Integrity Policies – Non-Discrimination

What is discrimination?

The dictionary of the Royal Spanish Academy defines it with two possible meanings:

• Separate, distinguish, differentiate one thing from another and;
• Give inferior treatment to a person or group for racial, religious, political reasons, among others.

In this article we will focus on the second of the meanings, since inferior treatment, in any of its aspects, is usually – in the workplace – a cause of inequity for those who suffer it.

The occurrence of any type of discrimination within a company has the potential to cause damage, not only from an economic point of view but also in affecting the working environment, which in turn may have an impact on development and efficiency. But in addition to this, the risk of damage to the reputation that the company might suffer when involved in problems of this nature must also be considered.

In the Argentine legal system, the principle of Non-Discrimination is reflected in different norms.

The National Constitution, in its 16^th article, establishes that all the inhabitants of the Nation are equal in front of the law, and admissible in employment without any other condition than suitability. In this regard, our fundamental rule upholds equal opportunities for all citizens without any discrimination.

In addition, our country is a signatory to various international treaties that have a hierarchy of constitutional laws, including:

• the International Covenant on Economic, Social and Cultural Rights;

• the International Covenant on Civil and Political Rights and its Optional Protocol;

• the International Convention on the Elimination of All Forms of Racial Discrimination;

• the Convention on the Elimination of all Forms of Discrimination against Women.

Specifically, National Law No. 23,592 on Employment Discrimination, establishes that whoever arbitrarily prevents, obstructs, restricts or in any way undermines the full exercise of the fundamental rights and guarantees recognized in the National Constitution, will be bound , at the request of the injured party, to render the discriminatory act ineffective or to cease its performance and to repair the moral and material damage caused.

This law refers particularly to discriminatory acts or omissions determined for reasons such as race, religion, nationality, ideology, political or labor-union opinion, sex, economic position, social condition or physical characteristics. The norm includes criminal sanctions for natural persons who exercise any of these types of discrimination.

As examples, we can mention that a worker should not be subject to discrimination on the basis of his marital status and his dismissal – if it occurs during the period between three months before marriage and six months after marriage, without fair cause- is considered an unfair dismissal.

Also, the law prohibits discrimination on grounds of pregnancy and prescribes that a pregnant worker cannot be fired during the period between 7.5 months before and 7.5 months after birth.

Regarding employees who suffer from certain diseases (diabetes, HIV, epilepsy, etc.), there are specific regulations that indicate that they cannot be subjected to discrimination because of them, such as Laws No. 23,573 (Diabetes), No. 23,798 (HIV) and No. 25,404 (Epilepsy), to name a few examples.

Among other norms that uphold the duty of Non-Discrimination, there is Law No. 27,499, also called Micaela Law, which provides mandatory training on gender and violence against women for all people who work in public service to all the levels in the executive, legislative and judicial branches of the country.

As is evident, therefore, in Argentina, the problem of discrimination is regulated from various aspects, which tend to inclusion, equity and equal opportunities. But not only this.

Law No. 27,401 on Criminal Liability of Legal Entities for acts of corruption, effective since March 2018, which reaches private legal entities with national or foreign capital, with or without state participation, to companies, associations, foundations and cooperatives that carry out operations with the State, establishes harsh sanctions for acts of corruption committed, while indicating that the company or organization could be exempt from the penalty if, among other things, it establishes an Integrity Program, in accordance with articles 22 and 23 legal body.

Thus, article 22 provides that legal entities may implement Integrity Programs, consisting of the set of actions, mechanisms and internal procedures for promoting Integrity. And art. 23 details the mandatory and optional contents of an Integrity Program.

One of these mandatory contents is the code of ethics or conduct, or the existence of integrity policies and procedures applicable to all directors, administrators and employees, regardless of the position or function held.

An Integrity Program must include the legal and regulatory commitments required by the organization, as well as the ethical commitments assumed by the organization. The existing legal framework indicates that among the ethical commitments imposed by the current legal framework, Non-Discrimination is counted.

It is essential to incorporate among corporate integrity policies and procedures, a Non-Discrimination Policy that not only establishes the prohibition of any type of discrimination as stated above, but also imposes clear and efficient sanctions for cases where its violation occurs. All this with the purpose of avoiding discriminatory acts that could cause violations of personal rights and current legislation on the matter, thus causing economic, legal, and -eventually- reputational damage to the company.

This Non-Discrimination Policy should clearly and unequivocally include the concept of non-tolerance of discrimination based on race, sex, religion, creed, national origin, disability, age, sexual orientation, physical or mental disability, family situation, opinion policy or any other element protected by law.

Likewise, it is recommended that these provisions be accompanied by awareness-raising, communication and training actions at all levels, in order to provide the organization’s resources with essential elements to recognize these events and avoid or report them, if applicable. This will allow the organization to fully comply with its integrity commitments.

At G5 Integritas, we can help your organization to draw up a Non-Discrimination Policy, as well as to carry out the Integrity Program tailored for it. Respect for the equal rights of all individuals in an organization, and the promotion of inclusion, are a commitment that organizations committed to integrity cannot escape, and corporate integrity programs are the starting point from which initiate progress towards conducting business with integrity practices. Contact us for more information through the e-mail info@g5integritaslatam.com, or by visiting our website www.g5integritaslatam.com