Peru Anti-Discrimination Employment

Overview

The Peru Anti-Discrimination in Employment Law, primarily embodied by Ley N° 26772, enacted on April 17, 1997, represents a foundational legislative effort in Peru to combat discrimination in the labor market and in access to educational opportunities. This law explicitly prohibits discriminatory requirements in job offers and in access to technical or professional training. Its core purpose is to ensure equality of opportunities and treatment, preventing distinctions, exclusions, or preferences based on arbitrary grounds. The enactment of this law underscored Peru's commitment to fundamental labor rights, aligning with international principles of non-discrimination in employment. It specifically targets the initial stages of the employment cycle, aiming to create a level playing field for all applicants and students by removing barriers that are not objectively justified by the nature of the job or training itself. This proactive approach was a significant step towards fostering a more inclusive and equitable society.

Historically, prior to Ley N° 26772, while the Peruvian Constitution enshrined principles of equality, specific legislative mechanisms to address discrimination in employment offers were less defined. This law emerged as a direct response to the need for a clear legal framework to prevent and sanction discriminatory practices at the entry points of employment and vocational training. It aimed to foster a more inclusive labor market by removing barriers that were not objectively justified by the nature of the job or training. The law was promulgated under the presidency of Alberto Fujimori and published in the official gazette, El Peruano, marking a significant step in the evolution of Peruvian labor law. Its passage reflected a growing awareness of the need to translate constitutional guarantees into actionable legal protections, particularly in the context of a developing economy seeking to integrate into global labor standards.

Key innovations of Ley N° 26772 include its explicit definition of discrimination in the context of employment and education, and the establishment of clear sanctions for non-compliance. It mandated the Executive Power to issue regulatory norms within 30 days, which materialized as Decreto Supremo N° 002-98-TR in February 1998. This regulatory framework provided the necessary procedural details for the application and enforcement of the law, clarifying its scope and the responsibilities of various actors. The law's significance lies in its proactive approach to preventing discrimination at the recruitment and training stages, rather than solely addressing it post-employment. It laid the groundwork for subsequent, more comprehensive anti-discrimination legislation in Peru, demonstrating an evolving legislative commitment to human rights and fair labor practices.

Definitions

Ley N° 26772 provides a clear and comprehensive definition of what constitutes discrimination in the context of employment and educational access, which is fundamental to its application. According to Article 2 of the law, "discrimination, annulment or alteration of equality of opportunities or treatment" refers to "requirements for personnel or access to technical or professional training that are not provided for by law and imply differentiated treatment devoid of objective and reasonable justification." This definition is crucial as it establishes a standard for evaluating whether a requirement is legitimate or discriminatory. The law specifies that such differentiated treatment is prohibited when based on "race, color, sex, religion, opinion, national origin or social origin, economic condition, political condition, marital status, age or any other kind." This broad enumeration of protected characteristics ensures a wide scope of protection against various forms of prejudice, making it a robust instrument for promoting equality.

The emphasis on the lack of "objective and reasonable justification" is a key component of this definition, allowing for legitimate job-related requirements while prohibiting arbitrary exclusions. For instance, a requirement for specific technical skills directly relevant to a job, such as a particular programming language for a software developer, would be considered objectively justified. Conversely, a requirement based on a candidate's marital status, age beyond what is legally permissible for certain roles, or religious affiliation would not be objectively justified and would therefore be deemed discriminatory. This legal language provides a clear framework for distinguishing between legitimate selection criteria and unlawful discriminatory practices, guiding both employers and enforcement agencies in their interpretations and actions.

Furthermore, the regulatory decree, Decreto Supremo N° 002-98-TR, elaborates on these definitions, clarifying that the prohibition applies to contracting employers, educational institutions, and employment agencies or intermediaries. It reiterates that practices are not considered discriminatory if they are based on qualifications strictly required for the performance of the employment or the educational program offered. This distinction is vital for practical application, ensuring that employers can still set necessary and inherent qualifications for roles while adhering to anti-discrimination principles. The decree also implicitly covers both direct and indirect discrimination, where a seemingly neutral requirement might disproportionately disadvantage individuals based on a protected characteristic, unless it can be objectively justified.

Covered Employers

Ley N° 26772, in conjunction with its regulatory decree Decreto Supremo N° 002-98-TR, applies broadly to all individual and legal entities involved in offering employment or providing access to educational and professional training within Peru. This comprehensive scope ensures that the principles of non-discrimination are upheld across various sectors and organizational structures. The law does not specify size thresholds for covered employers, implying that its provisions are universally applicable, from small businesses employing a few individuals to large multinational corporations operating within Peru, as well as public sector entities at all levels of government. This broad application is critical for fostering a truly equitable labor market and preventing the creation of loopholes based on organizational size or type.

Specifically, the regulatory decree clarifies that the prohibition against discriminatory requirements extends to "employers contracting, to the means of educational training (institutions forming part of the formal educational system), as well as to employment agencies and others that serve as intermediaries in employment offers." This means that not only direct employers but also any entity facilitating employment or training, such as recruitment firms, temporary staffing agencies, vocational schools, universities, and other educational providers, are bound by the law's anti-discrimination mandates. This expansive coverage aims to prevent discrimination at multiple points of entry into the workforce and educational system, ensuring that the entire pipeline from education to employment adheres to non-discriminatory principles.

While the law is broad in its coverage, it implicitly allows for distinctions based on "qualifications strictly required for the performance of the employment or the educational program offered." This means that if a specific skill, certification, or physical attribute is an inherent and necessary requirement for a job (e.g., a specific language proficiency for a translator role, or certain physical capabilities for a construction worker), then requiring it would not be considered discriminatory. However, such requirements must be objectively justifiable and directly related to the job function, preventing their misuse as a pretext for discrimination. There are no explicit exemptions for specific sectors or phase-in periods mentioned in the original 1997 law or its 1998 regulation, indicating immediate and universal application from its effective date. This universal approach underscores the fundamental nature of the right to non-discrimination in Peru.

Employee Rights

Under Ley N° 26772, individuals have the fundamental right to equal opportunities and treatment in employment offers and access to educational and professional training, free from discrimination based on prohibited grounds. This means that job seekers and students have the right not to be subjected to requirements that are arbitrary and lack objective and reasonable justification, such as those related to race, color, sex, religion, opinion, national or social origin, economic or political condition, marital status, or age. The law empowers individuals to challenge discriminatory practices that violate these principles, ensuring that their qualifications and merits are the primary basis for evaluation, rather than irrelevant personal characteristics. This right is a cornerstone of fair labor practices and educational access in Peru.

While the 1997 law itself is concise, its regulatory framework and the broader Peruvian legal system provide clear avenues for exercising these rights. Individuals who believe they have been subjected to discriminatory practices in job offers or access to training can file complaints with the Ministry of Labor and Social Promotion (Ministerio de Trabajo y Promoción Social) or the Ministry of Education, depending on the context of the alleged discrimination. The law explicitly states that sanctions will be applied without prejudice to any compensation that may be due to the affected person, indicating a right to seek redress for damages incurred due to discrimination. This dual approach of administrative sanctions and civil compensation provides robust protection for individuals whose rights have been violated.

The right to non-discrimination also implies a right to fair consideration based on merit and qualifications relevant to the position or training. Workers are entitled to expect that their applications will be evaluated based on objective criteria, rather than on personal characteristics unrelated to their ability to perform the job or succeed in the educational program. Although the 1997 law does not detail specific comparison rights or elaborate procedures for requests for information, the general principles of due process and administrative complaint mechanisms within the Peruvian labor system would apply, allowing individuals to seek investigation and resolution of their claims. The subsequent Ley N° 27270 (2000) further strengthened these rights by providing a more general framework against acts of discrimination, reinforcing the protections initially established by Ley N° 26772 and ensuring a comprehensive legal shield against prejudice.

Pay Transparency Requirements

Ley N° 26772, enacted in 1997, primarily focuses on preventing discrimination in job offers and access to training, rather than explicitly mandating pay transparency requirements such as salary range disclosure in job postings or pay scale publication. The law's emphasis is on the initial stages of the employment relationship, ensuring fair access to opportunities by prohibiting discriminatory criteria in recruitment. Therefore, specific provisions for pay transparency, as understood in modern pay equity legislation, are not a direct feature of this particular 1997 anti-discrimination law. The text of the law and its immediate regulation, Decreto Supremo N° 002-98-TR, do not contain any clauses compelling employers to disclose remuneration details at the advertising or hiring stage.

At the time of its enactment, the concept of proactive pay transparency as a tool to combat pay discrimination was not as prevalent in global labor legislation as it is today. The law's scope is limited to prohibiting discriminatory requirements in the *offers* themselves, meaning that an offer cannot be made contingent on discriminatory factors. However, it does not compel employers to disclose salary ranges or pay scales publicly. The focus is on the non-discriminatory nature of the criteria for selection, rather than the transparency of remuneration details. While the law ensures that discriminatory factors do not influence the *opportunity* for employment, it does not directly address potential pay disparities that might arise *after* a non-discriminatory hiring process, or require employers to reveal salary structures.

It is important to note that later Peruvian legislation, such as Ley N° 30709, enacted in 2017, specifically addresses pay equity and prohibits remunerative discrimination between men and women. This later law and its regulations introduce obligations for employers regarding objective job valuation and the establishment of salary policies, which indirectly promote a degree of pay transparency within organizations. However, these are developments that occurred two decades after Ley N° 26772 and are not part of its original mandate. Therefore, for the 1997 law, direct pay transparency requirements are not applicable, and employers are not legally obligated under this specific act to publish salary ranges or conduct pay gap reporting.

Reporting & Audit Obligations

Ley N° 26772 does not explicitly establish detailed reporting or audit obligations for employers regarding their anti-discrimination practices. The law's primary mechanism for enforcement relies on the investigation of complaints filed by individuals who believe they have been subjected to discrimination. While the Ministry of Labor and Social Promotion is empowered to sanction discriminatory acts, the law itself does not mandate regular, proactive reporting from employers on their hiring practices, diversity metrics, or internal audits of their non-discriminatory policies. The legislative intent was more focused on providing a legal basis for challenging individual acts of discrimination rather than imposing systemic monitoring requirements on employers.

The regulatory decree, Decreto Supremo N° 002-98-TR, also does not introduce comprehensive reporting or audit requirements. Its focus is on clarifying the scope of the prohibition and the responsible enforcement bodies, detailing the types of discriminatory acts and the administrative process for addressing them. Therefore, employers are not required to submit periodic reports on their recruitment processes, demographic data of applicants, or internal audits of their non-discriminatory practices under the direct provisions of this 1997 law and its immediate regulation. The burden of identifying and reporting discriminatory acts largely falls on the affected individuals, making it a reactive rather than a proactive enforcement framework.

However, in the broader context of Peruvian labor law, and particularly with the advent of later legislation, the Ministry of Labor and Promotion of Employment (MTPE) and the National Superintendence of Labor Inspection (SUNAFIL) have developed mechanisms for oversight and inspection. While not directly stemming from Ley N° 26772, these bodies would investigate complaints related to discrimination in employment offers. Subsequent laws, especially those concerning pay equity (like Ley N° 30709), have introduced more specific obligations for employers, including the need to establish objective job valuation systems and salary policies, which can be subject to inspection. These later developments indicate an evolution towards more proactive monitoring and compliance verification, but they are distinct from the original 1997 law's provisions, which remain primarily complaint-driven in terms of reporting and auditing.

Governance & Enforcement Bodies

The primary governance and enforcement body for Ley N° 26772 is the Ministry of Labor and Social Promotion (Ministerio de Trabajo y Promoción Social). Article 3 of the law explicitly states that "individual or legal entities that incur in the cases of discrimination foreseen in the previous articles will be sanctioned by the Ministry of Labor and Social Promotion, without prejudice to the compensation that may be due." This clearly designates the Ministry as the authority responsible for investigating and imposing administrative sanctions related to discriminatory employment offers. The Ministry's role includes receiving complaints, conducting investigations, and issuing resolutions that determine whether a violation has occurred and what penalties should be applied. This central role ensures a consistent application of the law across the labor sector.

In cases concerning access to educational training, the Ministry of Education (Ministerio de Educación) is designated as the sanctioning authority. This division of responsibility ensures that discriminatory practices are addressed by the relevant governmental body, depending on whether the discrimination occurred in the labor market or the educational sector. The complaint filing process typically involves individuals submitting a formal complaint to the appropriate Ministry, either directly or through regional offices. These complaints initiate an administrative process that includes gathering evidence, hearing from both the complainant and the accused entity, and ultimately making a determination based on the legal framework. The Ministries are equipped with administrative powers to enforce compliance and impose the stipulated sanctions.

Over time, the National Superintendence of Labor Inspection (SUNAFIL), an autonomous body under the Ministry of Labor, has become a key player in labor law enforcement, including anti-discrimination provisions. While SUNAFIL was established later than 1997 (in 2014), its role now encompasses the inspection and verification of compliance with labor norms, including those related to non-discrimination. Therefore, while the 1997 law initially designated the Ministry of Labor, SUNAFIL now plays a crucial role in the operational enforcement, conducting inspections and imposing sanctions for labor infractions, including discrimination in employment. Individuals can also file complaints with SUNAFIL, which then conducts investigations through its labor inspectors, ensuring a robust mechanism for oversight and enforcement of anti-discrimination principles in the workplace.

Monitoring & Evaluation

The monitoring and evaluation of compliance with Ley N° 26772 primarily occur through a complaint-driven system, where individuals report alleged acts of discrimination to the designated authorities. The Ministry of Labor and Social Promotion (and the Ministry of Education for educational access) is responsible for investigating these complaints. This involves gathering evidence, interviewing parties, and determining whether a discriminatory act, as defined by the law, has occurred. The process is reactive, initiated by a grievance rather than proactive, routine inspections specifically for this law. This approach places the onus on affected individuals to come forward, which can sometimes limit the detection of systemic discrimination or cases where individuals are unaware of their rights or fear retaliation.

While the 1997 law itself does not detail specific inspection procedures or audit frequencies, the general framework of labor inspection in Peru, overseen by the Ministry of Labor and later by SUNAFIL, would apply. Labor inspectors are empowered to visit workplaces, request documentation, and interview employees to verify compliance with labor laws. In the context of Ley N° 26772, an investigation would focus on the requirements stated in job offers or training access, and whether these requirements are objectively justified or constitute prohibited discrimination. This might involve reviewing job advertisements, application forms, interview notes, and internal policies to ascertain if any criteria are unlawfully discriminatory. The absence of a specific audit schedule means that compliance is primarily checked when a complaint triggers an investigation.

Evaluation criteria for determining discrimination would center on the definition provided in Article 2 of Ley N° 26772: whether a requirement for personnel or training access is not legally provided for, implies differentiated treatment, and lacks objective and reasonable justification, based on the prohibited grounds. The absence of a clear, job-related rationale for a restrictive requirement would be a key indicator of potential discrimination. For example, requiring a specific age range for a job that does not have inherent age-related physical demands would likely be deemed discriminatory. While the law does not mandate specific evaluation reports or public statistics on discrimination cases, the enforcement actions taken by the Ministry and SUNAFIL serve as a form of monitoring the law's application and identifying areas where compliance may be lacking. The effectiveness of the law is thus largely measured by the resolution of individual cases rather than broad statistical analysis.

Enforcement & Penalties

Ley N° 26772 establishes clear provisions for enforcement and penalties against individuals or legal entities that engage in discriminatory practices in employment offers or access to educational training. Article 3 of the law states that those who incur in such discrimination "will be sanctioned by the Ministry of Labor and Social Promotion, without prejudice to the compensation that may be due." This dual approach allows for both administrative penalties imposed by the state and civil remedies for the affected parties, ensuring that both public interest and individual harm are addressed. The enforcement mechanism is designed to deter discriminatory practices and provide meaningful recourse for victims.

The regulatory decree, Decreto Supremo N° 002-98-TR, provides more specific details on the administrative sanctions. It stipulates that the administrative sanction will be a fine not exceeding 3 Tax Units (Unidades Impositivas Tributarias - UIT) or a temporary closure of the establishment that does not exceed one year. The UIT is an annually adjusted reference value used for tax and fine calculations in Peru; for example, in 2024, one UIT is S/ 5,150 (approximately USD 1,400), making the maximum fine around S/ 15,450. Furthermore, in certain cases, the sanction of temporary closure may be substituted by double the imposed fine if the consequences of a temporary closure are deemed disproportionate or unduly burdensome, providing flexibility in penalty application while maintaining a deterrent effect. This allows authorities to tailor penalties to the specific circumstances and impact of the violation.

The law also explicitly mentions the right to "indemnización a que hubiere lugar" (compensation that may be due) for the affected person. This means that beyond administrative fines, victims of discrimination can pursue civil claims for damages, seeking financial compensation for harm suffered as a result of the discriminatory act, which could include lost wages, emotional distress, and other related costs. This provides a crucial avenue for redress and emphasizes the individual's right to be made whole. The appeals process for administrative sanctions would follow the general administrative law procedures in Peru, allowing sanctioned parties to challenge decisions through established legal channels, ensuring due process. There is no mention of criminal liability directly within Ley N° 26772, as its focus is on administrative and civil remedies, aligning with the typical approach for labor law infractions of this nature.

Relationship to Other Laws

Ley N° 26772 operates within a broader framework of Peruvian constitutional and labor law, interacting with several other key pieces of legislation. Fundamentally, it is rooted in Article 2, numeral 2, of the Political Constitution of Peru, which establishes the right to equality before the law and prohibits discrimination on various grounds. Ley N° 26772 provides a specific application of this constitutional principle to the realms of employment offers and educational access, translating a general constitutional right into concrete legal prohibitions and enforcement mechanisms within a specific sector. This ensures that the constitutional guarantee of equality is actionable in the labor market.

The law also complements the Decreto Supremo N° 003-97-TR, Texto Único Ordenado del Decreto Legislativo N° 728, Ley de Productividad y Competitividad Laboral, which is the overarching labor code in Peru, promulgated shortly before Ley N° 26772. While D.S. 003-97-TR sets out general principles of labor relations, including the respect for equality of opportunities without discrimination (echoing Article 26 of the Constitution in a labor context), Ley N° 26772 specifically targets discriminatory practices at the hiring and training stages. It acts as a specialized regulation that elaborates on and strengthens the general anti-discrimination principles found in the broader labor code, providing more detailed definitions and specific enforcement provisions for the initial phases of employment. This prevents conflicts by offering a more precise legal instrument for a particular type of discrimination.

Subsequently, Ley N° 27270, Ley contra actos de discriminación, enacted in 2000, provided a more general framework against all acts of discrimination, including those in the workplace, and specifically modified Article 3 of Ley N° 26772 to refine the sanctions. This demonstrates an evolution in Peruvian anti-discrimination law, with Ley N° 26772 serving as an early, specific intervention that was later integrated into a broader legal strategy. More recently, Ley N° 30709, Ley que prohíbe la discriminación remunerativa entre varones y mujeres (2017), specifically addresses pay equity, building upon the general anti-discrimination principles established by earlier laws. These later laws do not repeal Ley N° 26772 but rather complement and expand upon its foundational principles, indicating a continuous legislative effort to combat discrimination in various forms within the Peruvian context, creating a layered and comprehensive legal shield against prejudice.

International Context

Peru's Ley N° 26772, prohibiting discrimination in employment offers and access to training, aligns with fundamental international labor standards, particularly those established by the International Labour Organization (ILO). The law reflects the principles enshrined in ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation (1958), which Peru has ratified. Convention No. 111 calls upon member states to declare and pursue a national policy designed to promote equality of opportunity and treatment in employment and occupation, with a view to eliminating any discrimination. The definition of discrimination in Ley N° 26772, covering grounds such as race, color, sex, religion, political opinion, national extraction, or social origin, directly mirrors the core prohibited grounds outlined in ILO Convention No. 111, demonstrating Peru's commitment to its international obligations.

Furthermore, the law's focus on ensuring equal opportunities at the entry point to employment and training is consistent with global trends in anti-discrimination legislation, which increasingly emphasize proactive measures to prevent bias in recruitment and career development. While the European Union (EU) has developed comprehensive directives on equal treatment in employment and occupation, Peru's 1997 law, though predating many of these detailed EU instruments, shares the same underlying objective of fostering inclusive labor markets. The subsequent development of Peruvian legislation, such as Ley N° 30709 on pay equity, further demonstrates Peru's ongoing commitment to evolving its legal framework in line with international best practices and the broader global movement towards comprehensive pay equity and anti-discrimination measures. This continuous legislative refinement positions Peru as a country actively engaged in upholding and advancing international human rights and labor standards.

Implementation Timeline

Compliance Checklist

Sources and References