Harassment and discrimination protocol

in Jul 12, 2019

On May 1, 2019 the Federal Labor Law was substantially amended to cover, among other matters, protection of human rights and prohibiting any kind of discrimination, violence, sexual harassment and mobbing in the workplace. These anti-discrimination provisions entered into force immediately and apply to all employers despite the number of employees they have.

Particularly, employers now have an express obligation to create -in agreement with their employees- and implement a “protocol” to prevent and tackle discrimination, violence and harassment (including sexual harassment) in the workplace (the “Protocol”). The amendments are silent on what steps and formalities should be followed to satisfy this obligation including the timing to implement them; consequently, employers have certain room for interpretation as to how to address this new task but we would advise to err on the safe side by focusing on the following recommendations:

1.- The Protocol should

  • Unequivocally prohibit any kind of harassment in the workplace;
  • Provide examples of prohibited conduct that would constitute unlawful harassment;
  • Include a procedure for the investigation of complaints;
  • Have warnings for incurring in prohibited conducts;
  • State that retaliation against individuals who complain of harassment or who testify or assist in any investigation or proceeding involving harassment is unlawful; and
  • State that the Protocol is an integral part of the employer’s Internal Labor Regulations in place (aka Handbook).

2.- Implementation and training

Because having a Protocol in place is not enough, its implementation and training becomes a necessary next step. All employees, officers and new hires should receive anti-harassment training with frequency determined by the employer at its discretion but depending on the turnover rate, employers should consider semi-annual and annual training programs. New hires should receive training as part of their boarding process. There are no specific requirements for the training so employers can create and adapt one to their specific needs and considering also the geographical difficulties of conducting live or in-person sessions. Training should at least cover the items contained in the Protocol.

Prevention is the best tool to mitigate and eradicate harassment in the workplace so given the recent amendments to the law employers are encouraged to review their policies to ensure compliance with these new anti-harassment requirements and the Protocol.

About the authors: Juan Tejedo and Carlos Acle are partners and Regina de la Fuente is an associate of GarcíaMingo & Tejedo, S.C. They have long-standing experience in representing a variety of foreign and domestic companies in employment and Union matters. They can be contacted at: juan.tejedo@gmt.mx, carlos.acle@gmt.mx, regina.delafuente@gmt.mx

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