CMS Expert Guide on discrimination in the workplace in Chile

According to Chilean labour law, an employer cannot conduct in the employment relationship any acts considered by law as discriminatory. 

These obligations are contained in the Chilean Labour Code in the Law N° 20.690 of No Discrimination, also known as the “Zamudio Law”, and in Law N° 20.348, which guarantees the right to Equal Remuneration.

For your reference, Article 2 of the Chilean Labour Code sets out the following regarding this matter: 

“Acts of discrimination are distinctions, exclusions or preferences based on race reasons, colour, sex, age, marital status, union affiliation, religion, political opinion, nationality, national descent, socio-economic situation, language, beliefs, participation in trade union organisations, orientation sexual, gender identity, filiation, appearance personal, illness or disability or social origin, which have the purpose of nullifying or altering the equality of opportunities or treatment in employment and occupation.

The distinctions, exclusions or preferences based on the qualifications required for a job determined will not be considered discrimination.

For the foregoing and without prejudice to other provisions of this Code, are acts of discrimination the offers of work done by an employer, directly or indirectly through third parties and by any means, that indicate how a requirement to apply to them any of the conditions referred to in the fourth paragraph. 

No employer may condition the hiring of employees to the absence of economic, financial, banking or commercial obligations that, according to the law, may be communicated by those responsible for registers or personal data banks; nor require a declaration or certificate for that purpose. Except only those employees who have the power to represent to the employer, such as managers, assistant managers, agents or attorneys-in-fact, provided that, in all these cases, they are endowed, at least, with general powers of administration; and the employees who are in charge of the collection, administration or custody of funds or securities of any nature.”

Discrimination is forbidden in the employment relationship, and the Law does not distinguish between employees that render their services in the facilities of the employer, or by telecommuting or by a platform.

If an employee considers that he/she has been subject of some act of discrimination in the workplace, this individual can make a claim directly to the Labour Court through the Labour Protection Procedure, for violation of his/her fundamental rights.

If the Labour Court deems that there have been discriminatory actions committed in the workplace, the court may order the employer to stop these actions immediately and also to pay fines and compensation to the affected employees who have made claims of discrimination. If the discrimination occurs during a dismissal procedure, the employee – at his/her choice – can ask for compensation or reinstatement.

The amount of compensation will depend on the salary of the affected employee, and the law establishes a range that an employer should pay, which is between six and 11 monthly remunerations for each claimant. 

Notwithstanding the above, an applicant's complaint of discrimination against an employer can only be claimed in civil court for the infringement of the Zamudio Law because a labour relationship does not yet exist between the applicant and the employer. Hence, a labour claim regarding this matter is not enforceable in Chile.

Employers should establish in their Internal Regulation of Order, Hygiene and Safety (“RIOHS”) the obligations to prevent discrimination in the workplace. In this document, the employer must set down all conduct that is forbidden in the workplace, including eliminating situations of discrimination that may affect employees, the procedure for making a claim and the sanctions for violating these policies. 

There is no legal obligation to train employees about these matters. Notwithstanding, it is advisable to conduct training, provide employees with appropriate tools and create communication channels to prevent future claims related to discriminatory actions made by employers or other employees against each other.

Additionally, regarding disabled employees, employers with over 100 employees must fulfil the following obligations:

• At least 1% of its hired personnel must be disabled or receiving a pension for a disability.
• The condition of the disabled personnel must be certified through public entities.
• Companies that cannot hire disabled personnel due to the special nature of their services can comply with alternative measures defined in the law.

The following outlines the legal requirements:

1. Employers should establish in their Internal Regulation of Order, Hygiene and Safety the obligations to prevent discrimination in the workplace and to fulfil the requirements of the Zamudio Law.

2. In addition, there are equal-pay requirements set out in human rights laws and employment standard laws (Law N° 20.348 that sets the guarantee for the right to Equal Remuneration). The objective or purpose of Law No. 20.348, which incorporates Article 62 bis in the Labour Code, is to eliminate situations of discrimination based on gender that may affect a female employee's remuneration. The legal provision only refers to equal remuneration between men and women and does not include equality between people of the same sex. Chilean equal pay legislation obliges employers to do the following:

• Have an internal procedure regulated in the Internal Regulation of the company, where employees would be able to make a complaint against the employer for violating equal-pay legislation.
• The violation of equal-pay legislation can result in administrative fines imposed by the Labour Board. These fines will be between UTM 9 and UTM 40 (approximately USD 523 and USD 2,325) and could be accompanied by a judicial procedure for violation of fundamental rights. The fundamental rights procedure safeguards the fundamental rights of the employee, including issues of non-discrimination.

Yes, the employer should pay fines to the Labour Board in cases where the RIOHS minimum legal obligations do not apply, and in cases that include the characteristics that are covered by the non-discrimination law and the procedures for Equal Remuneration. 

Additionally, from a reputational point of view, it is advisable to have a local D&I policy, but it is enough if one is set down in the RIOHS.

There is no obligation for employers to report pay transparency or a pay gap.

In accordance with Law 19.628 on the protection of private life, the processing of personal data can only be carried out when the owner of this data expressly consents to it.

The persons giving authorisation must be duly informed regarding the purposes for storing their personal data and any possible communication with the public regarding this data.

The authorisation must be in writing, and can be revoked, although without retroactive effect, and the revocation must also be in writing.

The employers can ask for information, but an employee is not forced to answer the employer with the understanding that this information constitutes the private and sensitive data of the employee.

Regarding disabled employees, companies with over 100 employees have the following obligations:

• At least 1% of its hired personnel must be disabled or should be receiving a pension for disability.
• The condition of disabled personnel must be certified through public entities.
• Companies that cannot hire disabled personnel due to the special nature of their services can comply with alternative measures defined in the law.

No, there are no corporate governance rules regarding these matters.