#CostaRica 🇨🇷 #BDS_Article: How to Apply Disciplinary Power in My Company Without Failing
In the employment relationship, there are three key powers employers exercise: the management,...
One of the major challenges in labor relations today is how to establish basic rules of coexistence and interaction—whether among peers, between superiors and reports, or among management staff and their teams—in order to prevent such interactions from affecting both interpersonal relationships and the work environment, but primarily to avoid workplace harassment complaints.
Although Costa Rica does not yet have a law regulating workplace harassment, it has been developed as a legal concept by administrative authorities (the Ministry of Labor) and through judicial precedents. It is an issue that must be properly regulated but, above all, addressed when complaints or claims arise.
To this end, it is important to first define what workplace harassment entails and its characteristics, especially given the number of complaints from individuals claiming to be victims of workplace harassment when, in reality, the conduct described does not meet the criteria for such classification.
In the absence of a statutory definition, we turn to the Second Chamber of the Supreme Court of Justice, which has stated as follows:
“In the context of labor relations, harassment consists of an intentional conduct—whether by action or omission—executed systematically and repeatedly over an extended period, with the purpose of undermining the victim’s self-esteem and dignity. This conduct results in the victim experiencing confusion, self-doubt, stress, fear, isolation, shame, humiliation, and even delusions. It may also lead to breathlessness, palpitations, depression, headaches, insomnia, anxiety, nervousness, fatigue, panic attacks, insecurity, distrust, apathy, memory loss, hypervigilance, lack of initiative, irritability, stomachache and abdominal pain, crying spells, loss of appetite, and musculoskeletal pain (cervical, dorsal, and lumbar), among other negative consequences...”
From this definition provided by the highest judicial authority in labor matters, a series of characteristics can be identified that must be present for a person to be considered a victim of workplace harassment: intentionality, repetition, duration, usually a power imbalance (which does not necessarily imply hierarchical levels between those involved), and the ultimate goal of forcing the individual to leave their job.
This definition and these characteristics lead to the conclusion that, regardless of whether a person dislikes a certain action, not every action can qualify as workplace harassment. On the contrary, workplace harassment complaints are often dismissed after confirming that the facts claimed in support of the complaint do not actually constitute harassment, or even that they do not amount to any misconduct or violation of labor obligations.
For this reason, it is important to recognize that when a supervisor issues a directive, repeatedly calls an employee’s attention in connection with a behavior against their duties, or imposes disciplinary measures for infringements, this does not constitute workplace harassment—especially when such actions are duly justified. There are cases where a workplace harassment complaint is filed because an individual was disciplined, but when the necessary investigation is conducted to determine whether harassment occurred, it is ultimately concluded that the disciplinary measure was imposed because the individual committed an infringement and that, therefore, no harassment took place.
In other instances, an employee who was disciplined claims workplace harassment by alleging that others engaged in the same conduct but were not disciplined, forgetting that the employer has a duty of confidentiality regarding disciplinary matters. As such, the employer cannot disclose details about who has been disciplined or why.
There are many examples of complaints based on behaviors that, in accordance with the definition and characteristics outlined above, do not constitute workplace harassment. Nonetheless, an investigation must still be conducted, particularly given the increasing number of employees turning to the Ministry of Labor to report workplace harassment. In such cases, the Ministry requires the employer to conduct an internal investigation, a process subject to government oversight.
For these reasons, it is essential for companies to implement training programs to prevent behaviors that may constitute workplace harassment or that, even if they do not meet the criteria for harassment, could still negatively impact the work environment and interactions among colleagues. Training programs should also be developed for management staff and supervisors so that they understand what behaviors are permissible and which are not, how to communicate with their reports, and that certain behaviors should not originate from someone in a hierarchical position who is expected to set an example.
Finally, it is crucial to establish policies and procedures to ensure proper handling and resolution of complaints, allowing for an appropriate assessment of the facts—until a law is enacted to regulate the issue—to determine whether an investigation for workplace harassment should be initiated or whether the matter should be addressed through other means. This also ensures that both the complainant and the defendant are afforded due process, which is essential in such cases.
Óscar Corrales
Partner at BDS Asesores
