First, it is important to note that the Constitution establishes in Article 33 a general prohibition against discrimination in any area, stating that “(e)very person is equal before the law, and no discrimination contrary to human dignity shall be practiced”.
Similarly, according to Article 409 of the Labor Code, anyone alleging discrimination must demonstrate the type of discrimination they suffered, the reasons for it, and also provide the necessary points of comparison that must be analyzed to establish the existence of such discrimination. The law explicitly states the following:
“Article 409.- Any of the types of discrimination contemplated in this title may be invoked by the authorities or the interested party before the labor courts, in the manner provided by this Code. In these cases, the person alleging discrimination must specifically indicate the factual basis for their claim and the terms of comparison that substantiate their assertion”.
Furthermore, Article 404 of the Labor Code develops this prohibition against discrimination, specifically applying it to labor relations, as follows:
“Discrimination in the workplace is prohibited based on age, ethnicity, gender, religion, race, sexual orientation, marital status, political opinion, national ancestry, social origin, health condition, disability, union membership, filing complaints or testifying about acts of corruption in accordance with the provisions of Article 3, subsection 1) of the Law for the Promotion of Complaints and Protection of Whistleblowers and Witnesses of Acts of Corruption Against Labor Retaliation, economic situation, or any other analogous form of discrimination”.
Upon analyzing the aforementioned provisions, it becomes clear that the grounds for discrimination are not exhaustively defined. Although a list of situations that could be considered discriminatory is provided, the possibility of recognizing discriminatory acts in analogous cases is left open, which will be assessed on a case-by-case basis.
However, despite what has been stated, workplace harassment is not included among the behaviors that can be classified as discriminatory. Workplace harassment refers to a different scenario than discrimination, with its own nature and characteristics.
The Second Chamber of the Supreme Court of Justice has defined "workplace harassment" as follows:
“Moral harassment at work has been defined by Leymann as a 'situation in which a person or group of people exerts extreme psychological violence, systematically and recurrently (on average once a week) over a prolonged period (on average, for about six months) on another person or group of people, with whom they have an asymmetric power relationship, in the workplace, with the purpose of destroying the victim's communication networks, damaging their reputation, disrupting their work, and ultimately causing them to leave the workplace.' (María Dolores Rubio de Medina. 'Termination of the Employment Contract due to Moral Harassment - Mobbing'. Barcelona, Editorial Bosch, S.A., 2002, pp. 10-11). Harassment can be vertical, horizontal, or mixed. It is vertical when the harassing behavior comes from a superior (this is known as 'bossing'). It is horizontal when the harassment comes from colleagues, and mixed when it is a combination of harassment from both management – either by action or omission – and colleagues. According to doctrine, this last form is the most common (ibid., pp. 12-13).” (Judgment number 1381-2016 of the Second Chamber of the Supreme Court of Justice at 09:00 hrs on December 14, 2016.)
It further adds:
“In the same work, French psychiatrist Marie-France Irigoyen defines moral harassment as 'any conduct (gesture, word, behavior, attitude...) that, through its repetition or systematization, undermines the dignity or physical or mental integrity of a person, endangering their employment or degrading the work environment.' (Op.cit., pages 316 and 317). From this, three important elements can be extracted to conclude that a behavior is abusive: a) it involves some form of attitude, regardless of whether it is gestures, words, or behaviors; b) it is a repeated, systematic act; c) it is an attack against an employee that degrades their work environment or endangers their employment, and threatens their physical or psychological integrity.” (Judgment number 2151-2023 of the Second Chamber of the Supreme Court of Justice at 16:50 hrs on August 9, 2023.)
According to these definitions, workplace harassment consists of systematic behavior over time, exerted on an employee by an employer, superior, or colleague from a position of superiority, attacking their dignity, health, and/or physical or mental integrity, with the purpose of undermining the employee's morale to the point where they resign from their job.
The jurisprudence of the Second Chamber has differentiated the concept of "Workplace Harassment" from that of "Discrimination." This is evident in the following ruling:
"Whether or not acts that could be considered discriminatory occurred during the course of her service could only be addressed if the real cause for dismissal, as defended by the employer, is not demonstrated, i.e. the cause-effect relationship, and an analysis could be made of whether the dismissal had an ulterior motive, as argued by the plaintiff because she was a woman, an evangelical Christian, or because she was ill. In this situation, the employer, protected by paragraph 10 of section 478 of the Labour Code, must demonstrate that the dismissal was objective, rational and proportionate, an obligation that this Chamber considers that the respondent did comply with and had nothing to do with all the actions that the plaintiff claimed to have been the victim of throughout the employment relationship, many of which, if they existed, did not constitute discriminatory acts, but rather harassment at work, which is the subject of an ordinary labour proceeding, not a special jurisdiction such as the present one. When answering the claim, the employer referred to all the facts of the action, and recounted a series of acts carried out by the claimant that made the continuation of the employment relationship impossible, that is, that, although the dismissal was the responsibility of the employer, it was due to the existence of an objective cause’. ( Vote number 1729-2019 of the Second Chamber of the Supreme Court of Justice of 09:05 hrs of September 18, 2019).
Thus, it is clear that workplace harassment is not included among the behaviors that can be classified as discriminatory (Article 404 of the Labor Code).
This distinction has implications and consequences in the judicial field.
Although in both cases (workplace harassment and discrimination), the burden of proof falls on the person making the allegation, according to Article 477 of the Labor Code, and a causal link must necessarily be proven; workplace harassment presents greater difficulty in proving.
Unlike discrimination, which can be evidenced by a single act, workplace harassment requires proving a series of systematic and prolonged situations, which are repetitive and constant. A single or isolated event cannot be considered workplace harassment, whereas a single action may constitute discrimination, as previously mentioned.
Additionally, harassment requires the existence of an "intent" to harm and undermine the morale of the victim, with the goal of making them resign from their job. Without this "intent," a behavior would not be considered workplace harassment.
Another significant difference is that the legislator has provided through Article 540 of the Labor Code a summary procedure called the Special Protection Jurisdiction, which protects the possibility of challenging cases of discrimination for any reason against the employee that occur in the workplace or related to it.
This procedure focuses exclusively on determining whether there is a discriminatory act against the worker. According to the spirit of Article 545 of the Labor Code, the judicial body has limited jurisdiction to verify whether an act, by its nature or motivation, can be classified as discriminatory.
In this context, it is important to note that workplace harassment complaints are not appropriate for analysis under this type of process.
Finally, it should be clarified that workplace harassment could only be analyzed in this summary process if it arises directly from a discriminatory act; that is, if it is a consequence of the discriminatory act.
"This special process was also designed so that employees could challenge cases of discrimination, for any reason, occurring in the workplace or related to it. The jurisdiction of the judicial body is limited to determining the violation of the jurisdiction, procedures, formalities, or authorizations or the existence of a discriminatory act. Any other issue that may be debated in this special process exceeds the jurisdiction of the judicial body and the purpose for which it was created... For this reason, variations in working conditions and alleged harassment can only be analyzed as manifestations of the discrimination alleged by the plaintiff, i.e., they had their origin in the employee's health problem." (Judgment number 1701-2018 of the Second Chamber of the Supreme Court of Justice at 10:40 hrs on October 17, 2018).
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