#CostaRica 🇨🇷 #ArticleBDS: Implications of the entry into force of equal marriage in employment relationships

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In 2016, the International Labor Organization presented the results from the OIT ORGULLO (PRIDE) study concerning the work situation of LGTBI population in Costa Rica, evidencing the discrimination suffered by said sector of the population, where 28% of national interviewees reported having faced any kind of discrimination or aggression based on their sexual orientation or gender identity at work.
ILO’s studies determine that LGTBI population experience increased difficulties to being hired and, when they are, they can be terminated without cause; in addition, they do not have the same training and job promotion chances, while also earn lower salaries than those paid to heterosexual workers in equal conditions.

Although for many years Costa Rica has enacted regulations prohibiting discrimination, as from the entry into force of the Labor Procedure Reform back in July 2017 said prohibition was actually reinforced as set forth in Title Eight of the Labor Code.

More importantly, this reform specifically prohibits discrimination on grounds of sexual orientation. According to the new regulations, all labor opportunities should take place in equal conditions, provided they meet all formal requirements as needed.

These regulations even go beyond this, and included a new severe infringement consisting in discriminating during a process involving recruitment, selection, designation, staff movements or any other activities leading to said form of discrimination. This means that the LGTBI population should be treated equally at the workplace.

Following this same equality and inclusiveness way of thinking, Ruling No. 2018-13783 issued by the Constitutional Chamber of the Supreme Court of Justice on August 08, 2018, declared Article 242 of the Family Code and Article 4(m) of the Young People Act unconstitutional, and requested the Legislative Assembly to regulate the scope and effects from same-sex unions.

Consistent with consultation opinion No. OC/24/17 from the Inter-American Court of Human Rights, the Constitutional Chamber has granted the Executive Branch an 18-month period to approve equal marriage with the same rights as heterosexual unions. This term becomes effective as from the integral publication of the ruling in the Judicial Bulletin on November 14, 2018, thereby expiring on May 26, 2020.

As the Legislative Assembly has not been able to legalize equal marriage in accordance with the ruling of the Constitutional Chamber, same-sex marriage will become automatically valid next May 26 in equal conditions to heterosexual marriage. This means that it will enjoy the same benefits and obligations, which of course would have immediate implications when it comes to employment relationships.

The foregoing results in determining that equal marriage legalization involves major challenges for employers, which must adjust their internal regulations to this new landscape where equality will not be optional in terms of internal benefits and regulations, but will be mandatory and also validated by the Costa Rican legal framework, thereby creating an immediate inclusiveness environment across all sectors and subsequently affecting employment relationships.

Equal marriage will imply necessary changes in employment relationships, given that new couples will be granted access to adoption leaves, residence permits, pension, Social security benefits, and termination benefits in case of death of the concerned spouse, but will also be entitled to enjoy any internal benefits commonly granted by the company in equal conditions.

Did you know that employer organizations must adjust their internal policies to ensure that no discriminatory regulations are in place? E.g. Ensuring equal access to paternity leaves, marriage leaves with pay, access to health or any other insurance policies, and any other benefits granted by the company.

This means that before the legalization of equal marriage there must be a comprehensive review of internal labor regulations and policies of the company to adjust internal regulations governing employment relationships and their benefits, for purposes of avoiding contents that may qualify as discriminatory and that may be used as basis for future judicial claims.

Collaboration by our lawyer: Juan Diego Zeledón Agüero / jzeledon@bdsasesores.com

You will find this and other articles on our blog for La Nación newspaper: Café Laboral

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