CMS Expert Guide on discrimination in the workplace in Colombia

In Colombia, the main legal source regarding discrimination in the workplace is Law 1010 of 2006, which regulates harassment in the workplace. Article 2 of Law 1010 of 2006 describes the conduct that could be considered as labour harassment, including discrimination.

In accordance with the definition provided on the aforementioned Law, discrimination in the workplace is understood as any differential treatment based on race, gender, nationality, family origin, sexual preference or orientation, religious beliefs, and political viewpoints among other subjective aspects.

Article 1 of Law 1010 of 2006 states that the dispositions that regulate harassment in the workplace (including discrimination) protect the right to work with decent and fair conditions, and also protect freedom, intimacy, the mental health of employees and above all harmony in the workplace.

Importantly, despite the fact that the wording of Law 1010 of 2006 is initially focused on the employment relationship, which means its application would be limited to direct employees, via case-law the Supreme Court of Justice has extended these regulations to cases in which there is no direct employment relationship. 

According to Law 1010 of 2006, employees considered victims of discrimination in the workplace (which is a type of work harassment) can submit a complaint before the internal co-existence committee in order to seek internal solutions within the company, and solutions between the parties and third-party facilitators. 

In order to avoid possible retaliation, Law 1010 of 2006 establishes that employees who file complaints reporting possible discrimination or harassing behaviour cannot be dismissed without fair cause for six months after the complaint was made. 

Compensation, depends on the severity of the possible damages that the conduct caused, which would be determined in court.

Employers are obliged to have an internal co-existence committee integrated in the company, comprising an equal number of company and employee representatives. This committee is in charge of analysing internal discrimination and work harassment complaints in order to provide settlement and conciliatory solutions between the parties. This committee also has prevention and promotion functions, focused on guaranteeing a safe and good work environment. 

Additionally, it is mandatory that the internal employee handbook contain a work harassment chapter, which includes the company's protection and prevention mechanisms in case of possible harassment or discriminatory conduct.

Despite the fact that Law 1010 of 2006 provides guarantees with which employers must comply, it does not expressly establish an obligation to have internal D&I Policies. 

Nevertheless, D&I Policies have become a relevant issue and companies are beginning to be audited by potential providers or clients with strong compliance policies to ensure that the company has effective internal labour polices related to discrimination, diversity and inclusion. 

Colombian corporations have the responsibility to respect human rights in their operations. This responsibility is based on Law 1496 of 2011, which seeks to guarantee equal pay for men and women. In addition, the Corporations and Human Rights National Action Plan for the 2020-2022 period points out that corporations have the responsibility of not violating human rights in their activities.

These laws and policies are examples of the intention to promote respect for human rights in business. However, this does not result in the obligation within corporations to adopt explicit policies regarding discrimination and inclusion (“D&I”) whose non-compliance could lead to sanctions. There are no risks for non-adoption of such policies given there is no current legal obligation in this regard. However, there could be reputational and even legal risks for corporations incurring discriminatory practices. 

There could also be ESG consequences for non-adoption of this policy due to their importance in business. Even though there is no legal obligation to adopt this policy, an investor or potential counterparty may take the absence of a D&I policy as a decisive factor when choosing to enter into an agreement with a Colombian corporation. 

In Colombia, there is no legal obligation to make report on these issues. Nevertheless, where there are unfair pay gaps that may be considered as discrimination, employees or third parties can file complaints to the Ministry of Labour, which may lead to fines for the employer if there is evidence of breaching constitutional dispositions related to equality.

Additionally, employees who believe they are receiving discriminatory treatment at the point of agreeing their remuneration can also submit judicial claims in order to guarantee payment equality. 

Yes, in Colombia diversity information related to, among others, sexual orientation, race, ethnicity, religion and/or other cultural beliefs that can be considered sensitive data. This type of personal data has stronger measures of protection in Colombia for its processing. Therefore, in accordance with Law N. 1581 of 2012, to process this data it will be necessary to collect previous, explicit and informed consent/authorisation of the data subjects, in which it must be clear that the provision of sensitive information by the data owner is optional. If possible, the authorisation request should include the specific data to be collected in order to give complete information to the data owner who can give authorisation for the processing of non-sensitive personal data and refuse the processing of sensitive data.

If the sensitive data is necessary for the fulfilment of the contractual relationship, this should also be made explicit in the authorisation so that the data owner again has the necessary details of why the controller is collecting this type of data and for what purposes.

At the same time, the controller must have strict security measures for the collection and other processing of this type of data, including any data flows (i.e. data transfer and/or transmission).

• Colombian Constitution: Yes. Although most of the regulation is aimed at regulating and enforcing the participation of women in public entities, pursuant to the Colombian Constitution (the “Constitution”) all Colombian citizens are born free and equal under the rule of law. In that sense, equality is a constitutional principle whose purpose is to guarantee that all citizens are protected by the national authorities and their civil rights are assured regardless of gender, origin, race, religion, and political or philosophical beliefs, among others. The Constitution, as the main regulatory body in the Colombian legal system, establishes that the Colombian State shall promote the appropriate mechanisms for equality to be real and effective and shall take measures in favour of discriminated or marginalised groups. Additionally, any abuse or misconduct against such groups shall be subject to legal sanctions 1 .
  
  On the other hand, from a constitutional mandate, every citizen has a right to be involved and participate in the establishment, exercise and control of political power 2 . The Constitution is emphatic about the participation of women at all levels of national public administration. Finally, the Constitution expressly states that women and men shall have the same rights and opportunities, in which women must not be subject to any type of discrimination 3 .
   
• Law 581 of 2000: From such constitutional principles, Law 581 of 2000 (the “Law 581”) 4  was issued on 31 May 2000. The purpose of Law 581 is to create appropriate mechanisms aimed at guaranteeing women's participation at all levels of public entities . Law 581 focuses on women's participation in decision-making level roles in the national public service.
  
  Additionally, Law 581 requires that the Colombian Presidential Office, the National Office for Women´s Equality (Dirección Nacional para la Equidade de la Mujer) 5 , the Colombian Ministry of Education, departmental governors, mayors, among other authorities, must develop public policies in their respective jurisdictions to promote women's participation in the administration bodies of civil society. 
  
  Furthermore, Law 581 states basic elements that must be included in the Women Promotion National Plan (Plan Nacional de Promoción y Estímulo de la Mujer). Such elements include: (i) Education to Colombian citizens on gender equality and promotion of the value of women; (ii) policies oriented to understand and overcome the obstacles that prevent the participation of women at decision-making level roles in the private sector; (iii) special training for women to develop leadership skills along with social responsibility focused on gender; (iv) the Colombian State should provide technical assistance channels regarding this matter; (v) permanent awareness of women´s rights, protection mechanisms and adequate instruments in order to make them effective.
   
• Law 823 of 2003: Moreover, Law 823 of 2003 (“Law 823”) 6  was issued on 7 July 2003, which establishes an institutional framework for the creation of public policies within the national government to guarantee equality and equal opportunities for women in the public and private sector. For that purpose, the government shall incorporate the following: (i) gender criteria in policies, decisions and actions in all national and decentralised public agencies; (ii) promote the adoption of gender indicators in the production of statistics by public and private organisations and institutions; (iii) promote constitutional principles, laws and international instruments executed by Colombia that provides real and effective equality of rights and opportunities for all people, and especially those related to the rights of women.
   
• EQUIPARES Programme: In connection with the private sector, the Labour Ministry, the Presidential Advisor's Office for Human Rights and International Affairs, along with the United Nations Development Programme provides EQUIPARES certification, which encourages corporations and non-governmental organisations to achieve cultural transformation and close gender gaps after the voluntarily and effective incorporation of a gender equality management system.
  
  EQUIPARES's main course of action is executed by: (i) positively impacting people with measures to reconcile work, family and personal life; (ii) promoting a cultural transformation where the work of men and women work are valued equally; (iii) promoting corporate equity as a strategic element for competitiveness; (iv) identifying and reducing the gender gap through the implementation of gender-neutral work practices; (v) promoting the redistribution of social roles, involving women in traditionally male workplaces and vice versa. 

Today, EQUIPARES has worked along with 49 corporations in different economic sectors in Colombia. The programme has reached and impacted over 75,000 workers and their families, involving into the programme around 250,000 people.

Nevertheless, under Colombian law, corporate governance is subject to the bylaws of corporations and private entities. Consequently, shareholders, boards of directors, officers or other directors have the ultimate responsibility to adopt non-binding public policies, programmes and certifications within their organisations.

Yes. In the Colombian public branch, Law 581 requires that at least 30% of the decision-making positions in public entities shall be assigned to women. Non-compliance with this legal mandate is subject to disciplinary sanctions in accordance with the current regulation. Although such a regulation applies only to the public sector, under Colombian law company owners have the freedom to draft and prepare bylaws according to their business interests and current commercial regulations. Private-sector shareholders can draft the bylaws of the company freely and to structure the company as they wish so long as they do not contravene applicable laws. Therefore, any specific quotas at the board or decision-making level are subject to the approval of the directors.