CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Costa Rica (RATIFICATION: 1962)

Other comments on C111

Observation

Direct Request

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Article 1(1)(a) of the Convention. Legislation. The Committee requested the Government to provide information on the inclusion of colour in the list of grounds of discrimination prohibited by the Labour Code. In this regard, the Committee notes the Government’s indication in its report that section 1 of Act No. 2694 of 22 November 1960 prohibiting discrimination at work expressly prohibits “any kind of discrimination, defined as distinctions, exclusions or preferences, on the grounds of race, colour, sex, age, religion, civil status, political opinion, national extraction, social origin, filiation or economic situation, that limits equality of opportunity or treatment in employment or occupation”. The Committee also notes that the Government reports the adoption of Legislative Decree No. 9343/2015 reforming labour procedures and amending the Labour Code, section 404 of which expands the grounds of discrimination to include, from 25 July 2017, “the grounds of age, ethnicity, gender, religion, sex, race, sexual orientation, civil status, political opinion, national extraction, social origin, filiation, disability, trade union membership, economic situation or any other similar form of discrimination …”. Furthermore, the Committee notes with interest that, in April 2019, Costa Rica ratified the Inter-American Convention against all Forms of Discrimination and Intolerance, which contains a broad definition of discrimination that encompasses grounds of any nature.

Sexual harassment. In its previous comments, the Committee requested the Government to report the number of complaints of sexual harassment lodged with the labour inspectorate and the judiciary, the actions taken, the penalties imposed and remedies awarded. The Committee notes the Government’s information regarding a special procedure in the procedural handbook of the labour inspectorate for addressing cases of workplace and sexual harassment, in accordance with the provisions of Act No. 7476 of 3 February 1995 against sexual harassment in employment and education. The Government reports that, in 2017, the National Labour Inspection Directorate dealt with more than 900 special cases in relation to discrimination issues, of which 27 were cases of sexual harassment. The Committee requests the Government to report on the number of complaints of sexual harassment lodged with the labour inspectorate and the judiciary, the actions taken, the penalties imposed and remedies awarded.

Article 1(1)(b). Real or perceived HIV status. The Committee noted the Government’s indication concerning the legislative initiative to amend the General HIV and AIDS Act (Act No. 7771 of 29 April 1998) to afford greater protection against discrimination on the grounds of HIV and AIDS status and requested the Government to report any progress in that respect. The Committee notes the Government’s indication that the four-year period for the approval of the draft amendment to the General HIV and AIDS Act has expired and any deputy who wishes could request its consideration, which would lead to it being included once again on the agenda of the Legislative Assembly. Moreover, the Committee requested information from the Government on the awareness-raising measures related to the application of legislation on HIV and AIDS in the public and private sectors, and developments in the adoption of a policy for preventing and addressing HIV and AIDS. In this respect, the Committee notes the information from the Government on the development of the National Strategic Plan (2016–21) by the National Council for Comprehensive Action on HIV and AIDS (CONASIDA), which is composed of the Government, the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP), the United Nations and non-governmental organizations. The Government indicates that strategic action 1.1.5 of the National Strategic Plan is based on the “Directive for preventing and addressing HIV and AIDS in the world of work”. As a result, CONASIDA, cooperation agencies and the Business Association for Development, established partnerships with private enterprises for the development of policies in 39 enterprises. Similarly, the Government reports that the Business Association for Development produced a “toolbox” with a view to the Ministry of Labour and Social Security (MTSS) encouraging the business sector to develop policies and training measures. Furthermore, the MTSS adopted the Policy for Preventing and Addressing HIV and AIDS (2014–19), aimed at recognizing HIV and AIDS as a workplace issue, an adequate response to which requires the participation of employers’ and workers’ organizations. The Committee requests the Government to report on any amendments of the General HIV and AIDS Act. The Committee also requests the Government to provide information on: (i) the impact of the measures adopted under the Policy for Preventing and Addressing HIV and AIDS (2014–19) on the integration of HIV-positive workers into the labour market and their conditions of work (including initiatives adopted to combat stereotypes and prejudices with a view to eliminating discrimination on the grounds of real or perceived HIV status); (ii) any cases heard by the courts or brought to the attention of the Labour Inspectorate relating to non-respect of the prohibition of discrimination against men or women workers who are, or are perceived to be, HIV-positive, throughout the employment cycle (hiring, retention, vocational development and return to work); and (iii) any measures adopted or envisaged to combat the discrimination and stigmatization of persons living with HIV or AIDS in the public sector.

Articles 2 and 3. National gender equality policy. In its previous comments, the Committee requested the Government, in accordance with Article 3(f) of the Convention, to provide specific information on the effectiveness of the measures adopted and the results achieved regarding the inclusion of indigenous men and women and those of African descent in the labour market and the development and recognition of their traditional occupations. The Committee also requested the Government to provide the available statistical information on the participation of men and women in the labour market, disaggregated by race and colour. The Committee notes the information from the Government on the adoption of the Plan of Action and the Public Policy for Gender Equality and Equity (PIEG ) 2016–21 and the National Policy for Gender Equality and Equity, one of the central themes of which is the “distribution of wealth” by improving women’s access to education. The Government indicates that, in 2015, a strategic partnership was established between the National Labour Inspection Directorate, the Gender Equality Unit of the MTSS and the Department of Public Policy for the Economic Autonomy of Woman and the Legal Status and Protection of the Women’s Human Rights of the National Women’s Institute (INAMU). The Government also reports the introduction of the gender equality label and the award for good labour practices for gender equality. The Government adds that the Gender Equality Unit of the MTSS, which participates in the technical monitoring commission for the Plan of Action and the Public Policy for Gender Equality and Equity, provides training in educational establishments, enterprises, trade unions and other institutions. With regard to horizontal segregation, in the first quarter of 2018 in agricultural activities, there were 227,542 men workers and only 33,584 women workers. In professional and administrative support activities, there were 112,743 men and 59,228 women. In financial intermediation and insurance, there were 27,705 men and 18,600 women. With regard to vertical segregation by occupational group, at the level of directors and managers, there were 11,726 men and only 8,111 women; at the level of technicians and associate professionals, there were 118,189 men and 54,090 women. Among farmers and forestry and animal agriculture workers, there were 67,350 men and only 6,503 women. The Committee also notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations expressed concern about the persistence of occupational segregation and the concentration of women in low-paid jobs and the significant gender wage gap (CEDAW/C/CRI/CO/7, 24 July 2017, para. 28(a)). The Committee requests the Government to provide information on the specific measures adopted as part of the second Institutional Plan of Action for Gender Equality and Equity (2016–20), the National Policy for Gender Equality and Equity and the implementation process of the National Policy for Effective Equality between Women and Men in Costa Rica (2018–30) and, particularly, on the results obtained with regard to the participation of women in the labour market and the reduction of horizontal and vertical occupational gender segregation. The Committee requests the Government to provide statistical information on the participation of men and women in the labour market, including in export processing zones, disaggregated by sector of activity.

Migrant workers. In its previous comments, the Committee referred to the situation of Nicaraguan workers in the country and requested the Government to indicate whether the legislation protects migrant workers and whether there have been complaints of discrimination by Nicaraguan workers or workers of other nationalities. The Committee notes the Government’s indications that: (i) the judicial authorities are working to implement in their decisions a policy of access to justice for migrants and refugees, through the National Commission for the Improvement of the Administration of Justice (CONAMAJ), in accordance with the recommendations of the Brasilia Regulations Regarding Access to Justice for Vulnerable People; (ii) an inter-institutional working group has been established — the subcommittee on access to justice for the refugee and migrant population — with responsibility for implementing public policy on this matter; (iii) the Higher Council of the Judiciary issued three guidelines on affirmative action measures to provide an adequate response to migrants, asylum seekers and refugees; (iv) Act No. 9343 reforming labour procedures established a fast-track procedure for situations of labour discrimination suffered by vulnerable populations, including the migrant and refugee population; (v) a migration management procedure has been in place since December 2007 for seasonal migrant workers between Costa Rica and Nicaragua; (vi) the Costa Rica-Nicaragua co-development project has been established to promote regulated migrant labour; and (vii) there is a special process in place for indigenous ngäbe and buglé persons from Panama. Lastly, the Government referred to the adoption of the Comprehensive National Framework on Action for and the Response to Refugees (MINARE). The Committee notes the measures adopted by the Government for the benefit of migrant workers and requests it to continue providing information on the progress made.

Promotion of equality of opportunity and treatment irrespective of race and colour. The Committee notes that the Government reports the adoption of an action plan for the achievement of the goals of the International Decade for People of African Descent (Directive No. 022-P), set out in the National Plan for People of African Descent (2015–18) and that it has provided statistical information on the participation of men and women in the labour market, disaggregated by race and colour. The Commission also notes the Government’s indication that the statistical data available on the National Policy for Gender Equality do not allow for disaggregation to identify the population of African descent. The Committee requests the Government to provide information on the impact and outcomes of the National Plan for People of African Descent (2015–18), as well as any other measures adopted or envisaged for the inclusion of indigenous men and women or those of African descent in the labour market or for the development and recognition of their traditional occupations. The Commission also requests the Government to make every possible effort to provide the available statistical information on the participation of men and women in the labour market, disaggregated by race and colour.

General observation of 2018. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Enforcement. In its previous comments, the Committee noted the ongoing revision of the procedural handbook for the labour inspectorate and the plans to broaden the manner in which it addresses discrimination and requested the Government to provide information on any developments in that regard. The Government reports the development of a “Gender Inspection Guide and a catalogue of new gender-based offences”, the expansion of the catalogue of inspection offences in relation to discrimination on the grounds of gender and improvements to inspection procedures. The Committee notes the Government’s indication that, from 2016 to 2017 at the national level, 824 inspections were carried out, safeguarding the labour rights of 6,477 workers, including 4,620 men and 1,857 women. The Committee requests the Government to provide more detailed information on the number of complaints lodged with the labour inspectorate or the judicial authorities in relation to cases of discrimination in employment, cases of discrimination on the grounds of race, colour, religion, political opinion, national extraction or social origin in the public and private sectors and in export processing zones, with an indication of the manner in which such complaints are addressed, the penalties imposed and the compensation awarded.