Authors: Lydia Blois, Shannel Rajan, Anne-Marie Oatway
On March 23, 2021, a short eight months after the new Canada-United States-Mexico Agreement (“CUSMA”) entered into force, the first complaint concerning gender discrimination was filed. The petitioners, Mexican migrant worker women, and a binational coalition of civil society organizations filed the complaint under Article 23 of the CUSMA against the United States (“U.S.”) government The complaint alleges that the U.S. government failed to enforce its labour laws against sex-based discrimination against migrant women working on temporary labour migration visas, violating its obligations under Articles 23.3(1)(d), 23.5 (1) and (2), 23.7, 23.8, 23.9 and 23.10 of the CUSMA.
Specifically, the complaint involves the U.S.’s H-2 visa programs for temporary seasonal workers, and alleges that certain U.S. firms used biased recruitment and hiring practices that funnelled Mexican women into lower-paying and less desirable work. The complaint further alleges that advertisements for H-2 work reveal open sex-based discrimination in recruitment.
This is the first complaint concerning gender discrimination under Article 23 of CUSMA
This will be an important test of enforcement under this provision of the CUSMA and may very well set a precedent for such claims in the future. Indeed, many gender advocates in international trade regulation have been calling for international trade agreements such as the CUSMA to allow dispute resolution for provisions concerning gender equality.
Article 23 is the comprehensive labour chapter within the CUSMA and is subject to the dispute settlement provisions of the Agreement. This chapter includes new provisions, not previously part of the equivalent chapter under the North American Free Trade Agreement, that:
Canadian firms using migrant labour should take steps to ensure there is no discrimination in their recruitment and hiring practices
The forgoing complaint may confirm the CUSMA as an important tool to enforce compliance in sectors that have not faced much oversight in the past. While any complaint under the CUSMA would be brought against the Government of Canada, the complaint would likely demand that Canada enforces its respective labour lawsgainst any company found to be engaging in gender discrimination. Canadian firms that use migrant labour, for example through programs such as the Temporary Foreign Worker Program, should take steps to ensure that their recruitment and hiring do not contravene the CUSMA. Firms should have policies concerning best practices for recruitment and hiring in order to avoid potential discriminatory practices.
If you have any questions or would like to learn more about compliance with Article 23 of the CUSMA, please contact the authors of this article.
 Amended Petition on Labor Law Matters Arising in The United States Submitted To The Labor Policy And Institutional Relations Unit Through The General Directorate Of Institutional Relations In The Secretariat of Labor and Social Welfare (STPS) United States–Mexico–Canada Agreement Regarding the Failure of The U.S. Government To Effectively Enforce Its Domestic Labor Laws And Promote The Elimination Of Employment Discrimination In The H-2 Program In Violation Of Chapter 23 Of The United States–Mexico–Canada Agreement (USMCA), March 23, 2021, online: https://cdmigrante.org/wp-content/uploads/2021/03/USMCA-Amended-Peition-and-Appendices_March-23-2021_reduced.pdf
 Government of Canada, Labour chapter summary, online: https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cusma-aceum/labour-travail.aspx?lang=eng