Can an employer decide not to hire a worker because of his physical appearance? The new Labor Procedure Reform could penalize this type of discriminatory behavior.

The most important labor reform since the creation of the Labor Code entered into force this Tuesday, July 25 . Its application incorporates dozens of changes for workers and employers in the collective and individual sphere, such as the streamlining of labor judicial processes, the hiring of defenders for the majority of Costa Rican employees or the opening of joint arbitration processes paid by the State. .

One of the most important changes is the opening of new concepts of discrimination for which an employer can be sanctioned at the stage of the employment relationship, dismissal and -now, even- in the hiring period .

READ : Costa Rica implements its biggest labor reform in 70 years

The previous Labor Code established only four types of discrimination: by gender, ethnicity, religion or age. With the reform, new discrimination criteria are established (such as disability, economic situation, sexual orientation or marital status) and the door is opened to "analogous" forms of discrimination .

This criterion on analogous forms opens the opportunity for judges to sanction similar discriminatory conduct , linked to health or physical appearance, for example.

This is how Nancy Marín, deputy labor minister, considers it, stressing that these types of elements could be assessed by judges in the coming months, but that there is still no certainty about the path that jurisprudence will take in this regard .

“Obviously, if I go into a bank to work and it turns out that everyone has a uniform and the shirt is white with long sleeves and I want to wear a red or short-sleeved shirt, well, that's not discrimination. But there will be other cases where the analysis has to be done on time” she points out. "I would recommend, therefore, to take great care of the recruitment processes ".

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Manrique Blen, tax and legal manager at Deloitte, agrees with Marín.

“In fact, there are countries that have specific regulations that prevent employers from discriminating against people because of tattoos , for example. There are many topics that one could interpret, but that we will not know until there is some jurisprudence. For example, how far can discrimination go at the hiring stage if there is no relationship? They are very specific aspects that we will see in the process, however, they are options that open up”, she adds.

Luis Porfirio Sánchez Rodríguez, magistrate of Chamber II, also stressed that these considerations will be entirely casuistic.

"Tomorrow, later, we will be able to say what happens in the case of a person who is not hired because of his appearance. Several elements will have to be analyzed: determine whether or not that pre-contractual action is governed by the Labor Code, or if there is a violation of labor laws. And, if it is in the contractual part, it is necessary to see if the person who arrives with long hair and is ordered to cut it will be discriminatory. There are many factors, but deep down there is a special protection against discrimination," he stresses.

Sánchez also points out that the Reform could protect workers who are discriminated against for health reasons.

"There is no doubt. The Constitutional Chamber had already ordered the reinstatement of a worker who had been fired despite the fact that he was in a state of cancer disease. Although it is true, the regulations do not regulate it, there is a fundamental principle. It will be very casuistic " He says.

The Labor Procedural Reform requires that dismissed workers be reinstated and pay the lost wages in cases where some type of discrimination is proven. An employer can even receive fines of 8 to 11 base salaries of the salary of a clerk I of the Judiciary if a judge determines that practices were applied that prevented a person from being hired, due to discrimination reasons.