Discrimination claims in Argentina operate under an evidentiary standard that differs sharply from most other systems, and that difference is what makes them expensive for companies that were confident of their position.
The shift in the burden of proof
Law 23.592 prohibits discriminatory acts. Argentine courts have developed the principle that once a claimant produces indicia making discrimination plausible, the burden moves to the employer to prove that the decision had a different and legitimate reason.
In practice this means a dismissal that follows shortly after a pregnancy announcement, a medical leave, a union role or an internal complaint will require the company to demonstrate affirmatively why it was unrelated. Silence is not neutral. A well documented performance history built before the events is usually the only thing that discharges that burden.
Where the claim succeeds, remedies can go beyond severance and include reinstatement and compensation for moral damage, which are not capped in the way ordinary dismissal compensation is.
Protected situations that recur
- Pregnancy, maternity and the protected period after return.
- Illness and medical leave, particularly where the condition is long term.
- Union activity and participation in collective action.
- Retaliation following an internal complaint, which frequently produces a stronger claim than the underlying conduct.
Workplace violence and harassment
Law 26.485 addresses violence against women and expressly covers the workplace. Argentina has also ratified the international convention on violence and harassment in the world of work, which has influenced how courts read employer duties.
The employer duty is not limited to refraining from the conduct. It extends to preventing it, providing a channel to report it and acting once it is known. A company that received a complaint and handled it informally is in a materially worse position than one that never received it at all.
What actually works
A reporting channel that does not route through the person most likely to be the subject of the complaint. A written investigation protocol with defined timeframes. Records showing that decisions were taken on grounds documented before the protected situation arose. And training that leaves evidence it happened.
We review these the way opposing counsel would, and we say which of them would survive a hearing rather than which of them exist.
To discuss a matter, write to estudio@mirandacalderon.com or see the contact page.