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Article II, Section 1, of the Puerto Rico Constitution’s Bill of Rights prohibits "discrimination on the basis of race, color, sex, birth, origin or social status, or political or religious ideas." In Garib Bazain v. Hospital Espanol Auxilio Mutuo de Puerto Rico, 2020 TSPR 69, the Supreme Court of Puerto Rico considered whether a person's prior conviction is a protected classification under the constitutional clause prohibiting discrimination based on social status. In a 5-3 decision issued on July 27, 2020, the Court ruled that the status of ex-offender is not a protected category under the Constitution or under Puerto Rico’s general anti-discrimination statute (Act. No. 100 of June 30, 1959) (“Act 100”).
By way of background, in a split decision issued in 2005, the Puerto Rico Supreme Court held that individuals convicted of a criminal offense were protected by the constitutional and statutory provisions prohibiting discrimination on the basis of the individual’s social condition.1 The decision did not set a binding precedent, as it was not issued as an opinion, and there was a plurality of positions on the legal grounds for the analysis. The Conformity Opinion held that an applicant who is otherwise qualified for a position may be rejected on the basis of a past conviction only if the employer could reasonably conclude that the conviction disqualified the candidate from the job after considering: (1) the nature and severity of the crime; (2) the relationship between the crime, the position requested, and the duties and responsibilities of said position; (3) the degree of the applicant’s rehabilitation and any information that the applicant or a third party may legitimately share in connection with this process; (4) the circumstances under which the crime was committed; (5) the age of the applicant at the time the crime was committed; (6) the time elapsed between the conviction and the employment application; and (7) the employer’s interest in protecting its property, as well as the safety and well-being of the public or others.
Although not binding precedent, this decision had been followed by lower courts in Puerto Rico ever since its issuance.
Puerto Rico Supreme Court Reverses Course
In Garib Bazain, a doctor claimed to have been discriminated against in violation of the constitution and Act 100 after he was denied medical privileges at a local hospital because of a prior conviction in the U.S. District Court for the District of Puerto Rico for fraud, misappropriation and embezzlement of public funds. In considering the applicable legal dispositions and precedent, the Supreme Court recognized that that there was no binding precedent as to whether the refusal to hire based on prior convictions constitutes discrimination based on social condition as protected by the Constitution.
In considering the scope of the constitutional protection, the Court noted that the Commission's Report of the Bill of Rights establishes that the protected categories listed relate to “fortuitous” or “accidental” qualities:
race, color, sex, birth, origin or social status and political and religious ideology form categories of easy typification and identification inherent in the nature of every human being. In this sense, these categories respond to fortuitous, natural and spontaneous circumstances of humanity and are consubstantial to the mere fact of being and existing. In addition, our Constitution prohibits the use of these classifications to differentiate, discriminate, and exclude.
Act 100, in turn, mirrors the constitutional prohibition and creates a cause of action against private employers for discriminating based on the enumerated categories at the time of hiring or throughout employment. Over the years, as the Supreme Court recognized, the legislature has revised the list of protected categories to include those classifications that, because of public policy considerations, were deemed important. Specifically, the following additional groups have been added to Act No. 100’s list of protected categories: sex, sexual orientation, gender identity, national origin, political or religious ideas, being a victim or be perceived as a victim of domestic violence, sexual assault or stalking, and military or veteran status.
The classification of “social status” has remained unaltered since its inclusion in the Bill of Rights. Consequently, the Court immersed itself in the meaning and significance of this protection based on the record of discussions among members of the Constitutional commission concluding its inclusion was based on purely socioeconomic considerations. The Court further reasoned that any category protected by the Constitution “must be, necessarily substantial to the essence of the person subject to the discrimination and not a product of free will or the will of the discrimination.”
The quality of a person being an ex-offender is not subsumed in the category of origin or social status protected by the Constitution or by legislation prohibiting discrimination in employment. The situation or circumstance of having committed and been convicted of the offences committed is not determined by the origin and social status of a person. On the contrary, this quality responds only to a volitive and conscious act of a human being who is not a product of its nature and is not attributable to an accident or a fortuitous cause. Rather, it is a self-inflicted quality that is not exclusive to a given social or economic class.
The Court went on to note that notwithstanding the numerous amendments to enlarge the list of protected categories under Act No. 100, an amendment to include discrimination based on a prior conviction has not been adopted, even after at least three legislative attempts.
Furthermore, the Court recognized that various statutes in Puerto Rico recognize the employer’s right to access and use prior convictions when making employment decisions. For example, Act No. 254 of July 27, 1974, as amended, authorizes the Police Department to issue certificates of good conduct. Of significance, the Court recognized that in 2011, when the legislature amended Act No. 254 in order to allow the Police and the Department of Correction and Rehabilitation to issue a certificate of rehabilitation and job training, it recognized that the law:
provides information of extreme importance to prospective employers, including the State, on the personal history of its employees, which has the function of reasonably indicating to the employer about the integrity of their character based on previous and public conduct . . . [t]he importance of this type of information is that employers are vicariously responsible for the culpable or negligent acts of their employees.2
Finally, the majority Opinion recognized that even though more than 10 years have elapsed since its non-binding decision on this issue, and the different “opinions” expressed at the time by the then-members of the Supreme Court, the legislature has not amended Act. 100 to specifically incorporate the status of being an ex-convict as a protected category. Accordingly, it is not the Court’s function to amend this list by judicial fiat when the legislature has been unable to do so on various occasions.
Three Justices in this case dissented. Specifically, Chief Justice Oronoz Rodríguez and Associate Justices Estrella Martínez and Colón Pérez disagreed and issued separate written opinions. Associate Justice Mr. Kolthoff Caraballo did not intervene.
On a final note, just a few weeks before the legislature’s last session, there was a further attempt by the legislature to incorporate ex-offender status among the protected classifications. Specifically, Senate Bill No. 992 was sent to the governor for her signature, only to be tabled a few days later. Bill No. 992 would have prohibited discrimination against employees and applicants in both in the private and public sector on the grounds of criminal conviction. As it pertains to private-sector employees, the statute aimed to amend Act No. 100 by specifically incorporating as a protected category “by reason of being a convict.” Although the Bill recognized an employer’s right to require a certification of a candidate’s criminal background history, this would only have been an option once a conditional offer of employment was made.
Considering there are only a few months before the general election, we do not anticipate that any further efforts to amend Act 100 will be passed and signed before the year’s end.
1 Rosario v. Toyota Corp. de Puerto Rico, 166 D.P.R. 1 (2005).
2 Law No. 174 of 11 August 2011.