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LATIN AMERICAN AND CARIBBEAN COMMITTEE

FOR THE DEFENSE OF WOMEN’S RIGHTS

INTRODUCTION

El Salvador ratified the International Pact on Economic, Social and Cultural Rights on November 23, 1979. The country has only presented two periodical reports; the second comprises the period from January 1995 to December 2003. The adhesion to the Pact means complying with the commitment set forth by the State Parties, in Article 2, of “guaranteeing the exercise of the rights enunciated in it, without any discrimination whatsoever due to reasons of race, color, sex, language, religion, political or any other type of opinion, national or social origin, economic position, birth or any other social condition”.

In all the compliance environments of the economic, social and cultural rights, women constitute the most vulnerable population, meaning additionally the perpetuation of discrimination conditions since they have to deal with the domestic economy from a situation of personal and individual poverty (sic).

In the first years of the 21^st century El Salvador set forth, by means of Executive Decrees, that the users had to pay voluntary quotas in the education and health systems and a dollar-based economy was imposed. This situation, aggravated by the results of the privatization process that began at the end of the 80s, caused that the distribution of the national income were not equal, as well as the exclusion of large segments of the population from access to the public services, which the State should guarantee. However, no measures or programs aimed at alleviating the effects of the adjustment and privatization policies have been adopted, especially in favor of the most vulnerable groups, being women the most affected ones.

The official report has been revised, so therefore, echoing the equality principle referred to in the States’ commitment, CLADEM EL SALVADOR has made use of the mechanisms established to ensure and follow-up on these commitments, elaborating the present Alternative Report, which addresses women’s fundamental rights, such as the economic and social rights.

In the development of each one of the selected aspects, the discriminatory legislation, international covenants, statistics, policies and practices utilized in detriment of the Salvadorian population’s rights are contemplated, indicating the voids that exist and making recommendations with a view to the State implementing actions aimed at complying with the Pact’s stipulations.

The present report has been done by Yolanda Guirola, member of CLADEM El Salvador, with the valuable cooperation of the Salvadorian Women’s Movement (MSM), of Auxiliadora Rivas, member of the Human Rights Commission of El Salvador (CDH El Salvador) and of Luis Francisco López, member of the Salvadorian Coalition for an International Penal Court (CSPI).

El Salvador, August 2006.

II.       EXECUTIVE SUMMARY OF THE MAIN ASPECTS OF CONCERN REGARDING THE APPLICATION OF THE PACT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN EL SALVADOR.

The Alternative Report elaborated by CLADEM El Salvador develops with special interest six aspects contained in the Pact:

1.      Women’s right to employment freely chosen or accepted. Article 6 IPESCR

The reality of the Salvadorian woman regarding access to employment is presented via a journey through the existing labor legislation, the lack of protection on the part of the State in relation to the discrimination that affects women in the exercise of their labor rights and the implementation of public policies, which results escape the State’s control.

Recommendations:

• That positive actions be undertaken that aim at the reform of the Labor Code, related to the discriminatory norms on domestic work, the inclusion of sexual harassment and the shared responsibility in the case of maternity.

• That the Salvadorian State adopt measures geared to the general participation of women in the labor market.

• It is fundamental that the Salvadorian State implement sustained policies to decrease unemployment.

2.       Women’s right to equal and satisfactory salary and work conditions. Article 7 IPESCR

Covenant 100 of the International Labor Organization (ILO), which has been ratified by El Salvador and the legal framework related to the salary are examined, evidencing the salary gaps, the minimum salaries that do not cover the basic family needs, the segregation in the different work areas, the sexual harassment that generates women’s desertion from the work centers.

Recommendations:

• That the Salvadorian State comply with Covenant 100 of the ILO.

• That minimum salaries be large enough to cover the basic family needs.

• That the Salvadorian State adopt measures to eradicate discrimination against women, especially in relation with salary gaps and access to managerial positions.

• It is necessary that measures be adopted to combat sexual harassment in the workplace.

• The Salvadorian State should guarantee equal and non-discriminatory work conditions for women, especially in the services and maquila sectors, as well as in the domestic service and in the informal sector, including the measures aimed at guaranteeing adequate salaries and preventing unjustified dismissals.

3.        Women’s right to Social Security. Article 9 IPESCR.

The Social Security system is analyzed from the point of view of its coverage, since it does not cover large segments of the working class such as the female agricultural workers, the domestic employees and the self-employed workers. The constant violation of rights to medical controls or doctors’ appointments for the maquila workers is brought up for discussion. Likewise, the pension regime and the effects of its application in the female work force, which due to the inequalities of the labor market is subject to precarious pensions, thus evidencing the gender inequalities.

Recommendations

• The Salvadorian State should implement a Social Security policy that prioritizes women’s integral attention.

• The Social Security system must be revised, especially the pensions’ system, where inequalities that go in detriment of women’s rights are evidenced. Many of these women have their pensions as their sole means of survival.

4.     Protection of the family, mother, girls and boys. Article 10 IPESCR

The family protection legislation, the limitations in the acknowledgement of the non-matrimonial unions, the situation of violence against women and the lack of data registration that evidences the reality of the problem, as well as the situation of the Salvadorian children in the labor market.

Recommendations:

• A reform of the Family Code is necessary in order to eliminate the norms that impede the acknowledgement of the non-matrimonial unions.

• The registration system of violence against women must be reviewed in order to establish, with reliable data, the magnitude of these deeds and to earmark resources for the legal and psychological attention, as well as for the shelter homes.

• The Salvadorian State must implement national plans against infantile work exploitation, bringing into harmony the pertinent legislation with Covenant 182 of the ILO.

5.    Women’s right to physical and mental health. Article 12 IPESCR.

Difficulties are evident in the access to the first levels of attention services and specialties, as well as in the access to medicines. The resources are concentrated in the urban area leaving ample rural zones unprotected. Infantile mortality is associated with the family’s socioeconomic level.

Women in the fertile age are the main carriers of the HIV virus, reporting that AIDS is the main cause of death in women aged 20 to 59. The lack of preventive information and access to it, on sexual health and reproductive health, the lack of control and decision-making regarding the sexual relationship, the limited knowledge about family planning methods, and the vulnerability to sexual violence are determining factors in early, unwanted pregnancies and abortions, on which only some data has been reported by the Ministry of Health and which is penalized in all its forms.

Recommendations:

• The data on abortions does not reflect the induced abortion and its causes become invisible, since it is penalized in all its forms, constituting serious hazards for women’s lives, thus the review and modification of the legislation becomes indispensable.

• A universal system of health attention should be implemented, one that protects all women without discrimination.

• Maternal mortality, derived from maternity before and after birth is the fourth cause of death among adolescents under 15 years of age and occupies second place among the 10 primary causes for mortality among women between the ages of 15 and 19. Permanent actions at the national level on sexual education and sexual and reproductive health should be undertaken in order to contribute to prevent early pregnancies.

• AIDS constitutes the main cause of death among women aged 20 to 59, therefore the State must implement permanent actions at the national level, focusing on the protection, sexual education, counseling and timely attention measures.

6.      Women’s right to education. Articles 13 and 14 IPESCR.

The illiteracy percentage of women is greater than that of men. In 2004 it reached 17.7%, whilst men’s was 13.0%. In the urban area the same situation prevails, since women reach 12.1% and men 6.7%; in the rural area women represent 27.1%, higher than men who reached 22.2%. The cost of education, the responsibilities at home, and the need for remunerated employment contribute to women’s absenteeism from school, excluding them from the educational system. The largest percentage of school dropouts is represented by adolescents over 14 years old, who do not go on to finish high school. The discriminatory practices towards pregnant adolescents, who are forced to abandon their studies, violate the right to education consigned in the Pact.

Recommendations:

• The high percentage of girls and boys that are outside the educational system is of special interest, thus the State must implement policies aimed at guaranteeing access to education to this sector of the population.

• The State must earmark resources to stop school dropouts caused by economic reasons. Likewise, it must establish efficient measures to prevent sexual harassment at the educational centers.

• The number of youngsters that are unable to complete their high school studies is significant; therefore it is necessary that the State allocate resources that make it possible that this level of education is accessible to the entire school population.

• The State must set forth the necessary measures to prevent discriminatory practices towards pregnant adolescents that are forced to abandon their studies, introducing programs on human rights and international conventions aimed at the teachers.

III.                  ALTERNATIVE REPORT FROM A GENDER PERSPECTIVE

APPLICATION OF THE INTERNATIONAL PACT ON ECONOMIC, SOCIAL

AND CULTURAL RIGHTS IN EL SALVADOR

Women’s Right to Equality (Art. 3)

Governmental Policy

In El Salvador, a setback is evident in the compliance of the economic, social and cultural rights. In the labor issue, there is a tendency to boost reforms oriented at the flexibility of the labor market, such as the proposal for the Special Law for Reactivation of Employment (LERE), which was made known in 2000, and that seeks to make more flexible the employment market in terms of contracts, trial periods, salaries and working hours, establishing a situation of inequality that would affect the populations of the young, handicapped, and women with family responsibilities. Flexibilization does not offer a real opportunity to establish equal gender relations, making possible only a segregated reinsertion of women to remunerated employment, in little-valued occupations. It has been considered that this law is unconstitutional since it attempts against the rights set forth in the Labor Code and in the Constitution, which in Article 37 establishes that “employment is a social function, it enjoys the State’s protection and shall not be considered an article of commerce”. This law, in Article 1 points out as objective the economic recovery and it also goes against the directives of Article 52 of the Constitution that establishes that the workers’ rights are non-renounceable, since the LERE implies the loss of some rights[1].

Poverty Indexes

According to the Multiple Purpose Home Survey 2004 (EHPM-2004), in the country poverty is divided into extreme or absolute poverty and relative poverty.

In the first one are located those homes that do not manage to cover the “Basic Foods Basket” (CBA), which monthly average value for 2004 was US$ 130.02 for the urban area and US$ 96.28 for the rural area. The second one corresponds to the homes that are not able to cover double the CBA, which is equivalent to US$ 260.04 and US$ 192.56 respectively.

From a total of 1’626,036 homes, 562,607 are in poverty conditions, i.e. 34.6% of the total homes[2]. 12.5% corresponds to extreme poverty and 22.1% to relative poverty.

Poverty levels in Salvadorian homes

Source: Own elaboration with data from EHPM 2004

According to data from the Multiple Purposes Home Survey 2004, out of the total population, women are in greater number in all the poverty levels.

Distribution of poverty by sex

Source: Own elaboration based on EHPM-2004

The women heads of households or with family burden amount to 523,408; on the other hand, the men heads of households are 1’102,628.[3]

Obstacles and Difficulties

1)    Up to March 2004, you could legally demand that women present proof that they were not pregnant. Nothing precluded employers from demanding such proof. By means of a reform of the Labor Code, the intention is to eliminate this discriminatory practice. This reform is given through Legislative Decree N° 275 dated February 11, 2004, published in the Official Newspaper N° 53, Tome 362, dated March 17, 2004, which in its point III states that: “the demand of pregnancy tests as a prior requirement to obtain employment is an obstacle to women’s access to employment and hampers her full development and that of her family group since in many homes she is the sole contributor to the economic sustenance”. Point IV continues: “Based on the above, it is necessary to reform the Labor Code prohibiting employers to demand these.” As a result we have that among the prohibitions to the employers established in Article 30 of the Labor Code there is number 13 which literally says: “Demanding women seeking employment to subject themselves to prior pregnancy tests to prove they are not pregnant, as well as requesting the presentation of medical certificates of said tests as requisites for their contracting.”

2)    In practice the polygraph or “lie detector test” is employed by several companies and Government institutions such as the PNC as an evaluation tool in the staff selection processes. There are commercial companies publicly dedicated to offering its application. Its use in the labor field “is not regulated, nor prohibited nor allowed”. It represents a form of exclusion or preference when the persons are asked about their opinions on political, sexual and syndicate issues[4].

3)    Most private companies demand updated (15 days) solvency certificates from the Civil National Police to verify if the applicants have a Judicial Record. The document costs US$ 2.26 and consists of fingerprinting and photograph[5].

4)    In the employment applications it is necessary to consign the marital status (single, married, divorced or widow)[6].

5)    The labor system is not structured, considering its responsibility in the care of the son or daughter; women only have one working hour for their breastfeeding tasks, since in most of the companies there are no child development facilities. The children remain at home, transforming this right into null, since the average time to go from the workplace and back ranges from 45 minutes to 1 hour and 30 minutes.

6)    The labor legislation allows that the domestic workers be requested (prior contract and at all times at the discretion of the employer) health certificates. Article 79 of the Labor Code establishes: “The employer may demand from the (domestic) worker, before initiating his/her duties, and whenever he considers it convenient, the proof related to his/her good health…” and if he/she had an infectious/contagious disease, he may terminate then and there the work contract without any employer responsibility, as it is established in Art. 83, Numeral 1 of the same legal body.

7)    Women 35 years old and over are excluded from the employment sector because private companies put as a condition to contract the age of the female workers.

8)    The limit of the day’s work (48 hours per week during the day and 39 hours per week during the night)[7] is not respected by private companies because they demand that employees do not have schedule problems, which means: no personal permits, no protesting due to working beyond the legally established working hours and working on holidays.

The labor system is not structured, considering its responsibility in the care of the daughters and sons. Even though the Constitution establishes that “The laws shall regulate the employers’ obligation of installing and maintaining daycare centers for the workers’ children (Art. 42)”, this is not among the employers’ obligations set forth in the Labor Code (Art. 29).

Women’s Right to employment freely chosen or accepted (Art. 6)

El Salvador has ratified the Convention on the Elimination of All Forms of Discrimination against Women by means of Decree 705 of the Revolutionary Government Junta, dated June 2, 1981, published in the Official Newspaper number 105, Tome 271 of June 9, 1981. Likewise, the ILO Covenant N° 111, related to the Discrimination in Matters of Employment and Occupation, approved by Executive agreement N° 259 dated April 12, 1994 and ratified by Legislative Decree N° 78 dated July 14, 1994, published in the Official Newspaper N° 157, Tome 324 of August 26, 1994.

The country has not signed the ILO Covenant N° 45 related to women’s employment in the underground works in all types of mines.

Legal Framework

The Constitution guarantees freedom of employment choice in its Article 9: “Nobody can be obliged to perform work or render personal services without fair retribution and without their full consent, except in the cases of public catastrophe and in the others pointed out by the Law.”

The Constitution guarantees and protects the right to employment in the following articles:

Art. 2: “All persons have the right (…) to employment (…) and to be protected in the conservation and defense of these”.

Art. 37: “Employment is a social function, it enjoys protection by the State and is not considered an article of commerce”.

Art. 38 numeral 1: “Employment shall be regulated by a Code which main objective will be to harmonize the relations between employers and workers, establishing their duties and obligations. It will be based on general principles that tend to the improvement of the workers’ living conditions and shall include specifically the following rights: 1° - In one same company or establishment and in identical circumstances, equal work must have equal pay, notwithstanding the workers’ sex, race, creed or nationality”.

The Labor Code guarantees the equality principle in this manner: Art. 12 – “The State shall watch the respect for the principles of equal opportunities and treatment in the employment or occupation, including access to professional formation”.

Art. 13: “Nobody can impede employment of others except by means of a resolution from a competent authority aimed at protecting the rights of the workers, employers or society, in the cases provided by the Law. No form of forced or obligatory work shall be used, i.e., no type of work or service may be demanded under the threat of any penalty and for which the worker has not offered himself voluntarily”.

Art. 30 numeral 12 of the Labor Code: “Employers are prohibited (…) from setting forth any distinction, exclusion or preference based on reasons of race, color, sex, religion, political opinion, national heritage or social origin, except in the exceptions provided by the Law with a view to protecting the person of the worker”.

Art. 123: “The workers that in a same company or establishment and in identical circumstances perform an equal task shall earn equal remuneration regardless of their sex…”

Public Policies

The II Action Plan (2000-2004) of the Women’s National Policy in the labor area intends to implement actions aimed at eliminating all the forms of discrimination against women in the labor environment.[8] The specific objective is to:

Contribute towards achieving equal opportunities in the participation of women and men in the employment market, by means of the elimination of discrimination, that due to gender motives lead to salary inequalities, of women’s access to the decision-making work positions and increasing women’s preparation in the various branches and occupational groups of economic production.[9]

In spite of the text of the Action Plan, no positive actions have been performed that tend to the reform of the Labor Code, related to the discriminatory norms about domestic work, the inclusion of sexual harassment, the shared responsibility in the case of maternity, persisting factors of gender inequality, mainly associated to access to remunerated employment and to the work conditions.

In the Annual Report presented to the Experts’ Commission in the Application of Covenants and Recommendations of the ILO, the Government of El Salvador proposes that the institutional strategy of the Women’s National Police in the operation of the Women-Work Area, has been assumed by the Ministry of Labor which, through the General Bureau of Labor Inspection “supervises the strict compliance of the directives contained in the Constitution of the Republic, the Labor Code and the other laws that grant labor rights and obligations and that establish the right to women’s access to employment and to the different professions under conditions of equality”. However, said Ministry in its Annual Report on Labor only consigns that the assistance granted to the pregnant workers became more agile, by giving them responses to their requests  in an average term of 24 hours, without specifying the results of said requests.

Labor Stability

In the Salvadorian juridical system there exists a formal protection of the right to work under conditions of equality without discrimination based on sex. The Constitution contemplates the labor stability for the pregnant working woman in Art. 42, where it is established that “she shall have the right to a rest period before and after birth and to conserve her job”.

Statistics

Women constitute 40.3% of the Economically Active Population (PEA) and men 59.7%.

The employment rate reached high levels in 2002 (93.8%), having been reduced for 2004 to 93.2%. The generation of employment falls basically on three categories: agriculture/cattle raising; hunting/jungle farming; trade/hotels/restaurants and manufacturing industry, which represent 65.2% of the country’s employed population in 2004. There is a strong interest in promoting the industrial exporting sector (maquila), which has contributed to the crisis in the farming/agricultural sector, favoring the rural women’s labor insertion. The feminization of employment is reflected in the trade and manufacturing activities, with 63% of the work force, and 34% masculine. [10]

The reduction of the unemployment rate coincides with an increase in the informal employment. For 2004 a trend to increase in the urban area was determined, with a larger presence of women (57%).[11]

Women’s unemployment in the age range of 20 to 24 in 2004 was 35% and that of men was 19.2%, which shows that the young population was being affected.

Regarding sub-employment, in the last two years the population in that situation has increased, subjecting itself to conditions that violate their employment rights, with working hours in excess of 40 per week, with salaries lower than the minimum weekly salary. In this situation women represent 36.3%.

The trend towards sub-employment and submerged employment has accentuated the marginalization characteristics of female employment in such a way that self-employment in the non-structured sector of the economy is a frequent recourse among women.

The known data in relation to domestic employment reflect that 90.29% corresponds to women and 9.71% corresponds to men. [12]

Women’s Right to a salary and equal and satisfactory working conditions (Art. 7)

Legal Framework

Article 3 of the Constitution contemplates the right to equality: “All persons are equal before the law. For the enjoyment of the civil rights, restrictions based on differences of nationality, race, sex or religion (…) may not be established”.

In relation to the minimum salary, the Labor Code contemplates, in Art. 144 that “all workers have the right to earn a minimum salary that sufficiently covers the normal needs of his/her home in the material, moral and cultural aspects, which will be set periodically”.

Ratified Covenants

El Salvador ratified the ILO Covenant 100 “Related to Equality in Remuneration between the Masculine and Feminine Work Force for Equal Value Work” by means of Legislative Decree N° 32, published in the Official Newspaper N° 135, Tome N° 348, and dated July 19, 2000.

This right has a Constitutional rank: Art. 38, numeral 1 refers that “In a same company or establishment and in identical circumstances, to an equal job must correspond equal remuneration for the worker (…)”.

Minimum Salary

In El Salvador, since 1998 the minimum salary has not been increased; it was only as of May 2, 2003 that the new minimum salary was enacted, in a differentiated manner, thus[13] :

Trade and services sector: US$ 158.40

Maquila textiles and confection sector: US$ 151.20

Industrial sector: US$ 154.80

For the agricultural and farming sector there has been no salary increase for more than 10 years, and it still remains at US$ 74.06

Salaries – Gaps

The difference between the men’s and women’s salaries is evident at all the educational levels, persisting in the different areas of the country.

Average salary-country according to sex and years of study: