Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Dominican Republic (Ratification: 1964)

Article 1(1) of the Convention. Discrimination on the grounds of colour, race or national extraction. For a number of years, the Committee has been referring to discrimination against Haitians and dark-skinned Dominicans and recalls that in 2014 the Conference Committee on the Application of Standards referred to Ruling No. TC/0168/13 of the Constitutional Court of 23 September 2013, which retroactively denied Dominican nationality to foreign nationals and children of foreign nationals. The Committee recalls that this measure particularly affected Haitian nationals and Dominicans of Haitian descent. The Committee noted the Government’s adoption of the National Plan for the regularization of foreign nationals (hereinafter, the Regularization Plan) (Decree No. 327-13 of 20 November 2013) and of Act No. 169-14 of 23 May 2014, which both have the aim of resolving the situation of Dominicans of Haitian descent. The Committee notes the Government’s indication in its report that Haitians are considered as migrant workers and as such are covered by the Labour Code, including the provisions protecting them against any distinction made on the grounds of race, sex, religion or any other condition. The Government adds that 288,466 persons of 23 nationalities availed themselves of the Regularization Plan. This total included 20,365 persons registered who lacked any kind of documentation, 95,164 who held passports, 69,997 who possessed identity cards and 102,940 who were registered on the basis of their birth certificates. The Government also indicates that there is no special mechanism for dealing with complaints of discrimination relating to persons of Haitian origin or Dominicans of Haitian descent, but that the latter are covered by the same mechanisms established in the Labour Code for all workers. However, the Committee observes that the information supplied does not show how many Haitians or undocumented individuals of Haitian descent were registered in the context of the Regularization Plan. The Committee further notes that the International Organization for Migration (IOM) published other figures in September 2015, according to which only 100,000 of the persons registered in the Regularization Plan have received documentation and 130,000 identity documents are still pending. According to the IOM, however, 98 per cent of the registered persons are Haitians. The Committee requests the Government to send further information on the Regularization Plan clearly indicating the number of migrant workers whose situation has been regularized. The Committee also requests the Government to take steps to ensure that the migration status or lack of documentation of workers of Haitian descent does not exacerbate the vulnerability of these workers to discrimination. The Committee furthermore requests the Government to send detailed information on any complaints of discrimination, including pay discrimination in employment, made by workers of Haitian descent or dark-skinned Dominicans, the action taken, penalties imposed and compensation awarded.

Sexual harassment and mandatory pregnancy testing to obtain or keep a job. For a number of years, the Committee has been referring to the persistence of discrimination based on sex, particularly mandatory pregnancy testing and sexual harassment. In its previous comments, the Committee asked the Government to take steps to incorporate in the legislation, including in the current revision of the Labour Code, provisions that prohibit and adequately penalize both quid pro quo and hostile environment sexual harassment, and also mandatory pregnancy testing. The Committee notes the Government’s reference to Act No. 16-92 of 29 May 1992, which prohibits the employer from taking any actions against a worker that can be considered as sexual harassment or failing to support or intervene should such actions be taken by its representatives. The Government also refers to the Labour Rights Guide: Equal Opportunities and Non-Discrimination of 2013, which states that in the event of sexual harassment the worker can terminate the employment contract under section 47 of the Labour Code. The Committee recalls that legislation under which the sole redress available to victims of sexual harassment is termination of the employment relationship does not afford sufficient protection for victims of sexual harassment, since it in fact punishes them and could dissuade victims from seeking redress (see General Survey on the fundamental Conventions, 2012, paragraphs 791 and 792). The Committee further observes that the Government does not refer to pregnancy testing for obtaining or keeping a job. The Committee deplores the requirement by employers of pregnancy testing to obtain or keep a job, which constitutes a serious form of discrimination based on sex. The Committee urges the Government to take the necessary steps to provide adequate protection for victims of sexual harassment that is not limited to the possibility of terminating the employment contract and to adopt legal provisions that define and expressly prohibit both quid pro quo and hostile work environment sexual harassment. The Committee also urges the Government to take the necessary measures without delay to establish the explicit prohibition in law of mandatory pregnancy testing to obtain or keep a job. The Committee requests the Government to send information on any progress made in this respect, and also on complaints made in relation to sexual harassment and mandatory pregnancy testing, the follow-up action taken, penalties imposed and redress awarded.

The Committee notes the request for technical assistance addressed by the Government to the Office concerning the various questions that are pending in relation to the application of the Convention. The Committee hopes that the technical assistance will be provided in the near future.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to report in detail in 2016.]