Argentina: Are Employment Quotas For Minorities The Right Way To Tackle Discrimination?

Last Updated: 21 July 2016
Article by Analía V. Durán

Introduction

This article is intended to explore if employment quotas for minorities are an effective option in the implementation of affirmative actions for tackling discrimination related to employment access.

There is a general awareness that even in the present day, challenges remain in the employment market for individuals having equal rights in access to employment opportunities.

General considerations

Will the imposition of an employment quota prevent discrimination?

May we solve employment discrimination by forcing an employer to adopt a set quota? Are government threats of financial penalties an effective deterrent in the long term? Or is the promotion through social policies of equal opportunities in education that will in future facilitate equal employment opportunities for minorities a more effective strategy?

Affirmative action seeks avoiding inequalities in employment opportunities, pay and career development, and therefore comprises policies to guarantee employment to minorities considered as part of disadvantaged social groups.

Several countries have their own affirmative action policies that have quotas for employment for minorities. The main objective of such quotas is to guarantee a percentage of employment to groups of people based on characteristics such as ethnicity, race, religion, gender, disability, etc.

The quota system was a response led by European countries such as France, Germany, Italy and Spain, to employ a determinate percentage of minorities, particularly in reference to people with disabilities. A quota system also exists in China and India. Its primary objective is to ensure that all applicants and employees, regardless of their protected characteristics (ethnicity, race, disability, religion, gender, etc.) will have access to employment and educational training.

Main detractors of employment quotas argue that guaranteed employment preference to minorities may alter or directly breach laws related to equal opportunities for 'majorities' or equal protection laws, or even heighten racial problems or class segregation.

Regardless, an effective policy should be construed with the promotion of social and corporate awareness and a global commitment to provide equal opportunities. This goal seems unattainable without certain government and legislative intervention to trigger changes in legislation, the perception of minorities, education of minority groups, and access to employment and incentives to employers.

Latin American perspective

Taking Argentina as an example, discrimination issues have been addressed through combined measures, mainly through legislation and case law. In certain areas, public employment access includes quotas for employment of minorities.

Argentine anti-discrimination framework

The Argentine Constitution protects labour rights and stipulates that all citizens and residents are equal in law (sections 14 and 16). Additionally, section 75 of the Constitution (as amended in 1994), makes provisions for equal opportunities in employment regardless of gender, disability or age. Section 75 also incorporates elements of international treaties that set down human rights protection and non-discriminatory policies.

According to provisions set forth in the National Employment Law (NEL), employers cannot discriminate against employees on the basis of gender, race, nationality, religion, union and/or political membership, or age. The NEL also provides for special protection for pregnancy, parents and marriage.

Law number 23,592 specifically prohibits any discriminatory action based on race, religion, nationality, ideology, political thinking, union affiliation, gender, social or physical characteristics. Other regulations protect minorities that suffer from certain illnesses, for example, diabetes (Law No 23,753) and AIDS (Law No 23,798). Governmental agencies and private companies involved in the concession of public services have an employment quota equivalent to no less than four per cent of the total payroll.

Under Law No 22,431 (as amended), employers are granted certain benefits to encourage the employment of individuals with disabilities. These include the reduction of certain taxes related to company revenues and/or social security payments at a rate of 50 to 70 per cent.

Relevant case law

A collective claim filed by the Women in Equality Foundation placed the existence of discrimination in access to employment in the public eye (Fundación Mujeres en Igualdad v Freddo SA, Civil Chamber of Appeal, Court Room, H, 16 December 2002).

The Women in Equality Foundation filed a class action against a famous ice cream producer and seller, the plaintiff arguing that the company had taken discriminatory action against women at the recruitment stage.

The company had many sales points in important locations in the city of Buenos Aires and other venues. The company had among its staff approximately 650 men and 35 women. The company rejected the claim stating that the fact that most employees were men had to do with the type of task, involving in particular bearing the weight of the frozen pipes containing the ice cream, which required greater physical strength.

The judges held that the employer was breaching the law when considering that women are not as capable as men of developing these abilities and ruled that the employer must hire women until the payroll had an equal number of men and women.

Despite these kind of court decisions being infrequent it remains a legal precedent that when combined with additional anti-discrimination policies, help facilitate access to justice for all citizens.

Local regulations grant employers benefits such as social security payment reductions and loans in order to adapt facilities for the employment of disabled workers.

People with disabilities may lack access to adequate education and training and financial resources, which places them in a disadvantageous position regarding access to employment. It is important that social systems create incentives and promote efficient training for people with disabilities. Likewise, corporate social responsibility and a commitment to equal employment recruitment programmes are important tools towards fighting discrimination.

In Argentina, the Ministry of Labour has implemented training programmes for people with disabilities, and facilitated contact with employment agencies that match minority jobseekers with companies offering employment.

Conclusion and proposed solutions

The existence of employment discrimination against minorities, or its reverse, is not unique. This may be due to either the nature of the workplace or employers' perceptions and misconceptions about disability. It is important also to highlight that employment quotas for minorities are not as effective in isolation. A combined approach of government measures and increased social awareness is necessary in remove barriers to equal access of employment. Minorities, especially ethnic groups, women and disabled people may suffer an absence of social assistance in relation to provisions for health, adequate transportation, teacher training, and access to education with the appropriate infrastructure. Government agencies therefore need to take action towards providing and facilitating equal social, economic and educational conditions to deter discrimination, which includes:

  • developing and implementing specialised training;
  • anti-discriminatory legislation;
  • social protection and provision of equal access to education;
  • legislative protection and promotion of incentives to facilitate the employment of minorities;
  • increased social awareness and a public commitment to equal opportunities for all.

There is no single solution to deter discrimination in employment. A combination of effective social and economic measures and anti-discriminatory legal frameworks containing incentive for employers and social support for affected minorities are necessary to promote equality in employment for all.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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