Workplace Harassment Continues Without Regulation

By, Paola Rojas, Senior Associate for Arias in Costa Rica.  

Although in Costa Rica the current law does not expressly regulate workplace harassment, this figure has been conceptualized, over the years, as a series of systematic acts of aggression, mostly psychological, that seek to undermine dignity, cause isolation and even force a worker to resign from his or her position. This type of harassment is a problem that affects both the mental health and productivity of employees.

Current State of the Legislation on Workplace Harassment
Currently, although there are regulations that address sexual harassment, as well as different types of discrimination; in terms of workplace harassment, there is still no specific law that regulates it. The only sources that allow us to have some kind of general notion about this type of harassment depend mainly on the jurisprudence established by the Second Chamber of the Supreme Court of Justice and some guidelines issued by the Ministry of Labor.

However, a bill is being discussed in the Legislative Assembly under File No. 20,873 called Law to prevent and punish workplace harassment in the public and private sectors, which seeks to establish a clear legal framework regarding workplace harassment, defining the responsibilities of employers and the rights of workers, providing a defined process for complaints and corresponding sanctions. Workplace Harassment

and its manifestations
Workplace harassment manifests itself in different ways and can be exercised by both hierarchical superiors and by coworkers themselves.

Actions such as mockery, threats, work overload, social exclusion, and assignment of tasks that go beyond the capabilities or responsibilities of the worker, are just some of the identified behaviors that could qualify as harassment of a worker.

Workplace harassment could also be classified according to the direction in which the aggression occurs:

1. Vertical downward harassment: This occurs when the aggression comes from a hierarchical superior towards a subordinate. This is the most common form and manifests itself through the assignment of tasks that are impossible to complete, constant criticism of the way of working, and often direct or indirect threats.
2. Vertical upward harassment: In this case, the harassment is perpetrated by a group of employees who could be subordinates against their superior. This type of harassment is less common, although it is still a reality in many organizations.
3. Horizontal harassment: This occurs between coworkers who occupy similar levels in the company hierarchy. Manifestations of this harassment include gossip, social exclusion, and unfair competition, among others. Typically, a group of workers can exert a form of power that does not depend on their position, but on the social dynamics within the workplace, and that is why it is important to understand that harassment is not always linked to hierarchy.

How workplace bullying affects the personal and professional sphere
Workplace bullying has a profound impact on the lives of people who are victims of it, causing not only problems in their mental health, but also directly affecting their performance at work.

Workers who are victims of workplace bullying can experience chronic stress, depression, anxiety, and a significant loss of self-esteem. These conditions not only harm the employee, but also affect the productivity of the organization, increasing absenteeism and staff turnover, and also negatively affect the entire work team.

Recognizing workplace bullying can be difficult, especially when the attacks are subtle or are masked as simple work conflicts. However, some of the signs through which it manifests can be:

• Constant and unjustified criticism.
• Exclusion from important work meetings or activities.
• Assignment of tasks that do not correspond to the position or for which the worker is not qualified.
• Derogatory comments, teasing or offensive nicknames.

Despite the absence of a specific law, these types of actions can be investigated, either internally by the company, in administrative bodies, or they can be reported to the Courts of Justice.

Regulations, Jurisprudence and Guidelines of the Ministry of Labor
The jurisprudence of the Second Chamber of the Supreme Court of Justice and the guidelines of the Ministry of Labor are currently the main tools to deal with cases of workplace harassment in Costa Rica.

Consequently, it is through precedents and legal criteria that labor regulations and internal policies have been interpreted and applied in cases of workplace harassment.

For its part, the Costa Rican legal system does not expressly regulate the figure of workplace harassment, this does not imply that provisions cannot be used that allow the worker to exercise his right to file a claim and request corresponding compensation when he is a victim of workplace harassment.

Article 69, paragraph c) of the Labor Code establishes the employer’s obligation to: “Give workers due consideration, refraining from verbal or physical abuse.” In the same sense, article 70, paragraph i) of the same law prohibits employers from: “Performing any act that restricts the rights that the worker has under the law.” On the other hand, numeral 71, paragraph d) obliges the employer to: “Observe good customs during working hours.” This entire set of rules would allow, with solid facts, to support a case of workplace harassment.

Finally, in the event of any conduct of moral or psychological harassment, Article 83 of the Labor Code would be applicable, on just causes that empower the worker to terminate the employment contract responsibly, by establishing in its section b): “When the employer incurs during the work in a lack of probity or honesty, or conducts himself in a manner that is contrary to morality or resorts to insult, slander or acts of violence against the worker” ; and even with the labor procedural reform that came into force in July 2017 (Law No. 9343 of January 25, 2016, article 404) the criteria of discrimination that could be alleged in a case of workplace harassment are increased.

Fostering a safer and more respectful work environment
Workplace harassment is a problem that affects thousands of workers around the world.

Although Costa Rica still lacks specific legislation to regulate this type of harassment, there are resources and strategies that both employers and workers can adopt to prevent and address it.

The implementation of clear policies and internal procedures to prevent and address workplace harassment is essential in today’s work environment. Establishing formal procedures to report and address harassment not only fosters a safe and respectful work environment, but can also have a positive impact on employee productivity and morale. It is clear that establishing specific policies and action protocols is an effective measure to prevent and combat workplace harassment in organizations.

Prevention is key to avoiding workplace harassment, which is why companies are urged to build strong and effective internal policies that define what constitutes workplace harassment, the procedures for reporting it, and the corresponding sanctions.

It is essential to encourage an organizational culture based on respect and inclusion, so that, together with ongoing training of staff on issues of workplace harassment and its various manifestations, they constitute effective measures to raise awareness among the working population about the importance of mutual respect, without discrimination.