In this second installment, the first published a few days ago , we continue our conversation 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); 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 discuss how to achieve a more inclusive Latin America in terms of gender equality and reducing the wage gap and conclude with the actions we have on the table to promote a recovery of employment in times of pandemic.
What actions can be taken to promote female employment and gender equality?
Alfredo Chávez Delgado, consultant at AVA Firm (Mexico): “A) Advising and informing employers regarding their rights and obligations. B) Promoting employment with equal working conditions and equal pay. C) Implementing incentives for institutions to promote gender equality. D) Providing incentives to companies that demonstrate they are implementing measures and policies on gender equality.”
Diana Zuleta Martínez, director of DLA Piper Martínez Beltrán (Colombia): “It is important to create spaces where different actors can agree and develop public policies with a gender focus that in practice promote female employment and reduce the wage gap and the gap in access to the labor market that exists between men and women.
The Government can also promote other tax relief measures for hiring women.
Likewise, regarding the actions that have already been implemented, it is important to promote constant evaluation and monitoring of their compliance. This is to prevent the actions from remaining merely on paper and not being effective in daily practice.
Sonia González, associate at Mijares, Angoitia (Mexico): -“Recruit staff using a gender perspective, since being male or female should not be a requirement for any job.
-Create and/or strengthen internal policies in workplaces to establish the necessary guidelines for a favorable work environment and have an environment with zero tolerance for acts of violence or workplace harassment.
-Eradicate prejudices in “masculine” labor sectors so that women can increase their employment opportunities.
-To foster an inclusive culture, the company will be responsible for creating the necessary protocols to protect its employees and provide them with a work environment where they can develop in a healthy way.
-Provide ongoing job training to contribute to the development of female employees and give them more opportunities for professional growth.
-The reform to the Federal Labor Law of May 1, 2019 will promote the presence of women in union life and increase their activity as workers’ leaders, by establishing that the obligation of all directors is to be formed under the principle of gender parity.”
Aracelli Gaella Morales Arenas, associate at Miranda & Amado (Peru): “Given that the main barrier to promoting female employment and gender equality is a cultural barrier, I believe that what must be done is to work precisely on the culture and, even, do countercultural work that allows the elimination of stereotypes, biases, individual behaviors and social norms that undermine gender equality.
In addition, it is important to promote lifelong learning (especially in VUCA contexts like the current ones), to encourage the participation of women in areas of knowledge such as science and technology, to train women in digital skills, to implement support programs for high-potential women so that they can occupy management positions, and to promote teleworking and flexible hours as a mechanism to facilitate work-life balance, as well as shared family responsibilities and/or co-responsibility in care.”
Cristina Oviedo Alva, partner at Payet, Rey (Peru): “In Peru, private sector employers have a legal obligation to have salary policies, which are communicated to all employees. These policies establish a set of criteria and guidelines for managing, setting, or adjusting the different employee compensation schemes. They are also required to have a table of job categories and functions. These actions, which stem from a legal mandate, are positive because they guarantee the principle of equal pay in cases where work is of equal value.”
In addition, we have seen that human resources departments are implementing women’s empowerment programs to achieve gender equality in the workplace. These sponsorship programs aim to encourage higher-ranking (male) employees to promote the participation of women, junior staff, or those in lower positions within the organizational structure, giving them greater visibility and access to meetings. It’s a way of cultivating allies in the workplace that fosters greater gender equality.
Alicia Jiménez Llerena, Associate at PPU (Peru): “The most important point for promoting female employment and gender equality lies in measuring these inequalities and gaps. It’s often said that you can’t control what you don’t measure. Without this ongoing monitoring and up-to-date information, it will be impossible to demonstrate progress or setbacks in this area.”
Furthermore, one of the labor measures that would promote employment in general, and female employment in particular, is the strengthening of remote work. Therefore, it is crucial to implement definitive regulations for remote work, currently only applicable until July 31st in our country. Our established practice of teleworking thus requires changes aimed at making remote work more flexible, so that it can become a truly viable option for workers.employers without excessive costs or requirements.
Regarding measures to achieve equality, a crucial issue would be allowing for the extension of paid paternity leave or the redistribution of maternity leave. Currently, maternity leave totals 98 days, while paternity leave is only 10 days. This disparity contributes to perpetuating gender role biases, assuming that mothers will bear a greater burden of childcare than fathers.
Within the area of opportunities to seek parity of roles, it would be to allow the hiring of daycare services for children aged 0-5 years, through non-wage economic benefits to working parents.
Finally, measures related to promoting youth employment, strengthening flexible hiring schemes through work training programs, since these often constitute the first step to accessing the labor market.”
Ana Lucía Castillo Beltrán, associate at Rubio Leguía (Peru): “Regarding the situation of women, it should be emphasized that, since the COVID-19 pandemic, this sector has been affected to a greater extent, as the Organization points outThe International Labour Organization (ILO) notes the challenges women face in entering the workforce, citing “a more pessimistic outlook and fewer opportunities in the labor market, as well as disruptions to education and childcare services, which place a greater burden of family responsibilities on women.” The ILO also points out that women experience a higher rate of informal employment compared to men.
In that sense, I believe that the most important thing in any country is to raise awareness of the importance of women in various spheres, not only in the workplace, but also in the family, education, politics, etc. In this way, we can promote the eradication of behaviors that discriminate against female workers because of their gender, which should not be seen as a disadvantage, but rather as a motivation to avoid returning to earlier times when women were much more relegated in the workplace.
Marilú del Pilar Merzthal Shigyo, Senior Associate at Rubio Leguía (Peru): “It is also important to continue promoting equality from other areas of the company, and not only through the application of regulations, in order to work ‘from within’ and achieve gender equality in the organizational culture. For example, through Sexual Harassment Intervention Committees or Occupational Health and Safety Committees. Training for both of these bodies within organizations must remain ongoing and aim to raise awareness among all company employees on gender equality issues. Different areas of the company, such as Human Resources or Social Services, play a very important role. These areas must offer channels that inspire trust and security in their employees so they can report cases of workplace harassment, wage discrimination, or also to foster spaces for dialogue to implement work-life balance policies, flexible work arrangements, among others.”
How to achieve a more inclusive Latin America in terms of gender equality and reducing the wage gap?
Ana Lucía Castillo Beltrán, associate at Rubio Leguía (Peru): “As already stated, this is a reform of the whole of society to continue promoting the importance that should be given to women in all areas, considering that they should have the same job opportunities, which should not be diminished because women enjoy more leave, but rather, their capabilities should be recognized and it should be understood that the world of work should not only focus on economic gains, but on respecting the dignity of female workers.
Similarly, the domestic and childcare work performed by many women should be revalued, granting labor flexibility for situations that require it, without economic detriment to this labor sector and, in addition, promoting higher remuneration for the work mostly performed by women, such as care work, cleaning, hotel or restaurant work.”
Alfredo Chávez Delgado, consultant at AVA Firm (Mexico): “If we start with education at home, where parents initially promote gender equality, in the future it won’t be necessary to talk about inclusion. Constitutionally, ‘equal pay for equal work,’ so to eliminate the wage gap, it’s important that labor authorities fully carry out their work, so that through the mechanisms they have to oversee employers—to name a few: inspections, labor lawsuits, audits—they can exercise their powers and sanction any employer who engages in this practice.”
Sonia González, associate at Mijares, Angoitia (Mexico): “It is necessary to eliminate gender stereotypes in education so that women can access careers linked to technology and break the “glass ceiling” in business, since there is a low percentage of women in the administration of Mexican companies.
Mexico must generate affirmative actions that guarantee women access to formal employment and the full compliance of their labor rights, since many women depend on the income of other people, a situation that places them in a vulnerable condition that affects economic empowerment, because there is a considerable proportion of women who do not have their own income and, on the other hand, among those who do have income, there are notable differences compared to men.
Another action the Mexican government can take is to provide more support to women-led businesses, with the aim of increasing formal employment.”
Aracelli Gaella Morales Arenas, associate at Miranda & Amado (Peru): “As the ILO points out in 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 solution to this problem transcends the labor relationship, since it is found – mainly – in the homes.
Therefore, in Latin America, it is essential to focus primarily on the cultural sphere, as well as on issues such as education, poverty, and informality, since these are directly linked to problems of gender equality and the wage gap. To achieve this, it is vital that governing bodies, despite strong cultural and ideological resistance, develop public policies in a coordinated manner.
It can also help build a path towards gender equality and reduce the wage gap by having transparent policies on remuneration and promotions, decriminalizing motherhood in the workplace, training women in the skills necessary to occupy managerial and/or high-responsibility positions, promoting investment in the care economy, among others.”
Cristina Oviedo Alva, partner at Payet, Rey (Peru): “Achieving this goal is definitely a cross-cutting task that encompasses various sectors such as education, public policy, and civil society organizations, among others, in order to dismantle biases that have been entrenched in employing entities—generally led by men—for decades. Nevertheless, from a labor perspective, one measure that contributes to reducing the gender pay gap is the obligation for private employers to have salary policies and job classifications and categories. This obligation implies that employers—working hand in hand with compensation specialists—determine the value of a job regardless of whether it is a male or female employee. In other words, we set aside biases and assign remuneration based on the job and objective differentiating factors.”
Alicia Jiménez Llerena, Associate at PPU (Peru): “For real change in Latin America, it is undeniable that a gender perspective must be implemented across all actions, programs, and regulations in every country. This would help to begin considering any labor issue that could be improved from a gender equality perspective, which, in turn, would help to reduce the gender pay gap.”
We believe that while there is an individual responsibility to raise awareness and promote equal roles within families, nothing prevents the State from including this issue in political discussions and government plans. In this regard, it is important to consider a gender perspective across all areas in order to dismantle stereotypes and the traditional division of household tasks.
Having women in leadership roles as role models for society is of particular importance, and in that sense, it is worth highlighting that, for the first time in our country’s history, six of the most important state institutions are led by women: the Attorney General’s Office, the Constitutional Court, the Congress of the Republic, the Judiciary, the Presidency of the Council of Ministers, and the National Board of Justice. This is a significant achievement that marks a milestone on the path to equality.
Diana Zuleta Martínez, director of DLA Piper Martínez Beltrán (Colombia): “Education and the elimination of stereotypes are the strongest tools to overcome the stereotypes under which women are not suitable to perform certain types of work.
It is necessary to create spaces where different actors can agree and develop public policies with a gender focus that in practice promote female employment and reduce the wage gap and the gap in access to the labor market that exists between men and women.
Companies should also implement and enforce gender equality policies as part of their best practices.”
What actions do we have on the table to promote job recovery, create instruments to encourage teleworking and labor flexibility to facilitate the incorporation of women?
Diana Zuleta Martínez, Director of DLA Piper Martínez Beltrán (Colombia): “In Colombia, the Congress of the Republic passed Law 2069 on December 30, 2020. This law aims to promote entrepreneurship in Colombia. Article 17 of this law stipulates that, due to the new global circumstances, remote work is permitted beyond teleworking. According to the same article, its purpose is to guarantee job creation and the consolidation of businesses. This also includes women, as the remote work modality contributes to harmonizing work, personal, and family life.”
This regulation is an alternative that could allow for greater flexibility in teleworking. In Colombia, teleworking has specific regulations that particularly involve compliance with additional obligations regarding occupational safety and health. Furthermore, teleworking entails reporting obligations to entities and authorities, which represents a greater burden for employers. Consequently, enabling remote work beyond the health emergency is a recognition of the need for greater regulatory flexibility.
Alfredo Chávez Delgado, consultant at AVA Firm (Mexico): “A) To promote job recovery, it is necessary to generate employment opportunities, support the creation of small and medium-sized enterprises, and provide incentives to companies that have been able to retain their employees despite the economic crisis. B) Promote dialogue between workers and employers, since both parties are needed for a company to survive. Modifying working conditions has been a legal mechanism that has allowed many employers to retain their workforce. C) Properly implemented teleworking regulations can generate employment opportunities and increase company productivity. D) Teleworking can be a modality that encourages the incorporation of women into the workforce, as it would allow them to balance their family and work lives.”
Aracelli Gaella Morales Arenas, Associate at Miranda & Amado (Peru): “First, I believe it is important to work in a coordinated manner to revitalize predominantly female sectors and/or labor markets, and at the same time, to establish programs to help women find employment from an appreciative perspective. This means taking advantage of the fact that—in contexts like the current ones—it is very relevant to have socio-emotional and leadership skills in which women have demonstrated an advantage. I think this is very important because, generally, the focus is on what is lacking or what limits women’s participation, when there are very positive aspects that organizations can leverage and that are directly related to organizational performance.”
It is also important to review existing regulations on teleworking and remote work to ensure they incorporate a gender perspective. This will contribute to a more equitable distribution of tasks while also ensuring that this does not lead to increased labor costs that would favor one gender over another, thus avoiding disincentives in the short or medium term.
Finally, it is necessary not to forget that violence is a structural problem and, therefore, not to cease efforts to raise awareness, make it visible and create spaces of psychological safety to contribute to its eradication.”
Cristina Oviedo Alva, partner at Payet, Rey (Peru): “Teleworking and remote work are measures that allow for the inclusion of women, enabling a better work-life balance. Additionally, as we mentioned earlier, the creation of salary policies and job classifications, as well as the implementation of sponsorship programs, help to promote gender equality in the workplace.”
On the other hand, we believe that the use of temporary contracts, with just cause, can promote a gradual recovery of employment.”
Alicia Jiménez Llerena, Associate at PPU (Peru): “Remote work is a flexible employment arrangement that was implemented in Peru, initially only during the Health Emergency, and subsequently its use was permitted until mid-2021. This indicates that it is a temporary arrangement, given that we already had teleworking. However, our permanent teleworking arrangement was not and is not commonly used because it entails a series of costs and strict responsibilities for employers, making it a rigid modality that is not usually in the best interest of businesses.”
Consequently, a permanent regulation of remote work, or its merger with teleworking in order to create a sufficiently regulated and satisfactorily flexible permanent figure, represents the most useful and rapid action to implement at present.
A regulation such as the one indicated would allow sufficient adaptability for employers, so that, instead of resorting to unpaid suspensions or dismissals, they can resort to placing part of their staff under this modality, in order to reduce their own costs of implements and/or work spaces preferentially to reducing payrolls, for example.
This scenario would also particularly benefit women, who often have a greater family burden, a factor that usually limits their access to better jobs and benefits. Therefore, having the opportunity to balance work and family life according to their own schedules, by being able to work from home, would definitely be an advantage for female workers and would reduce the traditional limitations that affect their access to and advancement in employment.
Ana Lucía Castillo Beltrán, associate at Rubio Leguía (Peru): “I believe that, first of all, there should be a greater appreciation of the work done by women, not only in the workplace, but also the work done within the home, which is of vital importance to society and which is still pending revaluation by the Government itself in terms of domestic tasks and childcare, in which women are more involved and where inequality of roles and responsibilities between men and women persists.”
Marilú del Pilar Merzthal Shigyo, Senior Associate at Rubio Leguía (Peru): “The recognition of unpaid domestic work in Peru remains an outstanding challenge, and it is another consequence of the significant inequality gap that exists between men and women. It is important that women have real opportunities for development and spaces where they can reconcile work and family life, without having to choose only one. This requires a necessary shift from a patriarchal mindset to gender equality for both men and women. Men need to understand that men and women are equal, and assimilate, understand, and apply this in their daily lives. For their part, women need to empower themselves to assert their rights and earn the space they deserve.”
Sonia González, Associate at Mijares, Angoitia (Mexico): “The Government of Mexico has implemented an economic recovery strategy based on three pillars: providing loans to small businesses, welfare programs that include the Jóvenes Construyendo el Futuro (Youth Building the Future) program, which consists of training young people aged 18 to 29 to acquire or develop work habits to increase their employability in the future, and building infrastructure projects to create new jobs with public funds.
Furthermore, the pandemic transformed e-commerce, leading to a greater supply of products and services, improved payment methods, and, most importantly, more consumers who embraced these services during the pandemic. In this regard, it’s worth noting that Mexican artisans were able to sell their products online thanks to initiatives promoted by the Secretariat of Indigenous Peoples and Neighborhoods and Resident Indigenous Communities, which holds weekly online sales of various handcrafted goods, benefiting over two thousand artisans.
Finally, the Chamber of Deputies sent a draft decree to the Senate of the Republic to amend Article 59 of the Federal Labor Law in order to make the working hours of working fathers and mothers who must support their daughters and sons in their educational development more flexible.”
Several studies show that job losses in the region are primarily affecting women. What laws have been adopted, and what are the challenges and obstacles in this situation?
Sonia González, associate at Mijares, Angoitia (Mexico): “According to the National Institute of Statistics and Geography, 3.2 million female workers lost their jobs from March to August 2020 during the COVID-19 contingency, which represents two out of every three jobs lost in the country.
One of the main reasons for job loss is the discrimination women face from their employers when they learn they are pregnant. Therefore, the Mexican legislature has implemented a series of regulations aimed at protecting them. Article 133, section XV, of the Federal Labor Law states: “…Employers are prohibited from…XV.- Dismissing a female employee or directly or indirectly coercing her to resign because she is pregnant, has changed her marital status, or has the care of minor children…”.
Women may not work in unhealthy or dangerous conditions, on the night shift after 10 p.m., or overtime during pregnancy or breastfeeding without prejudice to their salary (Article 166 of the Federal Labor Law)
Working mothers: “…will not perform work that requires considerable effort…” (Article 170, Section I, LFT), “…will enjoy a break of six weeks before and six weeks after childbirth…” and may be increased to up to eight weeks after in the event that the children have been born with any type of disability or require hospital medical care…”.
In addition, during breastfeeding, you may take two extra breaks of half an hour each to feed your children within the company in a place designated for this purpose or, if applicable, in accordance with the employer, reduce your working day by one hour (Article 170 section IV LFT).
Finally, she will have the right to return to the position she held and have the pre- and postnatal periods counted towards her seniority (Article 170, sections VI and VII)
Although the law includes provisions for supporting pregnant women, the government has failed to implement genuine awareness campaigns to ensure that these measures are put into practice and that this support does not become yet another obstacle for women in their professional lives. It seems that women’s goals and aspirations in the workplace are increasingly focused solely on caregiving or support activities, rather than aiming to reach their full potential.
Diana Zuleta Martínez, Director of the Labor Area at DLA Piper Martínez Beltrán (Colombia): “In Colombia, Law 581 of 2000 created mechanisms aimed at ensuring women’s adequate and effective participation at all levels of the branches and bodies of public power in the country. According to this law, at least thirty percent (30%) of the highest-level decision-making positions, or those at other decision-making levels, must be held by women.
Likewise, in Colombia, the National Government created the Formal Employment Support Program under which the subsidy for women or workers in the tourism, gastronomy and entertainment sector will be 50%.
The challenges will be related to creating hiring incentives that do not discriminate against women. Excessive protection can lead to a lack of protection.
Aracelli Gaella Morales Arenas, Associate at Miranda & Amado (Peru): “In Peru, no law has been enacted directly focused on generating employment for women. However, given the emergency context and the existing barriers to female labor force participation that have been exacerbated by the crisis, regulations have been issued that: (i) provide facilities for caring for immediate family members, stipulating that these must consider gender perspectives (Legislative Decree No. 1499); (ii) approve reference forms for complaints or reports of sexual harassment (Ministerial Resolution No. 115-2020-MMP); (iii) enact the Law on Domestic Workers (Law No. 31407); and (iv) issue labor protection measures for pregnant women (Law No. 31051). In other words, a series of These measures are aligned with the objective of reducing barriers that hinder women’s participation in the workforce. In addition, subsidies have been approved for certain companies to promote job recovery, incentivize hiring, and preserve jobs.
However, one of the main challenges is precisely managing the impact of the crisis on the female workforce, insofar as – for example – the sectors most affected by this crisis are the service and commerce sectors, that is, predominantly female sectors. There are several studies that indicate that in this context, workers are working longer hours (that is, there is evidence of an overload on top of the existing one in the case of the female population) and an increase in domestic violence has been observed in various parts of the world, which – among other issues – has a direct impact on absenteeism.
Therefore, it is necessary to evaluate proposals to address the impact of the crisis from a gender perspective, so that specific and urgent measures can be adopted that allow those who are suffering the most from the effects of the crisis, that is, women, to have tools to cope with it.”
Alicia Jiménez Llerena, Associate at PPU (Peru): “In Peru, unfortunately, no laws have been adopted to protect against this particular impact on women’s employment. However, there is no doubt that there is a complex challenge since the facets of the problem are diverse.”
Even without considering the current context, women already faced greater difficulties in accessing employment and achieving equality within it. Therefore, the current challenges we face relate to the need to implement regulations that promote the hiring of women and provide them with adequate protections. For this reason, the implementation of employment arrangements such as remote work and the adoption of incentives for those who choose to formally hire women, for example, through tax benefits or other forms of cost reduction, are considered especially important.
Ana Lucía Castillo Beltrán, associate at Rubio Leguía (Peru): “In Peru, regulations have been issued regarding the labor protection of pregnant women and breastfeeding mothers in the context of the Health Emergency declared at the national level as a result of the pandemic; however, beyond the issuance of the regulation and given the particular circumstances in which we find ourselves, the verification of compliance with this regulation remains pending.
On the other hand, regarding all women, there hasn’t been a significant increase in regulations, so the challenge during the pandemic remains ensuring compliance with existing laws on equal opportunities for both men and women in the workplace, guaranteeing access to job offers without disadvantage based on gender, as well as the equal pay policy that all workplaces must have. Along these lines, we continue to face the major challenge of eradicating discrimination against women in all institutions in our country.”
Marilú del Pilar Merzthal Shigyo, Senior Associate at Rubio Leguía Normand (Peru): “I believe the problem is much larger, and simply adopting laws that promote equality is not enough. For example, in the case of the mandatory renewal of fixed-term contracts for pregnant women, the idea was to prevent discrimination against women. However, a side effect has been that many employers choose to stop hiring women of childbearing age or pregnant women precisely because of this requirement to automatically renew a temporary contract, perhaps against the true needs of the companies. The problem is quite complex and requires raising awareness in society, and especially among employers, so they understand that pregnant women, breastfeeding mothers, or women of childbearing age are not ‘liabilities or burdens’ for the company.”
Alfredo Chávez Delgado, consultant at AVA Firm (Mexico): “In July 2020, the USMCA was signed and Mexico committed to adopting and implementing a new labor justice system that would guarantee freedom of association, as well as the promotion of labor practices that integrate and achieve the permanence of women in the labor market, and the creation of capacities and skills of working women, including on the challenges in the workplace.
In January 2021, the regulation governing teleworking was approved, as many companies are working under this scheme due to the crisis caused by Covid-19, hoping that with this regulation more employers can implement this modality and thus combat a large part of unemployment.
The biggest challenge we face is overcoming and recovering the economy we had before the Covid-19 crisis, as well as creating and promoting employment. The challenge lies in rescuing companies that have gone bankrupt or are on the verge of bankruptcy, and creating new sources of formal employment, which will allow the country’s economy to start moving again. And as a result, the number of people with access to social security and tax payments will increase.
