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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The Committee notes the observations made by the Costa Rican Federation of Chambers and Associations of Private Enterprise (UCCAEP), communicated with the Government’s report.

Article 1(1) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes the statistical information provided by the Government in its report, showing that the National Inspection Directorate identified 18 cases of sexual harassment in 2020 and 23 cases in 2021. The government indicates that it hopes to be able to provide information on the cases before the courts in its future reports. It also points to two reforms to Act No. 7476 against sexual harassment in employment and education: (i) establishing the requirement for the employer to keep an updated registry on the number of final sanctions imposed in the workplace or institution on grounds of sexual harassment (Act No. 9969 of 2021), and (ii) the amendment of the limitation period for acts of sexual harassment from two to eight years (Act No. 10029 of 2021). The Committee also notes the observations of the UCCAEP, which highlights the technical guide for the prevention and treatment of workplace harassment or “mobbing”, approved in 2019 by the Occupational Health Council, which is a tripartite body. The Committee requests the Government to continue providing information on the number of cases of sexual harassment identified, the action taken, the penalties imposed, and remedies awarded.

Article 1(1)(b). Real or perceived HIV status. The Committee notes with interest the Government’s indication that discrimination on the grounds of health status has been prohibited with the adoption of Act No 9797 of 2019 on the overall reform of the General Act on HIV/AIDS, which amends section 404 of the Labour Code, and with the adoption of Act No. 10156 of 2022, which amends section 380 of the Penal Code. The Government also indicates that Act No. 9797 amends other sections of the Labour Code, in order to: (1) prohibit the employer from seeking proof of HIV status for recruitment or tenure of employment purposes (section 70); (2) provide for dismissal for discriminatory acts against persons living with HIV (section 81); and (3) render the employer’s engaging in discrimination against workers living with HIV a just cause for resignation (section 83). The Government also indicates that: (1) the National Regulations for the integrated care of HIV in the health sector were drafted and were declared of public interest by Executive Decree 43055-S, in force since October 2021; (2) the assessment of the impact of workplace HIV prevention and management policies remains a challenge; and (3) in the 2018-2020 period, three cases of discrimination on the grounds of HIV status came before the labour inspectorate. The Committee notes that the UCCAEP expresses concern regarding the removal of medical examinations from the Labour Code. The Committee notes that neither the new section 70(j) of the Labour Code, nor Constitutional Chamber ruling No. 1874-2010 rule out the possibility of medical examinations for workers, the sole exception being where examinations relate to HIV testing, where no medical criteria demonstrate the need to conduct haematological tests. The Committee requests the Government to report on:

(i)any measure adopted or envisaged to disseminate the content of section 404 of the Labour Code and of section 380 of the Penal Code; and
(ii)any measure adopted or envisaged with a view to gathering information on the labour participation of persons living with HIV or AIDS. It further requests the Government to continue sending information on any case of discrimination on grounds of HIV or AIDS identified or denounced, the action taken, the penalties imposed, and the remedies awarded.

Articles 2 and 3. National gender equality policy. The Committee notes the information provided by the Government on various measures adopted in the framework of the public policies and national action plans on gender, which include: the signing in 2021 of a letter of understanding between the National Women’s Institute (INAMU), the Ministry of Labour and Social Security (MTSS) and the Women’s Trade Union Roundtable, which aims to promote and encourage joint actions to create conditions of equality without discrimination in work and employment, women’s participation in trade unions, responsibility-sharing in family and work life, and to combat violence at work and at home; (2) the adoption of the National Policy for Effective Equality between Women and Men in Costa Rica (2018-2030), for which the Government is still without clear outcome indicators, but which is nonetheless in implementation; and (3) the promotion of good business practices for gender equality by the INAMU. The Committee also notes that in 2018, 61.14 per cent of all persons benefitting from the National Employment Programme (PRONAE) were women. It further notes the statistical information provided by the Government on the employment rates for men and women, including for export processing zones. It also notes that the COVID-19 crisis widened the labour gap between men and women, and that according to available statistics, labour market participation in 2020 stood at 46 per cent for women and 69 per cent for men, while in 2019 the rates were at 52 per cent and 73.6 per cent, respectively. The Committee notes the observations of the UCCAEP, according to which the principle of citizens’ participation was not respected in the adoption of the Regulations governing Act No. 8901, which establish the minimum percentage of women that shall be included in the executive boards of associations, trade unions and solidarist associations, did not respect the principle of citizens’ participation. The Government indicates that it will review the procedure carried out for the enactment of the Regulations. The Committee requests the Government to provide information on the specific measures adopted or envisaged to promote gender equality in employment and occupation, including within the framework of the National Policy for Effective Equality between Women and Men in Costa Rica, and to monitor and report on its impact. The Committee also requests the Government to continue providing statistical information on labour market participation, and the continued employment of men and women.

Migrant workers. The Committee notes the Government’s indication that the labour inspectorate dealt with 6,762 migrants in 2021. The Committee also notes that the National Inspection Directorate is currently working to produce a Policy for the integrated treatment of labour migrations, with a view to providing more effective protection of workers. The Committee requests the Government to provide information on the Policy for the integrated treatment of labour migrations, and also on any other measure adopted to protect migrants against discrimination.

Promotion of equality of opportunity and treatment irrespective of race and colour. The Committee notes with interest the Government’s reference to Act No. 10120 of 2022 on affirmative action in support of persons of African descent, which establishes measures to promote access for the population of African descent to employment and education, and includes the requirement that all public institutions must reserve at least seven per cent of their post vacancies a year for persons of African descent, provided that the latter fulfil, in equal conditions, the legal and constitutional requirements to accede to these posts (section 3). The Committee also notes that the Government indicates the following: (1) international, institutional and cultural tours and activities were conducted under the National Policy for a Society Free from Racism, Discrimination and Xenophobia 2014-2025 and its plan of action; (2) a new census is being prepared to gain greater understanding of the population of African descent; (3) in 2021, the Board of Directors of INEC approved the technical guidelines for the ethnic-racial approach to producing official statistics and its operational guide, and these are mandatory for all institutions of the National Statistics System. The Committee requests the Government to provide information on the measures adopted to promote this principle of the Convention within the framework of the National Policy for a Society Free from Racism, Discrimination and Xenophobia 2014.-2025 and its plan of action. The Committee also requests the Government to provide information on the development of the process for an ethnic-racial approach to official statistics and any statistics resulting therefrom.

Enforcement. The Committee notes the Government’s indication that the labour inspection services dealt with 41 cases of discrimination in 2019, 23 in 2020 and ten in 2021, but NO disaggregation by grounds of discrimination is given. The Committee notes that work is going ahead to overhaul the monitoring system, and that this will yield more detail on the cases dealt with. The Government reports that the judiciary is also revising its internal processes to update the classification of its case files to accommodate the specific characteristics of each allegation of discrimination. The Committee requests the Government to report on possible progress made regarding the classification of cases dealt with by the labour inspection and by the courts and hopes that in its next report the Government will be able to provide statistical information on the cases of discrimination in employment in the public and private sectors and in export processing zones, disaggregated by grounds of discrimination.