiménez Llerena, associate at PPU (Peru): “Indeed, it is essential to take advantage of the potential of women’s work in order to achieve the long-awaited economic recovery.
In line with what has been said about informal employment, this is a complex problem with several facets.
Currently, we can say that there have been no direct actions to solve this problem, but we believe that a first and essential step would be the incorporation of women into the formal sector, since they are the ones who are, for the most part, severely affected by the phenomenon of informal business activity. Of course, most informal businesses do not find the benefits of formalization, as it only represents higher costs.
Thus, creating tax benefits for them would contribute to the incentive for formalization, specifically referring to the hiring of women.
It is also crucial not to overlook regulations that could improve working conditions specifically, including for self-employed workers. For example, implementing social security health protections for self-employment schemes would help generate coverage during pregnancy for self-employed workers, who could also have access to healthcare and a subsidy for periods of inactivity.
How can we promote female employment in times of COVID-19, using current laws?
Alicia Jiménez Llerena, Associate at PPU (Peru): “The regulations that have been issued, rather than promoting female employment, have contributed to the protection of working women. In particular, provisions were issued aimed at protecting vulnerable individuals, and with them, guaranteeing the protection of pregnant and breastfeeding women. However, all these protective regulations are focused on the formal sector.”
Measures have also been established to make fees and working hours more flexible within the context of the health emergency, prioritizing remote work and granting paid leave. While these regulations undoubtedly provide some protection and labor flexibility given the current situation, special attention must be paid to future regulations to ensure they focus not only on protecting but also on promoting female employment.
Along the same lines, it is worth noting that regulations lacking technical support that ultimately harm beneficiaries, such as those governing domestic workers, should be avoided. The new provisions, issued in October 2020, represent a significant change in labor costs for the few formal employers. While this change clearly responds to a legitimate expectation of improved benefits for domestic workers and a need to revalue the work of this sector, which is predominantly composed of women, in practice it actually contributes to making the work more precarious, denying workers the opportunity for formal employment.
Diana Zuleta Martínez, partner at DLA Piper Martínez Beltrán (Colombia): “One alternative could be to temporarily incentivize the hiring of women. And we suggest that it be temporary to avoid excessive protectionism of women, which could lead to an adverse effect. This is how the National Government, during the health emergency, established that the Formal Employment Support Program is more generous for women in the tourism, gastronomy, and entertainment sectors; the subsidy is 50%.”
Sonia González, Associate at Mijares Angoitia (Mexico): “As a result of the COVID-19 pandemic, teleworking was regulated for the first time in Mexico through a decree issued in January 2021. Faced with this unprecedented situation, women have demonstrated that working from home is possible. Despite our roles as mothers, homemakers, teachers, caregivers, etc., we have learned to manage our time effectively without negatively impacting our work environment. Many sectors are suitable for remote work, which could lead to the creation of new jobs under this modality. The benefits extend beyond teleworkers to employers, as they can reduce operating and maintenance costs, commute times, and other expenses.”
Women currently hold mostly administrative and control positions, which can easily be performed remotely, as it is a predominantly intellectual activity, currently regulated through teleworking.”
Alfredo Chávez Delgado, consultant at AVA Firm (Mexico): “A) With the implementation of teleworking, women can be encouraged to work from home, without needing to commute to a workplace, and above all, achieving a better work-life balance. B) The Federal Labor Law establishes that individual employment contracts can be for a fixed term, allowing the parties to get to know each other or receive training before the relationship becomes indefinite. With proper dissemination, employers and employees can use a contract to validate their skills and abilities, which would benefit both parties, but above all, would generate certainty that the work will be performed properly.”
Ana Lucía Castillo Beltrán, associate at Rubio Leguía Normand (Peru): “The current regulations help protect women, especially pregnant mothers, since, with the enactment of Law No. 31051, which expands labor protection measures for pregnant women and breastfeeding mothers in the event of a National Health Emergency, and in accordance with the Technical Document approved by Ministerial Resolution No. 972-2020-MINSA, the aim is also for employers to ensure the health of the worker and her baby in the current pandemic circumstances, in order to conduct follow-up with the occupational physician of the workplace, and thus adapt working conditions so that the pregnant worker and her baby do not suffer complications or risks.”
Marilú del Pilar Merzthal Shigyo, Senior Associate at Rubio Leguía Normand (Peru): “The pandemic has affected women more than men, and although it is difficult to accept, it is a harsh reality. Another of the most impactful consequences of this pandemic is that it has exacerbated existing inequalities, especially in countries with high levels of inequality and discrimination, such as those in Latin America. Recently, the ILO issued its “Labor Overview in Times of COVID-19 Report,” which analyzes employment trends during the pandemic for the Latin American region, covering data from nine countries (Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Peru, Paraguay, and Uruguay), representing 80% of the region’s employment. This study concludes that while male employment has fallen between 3% and 34%, female employment has decreased between 7% and 43%.”
Personally, I believe these figures are attributable to some common problems in the region, such as the many hours of unpaid domestic work performed by women, discrimination against women in the workplace, and inequalities in access to education between men and women. This results in women being relegated to certain productive sectors, such as the service sector, to more mechanical and less specialized jobs, or, in the worst cases, to the informal sector.
Additionally, the problem is more complex, as it lies not only in how the pandemic has affected women more than men in the short term, but also in the long term. To understand this, we must try to grasp how these inequalities impact women’s reintegration into the workforce in the context of the pandemic. For example, according to a report developed in coordination with APOYO Consultoría and Aequales, it was estimated that, in the first phase of economic reactivation, only 8% of women would be returning to their formal jobs, compared to 19% of men. These figures demonstrate that the pandemic not only affects women’s formal and direct employment, but also hinders their reintegration into the workforce, placing them at a significant disadvantage compared to men, simply because they are women. It is also likely that, based on these figures, more women have moved into the informal sector compared to men.
I believe the first step in addressing these major inequalities is to acknowledge them and understand the reality. Only if authorities, government institutions, employers, and we as a society are aware of this reality will we be able to take the necessary actions to confront the problem and gradually find solutions within our sphere of influence.
Cristina Oviedo Alva, partner at Estudio Payet Rey (Peru): “While remote work, teleworking, and working from home during the pandemic have been a challenge for working mothers, it has also shown that it is perfectly feasible to provide services from home while balancing these tasks with family and personal life. In this sense, one way to promote female employment is to encourage teleworking or remote work with realistic working hours that meet the needs of both employees and employers.”
We have seen how some employers have created more accessible and flexible work schedules so that employees can better balance their work and family lives. Think of those schedules where employees would help their children with homeschooling in the morning and then log on to their jobs.
Aracelli Gaella Morales Arenas, associate at Miranda & Amado (Peru): “Given that the burden of domestic and caregiving tasks has increased during the COVID-19 pandemic, I believe it is vitally important to carry out awareness campaigns and policies that encourage behaviors that promote co-responsibility in caregiving, because if immediate measures are not taken to address the crisis, the problem related to female labor participation and the possibilities of achieving future professional advancement will be accentuated.
Likewise, according to the document entitled “Impacts of the Coronavirus Epidemic on Women’s Work in Peru” prepared by Miguel Jaramillo and Hugo Ñopo in May 2020, female employment can be promoted during the COVID-19 pandemic through: (i) policies that prioritize the dynamism of subsectors that are relevant sources of employment for women (for example, the trade and/or services sector); (ii) the implementation of training programs that are tailored to the skills demanded by the future of work, as well as programs that contribute to job searching; (iii) the strengthening of support lines, activation of shelters, and the establishment of booths to report violence in strategic locations with high female population, given that violence rates have increased; among others.”
To be continued…
We invite you to read “the great challenge for boards of directors is to break the ‘glass ceiling’ and achieve greater visibility and representation of women in the legal sector”
