Recommended actions

The recommended actions to mitigate the risk of a moral damages claim for employment relationship discrimination are as follows:

• Implement nondiscrimination policies within the company.
• Have a record of all the activities undertaken to apply such policies.
• Avoid dismissing employees who are members of a vulnerable group for reasons arising from their association with such groups.

If the dismissal is necessary, have enough evidence to prove a justified and non-discriminative dismissal.

Context

• What is moral damage?

Under section 1916 of the Civil Code of Mexico City and the equivalent law in other states of the country, "moral damage" is defined as the profound alteration that a person suffers in their feelings, affections, beliefs, decorum, honor, reputation, private life, configuration and physical aspects, or to the regard in which they are held by others produced by an act, activity, conduct or illicit behavior.

For the obligation of repairing moral damage, the following three elements of the action need to be proven:

1. An illicit act or conduct caused by the author of that act or conduct
2. That such illicit act or conduct produces harm to a certain person
3. An adequate causal link between the unlawful act and the harm

• In which cases could exist moral damage for employment relationship discrimination?

Discriminatory conduct during an employment relationship constitutes an "unlawful act or conduct," so it is essential to prove that a person was discriminated against at work in order to sustain the action.

The concept of discrimination in employment is based on Article 1 of Convention 111 of the International Labor Organization, which defines it as "any distinction, exclusion or preference based on race, color, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation."

However, not every distinction is considered discrimination since the aforementioned article also establishes that "distinctions, exclusions or preferences based on the qualifications required for a particular job shall not be considered discrimination."

• Who has the burden of proof in a legal proceeding for moral damage?

The general rule in civil matters provides that the plaintiff must prove its action and the defendant its exceptions.

In matters of non-contractual liability for moral damages, it is up to the plaintiff to prove the facts sustaining its action. However, exceptionally, this obligation may be transferred to the defendant for it to justify the non-existence of the illicit conduct.

In this regard, the Supreme Court of Justice of the Nation has determined in thesis number 1a. XXXVII/2021 that in moral damages cases, the burden of proof is on the defendant if the plaintiff is unable to access or has difficulty accessing the necessary proof to sustain its case, while the defendant has greater means of accessing evidence.

In other words, when the plaintiff is in a disadvantageous situation in relation to the defendant (as commonly happens in a labor relationship), it will be up to the defendant to prove the non-existence of the facts of the claim.

Moreover, the Inter-American Court of Human Rights has clarified in its precedents that the burden of proof is reversed in cases involving persons from vulnerable groups. In other words, the person discriminated against does not have an obligation to prove that they were discriminated against (Granier and others vs. Venezuela, par. 227 and 228). It is the employer who must prove that there is no discriminatory treatment against the employee.