Appendix A - The Legal Rights of Women Workers in North America

The 1986 Employment Equity Act requires federally regulated employers to change workplace practices which create barriers to women, aboriginal peoples, persons with disabilities and persons who are part of a minority group. Employers must develop and implement employment equity plans to ensure that these designated groups are not denied employment opportunities or benefits for reasons unrelated to ability. The new Employment Equity Act, which came into force in 1996, extends employment equity coverage to employees of federal government departments.

The Canadian Charter of Rights and Freedoms protects all workers from all forms of sexual discrimination derived from any type of government action.

Title VII of the Civil Rights Act of 1964, as amended, also prohibits wage discrimination based on gender as well as race, religion, color and national origin. Title VII also protects workers with respect to most on-the-jobs aspects of employment. Employers must recruit, train and promote persons in all job classifications without discrimination. Employer may not discriminate against individuals in any terms or conditions or privileges of employment. Title VII covers all public and private employers of 15 or more persons, public and private employment agencies, labor organizations with 15 or more members, and joint labor-management committees with apprenticeship or other training programs.

The Age Discrimination in Employment Act of 1967, as amended, prohibits employment discrimination against individuals aged 40 years and older. It forbids discrimination with regard to hiring, dismissal, salaries, benefits, training, promotion and other employment practices.

Disabled persons are also protected under the Title I of the Americans with Disabilities Act of 1990, which prohibits employment discrimination on the basis of disability in both the public and private sector, excluding Federal government. Section 501 of the Rehabilitation Act of 1973, as amended, prohibits employment discrimination against Federal employees with disabilities. Section 503 prohibits discrimination and requires affirmative action in all personnel practices for qualified individuals with disabilities.

The entitlement of women to opportunities equal to those of men is set down in Articles 3 and 164 of the Ley Federal de Trabajo (LFT, Federal Labor Law). The first Article states that no discrimination may be established between workers on the basis of race, gender, age, religion, political opinion or social rank.

The second article states that women shall have the same rights and obligations as men.

Article 133 Section I of the LFT states that it is prohibited for an employer to refuse to contract an individual because of their age or gender.

Article 123 of the Constitution Section VII and Article 86 of the LFT establish that equal work performed in the same post, with the same hours worked and conditions of efficiency shall also be remunerated with the same salary.

Parental and adoption leave is also available in most jurisdictions. The maximum parental leave for employees is 17 weeks and is available to one or both employed parents; both parents in most cases can share leave. Adoptive parents may be eligible only for shorter leaves in some jurisdictions.

Cash benefits are provided by Employment Insurance (EI) and are available to a pregnant woman, a woman who has recently given birth, adopted a child or is taking care of a newborn baby. The basic benefit rate is equivalent to 55 percent of the average insured income of the worker, up to a maximum of $413 Canadian dollars per week. Women who leave the workforce to care for children will have access to EI active re-employment benefits if they have collected maternity or parental benefits in the past five years.

Low-income families (less than $25,921 Canadian dollars a year) may receive higher benefits.

Under the Family and Medical Leave Act (FMLA) of 1993 an employer must grant an employee up to 12 weeks of unpaid leave during any 12-month period for any of the following reasons:

• For the birth and care of the newborn child of the employee;
• For placement with the employee of a child for adoption or foster care;
• To care for an immediate family member (spouse, child or parent) with a serious health condition; or
• To take medical leave when the employee is unable to work because of a serious health condition.

Article 170 also established that as long as more than a year has not elapsed from the date of childbirth, women are entitled to return to the position they formerly occupied. Likewise, women are entitled to have pre-and post-natal periods included in their seniority.

Article 109 of the Ley del Seguro Social (LSS, Social Security Law) states that in the event of a female insurance worker losing her job and having made at least eight continuous weekly contributions to the Instituto Mexicano del Seguro Social (IMSS, Mexican Institute of Social Security), she shall be entitled to receive all necessary medical, maternity, surgical, pharmaceutical and hospital assistance for eight weeks following dismissal. Likewise, female workers involved in strikes are entitled to medical benefits for the duration of the strike, a requirement that applies equally to male workers.

EI is financed by worker and employer contributions. Workers contribute a workers contribution 2.9% of their gross pay up to a total yearly amount of $1,131. Employers are required to pay 1.4 times the amount of their employeeís contribution.

Insured workers with children and an annual net family income below $25,921 Canadian dollars are entitled to a supplementary payment, the Family Income Supplement (FIS).With the addition of this supplement, the benefit received by the insured worker may total up to 80 percent by the year 2000 of insured income.

Employers finance the unemployment insurance through a federal tax on wages paid. This is supplemented from general federal revenues.

If the worker is discharged without justification, and his or her employment is for a specified period, the worker is entitled to receive a severance payment equal to the wages received for half of the time of work with the same employer. For those workers with more than one year of service, severance payment is equal to six months wages for the first year of service plus 20 days wages for each additional year of service.

For workers with labor contracts of unspecified duration, severance payment is equal to three months wages. These workers have also the right to receive wages for the period between the day of dismissal and the day the severance compensation is paid. If a workers asks to be reinstated and the employer refuses, he or she has the right to receive 20 days wages for each year of service in addition to the above.

Any person who has made at least one valid contribution to CPP is eligible to receive a monthly retirement pension. The amount of retirement pension payable to a person at age 65 is a monthly benefit equal to 25 percent of the contributor’s average monthly pensionable earnings during that person’s contributory period. All CPP benefits, except for death benefits, are adjusted in January each year to reflect increases in the cost of living as measured by the Consumer Price Index.

The plan is financed by a 5.6% payroll tax paid in equal parts by employers and workers. Workers may also pay into individual retirement savings plans that may be tax deferrable.

All Canadians, including pensioners, are covered by a universal, publicly financed health care system.

Medicare provides health insurance to people age 65 and over, those who have permanent kidney failure, and certain people with disabilities.There are two parts of Medicare: hospital insurance (Part A) and medical insurance (Part B). The first helps to pay for inpatient hospital care, skilled nursing care and other services. The second helps to pay for such items as doctor’s fees, outpatient hospital visits, medical services and supplies.

Medicaid is a public health insurance program jointly funded, by the federal and state government that provides medical assistance for certain individuals and families with low incomes.

The system is financed by premiums paid by employers, employees and by contributions by the federal government. Premiums paid by the employer are equal to 8.5% of insurable earnings plus 13.9% of the minimum wage in the Distrito Federal, for illness and maternity insurance plus a variable portion for work risks insurance. Employees’ premiums are equal to two percent of their insurable earnings. In the case of workers receiving the minimum wage, employers are obliged to pay the entire premium (Article 36 of the LSS).

The IMSS offers créche facilities for children aged 43 days to four years of insured female workers (Article 206 of the LSS). The premium is entirely covered by the employer as stated in Article 212. Any female worker losing her job is entitled to make use of the créche service for a further four weeks as stated in Article 207.

As of July 1997, contributions for the retirement insurance scheme are administered by means of individual accounts handled by private companies known as Administradores de Fondos para el Retiro de los Trabajadores (AFORES,Worker Retirement Fund Administrators).

The Program covers both full-time and part-time workers. Cash compensation is based on workers’ earnings at the time of the accident or illness. Provincial programs insure between 75 and 90 percent of net earnings, up to a maximum amount varying from $38,600 to $56,000 Canadian dollars, depending on the province.

The national health insurance system provides all health care and rehabilitation services needed because of work-related injury or illness. Provincial workers’ compensation boards pay for the costs.

Employers finance the system. Contributions vary according to industry, based on the associated risk, as well as to number of employees and workers’ earnings.

Workers’ compensation systems also entitle workers to receive any medical assistance that is required as a results of a job injury or a job-related illness. Medical coverage includes the cost of physician, hospital, nursing (including home care), physical therapy, dentist, chiropractor, and prosthetic devices.

State systems are typically financed by taxes paid by employers, which may vary according to the risk classification of the company concerned.

If medical examination determines that the worker is unable to return to work after 52 weeks, she or he can continue medical treatment and receive the same compensation until the incapacity is declared total or par-tial. If the disability is total and permanent, the worker is entitled to receive a monthly payment equivalent to 70 percent of his or her insurable salary (Article 58 of the LSS). The indemnification system is financed by a premium paid by the employer in accordance with the risk classification of the activity concerned and the salary of the worker (Article 71 of LSS).

As a means of protecting the health of women, the Article 166 of the LFT establishes that pregnant or lactating women may not be assigned to unhealthy or dangerous work, industrial night work, in commercial or service establishments after 10 o’clock at night or for overtime.