Academic journal article Duke Journal of Gender Law & Policy

Pre-Hire Pregnancy Screening in Mexico's Maquiladoras: Is It Discrimination?

Academic journal article Duke Journal of Gender Law & Policy

Pre-Hire Pregnancy Screening in Mexico's Maquiladoras: Is It Discrimination?

Article excerpt

I. INTRODUCTION

Mexico has been portrayed as a patriarchal society that requires a woman to play the traditional roles of a mother and wife who is not involved in the work force. There has been an increasing incorporation of Mexican women in the labor market in recent decades, though, and particularly an influx of female workers in the maquiladora (1) industries. (2) In 1997, the National Institute of Statistics, Geography and Information reported that a total of 2,600 maquiladoras employed at least 450,000 women out of a total of 873,748 workers. (3) As a result, the maquiladoras have become a main source of employment for Mexican women. (4)

Maquiladoras have purportedly sought to recruit women workers because they are perceived as being docile, reliable, and capable of performing monotonous and repetitive work. (5) However, single, childless women are highly preferred and many maquiladoras avoid hiring pregnant women. (6) Pregnant women workers are seen as a "drain on [company] resources and as having a potentially detrimental effect on production." Therefore, numerous maquiladoras insisted upon testing women applicants for pregnancy and refused to hire those who were pregnant. (7) There have also been reports of women being fired or forced to resign due to pregnancy. (8)

Pregnancy-based discrimination was not seriously criticized or legally examined until Human Rights Watch (HRW) launched an investigation into several allegations of pregnancy discrimination in 1996. Then, in 1997, a petition was filed with the United States National Administrative Office (NAO) (9), which contended that pregnancy-based discrimination existed in Mexico and violated several provisions of national and international law. (10) This submission was the first case ever to come before the U.S. NAO in which sex discrimination was alleged. (11) Additionally, it sparked closer scrutiny of Mexican law as the U.S. NAO and Mexican government were required to interpret various Mexican legal sources to decide what forms of sex-based discrimination were illegal in Mexico.

This note examines whether Mexican law proscribes, or could be interpreted as proscribing, pre-hire pregnancy discrimination. Part II provides general background information about the NAO submission process, followed by a summary of the HRW Report which alleged that various forms of pregnancy discrimination occur within the maquiladora industry. Part III analyzes sources of Mexican law that pertain to the subject of pregnancy discrimination to determine whether pre-hire pregnancy discrimination is proscribed under Mexican law. The sources of Mexican law analyzed include the Mexican Constitution, several international treaties and conventions, and Mexican federal law. Then, in Part IV the author will conduct a more in-depth analysis of a recently promulgated Mexican federal law which appears to prohibit pregnancy-based discrimination. Finally, Part V summarizes the author's conclusions.

II. U.S. NAO FINDS THAT MEXICO VIOLATES ITS DOMESTIC LABOR LAW.

A. What is an NAO?

An NAO is part of the labor ministry of each North American Free Trade Agreement (NAFTA) member country that was created under the North American Agreement on Labor Cooperation (NAALC) to handle labor abuse complaints. The NAALC is a side accord to NAFTA and represents the labor rights "side agreement" of NAFTA. (12) Generally, the NAALC seeks to eliminate employment discrimination (13) by "promot[ing] compliance with and effective enforcement of each party's domestic labor laws." (14) Hence, each NAFTA signatory country (15) is not required to enforce any other country's laws, but rather, is required to enforce its own domestic labor laws through appropriate government action. (16)

The NAALC created a Commission for Labor Cooperation to monitor the implementation of the obligations agreed upon by the NAFTA signatories. (17) The Commission is composed of a Ministerial Council, Secretariat, and three NAOs at the federal government level in each NAFTA member country. …

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