Prohibition of discriminatory practices in staff selection process
Next October 7 will mark one year since the Ministry of Labor, through Circular 0062, reiterated the normative and jurisprudential guidelines that are binding for all employers, employees and job applicants, in order to eradicate discriminatory practices in labor selection processes taking into account the pronouncement of the Constitutional Court in Ruling T-031-2021 of February 12, 2021.
At this date, we reiterate the guidelines given:
About discrimination:
- The right to work enjoys special constitutional protection and therefore any discriminatory act that limits it is prohibited.
- Any form of discrimination in the workplace for health reasons compromises constitutional guarantees and requires the State to intervene immediately.
On due process in labor selection processes:
- Those who carry out labor selection processes are obliged to abide by the legal and jurisprudential guidelines, the application of the principles of good faith, reasonableness and proportionality in the decisions made regarding the selection or exclusion of a person for a specific position.
On the employer's duty to protect the right to privacy and intimacy in relation to the health of its employees:
- Questions aimed at obtaining relevant information should focus on the needs of the position to be performed. Therefore, questions that are not related to the position are interpreted as possible indications of employment discrimination and, in any case, do not oblige the applicant or employee to answer them.
- The information obtained regarding the particular condition of the job applicant must remain in separate medical files and must be treated with strict confidentiality.
- The doctor must respect the confidentiality of the occupational medical history and will only send the employer the medical certificate, indicating the existing restrictions and the recommendations or conditions that need to be adapted so that the employee can perform the job.
- In no case, employers may have, keep or attach a copy of the occupational medical evaluations and the occupational medical history to the worker's résumé.
- The criteria for selecting employees must correspond to the specific work to be developed, being prohibited to resort to any type of discriminatory practice that affects the rights of applicants for employment.
- Therefore, and based on the normative and jurisprudential guidelines analyzed, the Ministry urges employers to refrain from engaging in discriminatory practices in the processes of selection, admission and permanence of workers, under penalty of being subject to investigations and corresponding sanctions for violation of the rights of workers and applicants.
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