The Constitution prohibits the main types of discrimination:
- race or skin color;
- social origin;
- political opinions;
- union activity; and
- discrimination on the grounds of religion.
The Labour Code also prohibits discrimination in the workplace, during and after the hiring phase. Furthermore, the following statutes are applicable in cases of discrimination:
- Free Trade Agreement between the United States, Central America and the Dominican Republic (CAFTA), Chapter 16, Article 16.8;
- Constitution articles 39 and 62;
- Declaration for the Elimination of Discrimination against Women;
- American Convention on Human Rights;
- Universal Declaration of Human Rights;
- International Treaty on Civil and Political Rights;
- United Nations Convention for the Elimination of All Forms of Discrimination against Women;
- General Law on HIV-AIDS and Regulations;
- The Declaration of the Rights of the Disabled (Resolution No. 3447 of the Thirtieth General Assembly of the United Nations 1975);
- The Declaration of the Rights of the Deaf and the Blind (Decision 1979/24 of the United Nations Economic and Social Council 1979);
- The Inter-American Convention for the Elimination of All Forms of Discrimination against Persons with Disabilities, adopted at the 29th session of the General Assembly of the Organisation of American States (OAS), on 7 June 1999; and
- The Disability Law 42-2000 in the Dominican Republic, Official Gazette No. 10049 of 30 June 2000.
If an employee is discriminated against for reasons of race, religion, age, sex, disability, political or union activities, the employer’s action can be declared void. The employer can be ordered both to reinstate the dismissed employee and to compensate for the damages caused. The law requires the employer to provide the same benefits to employees of the same category and seniority, as regards working conditions.
Extent of Protection
Employers are prohibited from discriminating against any candidate/employee during the hiring process and employment relationship for any reason, including but not limited to sex, origin, race, color, marital status, family status, disability, professional rehabilitation and age.
Employers should avoid any practice, such as requesting non-pregnancy certificates from women or health certificates from employees and, in general, any practice that may imply a distinction between two or more people applying for the same job.
Protections Against Harassment
Sexual harassment in the Labour Code is contemplated in article 47 ordinal 9, only as a just cause of resignation for the employee and does not sanction the employer or the aggressor. However, article 333-2 of Law 24-97 defines sexual harassment as “any order, threat, constraint or offer intended to obtain favors of a sexual nature, made by a person who abuses the authority conferred by his functions.” The penalty for this offense is one year in prison and a fine of five thousand to ten thousand pesos.
The law states that an employee can be terminated without any obligation to the employer, if he or she incurs sexual harassment.
Companies must assume a very active role in preventing and combating sexual harassment, taking into account that it occurs within their own workspace and sphere of influence.
The employee may report any sexual harassment to the company. The latter is obliged to carry out the pertinent investigations until it finishes its inquiry and maintains the complainant’s confidentiality, while striving to protect the victim’s rights at all times.
If the company does not make the corresponding investigation, or the victim disagrees with the result, the employee will have other avenues to turn to. The victim of sexual harassment acquires a right of resignation that will allow them to obtain all their employee benefits. In the same way, the victim can file criminal charges covered by article 333-2 of Law 24-97. Sexual harassment is punishable by one year in prison and a fine of five thousand to ten thousand pesos.
Employer’s Obligation to Provide Reasonable Accommodations
The Dominican Republic has enacted several laws designed to protect people with permanent or temporary disabilities. Article 314 of the Labour Code defines a disabled person as a person with “any congenital or acquired abnormality that implies a reduction in the normal ability to work.”
Likewise, article 315 of the Labour Code protects disabled workers from any unfair treatment in employment, providing the right to obtain a fixed and permanent occupation equal to that of other workers. Article 315 of the Labour Code further provides that disabled persons shall be qualified for work based on their ability to perform the work in question, regardless of the status of their disability.
Law 42-00 on disability in the Dominican Republic establishes that people with disabilities are considered equal to the rest of the population. Although they deserve a higher level of protection against discrimination, disabled persons are not entitled to special privileges due to their condition.
Law 42-00 also provides that the Dominican State will supervise and apply the surveillance and control mechanisms necessary to guarantee compliance with current legislation and the achievement of its objectives. For this, the National Disability Council (CONADIS), an autonomous state institution dependent on the Presidency of the Republic, is in charge of eliminating all forms of discrimination against people with disabilities. Therefore, employers are required to provide reasonable access to disabled employees, such as employees in wheelchairs.
In article 45 on Freedom of Conscience and Religion, the Constitution stipulates that, “the State guarantees freedom of conscience and religion, subject to the need for public order and respect for public morals.” As such, Dominican law prohibits all kinds of religious discrimination. However, employers do not need to make any accommodations for different religious practices.
The Labour Code establishes that the employee must be in a healthy workplace where his/her fundamental rights are respected. For this reason, article 96 sanctions moral harassment exhaustively and specifically. Likewise, Law 24-97 (on violence against women) and the Penal Code (in articles 309-1 and 333-2) contain protective measures against situations such as sexual harassment.
A complaint of harassment or discrimination must be based on conduct that has caused harm to the employee. For employees who think they have been the victim of discrimination, they can contact their workplace supervisors (and the union, if any) or representatives of the employer’s human resources department. The employer should analyse the context as a whole, the facts together with the evidence, and proceed to declare if the discrimination occurred. If so, depending on the bias, the employer could terminate for cause, the employee who harassed another employee. The company could request the participation of an inspector from the Ministry of Labour, who can help carry out the investigation.
Principle VII of the Labour Code prohibits any discrimination, exclusion, or preference based on sex, age, race, color, etc. This principle only allows exclusion based on the qualification required for a given job. On the other hand, Dominican law does not prescribe quotas to address past discrimination.
For larger companies, we suggest establishing a written policy that explains what harassment is; that harassment will not be tolerated; and that sets out how employers and employees should respond to incidents of harassment. Anti-harassment policies should also establish a detailed mechanism by which employees can file complaints when sexual harassment occurs.
Additionally, individuals can be held liable for discrimination, retaliation, harassment and a retaliation lawsuits in civil court. In some instances, such as sexual harassment, the person may also be accountable in criminal court.
Apart from the rule that at least 80% of the employees must be Dominican, there is no other diversity requirement or affirmative action.