Sexual harassment in the workplace in Mexico

The legal definition of harassment in the Mexican Federal Labour Law, last amended in 2019 (the “Labour Law”), is established in Article 3bis as “the exercise of power, in a subordinate relationship of the victim before the aggressor in the workplace, that is expressed in verbal or physical conduct, or both”.

Sexual harassment is defined as “a form of violence, where while there may be no subordinate relationship, there is an abuse of power that involves a state of defencelessness and risk for the victim, independently of whether it happens once or on various occasions”.   

In addition to the provisions contained within the Labour Law, the General Law on Women’s Access to a Life Free of Violence, last amended in 2018, repeats those definitions, which are expressly stated to apply in the workplace.

Finally, in December 2017, the Mexican Government published the “Action protocol against workplace violence, harassment and sexual harassment, targeted to companies in the Mexican Republic” (Protocolo de actuación frente a casos de violencia laboral, hostigamiento y acoso sexual, dirigido a las empresas de la República Mexicana) (the “Protocol”).

The purpose of the Protocol is to curate a healthy workplace environment within organisations. The Ministry of Labour and Social Security (Secretaría del Trabajo y Previsión Social), is to offer orientations, through non-binding mechanisms, that create an organizational culture where non-discrimination and dignity of all workers is respected.

Following 2019 amendments to the Labour Law, employers must publish workplace equality principles, implement a workplace anti-discrimination policy, and introduce measures to combat violence and sexual harassment.

Moreover, the Protocol promotes central objectives and values to achieve a work environment free from violence: 

• Promote a healthy culture in the workplace, through actions that are aimed to prevent all types of workplace violence.
• Establish a voluntary action mechanism in the event of workplace violence, harassment and sexual harassment.
• Issue information to prevent workplace violence, harassment and sexual harassment.
• Listen to, inform and guide the people who have been a victim of workplace violence, harassment and sexual harassment. 

The Protocol, along with the Labour Law, intends to protect the following principles: dignity and defence of the individual, harmonious and healthy workplace environment, equal opportunities and no discrimination, and confidentiality.

Another instrument available to organisations is the Mexican Standard on Labour Equality and Non-Discrimination (2015). This is a voluntary scheme which companies of any size in any sector can adopt. To be accredited under the Standard, companies are audited by an independent third party to verify that its practices and policies in the workplace comply with equality and non-discrimination requirements. The aim is to ensure that companies implement policies to prevent workplace harassment and ensure that gender perspectives are considered in the recruitment, selection, mobility and training processes.

#MeToo gained traction on social media in Mexico, with many women involved in the media and entertainment industry in particular coming forward as victims of different types of harassment. As a result, the number of harassment claims against employers more generally has increased.

In the public eye, a media company director was dismissed for harassment in March 2019. An author accused by various women of sexual harassment had his book launch cancelled.

The Labour Law outlines the following legal remedies:

• Dismissal of employees committing harassment in the workplace without liability to the employer (Article 47);
• Employees have the right to rescind their employment relationship with their employer and request indemnification payments where the employer, its family or representatives engage in harassment and/or sexual harassment within the scope of their work (Article 51);
• Financial penalty of c. US$1,000 to US$22,000 against the employer that commits, enables or tolerates harassment or sexual harassment.

Employees have recourse to the Conciliation and Arbitration Boards in cases of workplace harassment. 

Article 259 bis of the Federal Criminal Code provides for a financial penalty of up to c. US$4,000 for anyone who takes advantage of their position in a workplace hierarchy in order to carry out sexual harassment.

We would say Mexico sits in the amber scale. The scale of the problem had a significant impact on a political level, leading to the Ministry of Labour and Social Security issuing the Protocol. However, companies generally do not appear to be prioritising tackling sexual harassment as a matter of corporate governance policy.

Whilst changes in the law in the last decade and, more pointedly, the #MeToo movement have raised public consciousness on sexual harassment in the workplace, it remains to be seen whether measures taken will be effective in preventing and punishing workplace harassment. Social media is providing a platform for victims to speak out, often anonymously for fear of professional or social reprisals.

Groups in various industries are coming together to create momentum, either by creating specific hashtags or social media accounts for their profession, to add impetus to the movement. For example, 70 employees at Grupo Reforma, one of Mexico’s largest newspaper companies, wrote a joint letter to the company’s Ethics Committee requesting an investigation into various accusations. Given that formal employment-related complaints to the Conciliation and Arbitration Boards take an average of 2-3 years to fully resolve, procedural barriers may dissuade victims from embarking on that path.

The #MeToo movement produced several sexual harassment complaints, particularly among journalists and those working in the television and entertainment industries. The United Mexican Journalists was created in 2018 by female journalists looking to develop strategies to confront sexual harassment in their industry. According to a survey by the United Mexican Journalists last year, 73% of women working in creative industries have faced sexual harassment.

Multiple accusations of sexual harassment have also emerged from Mexican academic and higher-education institutions. The National Autonomous University of Mexico (UNAM), Latin America’s largest university, implemented its first gender violence protocol in 2016.

Currently, the UNAM and other higher education institutions are also protesting to underpin the gender equality protocols. This culminated in a nationwide protest on 8-9 March 2020, where thousands of women marched in protest against gender violence and femicide. On International Women’s Day, thousands of women did not attend work or participate in the economy to demonstrate their importance to the workplace, the economy and society, in what was known as “A Day Without Women”.