Last week, on May 29, 2013, Puerto Rico’s governor, Alejandro García Padilla, signed S.B. 238 into law enacting Act No. 22, which prohibits employment discrimination based on sexual orientation or gender identity, both in the public and private sectors. Act No. 22 was enacted despite vigorous lobbying against its approval, which was spearheaded by local religious organizations and other conservative groups.
Among other provisions, Act No. 22 amends Article 1 of Puerto Rico’s anti-discrimination in employment statute, Act No. 100 of June 30, 1959, 29 L.P.R.A. § 146a, by banning employers from taking adverse employment actions (e.g., refusing to hire or rehire, suspending, or firing an employee) or otherwise affecting an individual’s salary or terms, conditions, or privileges of employment because of the individual’s sexual orientation or gender identity.
For purposes of interpretation and application of this new statute, the term “sexual orientation” means each 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 the way in which a person is identified by others or identifies himself or herself as to his or her gender, which may or may not correspond to that person’s biological or assigned sex.
Act No. 22 requires courts to construe both terms liberally and, in the specific case of “gender identity,” to interpret the new law in conformity with the provisions of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (18 U.S.C. § 249). This federal law criminalizes the willful causing (or attempting to cause) of bodily injury through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.
Violations of Act No. 100, as amended by Act No. 22, expose an employer to payment of double the amount of damages suffered by the employee or applicant. Furthermore, an individual who commits a violation of Act No. 100 may be charged with a misdemeanor and, upon conviction, punished by a fine of up to $5,000 and/or imprisonment of up to 90 days or by both penalties at the discretion of the court.
With the enactment of Act No. 22, Puerto Rico now joins 16 states, including California, Illinois, Massachusetts, New Jersey, Vermont, Nevada, and Oregon, in addition to the District of Columbia in expanding workplace protections by prohibiting discrimination on the basis of sexual orientation or gender identity.
Diana J. Nehro is of counsel in the Boston office of Ogletree Deakins. Enrique A. Del Cueto-Pérez is a law clerk in the New Orleans office of Ogletree Deakins and admitted to practice law in the jurisdiction of Puerto Rico.