Sexual harassment at the workplace has been legally forbidden in Costa Rica since 1995, with the enactment of Law 7476 (Law Against Sexual Harassment in Employment and Teaching). The aim of this law is “to prohibit and to penalize sexual harassment as a discriminatory practice by reason of gender against the dignity of women and men, in labor relationships and in teaching activities.” Based on this law, any discriminatory actions based on gender, as well as any of a sexual nature, may be considered sexual harassment and may result in immediate termination of the labor relationship.
Depending on the source of the harassment, termination may or may not entail employer liability. If the employer or the employer’s representative is the one harassing an employee, the employee is entitled to terminate the labor relationship with employer liability. If, on the other hand, it is an employee who is caught harassing another employee or person, the employer may terminate the labor relationship without incurring any liability.
Furthermore, if the harassment includes sexual abuse such as molestation or rape, the offender may also be criminally liable, and, in some cases, the employer may be found civilly liable for damages to the victim.
Nonetheless, possibly because of cultural elements, application of this law was very limited and not many cases were reported, leaving victims unprotected. Also, in many cases, complaints were filed based on false grounds and people lost their jobs because due process was not followed.
To address this situation, in 2010 the Legislative Assembly enacted Law 8805, an amendment to Law 7476 providing workers with what is believed to be a more effective protection system against sexual harassment.
To comply with Laws 7476 and 8805, companies are now required to implement certain internal structures, such as a the creation of a Committee Against Sexual Harassment, which should work as an internal body in charge of receiving sexual harassment complaints, conducting investigations and enacting due process. This committee is legally enabled to implement preventive measures during due process to protect the victim or witnesses from being intimidated and to prevent further harassment.
According to the amendments introduced by Law 8805, the internal investigation should last no more than three months, during which time the statute of limitations for penalizing the employee is suspended. During due process, the defendant is given the chance to defend him or herself, and at the end the committee must issue a list of recommendations for the employer, who must then decide which recommendations are followed or implemented and how the employee should be penalized if sexual harassment was proven.
Additionally, all companies are now required to report sexual harassment complaints to the Labor Ministry as soon as they are received.
All of these changes require companies to amend or update their policies as well as to train at least part of their personnel, not only to avoid sexual harassment cases, but also to have people with knowledge on the matter who can be appointed as members of the abovementioned committee. Although these changes and training may involve extra costs for companies, in the long run they should provide positive results in terms of reducing the chances of facing sexual harassment cases.
Notwithstanding, we have already detected that implementing everything mandated by Law 8805 can be difficult, especially for small companies that may not employ enough people to make up the committee, or in cases where the harasser is a top executive or a member of the committee. For such cases, Law 8805 provides the alternative of filing a lawsuit before the ordinary labor courts; however, these courts usually take a long time to resolve cases, and the exposure may not be desirable for the company, obligating the employer to settle with the victim and harasser.
Sexual harassment at the workplace in Costa Rica is increasingly becoming an issue that requires attention and updating of internal structures and procedures. Employers as well as employees, when facing this type of situation, should seek adequate counsel to ensure there is full compliance with the law.
For more legal advice, contact Lang & Asociados at 2204-7871 or visit www.langcr.com
