New prohibitions of discrimination in the workplace
The Labor Procedural Reform that came into force recently, introduced important changes to the Labor Code, among them, the prohibition to discriminate against workers in any of the stages of the employee-employer relationship (pre-contractual, contractual or post-contractual).
Previously, only four discrimination causes were considered: for reasons of age, ethnicity, gender or religion; causes that had been expanded by different guidelines of the Ministry of Labor; however, the Labor Procedural Reform, in addition to these prohibitions, includes the prohibition to discriminate based on race, sexual orientation, marital status, political opinion, national extraction, social origin, filiation, disability, union affiliation and economic situation of the worker, or for similar conditions that may be considered grounds for discrimination; this means that any other cause that the applicant or worker considers a discriminatory act and that is not established in the previous list, the worker can submit the complaint to the Labor Authorities (Ministry of Labor), or before the Labor Courts, a possibility already established by our legislation.
The new regulation responds to the changes experienced by society, which is increasingly diverse and plural. These are criteria that, in some cases, have already been considered by the Courts as situations in which a person should not be discriminated against for an employment opportunity, for an improvement of their working conditions, let alone be considered as causes for the termination of the employment relationship.
Considerations for hiring personnel
The considerations made by the employer should focus on the formal criteria of the position that is intended to hire, or which is already occupied by the person who was hired.
The workers who consider themselves injured should detail the facts for what they consider that they were discriminated, in addition to presenting the comparison criteria that must accompany their claim.
If it is proven that the person was discriminated for any reason, the judge is entitled to order reinstatement in their work, in addition to receive the established compensation. Likewise, the new regulations indicate that, in the case of public employment, any administrative act such as dismissal, suspension, transfer, exchange, or promotion that takes place and involves an act of discrimination may be voidable if the interested party so requests.
As a summary, we can highlight three important aspects that come with the new law, in terms of discrimination in labor matters:
1.The burden of proof of an employer discriminatory act by the worker. The worker’s allegation of discrimination does not imply a presumption of truth, since Article 409 says that “whoever alleges discrimination must specifically indicate the factual support on which he bases his argument and the terms of comparison that substantiate his claim.” If the worker complies with this procedural obligation, then the burden of proof is shifted to the employer, as provided in article 478 paragraph 10): “In any case, the employer will have to prove his statement, when there is no agreement on: … 10) The justification of the objectivity, rationality and proportion of the measures or behaviors identified as discriminatory in all claims related to discrimination.”
2.The limitation period for alleging an employer discriminatory act. There are three terms that could apply: a six-month term, in accordance to article 416, counted from the moment when the employer gave reason for the separation without having terminated the employment relationship; the same semiannual term, since the discriminatory dismissal was given, to challenge said termination and seek reinstatement, according to also article 416; or, the one year term from the termination of the employment contract, in accordance with article 413 of the Labor Code.
3.The establishment of grounds for dismissal for serious misconduct in article 410, in accordance to article 81, subsection l), for “all workers who, in exercise of their daily labors related to recruitment, selection, appointment, movement of personnel or any other another form, incur in discrimination.”, so that the people who oversee the recruitment and selection process, and in general the administration of labor relations in a workplace, can commit a serious fault that justifies the termination without liability of their contract, if they in any way incur in any form of discrimination in their work.
A special mention must be made to the procedural mechanism against discrimination that included the Labor Procedural Reform. From article 540 of the Labor Code, a process of guardianship was established, which, at first, is given in cases of violation of special privileges, but the same article allows to be used in cases of labor discrimination, so in urgency or simplicity of the case, or the seriousness of the act, the law indicates a very short procedure.
Based on the foregoing, it is clear that the reform is sensitive, so the organizations and individuals, who hire personnel, should review their recruitment processes, as well as the disciplinary procedures used in the work centers to avoid presenting situations that may be considered discriminatory acts.
NOTE: This article, which is based on regulations in Costa Rica, is issued for informational purposes, not for advice. It is distributed to help you know your rights and obligations according to the law, and is published by: ERP Lawyers & Associates.