The right to non-discrimination in employment and occupation is based on constitutional, national and international laws.
In Costa Rica, Article 33 of the Political Constitution states that: “All persons are equal before the law and no discrimination contrary to human dignity may be practiced”, but also incorporated into domestic law are the existing regulations in Law No. 2694 on the prohibition of labor discrimination, of November 22, 1960, Convention 111 of the International Labor Organization (hereinafter ILO) concerning Discrimination in Respect of Employment and Occupation, approved by Law No. 2848 of October 26, 1961, Law 16 of 1972, which contains the American Convention on Human Rights, known as the American Convention on Human Rights, approved by Law No. 2848 of October 26, 1961, and Law 16 of 1972, which contains the American Convention on Human Rights. 2848 of October 26, 1961, Law 16 of 1972, which contains the American Convention on Human Rights, known as the Pact of San José de Costa Rica, signed in San José, on November 22, 1969, the Convention for the Elimination of all Forms of Discrimination against Women (CEDAW), approved in Costa Rica, through Law No. 6968 of October 2, 1984; without forgetting the reference to the ILO Declaration on Fundamental Principles and Rights at Work (1998).
At the same time, the pronouncements of both the Constitutional Chamber and the Second Chamber of the Supreme Court of Justice have highlighted the importance of respecting this right in a cross-cutting manner in labor relations. The Constitutional Chamber has expressed:
“The principle of equality is consubstantial to the human being. Today, equality before the law is a right immanent to the person, proper to every civilized society and a bastion of every legal order. There is no freedom, no democracy, no justice, if there is no equality before the law. It is a universal axiom, which no one debates any longer. Its disregard - under any circumstances - violates the principles of freedom and equity, of law and public interest”. (Constitutional Chamber, vote number 3369, of 10:27 a.m. July 5, 1996. In the same sense, see sentence 2544, of 1:50 p.m. on June 1, 1994). The principle of equality seeks that all persons should be treated equally by the State as to what is essentially the same in them; on the other hand, they may be treated unequally in everything in which they are substantially different. Thus, by means of this principle, equal treatment is intended for persons who are in the same legal situation or in similar conditions"[1].
The progress in the protection of fundamental rights that Costa Rica has made with the approval of the Labor Procedural Reform (hereinafter RPL) has been notorious, achieving, among other things, a real guarantee for them in the workplace, especially with the creation of judicial procedures and rules of protection against discriminatory acts in order to protect the worker from such acts.
It is important to note that the RPL, among all the issues it approves at the level of individual and procedural rights, establishes two essential axes: the first, the creation of a protection procedure for workers with special privileges, and the second, the prohibition of discrimination in the workplace against any worker (in general). In this way, the legislator wanted to provide, in an express and transversal manner in labor relations, effective judicial mechanisms.
In accordance with the above, the RPL introduces the criteria for discrimination, extending them to what was already enshrined in the laws previously passed since 1961. According to Article 404 of the Labor Code, "All discrimination in the workplace is prohibited on the grounds of age, ethnicity, gender, religion, race, sexual orientation, marital status, political opinion, national ancestry, social origin, affiliation, health condition, disability, union membership, filing complaints, or providing testimony regarding acts of corruption…".
Then, in protection of this right, the RPL introduces a novel procedure by its very nature and structure. Article 540 of the Labor Code states at the end of this article: “...Cases of discrimination for any reason, against workers, which take place at work or on the occasion of work, may also be challenged in the summary proceeding provided for in this section”. In the case of dismissal, “and, if the judgment is favorable to the plaintiff, the corresponding nullity will be decreed and the plaintiff will be restored to the situation prior to the act that gave rise to the action, and the employer will be ordered to pay the damages caused. If the effects of the act had not been suspended, the respective reinstatement will be ordered, with the payment of the fallen wages...”.
Consequently, throughout these years we have witnessed that these norms have contributed to social peace and to strengthen the rights of workers in a positive and comprehensive manner. It can be affirmed that companies have begun to become aware (today more than yesterday) of the importance of not discriminating from the recruitment and selection stage, during the development or execution of the contract and at the time of dismissal. Whoever suffers discrimination has the right to be guaranteed prompt reparation for the damage caused. Costa Rican justice has been transformed and evolving little by little with judicial mechanisms of redress and remedy inserted in the RPL but there is still much to be done especially in response times, since the right to a prompt and fulfilled justice in some cases is not fulfilled as it should be and this cause alone harms an entire society. In the case of summary proceedings that require urgent processing, although “with the RPL, the claimant has the support of the legal aid service, the deadlines for procedural actions have been shortened, the hearings are oral and the instances have been reduced, to date the system of administration of justice has not managed to reduce the final response time to the conflict” [2]. Today, Labor Law is achieving its social objectives in which fundamental rights are being inserted, with a different view that influences labor relations themselves, in the face of paradigms that in other times were impossible to demolish, such as the distance that existed between fundamental rights and social rights.
This is even more necessary if it is noted that with the creation of this so-called summary procedure, the possibility of amparo recourse was closed, since “the admissibility of amparo recourse between individuals was always conditioned to the non-existence of common jurisdictional remedies that were clearly sufficient or expeditious to guarantee fundamental rights or freedoms. In the proposed design, this was fulfilled with the summary procedure and this was the understanding of the Constitutional Chamber, when it noted that the claims for violation of special jurisdictions with the enactment of the RPL “have an expeditious and speedy procedural channel, through a summary process and a plenary and universal jurisdiction for its proper knowledge and resolution” so that the claims normally deduced through the amparo appeal “are proper to be known through the new procedural mechanisms provided by the aforementioned Labor Procedural Reform” [3].
Finally, respect for the principle of non-discrimination is key in the context of the UN Guiding Principles approved in 2011 [4], according to which, companies must have policies and procedures appropriate to their size and circumstances, namely: (a) A political commitment to uphold their responsibility to respect human rights; (b) A human rights due diligence process to identify, prevent, mitigate and account for how they address their human rights impact; (c) Processes to enable remediation of any adverse human rights impacts they have caused or contributed to. With regard to due diligence, unfortunately no significant progress has been made due to the degree of voluntariness that currently exists; these are soft law standards that do not require assessment, prevention, mitigation, monitoring, communication and correction of potential or actual negative impacts on human rights, the environment and value chains. Hence, the importance of the adoption of an international standard that makes due diligence enforceable and that can be appealed to judicial instances in case of non-compliance.
References:
[1] Second Chamber of the Supreme Court of Justice, Revista No. IV, Costa Rica, p.121. Retrieved from: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://salasegunda.poderjudicial.go.cr/revista/Revista_N8/contenido/PDFs/4-14.pdf
[2] Godínez, A., “La libertad sindical: fuero y no discriminación” in Curso de Derecho Laboral, Tomo II, Bolaños Céspedes (Coord.), Tomo II, Editorial Jurídica Continental, Costa Rica (San José), 2021, pp. 247.
[3] Godínez, A., “La libertad sindical: fuero y no discriminación” in Curso de Derecho Laboral, Volume II, Bolaños Céspedes (Coord.), Volume II, Editorial Jurídica Continental, Costa Rica (San José), 2021, pp. 242 and 243.
[4] United Nations, General Assembly. United Nations, General Assembly, Human Rights Council, 17th session, A/HRC/17/31. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie. Guiding Principles on Business and Human Rights: operationalizing the United Nations “protect, respect and remedy” framework, New York, 2011.
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