Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 1(1)(a) of the Convention. Legislation. The Committee has been referring for several years to the need to include colour in the list of prohibited grounds of discrimination contained in the legislation. In this regard, the Committee noted previously that Bill No. 16970 on the prevention and elimination of discrimination did not include colour, and it requested the Government to take measures for its inclusion. The Committee notes that the Government does not refer to the Bill in its report. The Committee nevertheless notes with regret that the recent Legislative Decree No. 9343 to reform labour procedures, adopted on 14 December 2015, which contains a provision prohibiting discrimination, also fails to include colour among the prohibited grounds of discrimination. The Committee recalls in this respect that when legislation is adopted to give effect to the principle of the Convention, it should include at least all the prohibited grounds of discrimination listed in Article 1(1)(a) of the Convention (2012 General Survey on the fundamental Conventions, paragraph 802). The Committee requests the Government to take the necessary measures for the inclusion of colour in the legislation and to provide information on any progress achieved in this respect, including any progress relating to Bill No. 16970 on the prevention and elimination of discrimination.

Article 1(1)(b). Real or perceived HIV and AIDS status. The Committee notes the Government’s indication concerning the initiative to amend the General HIV Act (Act No. 7771 of 29 April 1998) to afford greater protection against discrimination. This initiative received the unanimous approval of the Standing Human Rights Commission in July 2015. The Committee also notes the information campaigns carried out within the judicial authorities and the indication in the Government’s report under the Equal Remuneration Convention, 1951 (No. 100), concerning the creation within the Ministry of Labour and Social Security of an internal committee for the preparation of the policy to prevent and address HIV and AIDS with a view to achieving workplaces free from stigma and discrimination. The Committee requests the Government to provide information on the progress made in the amendment of the General HIV Act and hopes that it will provide adequate protection against discrimination for workers affected by HIV and AIDS. The Committee further requests the Government to continue providing information on the awareness-raising measures relating to the application of the HIV and AIDS legislation carried out in the public and private sectors, as well as developments in the adoption of a policy to prevent and address HIV and AIDS.

Article 2. National gender equality policy. The Committee notes that, in its report on Convention No. 100, the Government indicates that the Second Institutional Plan of Action for Gender Equality and Equity (2016–20), in the context of which various measures have been taken, such as the promotion of gender mainstreaming in small and medium-sized enterprises, in the National Learning Institute and in the work of employment managers engaged in the placement of women. In this regard, the Government provides information on the distribution of men and women in jobs, occupations and sectors which shows a significant occupational segregation based on gender, while indicating an increase in the participation of women in activities with a lower number of women. The Government adds that the gender equality unit of the Ministry of Labour, which participates in the technical committee responsible for monitoring the National Policy for Gender Equality and Equity (PIEG), provides training for education centres, enterprises, trade unions and other institutions. The Committee requests the Government to continue providing information on the specific measures adopted in the context of the Second Institutional Plan of Action for Gender Equality and Equity (2016–20), and the National Policy for Gender Equality and Equity and, in particular, their effectiveness and the results achieved in terms of the labour market participation of women and the reduction and elimination of occupational segregation based on gender (Article 3(f)). The Committee requests the Government to provide statistical data on the participation of men and women in the labour market, including export processing zones, disaggregated by sector.

Sexual harassment. Practical measures. The Committee recalls that in its previous comments it noted that the labour inspectorate is competent to investigate any complaint of sexual harassment. The Committee notes that, in the report provided in relation to the Equal Remuneration Convention, No. 100, the Government indicates that the Ministry of Labour and Social Security has carried out training in various public institutions on sexual harassment and the legislation in force. While noting the measures adopted to address sexual harassment in the public sector, the Committee requests the Government to provide information on any prevention and awareness-raising measures adopted in the private sector. The Committee also requests the Government to report the number of complaints of sexual harassment lodged with the labour inspectorate and the judiciary, the action taken thereon, the sanctions imposed and remedies awarded.

Promotion of equality of opportunity and treatment irrespective of race and colour. The Committee notes that, in its periodic report to the United Nations Committee on the Elimination of Racial Discrimination (CERD), the Government referred to the measures that are being taken, principally by the National Institute for Women (INAMU) within the framework of the National Policy for Gender Equality and Equity (PIEG 2007–17), such as the Agenda for Women of African Descent and the National Forum of Indigenous Women (CERD/C/CRI/19-22 of 17 January 2014). The Committee also notes the National Plan for Persons of African Descent (2015–18), setting out policy measures targeting the promotion of equality, access to education and justice and the adoption of special measures. The Committee requests 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 in 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 requests the Government to provide the available statistical information on the participation of men and women in the labour market, disaggregated by race and colour.

Articles 2 and 3. 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 by Nicaraguan workers concerning discrimination. The Committee notes that the Government refers to the regulations on foreign nationals (Decree No. 37112-G of 2012), which establish different categories of migrants, but do not contain protective provisions against discrimination. The Committee recalls that the Act of 1960 prohibiting discrimination at work does not exclude migrant workers from protection. The Committee also notes the reference by the Government to a decision of the Constitutional Chamber of the Supreme Court of Justice (No. 2015-006405) reaffirming the right to equality before the law of a Nicaraguan worker who had suffered discrimination on grounds of nationality. The Committee emphasizes that the existence of legislation is not sufficient to give effect to the Convention and that appropriate methods have to be adopted to ensure effective protection in practice. Accordingly, under Article 3(f) of the Convention, the Government is required to provide information on the action taken in pursuance of the national equality policy and the results secured by such action. The Committee requests the Government to provide information on the measures taken to ensure that migrant workers enjoy effective protection in practice, and particularly on the effectiveness and results of such measures.

Application in practice. In its previous comments, the Committee noted that the handbook of procedures for the labour inspectorate was being revised and that it was planned to expand the manner in which it addresses discrimination. The Committee requests the Government to provide information on any developments in this regard, with an indication of the subjects related to discrimination that have been covered and whether sexual harassment has been included in the handbook. The Committee also requests the Government to provide information on any complaints made to the labour inspectorate, or to the administrative or judicial authorities, relating to cases of discrimination in employment in the public and private sectors, including export processing zones, with an indication of the action taken on such complaints, the sanctions imposed and the remedies awarded.