Takeaways

1. In Reyes Cobián v. Autoridad de los Puertos de Puerto Rico, 2026 T.S.P.R. 99 (Sept. 21, 2026), the Puerto Rico Supreme Court held that the Puerto Rico Ports Authority (PRPA) is an “employer” under the Puerto Rico Anti-Discrimination Act (Act 100) because it operates as a private business or enterprise.
2. Under the Puerto Rico Workplace Harassment Act (Act 90-2020), an employee cannot be required to exhaust internal remedies with an employer that has no internal procedure for workplace harassment complaints. The employee must nonetheless go to the Judicial Branch’s Bureau of Alternative Dispute Resolution Methods before filing suit, and a court’s own referral does not cure that failure. The Court therefore upheld dismissal of the Act 90 claim.
3. Employers should review their internal regulations. A procedure that does not expressly address workplace harassment will not satisfy the first exhaustion step under Act 90, and a regulation that invokes Act 100 may be used against the employer.

Article

On September 21, 2026, the Puerto Rico Supreme Court issued an Opinion, authored by Chief Justice Oronoz Rodríguez, addressing two issues of significant importance to public and private employers. First, it addressed when a public corporation is an “employer” under Act No. 100 of June 30, 1959, the Puerto Rico Anti-Discrimination Act. Second, it addressed what the exhaustion requirement of Act No. 90-2020, the Act to Prohibit and Prevent Workplace Harassment in Puerto Rico, demands.

Background

The plaintiff, director of the Aerial Rescue Unit at the Isla Grande Airport, sued the PRPA under Act 90 and Act 100. She alleged that, since her transfer in 2015, she had been denied essential equipment. She also alleged that she worked from a mobile trailer without a women’s restroom or internet access, and that her supervisors made sexist remarks about her height, physical condition, and sexual orientation. She sought $250,000 in damages.
The PRPA moved to dismiss. It argued that it is not an employer under Act 100, that the allegations were insufficient, and that the plaintiff failed to exhaust the remedies Act 90 requires. The Court of First Instance denied the motion and, on its own initiative, referred the case to the ADR Bureau.

However, the Bureau’s Conflict Mediation Center returned the referral because the case was pending before the Court of Appeals. That court then dismissed the complaint with prejudice, finding the allegations insufficient and concluding that the plaintiff had failed to go to the ADR Bureau.

The Supreme Court’s Decision

The Supreme Court reversed the Court of Appeals in part and remanded to the Court of First Instance solely for further proceedings on the Act 100 claim. Its principal holdings are:

1. The PRPA is an employer under Act 100. Act 100 defines “employer” to include government agencies and instrumentalities that operate as private businesses or enterprises. Applying the factors set forth in A.A.A. v. Unión Empleados A.A.A., 105 D.P.R. 437 (1976), the Court emphasized that the PRPA has a legal personality separate from the Government. It is also governed by a board, may sue and be sued, may acquire and dispose of property, may borrow money and issue bonds, and may charge fees for its services.
2. The personnel-law factor is no longer meaningful. Act No. 8-2017 (the Single Employer Act) excludes public corporations that operate as private businesses. The Court therefore concluded that the first A.A.A. factor, which asks whether the Government’s personnel law covers the entity’s employees, cannot be applied. It reiterated that no single factor is dispositive.
3. The PRPA’s own regulation undercut its position. The PRPA’s Regulation No. 7477, which governs discrimination complaints, cites Act 100 as its legal basis. The Court found it contradictory for the PRPA to argue that a statute it incorporated into its own internal procedure does not apply to it.
4. Act 100 does not require exhaustion. An employee may choose among filing an internal complaint with the employer, filing a charge with the Department of Labor’s Anti-Discrimination Unit or the EEOC, or filing suit directly in the Court of First Instance or the U.S. District Court for the District of Puerto Rico.
5. Act 90 requires exhaustion, but only where there are remedies to exhaust. Article 10 of Act 90 requires the employee to first use the employer’s internal procedures. Regulation 7477 does not mention workplace harassment, so there was no internal procedure to exhaust. The Court nonetheless reaffirmed that, even without an internal procedure, the employee must go to the ADR Bureau before filing suit. Mediation itself is not mandatory, but going to the Bureau and obtaining its recommendation is.
6. A court referral is not exhaustion. The plaintiff did not go to the Bureau on her own before filing suit. The trial court’s referral did not satisfy the requirement either, because the Bureau returned the matter without evaluating it while the case was pending before the Court of Appeals. Article 10 requires the employee to go to the Bureau as a prerequisite to filing suit. The Court therefore held that the Court of Appeals correctly dismissed the Act 90 claim.
7. The allegations were sufficient. The Court held that the complaint satisfied the plausibility standard. It reiterated that dismissal is proper only if the defendant shows with certainty that the plaintiff would not be entitled to any relief.

Implications for Employers

This decision has practical consequences for both public corporations and private employers. In particular, employers should:

• Adopt a specific internal procedure for workplace harassment. Act 90 contemplates that employees will first use that internal procedure. A general discrimination policy that does not address workplace harassment will not satisfy the first exhaustion step, and the employer loses the opportunity to address the complaint before litigation.
• Raise the ADR Bureau requirement early. It is a dispositive defense to Act 90 claims even where the employer lacks an internal procedure. A later referral by the court does not cure the employee’s failure to go to the Bureau before filing suit.
• Assess Act 100 exposure if the employer is a public corporation. If the entity has fiscal and administrative autonomy, issues debt, or charges for its services, the argument that its employees are government employees under Act 8-2017 carries little weight.
• Review the language of internal regulations. Citing a statute as the legal basis for an internal procedure may be treated as an admission that the statute applies.
• Remember that Act 100 claims do not require exhaustion. A defense based on the employee’s failure to use the internal procedure will not succeed in that context.

Asertis Legal Group is available to assist employers in developing workplace harassment and anti-discrimination protocols, reviewing internal regulations, and defending claims under Act 90 and Act 100.