Sexual orientation gender identity employment discrimination

On May 29, 2013, a new law was enacted in Puerto Rico to prohibit discrimination in employment because of sexual orientation and gender identity.  Act 22-2013 amends the general anti-discrimination statute- Act  100-  to include these additional categories.

The law defines “sexual orientation” as an individual’s ability to feel an emotional, affectionate, or sexual attraction to a person of: (i) a different gender; (ii) the same gender; or (iii) more than one gender. “Gender identity” refers to how a person is identified by others or by himself/ herself as to his or her gender, which may or may not correspond to that person’s biological or assigned sex.

Act 100 will now protect individuals in the workplace against discrimination because of age, race, color, sexual orientation, gender identity, sex, social or national origin or social condition, political affiliation, political or religious ideology, or for being a victim or perceived as a victim of domestic violence, sexual aggression or stalking.

Any employer who discharges, lays off or discriminates against an employee regarding his/her salary, wage, pay or remuneration, terms, rank, conditions or privileges of his/her job, or who fails or refuses to hire or rehire a person, or who limits or classifies his/her employees in any way which tends to deprive a person of employment opportunities, or that affects his/her status as employee because of his/her age, as defined below, race, color, sex, social or national origin, social condition, political affiliation or political or religious ideology of the employee or applicant for employment, or for being a victim or perceived as a victim of domestic violence, sexual aggression or stalking, shall incur in civil liability:

(1) For a sum equal to twice the amount of damages sustained by the employee or applicant for employment on account of such action;

(2) or for a sum of not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000), at the discretion of the court, if no pecuniary damages are determined;

(3) or twice the amount of the damages sustained if such amount is under the sum of five hundred dollars ($500), and(b) he/she shall also incur a misdemeanor, and upon conviction, shall be punished by a fine of up to five thousand dollars ($5,000) or by imprisonment in jail for a term not greater than ninety (90) days, or by both penalties, at the discretion of the court.

Similarly, any employer who commits any of the acts mentioned in the first paragraph of this section relative to a person married to an employee of his/her company or business, shall be guilty of discriminatory practice and incur the aforementioned civil and penal liability. This provision shall apply to those persons who get married who aspire to employment as well as to those who are already employed by the employer.

Notwithstanding the provisions stated in the preceding paragraph, in those situations in which a clear conflict of functions exists due to the marriage, and which substantially and adversely affects business operations, the employer shall be obligated to make a reasonable adjustment or compromise regarding the functions of the employees or employment aspirants. This practice shall apply to companies or businesses with (50) or more employees.

The aforementioned must be done so as not to affect the right of the employer to establish reasonable regulations concerning the working conditions of married couples employed in the same department, division or physical facility.

The following factors shall be taken into consideration in order to comply with that stipulation: the size of the company’s physical facilities and number of employees; its organizational chart, ranking and line of command; its physical needs and the specific problem or difficulties which could be caused by the married couple.

In the judgment passed on civil actions brought under the aforesaid provisions, the court may order the employer to reinstate the employee in his/her job and to cease and desist from the act involved.