Pregnancy Discrimination in Latin America: The Exclusion of “Employment Discrimination” from the Definition of “Labor Laws” in the Central American Free Trade Agreement

Abstract

Regional trading blocs and bilateral trade agreements have become increasingly important within the western hemisphere. The North American Free Trade Agreement (NAFTA), the U.S.-Chile Free Trade Agreement, and the Central America Free Trade Agreement (CAFTA) have all been passed in the last fifteen years. This Article will focus principally on the provisions in NAFTA and CAFTA. (1) Additionally, with the Andean Trade Preference Act set to expire in 2006, the United States initiated negotiations with three Andean countries in May 2004: Peru, Colombia, and Ecuador. The United States Trade Representative (USTR) signed the United States-Peru Trade Promotion Agreement in April 2006, concluded negotiations with Colombia in February 2006, and is participating in ongoing discussions with Ecuador. (2) Furthermore, the Administration announced in 2003 that it intends to launch negotiations for a separate agreement with Panama, and the Senate recently approved a resolution of advice and consent for a United States-Uruguay Bilateral Investment Treaty in September 2006. (3) All of these bilateral and regional agreements represent a building block (4) in the attempt to secure a Free Trade Area of the Americas despite its current dim prospects. (5) Free Trade Areas/Agreements (FTAs) are cross-border arrangements in which the trade barriers--both tariff and non-tariff barriers--among participating nations are reduced, sector-by-sector over time, and often eventually abolished. Unlike a customs union or a common market, each member country of the FTA remains free to determine its own external trade barrier against non-FTA members. For businesses operating within the FTA, the market expands because consumers in member states can purchase their products for a lower price than before the FTA was established, and usually also at a lower price than goods originating outside of the member countries. (6) At the same time, businesses are subjected to increased competition. While rights provisions are now standard in American FTAs, (7) their incorporation has not been without controversy. The movement to incorporate rights into FTAs is driven by a number of interests, including interests in the United States, international rights movements, and human rights activism. The incorporation of rights in FTAs, however, is often resisted on two main grounds: (1) as an attempt to lower the less-developed countries' comparative advantage of lower wages, and/or (2) as an infringement on the less-developed countries' sovereignty. (8) The integration of trade and has been incremental. For example, the original NAFTA agreement did not include protections; instead, the agreement was negotiated separately from, and subsequent to, the passage of NAFTA. (9) More recently, CAFTA explicitly incorporated rights into the core text, indicating acceptance of the idea that rights and trade should be addressed simultaneously. When one compares the two agreements, however, the North American Agreement on Labor Cooperation (NAALC) used an eleven-part definition of labor laws that included elimination of ..., (10) while CAFTA reduced the definition to five rights, and excluded employment discrimination from its definition of law. (11) In relation to protections, pregnancy is an issue of growing importance in U.S.-Latin America FTAs. Pregnancy is considered a form of sex discrimination, as it is based on a condition unique to women. (12) This issue first emerged in the NAFTA context following the publication of a 1996 Human Rights Watch report that exposed pervasive pregnancy in maquiladoras in Mexico. (13) In 2004, Human Rights Watch released a report confirming that pregnancy-based was pervasive in the Dominican Republic's free trade zone. (14) Women in both of these countries were, and continue to be, routinely required to undergo pregnancy tests or answer intrusive questions regarding their possible pregnant status as a condition of being hired or maintaining employment. …