In Costa Rica, multiple efforts have been made focused on promoting equality and non-discrimination in employment, and since the national emergency declaration that has involved economic and operational effects on companies; It is appropriate to analyze that every organization must be careful not to apply mitigation measures to its workers, which may be considered discriminatory, in order to avoid future contingencies.
This being the case, it should be pointed out that the International Labor Organization in the Convention 111 defines discrimination as “any distinction, exclusion or preference based on reasons of race, color, sex, religion, political opinion, national descent or social origin that has by effect annulling or altering equality of opportunity or treatment in employment and occupation ”, in the article 33 of the Political Constitution provides that “every person is equal before the law and no discrimination contrary to human dignity may be practiced” and Article 404 of the Labor Code provides for 14 grounds or forms of discrimination in employment.
Therefore, it can be seen that in Costa Rica there has been a substantial increase in judicial and administrative claims related to various discriminatory practices, related to gender aspects, irregularities in the selection and recruitment processes, and with respect to the imposition of measures to reduce working hours or the suspension of employment contracts, or even terminations that may be considered discriminatory. That is why, it is essential that companies contemplate within their internal procedures, specific regulations that covers the prevention of any form of discrimination, that allow them to be covered to face possible contingencies or claims related to discrimination issues.
Fernando Farrar – Associate / Andrea Melara – Paralegal
Much is said about how COVID-19 has come to impact the economy worldwide, however, there is no talk about the new window of discrimination that has been opened against certain groups, for example, people who have suffered from the disease or who continue to suffer it, those who have undergone strict quarantines in containment centers or those who have had to quarantine abroad away from their families.
With a public health emergency of this magnitude, an atmosphere of fear is inevitably created by the extent of the damage that the virus can do to our body. This “fear” can be said to be a consequence of the misinformation that may exist about the virus and the measures that must be implemented to prevent its spread, it can also be said to be due to the current mistrust of how the health system handles pandemic. As a result, it is very likely that stigmas will be generated targeting certain groups that are, for example, exposed to people who carry this virus. A clear example of this “stigmatization” occurred in El Salvador when the nurses and doctors who used the public transport service to arrive to their work centers were asked for get out of the buses because de passengers and the motorist consider that these professionals could be carriers of the virus due to the exposure that their work demands.
The most important thing is that we must understand that everyone, regardless of the field in which we work, we are exposed to the virus and that the only way to avoid contagion is to inform ourselves about the means of transmission and how we can avoid it through the application of hygiene protocols. Currently, El Salvador is on the way to initiate the “new normal” (this is phase 5 that begins on August 21, 2020), after a strict domiciliary quarantine in which: only essential services operated, limited circulation unless you were within the group or activities that allowed the population to circulate in a limited way, among other prohibitions. This new opening is structured into 5 phases developed in Executive Decree 31, issued and published in the Official Gazette on June 14, 2020. It is expected that with the development of these 5 phases, a reactivation of the economy will be achieved gradually and thus avoid a regrowth of cases by COVID-19.
It is worth noting that, regardless of the phase we are in, our “new normal” it’s going to be conditioned by generally applicable safety and hygiene measures and the application of hygiene protocols that each company must implement on a mandatory basis. according to the heading to which they are dedicated.
Regarding the security and hygiene measures of general and mandatory application, we highlight the following:
1. Permanent use of mask.
2. Social distancing of at least 2 meters.
3. Hand washing with soap and water constantly
4. Avoid touching your face
5. Do not greet with a kiss or hug.
6. Sneeze label: with disposable tissue and / or your elbow.
Labor discrimination is an issue that has become relevant in recent years due to the fact that, with each passing day, this circumstance is taken with more seriousness and commitment, which affects not only in terms of hiring but it also affects multiple reasons why it can be concluded that there is discrimination, for example, discrimination based on gender, race, religion or nationality. Guatemala has local and international regulations that regulate non-discrimination, it is regulated ,in order of importance, with what is listed in The Universal Declaration of Human Rights and Convention 169 of the International Labor Organization – ILO, as well as the provisions of the Political Constitution of the Republic of Guatemala in its article 4: “Liberty and equality. In Guatemala all human beings are free and equal in dignity and rights. Men and women, whatever their marital status, have equal opportunities and responsibilities. No person may be subjected to servitude or any other condition that undermines their dignity … “
The Labor Code regulates the prohibition against discrimination on the grounds of race, religion, political beliefs and economic situation, including the prohibition of employers to advertise their job offers by any means, specifying such reasons as a requirement to fill the positions, as the adequate protection for women and minors in accordance with their physical state and intellectual and moral development. The Labor Code´s articles that may apply to the case are: 14 BIS, 137 BIS, 147 and 151 literal a). Notwithstanding with this, the issue of discrimination is still very latent due to our previous and current conditions in Guatemala, in which we can identify the level of poverty of our population, low schooling or the simple fact of being a woman. On this last point I would like to focus attention, since Guatemala remains with a highly visible gender inequality, however, an important effort has been made for decades to protect women through the ratification of international conventions and national laws promulgated for our protection.
Guatemala has the very important challenge of ensuring the application of the regulations already approved and in force to avoid any act of discrimination in the population, especially in the workplace and every aspect regarding women. For this, it is extremely important that all Employers are instructed and trained in the current regulations and the obligation and responsibility that all their internal processes have to respect the human rights of any person.
Guillermo Matamoros – Associate
Due to the national health emergency caused by the SARS-VOC-2 pandemic, the Honduran authorities have seen the need to create biosafety protocols for each of the economic sectors in the country and thus proceed with the gradual reactivation of the national economy. Likewise, the Congress created the Law on the Compulsory Use of Masks and Application of Biosafety Protocols. This Law empowers state institutions to impose fines or to totally or partially suspend the operation of any company that does not comply with the aforementioned protocols.
The National Government developed a Gradual Economic Reactivation Plan implementing protection and prevention measures in the workplace, establishing the general guidelines to be followed in all public and private offices and the protocols for follow-up and monitoring of suspected and confirmed cases of SARS-VOC-2 transmission. Likewise, people over 60 years of age or people with chronic or pre-existing diseases who work in private companies are not required to report to work and will not be subject to penalties.
Finally, it is imperative to point out that the Labor Code prohibits labor discrimination for any reason and, due to the pandemic that afflicts us, discrimination on the grounds of suspicion or contagion of COVID 19 is prohibited. Information regarding contagions or suspected coronaviruses should be handled confidentially. In light of the foregoing, the government has published various awareness-raising measures to avoid stigmatization towards people infected with COVID 19.
1. Political Constitution. The Political Constitution establishes rights and fundamental principles aimed at avoiding the different types of discrimination in the country. Within this basic framework, the principle of equality before the law and the right to equal protection are established, being prohibited the discrimination for reasons of birth, nationality, political beliefs, race, sex, language, religion, opinion, origin, economic position or social condition. Likewise, some basic labor rights are also established with special protection against discrimination, such as the right to equal salary for equal work in identical conditions, without discrimination for political, religious, social, sex or any other reasons, ensuring the employers a welfare according to human dignity.
2. International instruments. Nicaragua also recognizes the state´s protection of those rights inherent to the human person, as well as the unrestricted respect, promotion and protection of human rights and the full current effect of the rights established in certain international instruments, such as the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights of the United Nations, and the American Convention on Human Rights of the Organization of American States, in which the right to equal protection against discrimination is recognized. In the labor field, Nicaragua has ratified, amongst others, Convention No. 111 of the International Labour Organization, on the Discrimination in Employment and Occupation, which purpose is to achieve the equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
3. Domestic ordinary law. Laws have been passed to prevent the discrimination in some specific aspects in the society, such as, amongst others: Law for the Equality of Rights and Opportunities, which promotes equality and fairness in the enjoyment of human, civil, political, economic, social, labor and cultural rights between women and men, without discrimination for reasons of gender; and the Law for the Rights of Persons with Disability, which, besides prohibiting all forms of discrimination, establishes that employers should make reasonable adjustments in the workplace and in labor conditions considering the necessities of persons with disability, and labor promotions should take place with equal opportunities, taking into account only the capacity and performance within the company. The Criminal Code punishes with prison and fines the person discriminating in the work for reasons of birth, nationality, political affiliation, race, ethnical origin, sexual option, gender, religion, opinion, economic position, disability, physical condition or any other social condition.
Nicaragua, thus, counts with a solid legal structure, both international and domestic, to prevent and protect against discrimination and, when applicable, to punish it, in the different social sectors, including the labor field.