Sex discrimination in employment: what Act 69 declares illegal, point by point

It is the substantive sex-discrimination-in-employment statute in Puerto Rico. Our general employment discrimination guide explains the complaint route at the Department of Labor and the full list of protected grounds; this one explains what Act 69 says is illegal, and says it with the detail that makes it citable: job ads, interview questions, fringe benefits, rules about married women and retirement ages.

Any employee or job applicant. The law defines “employee” broadly and includes any individual whose work ceased as a consequence of an illegal labor practice as the law itself defines it. Those bound are employers, employment agencies, labor organizations and joint labor-management committees controlling apprenticeship, training or retraining programs.

• That the action be by reason of sex, a term the law defines to include pregnancy, childbirth and related medical conditions.Verified against the official source
• That it come from an employer, employment agency, labor organization or joint labor-management committee controlling apprenticeship, training or retraining programs.Verified against the official source

Information pending verification.

1. 1

   Step 1: Pregnancy is inside “by reason of sex”

   It does not need arguing: the law defines it. “By reason of sex” includes, but is not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall receive equal treatment for every purpose related to their employment, including receiving benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. And a separate article declares illegal the written or verbal policy or practice of excluding applicants or employees from employment by reason of pregnancy, childbirth or related medical conditions.

2. 2

   Step 2: The job ad can itself be the violation

   It is a violation of this law for a job opportunity advertisement or notice to indicate a preference, limitation, specification or discrimination by reason of sex, with the bona fide occupational requirement exception for the specific job indicated. And the law goes further: placing an ad in publishers’ sex-based classified columns, such as “Men” or “Women” columns, shall be considered an expression of preference, limitation, specification or discrimination by reason of sex. Keep a screenshot of the ad.

3. 3

   Step 3: Interview questions too

   Any question asked before hiring a person in relation to future employment that directly or indirectly expresses any limitation, specification or discrimination as to sex is illegal, unless made on the basis of a bona fide occupational requirement. “Indirectly” is the word doing the work here.

4. 4

   Step 4: Fringe benefits: the example the law names

   This article is unusually concrete. It is an illegal practice to grant benefits to the wives and dependents of male employees when those benefits are not granted to the husbands and dependents of female employees, and vice versa. So is conditioning benefits available to employees, their spouses or dependents on the employee being head of household or the higher earner. And the law closes the most common exit: it is not a defense that the cost of such benefits is higher for one sex than the other. A retirement or pension system with different ages — optional or compulsory — or with different benefits by sex is likewise illegal.

5. 5

   Step 5: The rule about married women

   The law says it in one line: any employer rule or regulation that prohibits or limits the employment of married women and is not applicable to married men is sex discrimination, prohibited by this law.

6. 6

   Step 6: The “bona fide occupational requirement” is construed restrictively

   The law expressly orders it and names three things that do not justify it: refusing to employ a woman based on presumptions about the comparative employment characteristics of women in general; refusing to place a person using stereotyped characterizations of the sexes — the non-discrimination principle requires considering individuals on the basis of individual capacities and not any characteristic commonly attributed to the group; and refusing to place a person because of the preferences of co-workers, the employer or customers. The law does allow sex as a bona fide requirement where necessary for authenticity or legitimacy.

7. 7

   Step 7: Complaining is protected

   It is an illegal labor practice for the employer, labor organization or joint labor-management committee to dismiss or discriminate against any employee or participant who files a complaint or grievance, opposes discriminatory practices, or participates in an investigation or proceeding against the employer or organization. We cover workplace retaliation in its own guide.

8. 8

   Step 8: What the court can order

   Civil liability for a sum equal to double the damages caused to the employee or applicant; or for a sum of no less than one hundred (100) and no more than one thousand (1,000) dollars, at the court’s discretion, if pecuniary damages cannot be determined; or double the damages if these are under one hundred dollars. In addition, a misdemeanor punished with a fine of no less than one hundred (100) and no more than five hundred (500) dollars, or imprisonment of no less than thirty (30) and no more than ninety (90) days, or both. And in the civil judgment the court may order the employer to reinstate the employee and to cease and desist from the act. If you win and your lawyer is not from the Department of Labor, the judgment imposes costs and fees never less than three hundred (300) dollars.

The Secretary of Labor and Human Resources is charged with overseeing compliance with this law, and is authorized to carry out investigations and inspections on their own initiative or upon a complaint filed by a person. The law confers original concurrent jurisdiction on the Superior Court and the District Court, and civil claims may proceed by ordinary action or through the complaint procedure of Act No. 2 of October 17, 1961. Claims of several employees against a common employer may be joined in a single action. The Department of Labor complaint process is explained in our employment discrimination guide.

• Believing you must prove pregnancy counts as sex: the law defines it that way expressly.
• Dismissing the job ad as evidence: an ad with a sex preference is already a violation.
• Accepting an indirect interview question: the law reaches the direct and the indirect.
• Accepting that a benefit costs more for one sex: the law says that is not a defense.
• Thinking the bona fide occupational requirement is a broad exit: the law orders it construed restrictively.
• Staying silent for fear of retaliation: retaliating against someone who complains or takes part in the investigation is another illegal practice.

These are the government pages this guide is based on.

• Departamento del Trabajo y Recursos Humanos (DTRH)

  Departamento del Trabajo

  bvirtualogp.pr.gov

• Department of Labor and Human Resources

  DTRH

  www.trabajo.pr.gov