Introduction
Neither the Central American region nor the Dominican Republic has a well-developed legal framework against employment discrimination. In this region, the anti-discrimination regulations are scarce and dispersed among several pieces of legislation. The lack of clarity and definition in the regulations presents a challenge for multinational companies seeking to implement global anti-discrimination policies and protect themselves from potential complaints.
Following are ten tips that multinational employers can follow to reduce the risks of non-compliance with respect to the anti-discrimination regulations in the region:
1. The law in these countries favors the employee's interests.
Each of these countries has its own labor code and each labor code follows a similar pattern: Regulating the employment conditions from the beginning of the employment relationship to its end. The length and content of the codes vary from country to country, although they share common principles.
Generally, if there is any obscurity or vagueness in anti-discrimination legislation, it must be construed in favor of the employee. It is important to keep this in mind at all times, because many discrimination laws are susceptible to different interpretations.
2. The Constitutional Right to Equality.
Central American countries and the Dominican Republic follow a civil law system, which means that the laws enacted by the legislative body and decrees issued by the government are codified and form the primary source of law. Unlike in the common law system, case law generally is a secondary source for interpretation, with some exceptions. Because this region follows the civil law system, the Political Constitutions of these countries are the primary basis of their entire legal systems and all of their laws and regulations must be an extension of the principles embodied in their respective Constitutions.
Generally, all of these Constitutions proclaim the right to equality, and forbid discrimination against any individual, including employees. From this foundation, all forms of discrimination are considered forbidden, even if the actual laws or regulations do not specifically identify the practices that are deemed to be discriminatory or the category of individuals who are protected from such discrimination.
3. Recruitment procedures are particularly un-regulated.
Labor and employment regulations in Central America and the Dominican Republic do not usually regulate an employer's candidate recruitment and selection process. Therefore, recommendations are usually oriented towards making sure that candidates are selected (or rejected) based on objective reasons and the company's needs, as opposed to subjective considerations such as the candidate's individual or personal characteristics, such as gender, political affinity, religious beliefs, or sexual orientation, to name a few.
4. Interview questions: What can I ask?
Employers should avoid certain subjects when interviewing potential candidates, to prevent creating any conditions during the recruitment process that might give the candidate reason to believe that he or she was not hired due to a discriminatory reason. The following section will discuss further the characteristics and conditions that are deemed to be protected from discrimination and, therefore, should not form the basis for questions during the recruitment process.
5. Protected categories.
Not all countries extend protection against discrimination on the basis of the same personal characteristics. For example, while El Salvador's Labor Code expressly forbids discrimination only as to union membership, the Costa Rican Labor Code makes age, gender, race, and religion categories expressly protected from discrimination. The Guatemalan Labor Code protects employees against discrimination based on gender, race, religion, political affinity and economic situation. In contrast, the Political Constitution in Nicaragua protects all individuals from discrimination based on birth condition, nationality, political belief, race, gender, and economic and social conditions.
Notwithstanding the above, employers should not assume that since a particular condition is not expressly protected by statute, there is no liability for refusing to hire an applicant based on that status. Sexual orientation and HIV are two notable examples of categories not expressly regulated in most countries, although courts generally frown upon discrimination based on these categories.
6. Union membership (or lack thereof) as a means of discrimination.
Unionization is a much-regulated subject in Central American countries. In the Dominican Republic, it is forbidden to dismiss specific categories of employees affiliated with a union, including, but not limited to unionized employees, those attempting to form a union, members of the Union's Board of Directors, and union members engaged in the negotiation of a collective bargaining agreement. Similar regulations exist in Costa Rica, with minor differences. Likewise, in El Salvador it is forbidden to request a candidate to leave or join a specific union as a requirement for employment.
All of these prohibitions are intended to guarantee employees their right to form, join and leave unions freely, without intervention from the employer.
7. Female employees enjoy special protection during and after pregnancy.
Decades ago, in many countries in this region, female employees were dismissed (or not hired at all) if they were expecting a child. Currently, most countries in the region consider this a discriminatory practice and forbid dismissing an employee due to pregnancy. This protective immunity usually covers several weeks or even months after childbirth, in order to grant female employees stability during the breastfeeding period. The amount of time of this protection varies from country to country.
Therefore, before terminating the employment of an employee who is pregnant or has recently given birth, it is advisable to seek counsel to verify if a protective immunity applies, even if there are reasons for the dismissal that are unrelated to the pregnancy. Failure to do so could lead to claims of a discriminatory dismissal and liabilities, including the possibility of a court order to reinstate the employee to her original position.
8. HIV.
There have been concerted efforts made in order to prevent employment discrimination against HIV-positive individuals due to their condition. In Costa Rica, there is a specific law that forbids potential employers from asking candidates whether or not they have tested HIV-positive. As discussed above, even if the law does not forbid a specific type of discrimination, it is best to avoid subjects, such as HIV status, during the recruitment process or during the employment per se.
9. Discrimination against non-citizens.
It is important to keep in mind that in some instances the laws in this region allow for a certain type of discrimination in employment, as it is, for example, in the context of hiring national citizens over foreign nationals. Some countries in the region demand that when candidates' qualifications are equal, an employer must favor a national candidate over a foreign national. This is one of the only types of discrimination allowed by law, which is meant to protect a country's citizens' right to work over the rights of non-citizens. However, this principle generally applies only when offering employment and not during the employment. Therefore, companies should be careful not to offer different conditions or terms of employment to employees based only on the employees' nationality.
10. Other discriminatory practices.
Finally, it is important to note that discrimination in employment can occur in any number of scenarios and does not always involve age, gender, race, ethnicity, or other personal characteristics. Discrimination can occur whenever two or more employees enjoy different benefits when they, in principle, perform the same type of work or are subject to the same type of employment conditions. This type of discrimination, for example, may occur when employees working in identical job positions receive different salaries. In addition, personal issues between employees and employers (or employer representatives) are common causes of conflict, since some representatives can favor some employees over others. This can lead to claims for mobbing (also known as "bullying") or discriminatory dismissals, which may give rise to lawsuits and attendant liabilities.
Based on all of the above, it is increasingly important to make sure that recruitment processes are as objective as possible. Additionally, employers should ensure that employees receive equal compensation for equal work, unless objective reasons exist that justify not following this principle.
