Mrs. Neera Mathur had applied to work at Life Insurance Corporation of India (LIC). Upon clearing the written test and the interview, she was asked to fill a declaration form disclosing personal facts as to pregnancy (if any) and her menstrual cycle. Further, she was required to undergo a medical examination as prescribed by LIC. She submitted her declaration and also underwent a medical examination and was certified as being fit for the job. Thereafter, her training program commenced and on its completion, she received an appointment letter with the stipulation that she would be on probation for the first six months and her appointment would be confirmed subject to her performance being satisfactory. During her probation she applied for maternity leave which was granted. On her return to service she was discharged from employment on the grounds that her service was not satisfactory and that she had failed to disclose personal facts as to her pregnancy and menstruation in her declaration form. Mrs. Mathur appealed to the Supreme Court on the grounds that her right to equality guaranteed under Article 14 of the Indian Constitution had been violated by the arbitrary order of discharge. The Supreme Court ordered LIC to re-instate Mrs. Mathur and set aside the order of discharge on the grounds that there was no evidence to prove that her performance was unsatisfactory and the only reason for termination was her failure to disclose personal facts in her declaration that are not required to be disclosed to an employer. The Court stated that while India is moving forward to achieve the constitutional guarantee of equal rights for women, LIC seemed not to be moving with time. It further recommended that LIC delete such requirements from its declaration form and made a note of the fact that if one indirectly seeks to evade providing maternity leave and benefits to a female candidate by not hiring her if she is pregnant at the time of entering the service, the same may be open to a constitutional challenge.
Women and Justice: Keywords
Domestic Case Law
During a staff selection process for the Basque Health Service, in particular for the substitution of the chief of psychiatry services in the Santiago de Vitoria Hospital for a period of six (6) months, Mrs. Elena who had had a baby fifteen (15) days before the above mentioned selection process, was obliged by the Basque Health Service authority to renounce to the post she had the right to. The Basque Health Service authority deprived Mrs. Elena from a post that corresponded to her by the position she had in the list of temporary recruitment. The Basque Health Service authority forced Mrs. Elena to renounce to the post because of her recent maternity when she had expressly said that she wanted to accept that job. Art. 48 of the Statute of Workers Right (Estatuto de los Trabajadores) damage the worker depriving them from an appointment that corresponds to the worker. The maternity leave is not equal to a lack of capacity for the performance of their duties for the post under Spanish law. Law 30/1999 of 5th October of selection of temporary workers of the Health Service, does not exclude the recruitment of a person during the maternity leave. The decision of the High Court of the Basque Country was to appoint Mrs. Elena as temporary worker for the Basque Health Service (in particular for the substitution of the chief of psychiatry services in the hospital Santiago de Vitoria) for the remaining period until the fulfillment of the six (6) months period of the vacant position.
Durante un proceso de selección de personal para el Servicio de Salud Vasco, en particular para la sustitución del jefe de servicios de psiquiatría en el Hospital Santiago de Vitoria por un período de seis (6) meses, la Sra. Elena, que había tenido un bebé quince (15) días antes del proceso de selección mencionado anteriormente, fue obligada por la autoridad del Servicio Vasco de Salud a renunciar al cargo al que tenía derecho. La autoridad del Servicio Vasco de Salud privó a la Sra. Elena de un puesto que le correspondía y le otorgó la posición a alguien en la lista de reclutamiento temporal. La autoridad del Servicio Vasco de Salud obligó a la Sra. Elena a renunciar al cargo debido a su reciente maternidad cuando había dicho expresamente que quería aceptar ese trabajo. Artículo 48 del Estatuto de los Trabajadores (Estatuto de los Trabajadores) establece un daño al trabajador que ha sido privado de una cita que le corresponde. La licencia de maternidad no es igual a la falta de capacidad para el desempeño de sus funciones para el puesto bajo la ley española. La Ley 30/1999, de 5 de octubre, de selección de trabajadores temporales del Servicio de Salud, no excluye el reclutamiento de una persona durante la licencia de maternidad. La decisión del Tribunal Superior del País Vasco fue designar a la señora Elena como trabajadora temporal del Servicio Vasco de Salud (en particular para la sustitución del jefe de servicios de psiquiatría en el hospital Santiago de Vitoria) por el período restante hasta el cumplimiento del período de seis (6) meses del puesto vacante.
Employees of state hospitals in Hamburg were granted the right in 1995 to continued employment in case of privatization of the hospitals. In 2000, the cleaning staff were spun out into a separate company which was a wholly-owned subsidiary of the state hospitals. Upon privatization in 2005, the right to continued employment was applied only to those employees employed by the state hospitals, not those employed by the wholly-owned subsidiary company. The Court held this to be in breach of the right to equal treatment enshrined in the German constitution as the cleaning staff denied the right to continued employment due to the spin-off were predominantly women and there was no evident justification for the unequal treatment of the two groups of employees.
The claimant sued her employer on the grounds of discrimination after a male colleague received a promotion to a management role she had hoped for. The Court decided for the claimant, accepting statistical evidence showing that, while the majority of employees of the employer (69%) were women, no women were represented on the three most senior management levels. This was the first decision of a court accepting such statistical evidence of discrimination.
The Court held that it was unconstitutional to require an attorney without earnings to continue to make compulsory pension contributions during time taken out to care for children (up to the age of three years). Requiring such compulsory pension contributions was viewed as in breach of the right to equal treatment enshrined in the German constitution because it disproportionately affects women who are in the vast majority of cases the ones taking time out to care for small children.
The Constitutional Court found that a Labour Law that states that an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married is constitutional and not discriminatory. Under Article 14.1 of the Turkish Labour Law, an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married. The Izmir 6th Labour Court found that this provision is discriminatory under the Constitution as it treats male and female workers differently. Using Article 41 and Article 50 of the Turkish Constitution, the Constitutional Court, however, ruled that the law is not discriminatory and does not violate the Constitution. Under Article 41, Turkey has the power to “take necessary measures” to ensure the “peace and welfare” of the family, specifically in regards to the protection of mothers and children. Article 50 allows women, and other protected groups, to enjoy “special working conditions.” The Court found that the goal of the Labour Law to protect both female workers and the family union aligned with these two Articles, and thus was neither discriminatory nor in violation of the Constitution.
Although plaintiff had satisfactorily completed her firefighter-training year and had been highly recommended for advancement, she was found to have allegedly failed five final task tests and her employment was terminated shortly thereafter. Plaintiff filed an action against defendant City of Medford for unlawful employment practice alleging she was unlawfully discharged as a firefighter on the bases of gender and of perceived impairment in violation of ORS 659.030 which provides, in pertinent part, “(1) It is an unlawful employment practice: (a) For an employer, because of an individual's . . . sex, . . . to . . . discharge from employment such individual. However, discrimination is not an unlawful employment practice if such discrimination results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer's business.” Plaintiff was required to prove only that she was treated less favorably than male candidates because of sex, which is sufficient to establish a discriminatory motive. The Circuit Court found for the employee on the gender discrimination claim, and the appellate court affirmed. Here, the grading was unfair to plaintiff because it was highly subjective and allowed for too much internal bias. Furthermore, because two of the evaluators were officers who had previously expressed reservations regarding a gender-integrated department on behalf of other firefighters, it was a permissible inference that those evaluators attempted to give effect to the line firefighters' animus by giving plaintiff lower scores than she deserved. These testing problems existed within a context, revealing a general animosity toward female firefighters as firemen had told plaintiff that they were having problems with their wives over the hiring of a woman and had expressed concerns about plaintiff’s ability to ably assist the other firefighters during a fire despite plaintiff’s proven physical ability. Finally, plaintiff's success as a firefighter before and after her experience in Medford provided circumstantial evidence of discriminatory treatment. Thus, the appellate court affirmed the judgment, concluding that plaintiff satisfied her burden in proving that gender was a substantial and impermissible factor in the city's decision to discharge her.
In an application under Article 102 of the Constitution, the Bangladesh National Women's Lawyers Association (BNWLA) petitioned the Supreme Court of Bangladesh (High Court Division) to address the exploitation and abuse endured by child domestic laborers in Bangladesh. The BNWLA argued that child domestic workers are subjected to economic exploitation, physical and emotional abuse, and the deprival of an education in violation of their fundamental constitutional rights. In support of these arguments, it presented multiple reports of extreme abuse suffered by child domestic workers. In deciding this case, the Court reviewed the current laws in Bangladesh, including the Labour Act, 2006, which fails to extend labor protections to "domestic workers," including children, and lacks an effective implementation and enforcement system. The Court directed the government of Bangladesh to take immediate steps to increase its protection of the fundamental rights of child domestic workers including prohibiting children under the age of twelve from working in any capacity including domestic settings; supporting the education of adolescents; implementing the National Elimination of Child Labour Policy 2010 and applying the Labour Act, 2006 to domestic workers. Additionally, the Court directed the government to monitor and prosecute incidents of violence against child domestic workers, maintain a registry of domestic workers and their whereabouts to combat trafficking, promulgate mandatory health check-ups and strengthen the legal framework relating to child domestic workers.
Here, the plaintiff was an at-will employee whose contract could be terminated by either party giving thirty days written notice. The plaintiff mainly worked for the defendant, who was the president and controlling shareholder of the company. The plaintiff alleged the defendant made sexual comments and advances towards her a few weeks after she commenced work and also touched her inappropriately. The plaintiff told the defendant his behavior made her uncomfortable but he did not stop. Subsequently, the plaintiff began recording the defendant’s conduct in a journal and rejecting his advances more forcefully. The defendant subsequently fired the plaintiff for substandard job performance. Under 19 Del. C. § 711, an employer may not discriminate against an employee based upon gender. The defendant argued that there could be no common law cause of action for employment discrimination because there was already a statutory scheme, and the plaintiff was required to abide by the specific procedures of that statute to bring such a claim. Specifically, the defendant argued that judicial review is only available after the Delaware Department of Labor Review Board hears the matter. Plaintiff based her theory on a breach of the implied covenant of good faith and fair dealing derived from the employment contract and as such, her claim did not arise directly from § 711. The court found that the plaintiff had a common law cause of action and she could bring her claim.
The plaintiff applied for a job to work at the defendant’s race track as a security officer. The defendant’s director of security informed the plaintiff that he normally did not hire women and instead employed her in the dispatch hour to answer telephones and complete paper work. The plaintiff had a bachelor’s degree in criminal justice and experience in security work. The plaintiff subsequently requested to work the late night security shift at the stable gate to work additional hours. Her request was denied as the director did not hire women for this position. When the general manager learned of the incident, he informed the director that he violated company policy and directed him to change his discriminatory practices. Ultimately, the plaintiff left the company due to disputes over her work assignments and she filed a complaint with the Maine Human Rights Commission and sued the defendant. The trial court determined that but for the director’s gender discrimination, the plaintiff could have worked an additional sixteen hours each week for thirty-three weeks and that she would have earned overtime. The Supreme Court of Maine held that the plaintiff was entitled to back pay for these lost wages under 5 M.R.S.A. § 4613.
Anderson worked the night shift at FBG Service Corp (“FBG”). A review conducted in November 1988 stated that Anderson’s work was “excellent.” In early or mid-July 1989, a coworker recommended Anderson for the recently vacated job of daytime supervisor, and Anderson expressed interest. The person with hiring authority told coworkers that he preferred a man for the job as it involved heavy lifting. A month later, the firm hired a man with 21 years of experience in the military and 18 years of experience in repairing machinery for a “janitorial” position at a rate of $4 an hour.
Here, the plaintiff worked for the defendant in a union shop and she joined the union as a requirement for her employment. After working without incident for a few months, the plaintiff applied to work a different position for higher pay. The plaintiff’s foreman told her that if she wanted the job, she would have to be nice. The plaintiff got the job. Subsequently, the foreman asked her out and she refused. Following this, the plaintiff’s personnel manager visited her at home about some annoying phone calls the plaintiff was receiving, and during that visit, the manager told the plaintiff he knew that the foreman used his position to make advances at female employees under his authority, and asked the plaintiff “not to make trouble.” After that, only three weeks after having worked in the new position, her machine was shut down, her overtime was taken away (even though no one else’s was), and she had to return to a position at a lower salary. The foreman continued to harass plaintiff in various ways, eventually firing her for refusing to comply an order at the very moment she was making a complaint to the union steward. After she was reinstated, the plaintiff was fired yet again when she called in sick over a period of time. The plaintiff did not file a claim for hostile working environment upon her termination. However, she did sue for breach of her employment contract. The plaintiff was an at-will employee. The court noted that in order to find termination was improper, the plaintiff would need to show that the termination was motivated by bad faith or malice. The court noted that the facts of the case—in particular, the foreman’s overtures, manipulation of assignments, and the connivance of the personnel manager, all supported the jury’s conclusion that termination was maliciously motivated and thus improper. Thus, even though the plaintiff did not sue for sexual harassment, she was able to use the harassment to show she was maliciously terminated from her job.
Here, the plaintiff was hired by the defendant as an assistant professor. Throughout her employment, she was reappointed and complimented by the appointments and promotions committee. In her positions, the plaintiff taught, researched, and participated in service efforts for the defendant. Id. at 629-30. Despite that the plaintiff published several articles, taught students and supervised student research, during her tenure review in her sixth year of employment, she was denied tenure. Id. at 632-33. The tenure committee found the plaintiff was a “good teacher but not an extraordinary one,” and found her service to the school to be adequate. However the committee found her research and scholarship was inadequate, since she had only published one article in a refereed professional journal (notwithstanding that she had other publications). Id. at 634. The plaintiff claimed that the tenure process as it applied to her was discriminatory. The court noted that to establish a prima facie case of gender discrimination in the work environment, a plaintiff must show: “(1) she was a member of a protected class; (2) she was qualified for her position; (3) she was discharged; and (4) the termination occurred under circumstances giving rise to an inference of discrimination.” Id. at 225-26. The court noted to meet the fourth element, the plaintiff must show that “she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred.” Id. at 638. Once a prima facie case is established, to succeed on a gender discrimination claim, the plaintiff must go further to show that the defendant was motivated by an intent to discriminate against the plaintiff in its acts.
Here, the plaintiff filed a claim of sexual harassment against the defendant under Gen. Stat. § 46a-60, alleging that the harassment caused low self esteem, damage to the plaintiff’s career and reputation, lost wages, lost insurance, lost fringe benefits, and physical and mental pain and suffering. The defendant argued that the plaintiff could not bring a claim for a hostile working environment because under § 46a-82, the plaintiff was required to exhaust administrative remedies prior to seeking redress in court. Id. at *1. Specifically, the plaintiff was required to file a complaint with the Commission on Human Rights and Opportunities and obtain a release from the Commission to file an action in court. Id. at *2. The plaintiff failed to do either of these and claimed she was exempt; she claimed the Commission’s remedies were inadequate because the Commission has no authority to award compensatory and punitive damages, both of which the plaintiff sought. Id. The court dismissed the plaintiff’s complaint as it found that the Commission’s authority is not based upon a plaintiff’s preferred remedy; she must still file a complaint with the Commission and obtain a release to bring an action in court. Id. at *4.
Here, the defendant-employer appealed the decision of the Equal Employment Review Board that it had discriminated against the plaintiff because of her sex, in violation of 19 Del. C. § 711. The plaintiff was a waitress for almost four years when she requested maternity leave to the restaurant’s owner and general manager. She was granted maternity leave and told she could return to work to her previous schedule when physically able. Id. at *1. When the plaintiff attempted to return to work three months later, she was told there were no positions available, but at that time, six part-time waitresses were hired. Id. When the plaintiff applied for unemployment compensation, she was offered a position but with a reduced schedule, and which gave her less time serving on the patio, where greater tips could be yielded than inside. The plaintiff was never replaced by a male employee but did lose income as a result of her reduced schedule. Id. The Equal Employment Review Board found the defendant discriminated against the plaintiff. On appeal, the court noted that to prove a prima facie case of gender discrimination, a plaintiff must satisfy a four-prong test as articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Under the test, the plaintiff was required to show that she “(1) was within the protected group; (2) that [she] was qualified for the position in question; (3) that despite [her] qualifications, [she] was rejected or discharged; and (4) that after [her] rejection, the employer continued to seek applicants from persons with the same qualifications, or that [she] was replaced by a person outside of the protected group.” Id. However, if at that point, the employer could show a reason for its actions that were non-discriminatory, a plaintiff may not necessarily prevail on a gender discrimination claim. The court found that the Board did not consider the employer’s rebuttal of the plaintiff’s showing of gender discrimination—testimony from five witnesses that the defendant often switched waitresses from the patio to the inside of the restaurant, and that other employees who returned after a leave of absence returned on a reduced pay arrangement. Id. Thus, the court remanded the case to the Board to more carefully review the defendant’s rebuttal.
Plaintiff Marquardt took eight weeks off for maternity leave and vacation. During that time, her supervisor reorganized the division in which she worked and redefined her responsibilities. He did not inform her of these changes. Included in the reorganization was the elimination of plaintiff’s position as credit manager. The position was divided into two positions, and Marquardt’s supervisory responsibilities decreased. Her new position also involved 25% clerical work, whereas in her old position, she had no clerical work. She received the same pay and benefits and had the same office as her prior position. The Court found that the plaintiff in this case was not returned to her equivalent employment position after her return from maternity leave, which is required under the Family Medical Leave Act (FMLA). It held that although an employer may reorganize a department while an employee is on leave, and give an employee new job duties, it must still give the employee equivalent job duties. An equivalent employment position “means a position with equivalent compensation, benefits, working shift, hours of employment, job status, responsibility and authority.” It also held that the plaintiff was properly awarded back pay and that plaintiff’s “interim earnings and amounts earnable with reasonable diligence should be considered when back pay is awarded under the FMLA.”
The Supreme Court held that under the Michigan Contribution statute, M.C.L. § 600.2925a, an employer sued for sex discrimination due to the terms of a collective bargaining agreement can seek contribution from the union that is party to the agreement. Female employees brought a 4 claim against employer, Alpena Power Company, based on the collective bargaining agreement which created a new job classification for two female employees. Previously, the two females had the same classification as their male counterparts. Under this new classification, their pay was frozen. Defendant filed a third party complaint seeking contribution from the union because defendant negotiated the agreement with the union. The appellate court upheld the decision of the trial court allowing the third party complaint against the union, and the company and union appealed. The Court found that defendant could seek contribution from the union; nothing in the language of the Michigan Civil Rights Act prohibited this. Although generally, the statute was analogous to Title VII of federal law, the court noted that the state statute provided for a right to contribution, whereas federal law did not. It also found that allowing for contribution did not oppose the legislative policy behind the statute, which among others, is that “discrimination in employment on the basis of sex is forbidden.”
Plaintiff Kroh filed a suit against Continental General Tire, Inc., claiming that it discriminated against her based on her gender, in violation of R.C. 4112.02 and 4112.99. After trial, the jury found for Kroh, awarding her $ 708,000 in damages. The appellate court reversed, finding that Kroh did not demonstrate that she was treated differently from similarly situated male employees. Kroh was promoted to cash manager after working for approximately twenty years for General Tire. Kroh was the only cash manager so she couldn’t compare herself to anyone with exactly the same duties. However, Ohio Supreme Court found that the male managers to whom she compared herself reported to the same boss, had similar titles, were at a similar level on the company’s organizational chart and had the same salary classification.” The court concluded that Kroh was similarly situated to non-protected employees in all relevant respects and concluded that therefore, there was credible evidence based on which reasonable minds could reach different conclusions, and thus did not reverse a jury verdict.
The Illinois Human Rights Commission (HRC) filed a suit against Northtown Ford alleging discrimination against an employee who had been terminated with regard to sick leave benefits and salary, sex discrimination for reduction in salary, and retaliation. The administrative law judge entered a judgment in favor of the employee for salary claims and sick leave benefits, and the HRC affirmed. The Court of Appeals decided that the employee was allowed to amend the complaint because the amended claim was reasonably related to the original claim.
International Case Law
S.A.S, a 23 year old French citizen, filed an application against France to challenge the ban on the full face veil. She argued that as a woman wearing a face veil, the ban constituted a violation of her right to private life, freedom of religion, freedom of expression and her right not to be discriminated against. The French Government recognised that the ban may represent a limitation on Article 9 of the Convention i.e. the freedom to manifest one’s religion, but argued, however, that the limitation pursued legitimate aims and was necessary in a democratic society for the fulfillment of those aims. The Government argued that the ban sought to protect equality between men and women, as to consider that women must conceal their faces in public places amounted to denying them the right to exist as individuals. The Government also argued that this forced them to express their individuality only in the private family space or in an exclusively female space. The Government indicated that the practice of wearing the veil was incompatible in French society with the fundamental rules of social communication, tolerance and the requirements of “living together”. The court held that the ban imposed by the Law of 11 October 2010 was to be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others” and thus no violation of Articles 8 or 9 of the Convention was found.
F.H. Zwaan-de Vries is a Netherlands national who worked for several years before becoming unemployed. Zwaan-de Vries qualified for unemployment benefits under the Unemployment Act until 1979, at which time she applied for continued support through the Unemployment Benefits Act (WWV). The Municipality of Amsterdam rejected her application in accordance with section 13 subsection 1 of WWV (the “breadwinner” clause) because she was a married woman. The WWV provision that required applicants to prove that they are the family’s “breadwinner” in order to qualify for benefits did not apply to married men. On appeal, the Municipality of Amsterdam affirmed the rejection, after which the author appealed to the Board of Appeal in Amsterdam. The Board of Appeals held that Zwaan-de Vries’ complaint was invalid, and the Central Board of Appeal affirmed this holding. In her complaint to the Committee, Zwaan-de Vries argued that the Netherlands violated article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In interpreting the scope of article 26, the Committee took into account the “ordinary meaning” of each element of the article in its context and in light of its object and purpose, noting that article 26 derives from the principle of equal protection of the law without discrimination as contained in article 7 of the Universal Declaration of Human Rights. Thus, article 26 is concerned with the obligations imposed on States in regard to their legislation and its application. The Committee cited Hendrika Vos v. The Netherlands for the principle that differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. However, since the WWV required only women to prove their status as “breadwinner”, the differentiation was not reasonable. Therefore, the Netherlands violated article 26 of the Convention when it denied Zwaan de Vries a social security benefit on an equal footing with men.
In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue. Avellanal appealed to the Peruvian Supreme Court, arguing that the Peruvian Magna Carta and the Peruvian Constitution guarantee equal rights to both men and women. After the Supreme Court upheld the lower court’s decision, Avellanal interposed the recourse of amparo (an order to guarantee protection of the complainant’s constitutional rights), claiming a violation of article 2(2) of Peru’s Constitution, which the Supreme Court rejected. In her complaint to the Committee, Avellanal cited violations on the ground that Peru discriminated against her because she was a woman. With respect to the requirements set forth in article 14 of the Covenant on Civil and Political Rights that all persons shall be equal before the courts and tribunals, the Committee noted that the Superior Court reversed the lower court’s decision on the sole ground that Avellanal was a woman and did not have standing as such under Peruvian Civil Code article 168. The Committee also concluded that the facts before it disclosed a violation of article 3 of the Covenant which requires the State party to undertake “to ensure the equal right of men and women to the enjoyment of all civil and political rights,” and article 26 which provides that all persons are equal before the law and are entitled to its protection.
Three lawfully and permanently settled residents of the UK challenged the Government's refusal to permit their husbands to join or remain with them on the basis of the 1980 immigration rules in force at the time. The rules applied stricter conditions for the granting of permission for husbands to join their wives than vice versa. These conditions did not apply to the wives of male permanent residents. The Court found that Article 8 encompassed the right to establish one's home in the State of one's lawful residence, and that being forced to either move abroad or be separated from one's spouse was inconsistent with this principle. On this basis the applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and, in the case of Mrs. Balkandali, birth, they had been victims of a violation of Article 14 of the Convention, taken in conjunction with Article 8. The applicants claimed there was no objective and reasonable justification for the difference in treatment, rather the Government's claims ignored the modern role of women and the fact that men may be self-employed and create rather than seek jobs, as in the case of Mr. Balkandali.
The IACHR submitted an application to the Court to determine whether the Dominican Republic had violated Articles 1(1), 2, 3, 8, 19, 20, 24 and 25 of the American Convention on Human Rights to the detriment of Dilcia Oliven Yean and Violeta Bosico Cofi. The application was based on the fact that the two girls had been denied Dominican birth certificates despite having been born within Dominican territory, leaving the girls stateless and without nationality. This also caused one of them, Violeta, to not be admitted to school since you must present a birth certificate to attend school in the Dominican Republic. The Dominican Republic eventually granted the girls their birth certificates and then argued that by doing so, the girls' cause of action before the commission was null. The girls, however, argued that receiving their birth certificates did not remedy the fact that they had been stateless for four years. The Court found the Dominican Republic violated Articles 1(1), 3, 5, 18, 19, 20, and 24 of the American Convention on Human Rights and ordered the Dominican Republic to issue a public apology to the girls and to pass legislation consistent with Article 2 of the American Convention which would make it simple to acquire citizenship upon late declaration of birth.
La Comisión Interamericana de Derechos Humanos presentó una solicitud a la Corte para determinar si la República Dominicana había violado los artículos 1 (1), 2, 3, 8, 19, 20, 24 y 25 de la Convención Americana sobre Derechos Humanos con respecto a Dilcia Oliven Yean y Violeta Bosico Cofi. La solicitud se basó en el hecho de que a las dos niñas se les habían negado los certificados de nacimiento dominicanos a pesar de haber nacido en el territorio nacional, lo cuál las dejó sin patria y sin nacionalidad legal. Esto también causó que una de ellas, Violeta, no fuera admitida en la escuela, ya que es requerimiento para asistir una escuela del país el presentar un certificado de nacimiento. La República Dominicana finalmente le otorgó a las niñas dichos certificados y luego argumentó que como ya estaba hecho, la causa de acción de las niñas ante la comisión era nula. Las niñas, sin embargo, argumentaron que recibir sus certificados de nacimiento no remedió el hecho de que habían sido despatriadas durante cuatro años. La Corte determinó que la República Dominicana en efecto violó los artículos 1 (1), 3, 5, 18, 19, 20 y 24 de la Convención Americana sobre Derechos Humanos y le ordenó a la República Dominicana emitir una disculpa pública a las niñas y aprobar leyes consistentes con el artículo 2 de la Convención Americana, lo cual facilitaría la adquisición de la ciudadanía en el momento de la declaración tardía de nacimiento.
Gender-based service-or-tax requirement. The Court found a law that required men only to serve as firefighter and required women to pay a tax was discriminatory in violation of the ECHR.
S.W.M. Broeks, a married Netherlands national, worked as a nurse for several years before her employer dismissed her for reasons of disability. Broeks received benefits under the Netherlands social security system for five years before her unemployment payments were terminated under Netherlands law. Broeks contested the termination in domestic courts, but the Central Board of Appeal confirmed the decision of a lower municipal court not to continue unemployment payments to Broeks. In her complaint to the Committee, Broeks claimed that the Netherland’s Unemployment Benefits Act (WWV) made an unacceptable distinction on the grounds of sex and status, and discriminated against her as a woman in violation of article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to its protections. Broeks argued that because she was a married woman at the time of the dispute, the law excluded her from continued unemployment benefits. Under section 13 subsection 1 of the Unemployment Benefits Act (WWV), a married women, in order to receive WWV benefits, had to prove that she was a “breadwinner” – a condition that did not apply to married men. The Committee concluded that the differentiation that appears to be one of status is actually one of sex, placing married women at a disadvantage compared with married men, amounting to a violation of article 26 of the Covenant.
The Committee held that differences of treatment based on reasonable and objective criteria do not amount to prohibited discrimination.
Sandra Lovelace was born and registered as a Maliseet Indian but lost her rights and status as such in accordance with section 12(1)(b) of Canada’s Indian Act after she married a non-Indian in 1970. Lovelace noted that the law did not equally adversely impact Canadian Indian men who marry non-Indian women, and therefore alleged that the law is gender discriminatory in violation of articles 2, 3, 23, 26, and 27 of the Covenant on Civil and Political Rights. Supreme Court of Canada rulings in The Attorney-General of Canada v. Jeanette Lavell and Richard Isaac v. Yvonne Bédard held that section 12(1)(b) of the Indian Act is fully operative irrespective of any inconsistency with the Canadian Bill of Rights on account of sex discrimination. Although the Committee noted that the relevant provision of the Indian Act does not legally restrict the right to marry as guaranteed in article 23 of the Covenant, the Act does seriously disadvantage Canadian Indian women who want to marry a non-Indian man by limiting their family options to a domestic partnership. Lovelace raised specific issues in her complaint pertaining to her inability to continue living on the Tobique Reserve as a result of her marriage, which, according to the Committee, suggests a violation of article 27 of the Covenant which guarantees that ethnic, religious, of linguistic minorities shall not be denied the right to enjoy their own culture, to profess or practice their own religion, or to use their own language. The Committee considered the merits of the Indian Act in preserving the identity of the Maliseet tribe, but ultimately concluded that in light of the dissolution of Lovelace’s marriage to a non-Indian, there was no reasonable or necessary justification to deny Lovelace the right to return to the Tobique Reserve where she was born and raised. Canada’s refusal to allow Lovelace to do so was tantamount to a violation of her rights under article 27 of the Covenant.
Discrimination against pregnant girl in school. Chile agreed to cover the educational expenses of a pregnant teenager who was expelled from her school for being pregnant.
Although great strides have been made in breaking down the barriers that have previously kept women from being able to have the same rights and privileges to work in the legal profession that men enjoy, there is still progress to be made.
Report by Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences, on her mission to the United States of America (2011).