CMS Expert Guide on discrimination in the workplace in Peru

The key laws addressing discrimination in the workplace in Peru are as follows:

• The Political Constitution (Article 1, Article 2.2 and Article 23).
• Law 26772, which provides that job offers may not contain requirements that constitute discrimination, annulment or alteration of equal opportunities or treatment,.
• Law 27270 which prohibits acts of discrimination.
• Law 29973, a General Law for Persons with Disabilities.
• Law 28983 addressing Equal Opportunities for Women and Men.
• Law 30364 to prevent, punish and eradicate violence against women and family members.
• Law 27942 for the Prevention and Punishment of Sexual Harassment.
• Law 30709 prohibiting discrimination in remuneration between men and women.
• Supreme Decree 016-2022-RE, which ratifies ILO Convention 190 on the elimination of violence and harassment in the workplace (still pending legislative development at the national level).

The purpose of these provisions is to guarantee the right to equality and non-discrimination in employment and occupation, including workers and persons belonging to vulnerable groups, such as women, persons with disabilities, and the LGBT population, among others.

These rules prohibit any act or omission aimed at the annulment or alteration of equal opportunities or treatment in personnel requirements, in access to employment and within the employment relationship, which imply differential treatment based on prohibited grounds such as race, sex, gender, religion, opinion, social origin, economic condition, marital status, age or any other kind of distinction.

Peruvian law prohibits both direct discrimination, understood as that which occurs when a differentiation is made on the basis of a prohibited ground, such as race, sex, nationality, among others, as well as indirect discrimination (i.e. occurring when a difference in treatment is established based on harmless or neutral grounds, but which in its application affects members of a particularly vulnerable group, such as women, persons of a certain race, members of a religious minority, etc in a highly unfavourable manner).

The main characteristic of the aforementioned laws is to eradicate any act of discrimination. The aforementioned regulations prohibit the following:

• Conduct that implies discrimination, annulment, alteration of equal opportunities or treatment in job offers and during the employment relationship.
• Any kind of distinction, exclusion or restriction, based on sex, which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise of the rights of persons, regardless of their marital status, on the basis of equality between women and men, of human rights and fundamental freedoms in the political, economic, social and cultural spheres.
• Any discriminatory act based on a disability that affects the rights of an individual; any distinction, exclusion or restriction on the basis of disability that has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on equal terms of one or more rights, including the denial of reasonable accommodation, is considered discriminatory.
• Discrimination in remuneration between men and women, through the determination of categories, functions and remunerations that allow the execution of the principle of equal remuneration for equal work or work of equal value.
• Sexual harassment (i.e. sexist or unwanted sexual conduct) produced in authority or dependency relationships, regardless of the legal form of this relationship, and when it occurs between persons regardless of hierarchy, status, grade, position, function, remuneration level, etc. The treatment of these acts must be carried out taking a gender approach, mindful of sexual orientation and identity.

The standards described above aim to protect the individual from any act of discrimination both in access to employment and in occupation. These standards provide protection to all employees, regardless of their contractual modality, including public or private sector workers, trainees, people seeking employment, and workers who work in person or remotely. In the case of acts of sexual harassment, protection applies to the personnel of third parties (i.e. contractors) and service providers with a civil relationship.

In the case of acts of discrimination in access to employment, the victim may sue in court for compensation for damages caused by such behaviour, as well as report the fact to the labour administrative authority, so that the employer is sanctioned (i.e. fined) for infringement of social and labour regulations on employment and placement.

On the other hand, Article 30 of the Sole Ordered Text of Legislative Decree 728, Law of Labour Productivity and Competitiveness, approved by Supreme Decree No. 003-97-TR, establishes that acts of discrimination based on sex, race, opinion, language, disability and any other kind of distinction legally qualify as acts of hostility, including all those that affect the dignity of workers.

Accordingly, a person who is subjected to acts of discrimination in the workplace or during employment may also take administrative and/or legal action against the employer.

In administrative proceedings, in the event that the existence of acts of discrimination is verified, the labour authority will request the cessation of such acts of hostility by the employer, imposing the corresponding financial penalties for infringement of social and labour regulations.

Likewise, an employee who considers themselves to be harassed for any of the aforementioned reasons may opt for one of the following:

1. To take legal action to stop the hostility, in which case the judicial authority shall order the cessation of the hostile acts, imposing on the employer a fine that corresponds to the seriousness of the offense committed; or
2. To terminate the employment contract, in which case the affected person may sue in court for payment of compensation for arbitrary dismissal, regardless of the fine that may correspond to the employer. Notwithstanding the above, the affected person may also claim compensation for damages to compensate for the harm caused as a result of the acts of discrimination.

In matters of sexual harassment, the person affected by such conduct may file a complaint or report that will initiate a procedure for the investigation and punishment of such acts by the competent bodies in their employing entity. Without prejudice to this, the harassed person is entitled to sue in court for compensation for damages suffered as a result of sexual harassment.

The amount of compensation shall be determined by the corresponding judicial authority, taking into account the damage caused to the victim.

Regarding access to employment, employers must ensure that the advertisement and implementation, by any means of dissemination, of job offers do not contain discriminatory terms regarding origin, race, colour, sex, age, language, religion, opinion, national origin, social origin, economic status, exercise of freedom of association, disability, and HIV or for any other type of virus.

With respect to wage discrimination, employers must prepare and communicate to workers the wage policy of the workplace, specifying the criteria and guidelines established by the employer for the management, setting or readjustment of the different remuneration schemes for workers, whose scope is objective and reasonable, avoiding any act of wage discrimination. These policies must include measures to prevent pregnancy, maternity, paternity, breastfeeding, family responsibilities or being a victim of violence from having an adverse impact on pay increases, promotions and/or benefits of any kind. Likewise, the employer must adopt measures that guarantee a work environment based on respect and non-discrimination, as well as the compatibility of family and work life.

Regarding issues of prevention and sanction of sexual harassment, employers must have internal policies that regulate the general guidelines to prevent and sanction sexual harassment in the workplace. Likewise, the employer has an obligation to train its workers in order to raise awareness of the importance of combating sexual harassment, and must carry out annual evaluations to verify whether such acts have occurred in the organisation. In addition, as part of the awareness measures, employers have an obligation to inform employees about channels for reporting sexual harassment.

There is no Peruvian legal requirement for a D&I Policy. It is only a good practice that may be implemented by employers. In view of this, the Peruvian government, as part of its promotion and encouragement measures, has been recognising standards and good practices that are applied in companies through its various programmes. These include ‘Perú Responsable’ (Peru Responsible), a Ministry of Labour and Employment Promotion, which aims to promote Corporate Social Responsibility (CSR) in order to generate decent employment and help to close gaps in employment. Also, the ‘Sello Empresa Segura’ (Safe Company Seal) programme of the Ministry of Women and Vulnerable Populations aims to recognise companies that carry out good business-management practices to promote equality and non-violence against women in their organisations.

Since there is no legal regulation requiring companies to have a D&I Policy, there is no related legal risk.

Law 30709, which prohibits wage discrimination between men and women, stipulates that employers are required to have a table of categories and functions. Jobs are evaluated and organised by value using this table, according to objective criteria and the needs of the economic activity. This law also establishes a salary policy, which specifies the criteria and guidelines established by the employer for the management, fixing or readjustment of the different remuneration schemes of workers, in order to prevent any act of wage discrimination. These documents make it possible to warn of the possible existence of wage gaps and, thus, to implement measures to eliminate them. The aforementioned regulations only oblige employers to inform workers of wage policy, but not to inform them of the existence of wage gaps detected in the respective evaluation.

Law No. 29733, Personal Data Protection Law (PDPL) and its Regulations, approved by Supreme Decree N. 003-2013-JUS (‘Regulations’) and other related rules (‘Personal Data Protection Regulations’) develop the fundamental right to the protection of personal data provided in Article 2 numeral 6 of the Political Constitution of Peru, through its adequate treatment and, in respect of the other existing fundamental rights.

With this, the PDPL provides for a series of general principles, among them, the principle of legality, which provides that all processing must be carried out in accordance with the provisions of the legal system, prohibiting the collection of personal data by fraudulent, unfair or unlawful means; the principle of purpose, which indicates that personal data must be collected only for a specific, explicit and lawful purpose, and may not be extended to other purposes that have not been unequivocally established as such at the time of collection; and proportionality, quality and security, among other principles. These principles are the pillar of the Personal Data Protection Law, protecting all personal data of the owners of the same, including data on diversity, marital status, sexual options and similar personal information.

Although the Personal Data Protection Law does not specifically establish provisions that specifically prohibit discrimination in its different forms, it generally prohibits any collection and subsequent processing that does not have lawful purposes in accordance with the Peruvian legal system, such as any processing with the purpose of carrying out an act of discrimination. Additionally, the Personal Data Protection Law provides specific rights for the owners of personal data, including rights of access, rectification, cancellation and opposition, so that data owners may directly approach the data controller if they have suffered a violation, wish to cease the processing at their discretion or when faced with specific situations or motives.

There are no quotas applicable at the board level or below for diversity. Regarding inclusion, the only regulation related to compliance with a quota of personnel in companies is the General Law on Persons with Disabilities, Law 29973, whose Regulation (Supreme Decree No. 002-2014- MIMP) provides that employers with more than 50 workers must hire persons with disabilities in a proportion of not less than 3% of their total staff. This obligation is of an annual nature and the call process is carried out through the Job Board of the Employment Centre of the Ministry of Labour and Employment Promotion of the jurisdiction.