RESPONSE: EMPLOYMENT DISCRIMINATION SECTION FOR

UNCLAS PANAMA 001370 SIPDIS SIPDIS FOR STATE WHA/CEN-TELLO FOR DEPT. LABOR DOL/ILAB-ESQUIBEL FOR STATE DRL/ILCSR-RIGGS FOR STATE WHA/PPC-PUCCETTI E.O. 12958: N/A TAGS: ECIN ECON ELAB ETRD PM SUBJECT: RESPONSE: EMPLOYMENT DISCRIMINATION SECTION FOR MANDATORY US-PANAMA TPA REPORTING REQUIREMENTS REF: STATE 91512 This cable responds to reftel. Answers are numbered to match reftel paragraph number. 1.(U) LEGAL FRAMEWORK FOR LABOR RIGHTS Para 7. Key labor legislation and key legal instruments that prohibit employment discrimination on the basis of race, color, sex, religion, political opinion, national extraction, and social origin: -- Law No. 4 of 29 January 1999: Establishing equality of opportunity for women. www asamblea gob pa/NORMAS/1990/1999/1999 176 1226.PDF -- Executive Decree No. 31 of 21 April 2001: Created the National System for Training on Gender that provides training on gender-based issues to strengthen the ability of government agencies and NGOs to formulate, implement, continue, and evaluate public policies, programs, and projects on gender-related issues applicable to such agencies. Also works for the formulation, implementation, continuation, and evaluation of public policies, programs, and projects on gender-related issues. www asamblea gob pa/GACETAS/2000/2001/24284 2001.PDF -- Law 16 of 10 April 2002: Created the National Commission against Discrimination that oversees regulations to prohibit discrimination regarding admission and access to public establishments. www asamblea gob pa/NORMAS/1990/1999/1999 176 1226.PDF -- Executive Decree No. 53 of 25 June 2002 (implementing rules related to Law 4 of 29 January 1999): Establishes equal employment opportunities for women. www asamblea gob pa/NORMAS/2000/2002/2002 522 2459.PDF -- Article 63 of the Panamanian Labor Code: Provides for equal pay for equal work regardless of sex, nationality, age, race, social class, or political or religious beliefs. www leylaboral com/panama/normaspanama.aspx?item=1868&bd=47 -- Article 136 of the Panamanian Labor Code: Grants equal access to job promotions and provides that existing employees should be favored over outside hires to fill job vacancies. www leylaboral com/panama/normaspanama.aspx?item=1868&bd=47 -- Article 26 of the Panamanian Maritime Law: Prohibits companies or organizations related to maritime trade from discriminatory contracting and hiring practices for reasons based on creed, race, or political affiliation. www asamblea gob pa/NORMAS/1990/1998/1998 157 2061.pdf -- Article 82 of the Organic Law of the Panama Canal Authority: Provides that the labor policies of the Panama Canal Authority are non-discriminatory and are based on merit and equality of opportunities. www pancanal com/eng/legal/law/index.html Para 8. Key legislation that prohibits discrimination on grounds other than those stated in paragraph 7: -- Law No. 1 of 28 January 1992: Establishes protection for hearing impaired or disabled people in education and economic and social security www asamblea gob pa/NORMAS/1990/1992/1992 062 1119.PDF -- Law No. 18 of 1993: Ratifies the Convention on the Readaptation and Employment of Disabled Persons, as adopted by the International Labor Organization's General Conference of June 20, 1983 (Convention No. 159) www asamblea gob pa/NORMAS/1990/1993/1993 085 2418.PDF -- Law No. 3, Article 37 of 5 January 2000: Prohibits employment discrimination against people with HIV/AIDS and other sexually transmitted diseases. www asamblea gob pa/GACETAS/2000/2006/25427 2006.PDF -- Law 59 of 28 December 2005: Prohibits discrimination and firing of workers with chronic, involuntary, and degenerative illnesses without just cause. www asamblea gob.pa/NORMAS/2000/2005/2005 545 1019.PDF -- Law 25 of 10 July 2007: Ratifies Convention on Rights of Disabled Persons and Operating Protocol of the Convention regarding the Rights of Disabled Persons adopted by the U.N. General Assembly on 13 December 2006 which prohibits discrimination based on disability. www rhinodomain com/gacetas/11%20jul%202007%2025832/l252007.p df -- Resolution 606-A-R-256 of 27 July 2005: created the equal employment office under the Minister of Government and Justice's Office as an administrative unit that advises on the promotion, design, and execution of public policy related to gender and the equalization of opportunities for disabled persons. www asamblea gob pa/GACETAS/2000/2005/25371 2005.PDF -- Law No. 23 of 28 June 2007: Created the National Secretariat for the Social Integration of Persons with SIPDIS Disabilities. Codifies Executive Decree 103 of 1 September ¶2004. www gacetaoficial gob pa/pdfTemp/25824/5114.pdf -- Executive Decree No. 124 of 27 May 2005: Creation of a special commission for the establishment of a governmental policy for the inclusion of Afro-Panamanians. www asamblea gob pa/GACETAS/2000/2005/25339 2005.PDF -- Executive Decree No. 116 of 29 May 2007: Created the National Council on the Black Ethnic Group. www asamblea gob pa/NORMAS/2000/2007/2007 553 2007.PDF Para 9. The remedies that exist in Panamanian law against discrimination are of an administrative nature (fines, restitution of employment and payment of back wages). There are no penal or criminal remedies. In cases of discrimination based on disability, according to Anibal Miranda, Director of the Office of Disabled Persons Affairs, such office would impose "moral" sanctions, such as publicizing cases of discrimination in newspapers and other media. Specific remedies relating to specific laws can be found in the aforementioned texts of such laws. 2.(U) ADMINISTRATION OF LABOR LAW Para 10. The GOP does not conduct random or systematic inspections or reviews of government or private sector employers in order to ensure the implementation of anti-discrimination laws. The GOP Ministry of Labor Relations (MITRADEL) only conducts such inspections after a discrimination complaint has been filed with MITRADEL. During 2006, MITRADEL conducted 22,190 inspections, 15,568 of which were labor-related. MITRADEL does not break down its inspection data further to determine how many of these inspections were related to anti-discrimination matters. MITRADEL does not have 2005 inspection data available for public reference. Para 11. Responsibility for enforcing laws and regulations prohibiting employment discrimination lies in the first instance with the Boards of Conciliation and Decision (BCD)(created by Law 7 of 25 February 1975),and the Labor Courts. The BCD is an agency within MITRADEL and has jurisdiction over matters with an amount in controversy of less than $1,500. The Labor Courts have jurisdiction over matters with an amount in controversy of $1,500 or greater. Decisions of the BCD can be appealed to the Labor Minister. Decisions of the Labor Minister and Labor Courts can be appealed to the Superior Tribunal. Decisions of the Superior Tribunal can be appealed to the Third Chamber of the Supreme Court. According to Magistrate Judge Abel Zamorano, there are no reported cases in the Superior Tribunal related to discrimination cases involving race, color, sex, religion, political opinion, nationality, social status, or chronic or degenerative diseases. The scope of remedy for employment discrimination is limited to administrative relief (fines and restitution of unpaid compensation and employment). There are no criminal penalties. Para 12. See response to item 11. In the event of improper termination and employment restatement is ordered,the employee is to be reinstated to his original position within two business days after judgement is rendered. In the event of improper termination and reinstatement is not ordered, the employee shall be paid a seniority premium that is equal to one week's wages for every year of work from the beginning of the employment relationship (if employed for less than one year, the employee shall receive one week's pay for every three months of employment, but in no event less than one week's wages). 3.(U) APPLICATION OF EMPLOYMENT DISCRIMINATION STANDARD Para 13. With respect to the grounds identified in reftel paragraph 7, see response to reftel paragraphs 19 and 25 below. The GOP otherwise has no national action plan or other key formal government strategy to address the prohibited grounds identified in paragraph 7. Para 14. With respect to the grounds identified in reftel paragraph 8, the GOP, pursuant to Law 23 of 28 June 2007, created the National Secretariat of Disabled Persons (SENADIS). SENADIS is an agency designed to advise the Executive Branch on policy matters related to the inclusion of disabled persons in all aspects of society including labor, family, school, work, community affairs, culture, recreation, and sports. The National Advisory Council for the Social Integration of Disabled Persons (CONADIS) was established at the same times as SENADIS. CONADIS's functions are to: (1) propose strategies to achieve the social integration of disabled persons, (2) propose and advance efforts to advance the human rights of disabled persons, (3) promote the equality of opportunities of disabled persons, (4) increase awareness of issues affecting disabled persons, (5) promote the governmental and interinstitutional participation of disabled persons, and (6) promote, with the public and private sector, areas for the increased awareness of issues affecting disabled persons, labor rights, elimination of barriers, and advancement of the rights of disabled persons. To date, SENADIS has signed memoranda of understanding with the Ombudsman (Defensoria del Pueblo),the University of Panama, the Technical University of Panama, the Autonomous University of Chiriqui, the Specialized University of the Americas, and the Organization of the Ibero-American States for Education, Science, and Culture. As part of their National Strategic Plan for the Social Inclusion of People with Disabilities and their Families (2005-2009) (NSP)(a copy of which can be found at www presidencia gob pa/senadis/planestrategiconacional.pdf),SENAD IS is working to facilitate the inclusion of people with disabilities in the workplace, revise and strengthen legal mechanisms to permit the inclusion of disabled people in the labor market, and include disabled persons' needs in the modernization process for the Ministry of Labor. Section 7.3 of this NSP focuses exclusively on labor affairs for the disabled. MITRADEL, the Ministry of Social Development (MIDES),and the National Training Institute have a program to provide job training to disabled persons. According to CONADIS, as of August 2005 (NSP p.19),183 disabled persons have received such job training. According to the NSP (p.19),the Panamanian Association of Industries of Goodwill have provided an apprenticeship program to 7,115 disabled persons between 2001 and April 2005. Copies of the above referenced agreements/documents are found at the SENADIS website. The website for SENADIS is www presidencia gob pa/senadis. Article 45 of Law 42 of 27 August 1999 provides that if less than 2% of a company's employees are disabled, such company must pay a fine equal to the minimum wage attributable to each disabled employee not otherwise hired to reach such 2% figure. According to CONADIS, as of August 2005 (most recent available study),the GOP has hired 358 disabled persons. Para 15. The aforementioned programs and plans are new, and as a result, there are no evaluations to date. 4.(U) WOMEN Para 17. Labor Code: Article 127, No. 12; Article 138, No. 15; Article 213, No. 15. www mitradel gob pa/html/codigo de trabajo/codigotrabajo.pdf. Para 18. According to UNDP Report "Economy and Gender in Panama: Visualizing the Participation of Women" (2005),men earned between $45.20 and $55.80 more per month than women in the years 1991 to 1998, respectively. The UNDP Report stated that as of 2005, men earned $42.00 more per month than women. According to the Third Clara Gonzalez National Report on Women's Status in Panama, a man with a doctorate in Panama earned, on average, $2,627.00 per month, whereas a woman with the same level of education made about $1,923.70 per month -- $704.00 less per month. The UNDP report (page 66) also contains information on the percentage of men and women in service, management, executive and other types of positions. The UNDP Report stated that women held 184,244 (69%) of service-related jobs, compared to 82,236 for men. The report stated that women held the majority of jobs in financial institutions, hotels, and restaurants, domestic labor, teaching, and social and health services. The link for this document is www undp org pa/portal/lang es/tabID 3654/DesktopDefault.aspx. Please note that this report is only available on the website in Spanish. According to the Controller General Office's Household Survey of March 2007, women held 41% of management or executive private sector positions as of March 2007. Women held 14,915 of the reported 36,021 positions. Para 19. The National Directorate of Women and National System for Gender Training (both under MIDES, the Ministry of Social Development),along with the Office of Women in the Ministry of Economy and Finance, and the National System of Public Investment, coordinated training programs for governmental workers designed to (a) formulate, implement, and evaluate projects from a gender-based perspective and (b) plan public policies focused on gender-based issues. This training resulted in the Procedures and Regulations Manual for the National System of Public Investment and contained a gender-based perspective. As of 2004 (the most recent date available),there have been 290 training sessions for 9,982 individuals (3,407 men and 6,575 women),focusing on ensuring that gender issues are considered in public policy matters. 5.(U) PERSONS WITH DISABILITIES Para 20. In 2006, SENADIS conducted the first and only detailed study on the plight and reality of disabled people in Panama. The study does not contain statistical information regarding discrimination of disabled persons. A link to a general overview of the study is www presidencia gob pa/senadis/confhem/public/pendis/pendis%20ing les ppt. The reference to "substantial" relates to anecdotal evidence and conversations with various government and non-governmental individuals concerning the plight of disabled persons. In the NSP described in paragraph 14 above, the introductory paragraph states "The segregation and prejudicial exclusion of disabled persons are historical fact in our society. Disablility is perceived negatively, sometimes this is due to cultural factors which constitute true barriers to allowing disabled persons access to the benefits of goods and social services." The NSP goes on to note, "In our country there is no national registry of disabled persons or a national system of information on such matters, as such it is difficult to have a scientific characterization on the issue of disability on a national level." Para 21. See response to paragraph 20. Para 22. The Ombudsman (Defensoria del Pueblo) was created by Article 129 of the Panamanian Constitution. Its purpose is to provide oversight for the protection of the rights and protections afforded to Panamanians by the Panamanian Constitution, domestic laws, and international treaties. The Ombudsman's Office was established pursuant to Article 4, Law 7 of 5 February 1997. The Ombudsman is an independent government institution which reports to the President. Within the Ombudsman's jurisdiction are all matters which affect human rights, including matters of discrimination and violations of the right to work. As of 9 August 2007, there have been 25 complaints filed in the Ombudsman's Office, nine of which have been employment-related. ¶6. (U) NATIONAL/RACIAL/ETHNIC MINORITIES Para 23. There are some forms of discrimination written into Panama's Constitution. While Panamanians and foreigners are equal before the law, if a person is a Panamanian citizen, is married to a Panamanian citizen, or has children who are Panamanian citizens, they have more rights than those that are/do not. With regard to labor, preference is given to such persons in hiring and firing decisions. (Article 20 of the Panamanian Constitution, Articles 128.13 and 213 (c)(3) of the Labor Code). Such Article 20 of the Panamanian Constitution provides that equality under the law for Panamanians and foreigners is subordinate to limitations for reasons of work, health, morality, public security, and the national economy. As such, Article 17 of the Labor Code provides that every employer should, in effect, maintain Panamanian workers, foreigners with a Panamanian spouse, or foreigners who have residency of at least ten years. The aforementioned workers should make up no less than 90% of ordinary workers with a company. For certain specialized or technical work, foreign workers are not to exceed 15% of total workers. According to Article 18 of the Labor Code, employers that are authorized to contract specialized or technical workers have the obligation to substitute the specialized worker for a Panamanian at the end of a maximum term of five years (according to the date that the authorization for the contract was authorized). Panamanian law makes no distinction between legal and illegal immigrants regarding employment rights. Articles 3 and 16 of Law 9 of 18 April 1984 provide that only Panamanian nationals may practice law in Panama. Article 45 of Law 21 of 29 January 2003 provides that only Panamanian nationals may work as crew members on Panamanian-registered aircraft. Article 4 of Law 57 of September 1978 provides that only Panamanian nationals may work as architects or engineers in Panama. Additional restrictions on the employment or business activities of non-Panamanian nationals may be found in Annex I- List of Panama to the proposed U.S.-Panama Trade Promotion Agreement (copy of which can be found at www ustr gov/Trade Agreements/Bilateral/Panama FTADraft.) Para 24. There are no government or NGO statistics that separate hiring practices between light skinned individuals and dark skinned individuals. The indigenous are the only racial group for which certain separate employment statistics are collected. (See Controller General's Household Employment Survey March 2007 at www.contraloria.gob.pa). According to Melva Goodin, Treasurer and former President of the Afro-Panamanian Society, GOP officials at the Controller General's Office say that the large number of mixed race people makes it impractical to determine what the dividing line between light skinned and dark skinned people should be. The U.S. State Department's website states that Panama's racial makeup is as follows: 70% Mestizo (mixed Amerindian and European ancestry),14% Amerindian and mixed West Indian, 10% Caucasian, and 6% Amerindian. Many have criticized statistics such as those published on the State Department website, saying that they fail to acknowledge a strong African ancestry amongst the vast majority of the Panamanian population. According to Professor Tomas Arias, Director of the DNA and Human Genome Institute at the University of Panama, Panama's general population has a gene pool with origins that are 36.5% black, 37.6% indigenous, and 25.9% white/caucasian. We have anecdotal evidence of lighter-skinned persons being hired disproportionately for management and customer-service oriented positions, but there are no concrete statistics to validate this phenomenon. Para 25. Executive Decree 124 of 27 May 2005 created the Black Ethnic Commission. The Black Ethnic Commission's plan of action is a one-page document which reads as follows: Plan of Action -- Reduction of poverty and promotion of development -- Access to employment -- Participation in public life -- Racial discrimination (Bad treatment and excessive use of force) -- Health -- Education and culture -- Religion -- Housing -- Political participation According to Melva Lowe de Goodin, a member of the Black Ethnic Commission, as of 26 July 2007, the only concrete action taken by the Commission has been to establish an office where individuals would be able to file racial/ethnic discrimination complaints. There is no confirmed date set for the opening of this office. ¶7. INDIGENOUS PEOPLE Para 26. According to Ignacio Rodriguez, Director of Indigenous Policy at the Ministry of Government and Justice, the GOP has no official report on the labor conditions of indigenous people. Indigenous people are, however, known to be employed throughout Panama. However, the GOP does not maintain statistics on the number of indigenous people employed by province. The GOP maintains employment statistics only on non-indigenous people by province. According to the Controller General's Office March 2007 Household Employment Survey, as of March 2007, there were 77,287 employed indigenous people in Panama. Of this total, 52,372 worked in agriculture, hunting, forestry, and livestock; 10,525 in manufacturing; 4,133 in education; 3,067 in fishing; and 2,132 in retail and wholesale commerce. Since 71% of the employed indigenous are employed in agriculture, hunting, forestry, livestock, and fishing, it can be deduced that the bulk of the employed indigenous are located in the rural areas of Panama and not in the major urban centers of Panama City and Colon. Indigenous people account for only 5.8% of the national employed workforce. Given that there is no government statistic on the location of the employed indigenous, there are also no statistics or reports on the differences in discrimination between the indigenous in the predominantly indigenous areas and the rest of Panama. Para 27. The GOP does not maintain statistics supporting or contradicting this statement. According to the Controller General Office's March 2007 Household Employment Survey, of the 77,287 employed indigenous, 43,440 worked for themselves and 19,850 worked for family businesses. As such, few indigenous work as contracted employees of established businesses, making it further difficult to document the above-referenced statement. According to an International Labor Organization 2006 Report entitled "Child Labor and Indigenous People" (a Spanish version copy of which can be found at www oit org pe/IPEC/documents/panama.pdf),(ILO 2006 Report),indigenous workers are paid 32% less than non-indigenous workers (p.35). According to this report, indigenous children occupy the worst form of child labor in Panama, as defined by ILO Agreement 182, which was ratified by Law 18 of 15 June 2000. The GOP does not provide special services to indigenous workers to address employment-related matters. Indigenous workers must avail themselves of the normal administrative or judicial process described in response to paragraph 11 above. Para 28. The statement in reftel paragraph 28 draws largely on anecdotal evidence and the ILO 2006 Report. Page 87 of the ILO 2006 Report details the lack of basic services afforded to indigenous workers on the coffee plantations in the province of Los Santos. The ILO 2006 Report notes that indigenous workers suffer greater health problems than non-indigenous workers (p. 88-89). The Annexes of the ILO 2006 Report detail the lack of education, health services, higher mortality, lower life expectancy, and higher levels of malnutrition for indigenous workers compared to non-indigenous workers. The GOP inspections of plantations are the same as any other company. See response to reftel paragraph 10. ¶8. OTHER Para 29. According to the Foundation for the Well-Being and Dignity of Persons Afflicted with HIV/AIDS (PROBISIDA) and the Ministry of Health (MINSA),MINSA lacks sufficient funds to implement HIV/AIDS awareness or prevention programs. According to PROBISIDA, the GOP has not, and is not, taking any action to increase awareness of any laws affecting persons with HIV/AIDS. PROBISIDA program manager Edith Triston told EMBOFFS that their organization focuses on HIV/AIDS health issue awareness, and not awareness of HIV/AIDS anti-discrimination law. Arreaga