If you have any questions in regards to the above, please do not hesitate to contact our offices so that we may explain the amendments to the provisions of the Code in more detail. Our address is:
Fiddler González & Rodríguez, P.S.C., P.O. Box 363507, San Juan, PR 00936-3507. Our fax (787) 759-3108.
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José J. Santiago
Carlos A. Padilla
Antonio L. García
The Puerto Rico Department of Labor and Human Resources and the Office of Training and Advice on Labor Matters and Human Resources Management (OCALARH for its initials in Spanish) have issued a Joint Protocol on the compliance, education and training regarding the public policy established to eradicate discrimination based on sexual orientation or gender identity established by PR Act 22 of May, 2013. (See Labor Watch Vol. 2013, No. 6).
The object of the protocol is: to implement the provisions of Act 22; provide guidance to employers of the Act's requirements; educate the public regarding what constitutes a violation of the Act; ensure that all persons are treated in a manner consistent with the gender identity they have adopted; and, provide guidance to employers regarding the internal handling of discrimination complaints based on sexual orientation or gender identity.
The Protocol requires that employers: provide clear and explicit information to their managerial employees, supervisors, regular employees and visitors regarding the laws and regulations involving sexual orientation or gender identity; amend their personnel regulations or manuals to include the public policy established by Act 22; provide training on the implementation of Act 22; and place a poster of all relevant statutes prepared by the Department of Labor in a visible site in the workplace.
Employers must maintain information about an employee's sexual orientation or gender identity in a confidential manner.
The Protocol provides a list of acts that could be evidence of harassment or hostile work environment based on sexual orientation or gender identity, including: asking questions about a person's body, physical changes or sexual practices; allowing jokes or comments that mock a person on the basis of sexual orientation or gender identity, even if not directed at the victim; allowing the use of workplace or work materials or equipment to produce material that is offensive or that undermines a person's dignity because of sexual orientation or gender identity; refuse access to sanitary or other gender-identified facilities to employees who identify with that gender identity; require that employees dress or present themselves in a manner inconsistent with their gender identity or that does not allow them to express their gender identity.
Finally, the Protocol requires employers to prepare, publish and inform their employees of the internal procedure to resolve complaints of discrimination based on sexual orientation or gender identity. Although employers may use the same procedure that they already have in place for other types of discrimination, it must include the following minimal guarantees: a person who is knowledgeable on the issue must be appointed to handle internal complaints; employees must be informed that their employment and working conditions will not be affected by filing a complaint and that the information obtained during an investigation will be handled with confidentiality and respect; the procedure must be activated when a complaint is filed and it must be adequate and effective; the employee may present a written or verbal complaint before the person assigned, unless the complaint involves that person, in that case, the complaint will be filed before an alternate person; the complainant shall be informed of his rights during the proceedings and of the alternatives to the internal procedure; every complaint must be investigated and the investigation shall be conducted expeditiously; the investigation files must include the complainant's statements, as well as those of other parties and witnesses; all participants must be informed that the investigation is confidential and that there will be no retaliation for participating; a final determination or report must be issued in a reasonable time, which must be notified to the parties.
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