The Colombian legislation guarantees the equality within the employment environment, regardless of the gender. However, due to the role of women in society and at home, the reality shows that discrimination still occurs in the companies.
There are several mechanisms to fight against the discrimination of gender.
For instance, women have the possibility of filing a protection action called “Acción de tutela” when being discriminated in order to protect the equality in the labor environment as a fundamental right.
Furthermore and considering that discrimination in an employment environment involves labor harassment according to Law 1010, 2006; women could also whistle blow gender discrimination to the Labor Environment Committee; file a formal complaint to the Ministry of Labor or file a labor harassment lawsuit before a labor court.
In the public sector women have to occupy thirty percent (30%) of the positions.
Discrimination due to gender has an expression in the termination of the employment agreement of women who are pregnant or under maternity leave. This explains why so many legal provisions and jurisprudence in favor of the maternity protection.
If the employer dismisses the employee, the employee could sue and allege the invalidity of the termination. The maternity protection last for 3 months more after the due date. If the employer decides to terminate the labor contract during the 3 month period after returning from maternity leave, the employee could still argue the legal protection with the difference that at this stage, she will have to prove that the dismissal was due to the maternity. If the employer wants to finish an employment agreement with cause to a pregnant employee or to an employee under maternity leave, it has to request an authorization to the Ministry of Labor.
It is worth mentioning that discrimination is a crime in Colombia; the criminal law does not distinguish discrimination in any area such as education, work etc. However, the person that commits acts of discrimination due to gender can be condemned from twelve (12) to thirty-six (36) months of prison and a fine of ten (10) to fifteen (15) monthly minimum legal wages which correspond to USD 3.332 approximately.
Colombia also has ratified the Covenant on Economic, Social and Cultural Rights, which emphasizes that there must be equal pay for equal work between men and women. There is also legislation which promotes equal treatment for men and women and the special protection to women in all scenarios, including the labor one.
We believe that with the strict regulation and the penalties, we are in the way to avoid gender discrimination. However it is necessary to educate people because the culture of machismo has a strong influence in discrimination. It is a reality that culture cannot be eliminated with the regulation.