Recall that the original Article 23.9 of the new NAFTA said this:
Article 23.9 Sex-Based Discrimination in the Workplace
The Parties recognize the goal of eliminating sex-based discrimination in employment and occupation, and support the goal of promoting equality of women in the workplace. Accordingly, each Party shall implement policies that protect workers against employment discrimination on the basis of sex, including with regard to pregnancy, sexual harassment, sexual orientation, gender identity, and caregiving responsibilities, provide job-protected leave for birth or adoption of a child and care of family members, and protect against wage discrimination.
The new version released today adds a crucial footnote:
Article 23.9: Discrimination in the Workplace
The Parties recognize the goal of eliminating discrimination in employment and occupation, and support the goal of promoting equality of women in the workplace. Accordingly, each Party shall implement policies13 that it considers appropriate to protect workers against employment discrimination on the basis of sex (including with regard to sexual harassment), pregnancy, sexual orientation, gender identity, and caregiving responsibilities; provide job-protected leave for birth or adoption of a child and care of family members; and protect against wage discrimination.
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13 The United States’ existing federal agency policies regarding the hiring of federal workers are sufficient to fulfill the obligations set forth in this Article. The Article thus requires no additional action on the part of the United States, including any amendments to Title VII of the Civil Rights Act of 1964, in order for the United States to be in compliance with the obligations set forth in this Article.
If I'm reading this correctly, this footnote is a declaration that the United States is in compliance with the obligation. In a sense, the footnote tries to say that even if the U.S. is not technically in compliance with Article 23.9, it is nonetheless in compliance with Article 23.9. (In addition, while the old version talked about "policies that protect workers," the new version refers to "policies that it considers appropriate to protect workers." As we know, "considers" adds a lot of discretion to a provision.)
What is also strange is that the obligation seems to apply to all situations of discrimination, regardless of who the employer is, while the footnote declares that "existing federal agency policies regarding the hiring of federal workers" are enough to fulfill the obligation. But how is it possible that these policies limited to one category of workers fulfills the whole broad obligation?
I doubt we were likely to see complaints under this provision anyway, but nevertheless this new footnote is puzzling.
