#CostaRica 🇨🇷 #ArticlesBDS: Major considerations to avoid discrimination at work

Moreover, Article 406 came to establish the prohibition of dismissals on any discriminatory grounds. The penalty imposed in case of noncompliance with said prohibition is the nullity of the dismissal and the subsequent reinstatement of the dismissed worker in his/her former job, with full enjoyment of his/her rights and consequences set forth under the reinstatement decision (Articles 410 and 566 idem).
 
In addition, any workers who allege "discrimination" must specifically indicate the factual basis on which they base their allegation and the terms of comparison that substantiate their assertion, in accordance with the provisions of Article 409 of the LC. This has been confirmed even by the Judges of the Labor Chamber of the Supreme Court of Justice, who under Ruling No. 01809 – 2019 dated September 27, 2019 found that: “…therefore, this Court considers that the plaintiff has met the requirement set forth in Article 409 of the Labor Code currently in force, as in the lawsuit filed the plaintiff specifically stated the facts based on which the plaintiff considers his termination was discriminatory for health reasons...”.
 
This ruling is also relevant as the Labor Chamber considers that the employer failed to provide evidence in support of the existence of objective circumstances precluding any discriminatory intent, given that in this particular case, the employer just claimed throughout the process that the only legal reason for the dismissal was the circumstance included in Article 85(d) of the Labor Code, as evidenced in the letter of dismissal and in the answer to the complaint. The foregoing once again highlights the importance of ensuring that any termination, even those with  responsibility, can be objectively justified in the future, and especially sustain that there is no “discriminatory ground” for the termination of the specific employee.
 
In support of this, it may be also observed that in Ruling 899-17 dated June 30, 2017, the Labor Chamber stated that: “if a worker claims a discriminatory ground as cause for the worker’s termination and also submits evidence allowing to presume that this has been the reason, the employer shall have the burden of proof to challenge said evidence…”.

 

“Non discrimination” topics have also been regulated, expanded and detailed in our country through specific laws. For example, Act 7771 on HIV-AIDS was reformed back in December 13, 2019, including among other things, an amendment of a few Articles of the LC, specifically the addition of section (j) in Article 70, which sets forth that employers must absolutely refrain from “requesting HIV tests for hiring purposes or as a condition to keep the job.”  Also, said Act adds section (m) to Article 81 concerning grounds for termination, stating: “workers incurring in discriminatory acts against another worker with HIV”, and in the same line it contains a restriction for employers in connection with these discriminatory acts by adding section (k) to Article 83 as fair cause for termination of the employment agreement to be invoked by the relevant worker.  Finally, the aforementioned Act expands the prohibition list of discriminatory acts at work contained in Article 404, including the worker’s “health condition.”
 
Based on this, it is extremely important for employers to obtain legal advice and to train their teams - not only those responsible for supervising staff but also any employees working in recruitment and selection areas - concerning the measures that should be adopted to avoid incurring in any actions that may be further described as discriminatory, acting always in an objective manner while also making sure that any strategic decisions on sensitive changes, disciplinary actions and/or terminations should always be supported by objective and defendable reasons in case of any subsequent consultation or claim before an administrative authority.