Discrimination based on political opinion: an Argentine case
The specific political distinction to which political actions and motives can be reduced is the distinction between friend and enemy’.
In June 2016, the Labour Court of Appeals of the City of Buenos Aires2 ruled that the dismissal of an employee from the embassy of Paraguay in Argentina entailed political discrimination, and ordered the embassy to pay economical and moral damages to the plaintiff, on top of severance compensation provided by labour laws for wrongful dismissal.
Argentina’s anti-discrimination legal frame in a nutshell
Section 17 of Labour Contract Law 20,744 prohibits discrimination based on gender, race, nationality, religious, political, union trade and age. Likewise, section 1 of Anti Discrimination Law 23,592 provides that whoever performs any discrimination actions or omissions based on race, religion, nationality, ideology, political or trade union opinion, gender, economical or social status or physical features must cease such actions or omissions and compensate moral and economical damages.
Argentina has also ratified International Labour Organization (ILO) Convention 111 concerning discrimination in respect of employment and occupation, among many other international human rights treaties that include provisions against discrimination. The Supreme Court ruled, in Alvarez v Cencosud,3 that Anti Discrimination Law 23,592 also applies to employment relationships, and held that a dismissal due to discrimination is null, ordering the employee to be reincorporated.
In another ruling,4 the Supreme Court established that in discrimination claims and due to the difficulty to produce evidence, the plaintiff has to merely prove that the defendant performed actions that prima facie can be considered signs of discrimination, in which case the defendant has the burden to prove that those actions were objective, reasonable and not discriminatory. Labour courts in Argentina pacifically applied that Supreme Court precedent.
The facts of the case
An individual who rendered services to the ambassador of Paraguay in Argentina as secretary was dismissed at the same time that the ambassador of Paraguay in Argentina resigned. The ambassador resigned when the president of Paraguay was impeached and removed from office.5 Several witnesses testified before the court that other embassy employees’ (also named by the former ambassador) jobs were terminated at the same time as the plaintiff and that the plaintiff and those employees were subjected to physical and verbal mistreatment at the time of dismissal.6
The Labour Court took into consideration that the dismissal of the plaintiff was contemporary to the political circumstances that occurred in Paraguay (the change of president) and simultaneously with other employees’ terminations. The Court also considered that it was proved that the employees suffered physical and verbal mistreatment at the time of termination. The Court understood that the defendant merely denied all facts, never gave an alternative explanation for the dismissal and therefore failed to comply with the burden of proving that the dismissal was objective, reasonable and not discriminatory, in accordance with the Supreme Court’s precedent in Pellicori. The Labour Court concluded that the plaintiff was dismissed due to her political liaisons with the former ambassador of Paraguay and the impeachment of the president of Paraguay and, therefore, the dismissal was discriminatory. Consequently, the Court ordered the defendant to pay the plaintiff economical and moral compensation.7
The fact that many employees named by the former ambassador were terminated at the same time as the plaintiff was considered by the Court a serious sign of political discrimination.
The fact that those employees and the plaintiff were subjected to physical and verbal mistreatment at the time they were dismissed was crucial for the Court to rule that the termination entailed political discrimination.
The defendant never intended to prove that there were other reasons for dismissing the plaintiff.
Even though in this particular case the Court ordered the defendant to pay the plaintiff moral and economic compensation in an amount that could be considered not significant, in other discrimination cases courts have ordered defendants to reinstate employees to work8 and, in some cases, pay moral compensation of an amount equal to 13 months’ salary,9 by applying the additional compensation specifically provided by labour laws in case of dismissal of a female pregnant employee.10
1 Jacques Derrida, Politics of Friendship, American Imago. Available at: www.istud.it/newsletter/san/derrida.pdf.
2 Labour Court of Appeals, Chamber 1, 27 June 2016, A. V. Y. M. v Embassy of the Republic of Paraguay–Despido.
3 National Supreme Court, 7 December 2010, Álvarez,Maximiliano y otros c/ Cencosud S.A.–amparo.
4 National Supreme Court, 15 November 2011, Pellicori Lilicana v Colegio Público de Abogados de la Capital Federalamparo.
5 Fernando Lugo, elected President of Paraguay in 2008, was impeached and removed from office by the Congress of Paraguay in June 2012.
6 Witnesses testified that they were named terrorists and in some cases even beaten.
7 The Labour Court ordered the Embassy of Paraguay to pay the plaintiff AR$20,000, which was the amount originally claimed by the plaintiff at the time of filing the complaint (which at that time represented US$4,000).
8 Labour Court of Appeals, Chamber 6, 10 March 2004, Balaguer Catalina Teresa c/Pepsico de Argentina SRL; Labour Court of Appeals, Chamber 9, 31 May 2005, Greppi Laura Karina c/ Telefónica de Argentina S.A.
9 Labour Court of Appeals, Chamber 9, 16 July 2015, Fritz Leonardo David v Envases del Plata S.A. y otro-despido; Labour Court of Appeals, Chamber 9, 14 September 2012, M. C. A. c/ Citytech S.A. s/ despido.
10 Sections 178 and 182 of Labour Contract Law 20,744.
Published in “Discrimination and Equality Law News”, Committee Update of the International Bar Association Legal Practice Division (IBA), VOLUME 21 NUMBER 1 SEPTEMBER 2017.
For further information on this topic please contact Nicolás Grandi