Women and Justice: Keywords

Legislation

Family Status Discrimination Ordinance (1997)

Gender discrimination

The Family Status Discrimination Ordinance (“FSDO”) prohibits direct and indirect discrimination based on family status. The principles used by courts applying the FSDO are very similar to those of the Sex Discrimination Ordinance.​



Sex Discrimination Ordinance (1996)

Gender discrimination

The Sex Discrimination Ordinance (“SDO”) prohibits discrimination on the grounds of sex, pregnancy, and marital status. Both direct and indirect discrimination are prohibited. Direct discrimination occurs where a party treats a person “less favorably” than another person in similar circumstances, except for the attribute of sex/pregnancy/marital status. Courts use a “but for test,” asking whether the complainant would not have received the less favorable treatment but for his/her sex/pregnancy/marital status. Indirect discrimination occurs where a seemingly uniform condition is applied, but the burden disproportionately falls on a group defined by sex/pregnancy/marital status.



Anti-Discrimination Act (1998)

Employment discrimination, Gender discrimination, LGBTIQ

The Anti-Discrimination Act 1998 makes it unlawful to directly or indirectly discriminate on the basis of certain grounds (“attributes”) in connection to public life; including employment, education and training, and provision of facilities, goods and services. The various unlawful grounds of discrimination include: sexual orientation, lawful sexual activity, gender, gender identity, intersex variations of sex characteristics, martial status, relationship status, pregnancy, breastfeeding, parental status, family responsibilities, irrelevant medical record, association with a person who has, or is believed to have, any of these attributes. Additionally, the Act prohibits inciting hatred towards a person on the grounds of their race, disability, religious beliefs, sexual orientation, or gender identity, as well as harassment, sexual harassment, and victimization towards a  person based on protected attributes or their intent to file a claim under this Act. It also prohibits a person from promoting discrimination through a sign, notice, or advertisement. The Act also establishes the Anti-Discrimination Commissioner to investigate and  resolve complaints. Complaints can be initiated by the person targeted by the discrimination, a trade union, or another representative for the targeted person. The Commission can also investigate any discrimination ex officio. If the Commissioner believes that the complaint cannot be resolved by conciliation or that the nature of the complaint is such that it should be referred to the Tribunal, the Commissioner can refer the complaint to the Anti-Discrimination Tribunal. If the Tribunal finds that a complaint is substantiated, it may, among other remedies, order the respondent to pay the complainant an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct.



Sex Discrimination Act of 1984 (2017)

Employment discrimination, Gender discrimination

Section 5 prohibits sex discrimination. The Act specifies that a person has committed sex discrimination if they treat someone less favorably because of their sex. Section 6 further prohibits discrimination based on marital or relationship status and section 7 prohibits discrimination based on pregnancy or potential pregnancy. Further, section 7AA prohibits breastfeeding discrimination . Moreover, section 7B deals with indirect discrimination and specifies that if an imposition of a condition, requirement, or practice has or is likely to have the disadvantaged effect, it is only allowed if such condition, requirement or practice is reasonable. Finally, pursuant to section 7D a person may take special measures for the purpose of achieving substantive equality. Such measures are not discriminatory.



Domestic Case Law

Lam Wing Lai v. Y t Cheng (Chingtai) Ltd. District Court (2005)

Employment discrimination, Gender discrimination

Plaintiff worked as a secretary for the defendant. The plaintiff was experienced and had a history of good performance reviews. However, her relationship with the defendant deteriorated after she became pregnant. The plaintiff shared her pregnancy news with human resource and one colleague only, but then more colleagues learned about her pregnancy.  According to the plaintiff, colleagues threatened to force her to have an abortion and suggested that she take only a four-week  maternity leave despite her preference for an eight-week maternity leave. Plaintiff later learned that the defendant had hired a permanent replacement for her during her maternity leave. Subsequently, the plaintiff was fired. The court found that the plaintiff had showed that, on a balance of probabilities, she had been discriminated against by the defendant on the basis of her pregnancy.



Chan Choi Yin v. Toppan Forms (Hong Kong) Ltd. District Court (2006)

Employment discrimination, Gender discrimination

The plaintiff was the defendant’s employee. The plaintiff alleged that the defendant’s management began treating her poorly after her pregnancy, culminating in her eventual dismissal. The plaintiff claimed that the defendant’s actions were prohibited by the Sex Discrimination Ordinance. The court found that management had, among other things, had made derogatory remarks to the plaintiff, reduced her income, compelled her to transfer teams, and failed to investigate her internal complaints about her treatment. The court further found that the plaintiff had showed that, on a balance of probabilities, she had been discriminated against by the defendant’s management on the basis of her pregnancy.



Lau Hoi Man Kathy v. Emaster Consultants Ltd, District Court (2014)

Employment discrimination, Gender discrimination

The defendant was an employment consultancy company that worked on behalf of various Hong Kong government agencies. The plaintiff was an employee of the defendant, who worked under a one-year contract. The plaintiff’s contract was renewed, with a start-date immediately following the end-date of the original contract. The plaintiff subsequently informed the defendant that she was pregnant. The defendant rescinded the renewal of the contract, on the grounds that the plaintiff had been dishonest in informing the employer of her pregnancy. The plaintiff filed a complaint with the Equal Opportunities Commission, claiming that the defendant had violated the Sex Discrimination Ordinance. To resolve the complaint, the defendant proposed a new contract, which the plaintiff accepted. The plaintiff later applied for maternity leave, but was denied by the defendant, who informed her that she did not satisfy the requirement of continuous employment prior to the request (due to a one-day gap between the original contract’s end-date and the new contract’s start-date). The court found that the defendant’s imposition of a one-day gap was a discriminatory act that was prohibited by Sections 8 and 11 of the Sex Discrimination Ordinance.



Makafane v. Zhongxian Investment Pty Ltd. Labour Court of Lesotho (2014)

Employment discrimination, Gender discrimination

The applicant was dismissed by her employer, the respondent, because of operational requirements. The applicant was employed by the respondent from 1 November 2007 until her dismissal on 24 October 2012. The applicant claimed that she was dismissed unfairly because she was pregnant. Prior to her dismissal, the applicant delivered a letter from the Qacha’s Nek Hospital stating that she was pregnant and would be required to attend monthly clinics until she delivered her baby. The respondent then dismissed the applicant, claiming that her employment could not continue because of her pregnancy. The Labour Court referred to subsection 3(d) of the Labour Code Order 24 of 1992, which provides that pregnancy, among others, does not constitute a valid reason for terminating employment. The court stated that this type of dismissal carried an element of discrimination, the freedom against which is protected by the Constitution of the Kingdom of Lesotho, the highest law of the land. The court held that the dismissal of the applicant was unfair, that the respondent must reinstate her to her former position, and that the respondent pay for her lost earnings following dismissal.



Du Bois-Hammond v. Ariel Anti-Discrimination Tribunal Queensland (2004)

Employment discrimination, Gender discrimination

The complainant worked as a Reservations Manager at the Raging Thunder Pty where both respondents, Cole and Ariel, were directors. The complainant became pregnant and went on maternity leave in agreement with the directors that she would return to the company at the same position after her maternity leave. Closer to the date when the complainant was about to return back from her maternity leave, she contacted Mr. Cole and discussed the possibility of returning on a part-time basis, but Mr. Cole informed her it was not possible for a managerial position to be part-time. The complainant tried to contact Mr. Cole again to inform him that she was willing to work full-time, but could not reach him, so she sent him the message through the receptionist. After several calls with Mr. Cole and without a definitive answer on her return date to work, Mr. Ariel called the complainant to inform her of a company restructuring and that her position was no longer available and that the two newly introduced positions were already filled by her colleagues. The complainant asked if they were going to offer any similar positions, but Mr. Ariel told her they had no more positions and he would not create one for her. The complainant suffered emotional distress and financial loss due to becoming redundant, therefore filed for this complaint seeking compensation. The complainant alleged that, due to her pregnancy and maternity leave, the respondents (i) failed to discuss the terms of her returning to work; (ii) failed to discuss her offer to work part-time;(iii) failed to appoint her in the new position of Call Center Manager and appointed Ms. S. instead; (iv) failed to appoint her in the new created position of 2IC and appointed Ms. G.; and, (v) failed to offer her an alternative position. The Anti-Discrimination Tribunal did not find the respondents liable for all of the complainant’s allegations, but ruled that the company and Mr. Ariel failed to offer the complainant the 2IC position after restructuring even though she was more experienced and familiar with this role than Ms. G., who was only covering for the complainant during her maternity leave.  Thus, the Tribunal found that the reason for not offering this position to the complainant was due to her maternity leave.  The company and Mr. Ariel also failed to offer the complainant any alternative position, again due to her maternity leave, and therefore her return was not considered while planning the restructuring of the company. The Tribunal found that respondents did not discriminate against complainant in conversations about her returning to work, in not discussing her offer to work part-time, in choosing to restructure, or in failing to appoint her in the Call Center Manager position under the Anti-Discriminatory Act 1991. However, the Tribunal did find that if complainant had not been on maternity leave at the time of the restructuring, she would have been offered the 2IC position, and that decision constituted pregnancy discrimination on the part of the first and third respondents.  Also, the Tribunal found the failure to offer complainant a suitable alternative position constituted pregnancy discrimination.  Therefore, the Tribunal ruled a compensation sum to be paid the complainant.



X. v. Y. Cour du travail de Bruxelles (Brussels Labor Court) (2017)

Employment discrimination, Gender discrimination

A woman informed her employer of the fact that she was pregnant. Two months later, her employer fired her due to alleged restructuring of the company. Subsequently, the appellant started proceedings before the Court to receive an indemnity.  The appellant claims that she has a right of indemnity based on the right of pregnant women to be protected against redundancy or, following the right to be protected against discrimination. The court held for the appellant and ordered the previous employer to pay the appellant a sum of EUR 33,135.00 and EUR 703.24 and to deliver to the appellant requested social documents.



Spann v. Abraham Court of Appeals of Tennessee (1999)

Employment discrimination, Gender discrimination

The plaintiff, a cook and assistant manager at the defendant’s pizza franchise, informed her employer that she was pregnant. The defendant offered her the position of a backup night driver—a position she had held before—and proposed that his son replace her as the assistant manager while she took maternity leave. When she refused, the defendant informed her that if she did not accept the temporary reassignment, he had no other position for her. She quit soon after and sued in the Davidson County Circuit Court for pregnancy discrimination in violation of the Tennessee Human Rights Act (“THRA”). The Court entered a directed verdict in favor of her employer, and the Court of Appeals of Tennessee affirmed, finding that the plaintiff had failed to establish a prima facie case that the defendant discriminated against her because she was pregnant.



Pierce v. City of Humboldt Court of Appeals of Tennessee at Jackson (2013)

Employment discrimination, Gender discrimination

The plaintiff was a police officer with the Humboldt Police Department. While off duty, she ran into an ex-boyfriend against whom she had a protective order. Based on this encounter, she filed a criminal charge against him for violating the order. The chief of police commenced an internal affairs investigation into her charges, and her ex-boyfriend filed a criminal charge against her for filing a false charge. While both charges were pending, the plaintiff informed the chief of police that she was pregnant. Once the internal affairs investigation was completed, the plaintiff’s employment was terminated. She filed suit in the Gibson County Circuit Court for discrimination based on gender and pregnancy in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed and remanded, finding that the plaintiff had sufficiently alleged that she was treated differently than similarly situated male police officers.



Sentenza n. 6575/2016 Corte di Cassazione: Sezione Lavoro (Supreme Court: Labor Section) (2016)

Employment discrimination, Gender discrimination

An employer fired a woman after learning of her intention to start an assisted reproduction process. The local court and the court of appeal stated that such dismissal was substantially due to gender discrimination against the employee who wanted to start the assisted reproduction process. Such decisions were challenged by the employer who argued that the dismissal of the employee was not connected to any gender discrimination but rather to the absences for illness that would have affected the efficient management of the work. The Italian Supreme Court confirmed that the dismissal was null and void due to a gender discrimination, irrespective of the fact that the assisted reproduction process had been commenced or not and sentenced the employer re-hire the employee and to pay her the relevant salaries as if she had never been fired.



L.W.L. v. Y.T. Cheng, Inc. District Court of the Hong Kong Special Administrative Region (2006)

Employment discrimination, Gender discrimination

The Plaintiff was employed as secretary of the Director by the Defendant in 2001. In February 2002, the Plaintiff suffered a threatened miscarriage, and was admitted to the hospital several times thereafter. From June to August 2012, she took sick leave frequently for treatment of her pregnancy complications.  During that period, a permanent secretary was hired by the Defendant.  The Plaintiff returned to work after expiry of her maternity leave in November 2012 as agreed with the Defendant, but was moved to a new work station which was not properly equipped, and was not given her original duties.  Shortly after she resumed her work after maternity leave, she was dismissed by the Defendant. She sued the Defendant for her dismissal on the grounds of discrimination due to pregnancy, family status and victimization.  The Court applied the “but for” and “less favorable treatment” test, and held that the burden is on the Plaintiff to prove discrimination on a balance of probabilities – once the Plaintiff can show that a possibility of discrimination can be inferred from the primary facts, the Court will look to the employer for an explanation, with which or if such explanation is not enough, the Court will infer the existence of discrimination.  Based on the facts and evidence in this case, the Court found that the Plaintiff has established the primary facts on her claims on the grounds of discrimination due to pregnancy and family status, and found that the Defendant failed to establish the unsatisfactory performance of the Plaintiff and there were no significant enough reasons for the Defendant to dismiss the Plaintiff.  On a balance of probabilities, the Court concluded that the Plaintiff was dismissed because of her pregnancy and family status, and held the Defendant liable.  Damages for injury to feelings and loss of income were awarded to the Plaintiff.



Waliyah v. Yip Hoi Sun Terence District Court of the Hong Kong Special Administrative Region (2017)

Employment discrimination, Gender discrimination

The complainant, an Indonesian domestic helper, was asked by her employer’s wife to urinate for a home-pregnancy test. After the result showed positive and was subsequently confirmed by a physician, the employer terminated her employment by a month’s notice. Ultimately, the complainant was required to move out of the couple’s home before the notice period ran out. She sued the couple for damages based on, among others, sex and pregnancy discrimination. The court held the couple liable for the act of sex discrimination against the complainant by asking her to take the pregnancy test, despite the fact that she voluntarily participated in the test and wanted to know the result. The court took the view that whether the employee had consented or voluntarily cooperated to take the pregnancy test is not determinative as to deciding the nature of the employer’s request to take the pregnancy test, and that the lack of intent or motive to discriminate by the employer is a factor to assessment of damages but would not bar an act from being determined as discriminatory. The court held that the employer has no right to know about a female employee’s pregnancy status, which is a private matter of the employee. The court determined that requesting a female employee to take a pregnancy test without giving her a choice not to disclose the result to the employer constitutes a “less favorable treatment” to that employee because of her gender, for the reason that a male employee would not be requested to take such a test or reveal such private information to his employer.



Ekhamanzi Springs Ltd. v. Mnomiya Labor Appeal Court of South Africa (2014)

Employment discrimination, Gender discrimination

The respondent was employed by the appellant to bottle Aquelle spring water. The appellant’s plant was located on property belonging to a religious mission, and to gain access to the workplace, the appellant’s employees had to cross the mission’s property. The mission’s security guards were instructed to bar entry to any persons who did not comply with its code of conduct; one provision, for example, prohibited “amorous relationships between any two persons outside of marriage”. The respondent and a colleague were denied access because they became pregnant outside of marriage. Consequently, the respondent and her colleague were not able to access the workplace, as they were refused access to the mission’s property. They were subsequently fired. The court ruled that the dismissal of the respondent employee was automatically unfair because she had been dismissed for her pregnancy. The court noted that all persons have a constitutional right to equality. Discriminatory dismissals, such as this one, are accordingly automatically unfair and higher compensation is allowed in such cases. Employers are obliged to avoid discriminating against employees directly or indirectly  ̶  protection against being discriminated against on the ground of pregnancy is not a preserve of married women. An agreement that denies pregnant employees access to the workplace is accordingly prima facie unenforceable unless it can be justified on grounds consistent with constitutional norms. The mission’s code of conduct interfered with the employment relationship between the appellant and its employees and created a situation in which breaches could lead to dismissal. Such provisions blurred the line between the appellant’s terms and conditions of employment and the mission’s code.  That the employee was not a party to the mission’s code proved decisive. As lessee, the appellant had legal remedies to compel the mission to allow full use and enjoyment of the leased property. The appellant’s faint plea of operational necessity could not serve as a defense because it had failed to exercise its rights as lessee to protect its pregnant employees. The employee had tendered her services, and the appellant’s refusal to accept the tender constituted a breach of contract. The court further held that the appellant’s acquiescence in the mission’s discriminatory practice of barring unwed pregnant women from the leased premises violated the appellant’s constitutional duty to treat its employees fairly and was a breach of its common law duty to accept the employees into service. The court, therefore, confirmed that the employee had been dismissed and that her dismissal was automatically unfair. The court also confirmed the remedy of 12 months’ compensation.



Adequate Defense of Pregnant Women in Labor Matters (Docket 3.o.2 L (10a.)) Third Collegiate Tribunal in the Assistant Center of the Tenth Region (2016)

Employment discrimination, Gender discrimination

ADEQUATE DEFENSE OF PREGNANT WOMEN IN LABOR MATTERS. PREGNANT WOMEN ARE CONSIDERED A VULNERABLE GROUP AND THEREFORE THE JUDGE SHALL RULE BASED ON A GENDER PERSPECTIVE.

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria issued may be persuasive in similar cases arising in other federal courts. The labor law states that every person shall have an appropriate defense. In addition, this right acquires different considerations when the claimant is a pregnant woman. Historically, women in Mexico have been fired solely for being pregnant. Pregnant women are consequently considered a vulnerable group. Therefore, this isolated thesis requires the courts to inform the claimant of her right to have an attorney, and in those cases where the claimant cannot afford one, the court shall appoint one for her. (Amparo Directo Laboral: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=484/04840000187544100005005.d...)

 

 

DEFENSA ADECUADA DE LAS MUJERES EMBARAZADAS EN ASUNTOS LABORALES. LAS MUJERES EMBARAZADAS SON CONSIDERADAS EN UN GRUPO VULNERABLE Y, POR LO TANTO, EL JUEZ REGIRÁ BASADO EN UNA PERSPECTIVA DE GÉNERO.

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La ley laboral establece que cada persona tendrá una defensa apropiada. Además, este derecho adquiere diferentes consideraciones cuando el reclamante es una mujer embarazada. Históricamente, las mujeres en México han sido despedidas de sus empleos por estar embarazadas. En consecuencia, las mujeres embarazadas son consideradas un grupo vulnerable. Por lo tanto, esta tesis aislada requiere que los tribunales informen al reclamante de su derecho a tener un abogado, y en aquellos casos en que el reclamante no pueda pagar uno, el tribunal le asignará uno.



Public Safety (Isolated Thesis Docket XVI.1o.A.115 A (10a.)) First Collegiate Tribunal in Administrative Matters of the Sixteeth Circuit (2016)

Employment discrimination, Gender discrimination, International law

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. The Mexican Supreme Court has previously determined the social benefits to which a former public safety employee is entitled at the time of her termination. The social benefits and salary must be paid upon termination and must account for both the period before and after an unjustified termination for pregnancy. The Mexican Constitution (Article 123, section B, item XI, subparagraphs (a) & (c)) recognizes the rights of pregnant women. These include social benefits during pregnancy. Consequently, the impairment that results from the termination must be paid and includes: (a) medical bills and payments made to private medical institutions due to the lack of social security benefits and (b) the payment of the full salary from the last month before birth as well as the two months after it, unless there is a court ruling in relation to unpaid wages. This provision of the Mexican Constitution, as well as other provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment And Eradication Of Violence Against Women “Convention of Belém do Pará” compels the courts to rule with a gender perspective in order to ensure justice for this historically vulnerable social group. (Amparo Directo Administrativo 121/2016: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=1320/13200000186095880003003....)

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Corte Suprema de México ha determinado previamente los beneficios sociales a los que tiene derecho un ex-empleado de seguridad pública en el momento de su despido. Los beneficios sociales y el salario deben pagarse a la terminación y deben tener en cuenta tanto el período antes como el de después de una terminación injustificada por embarazo. La Constitución mexicana (Artículo 123, sección B, artículo XI, subpárrafos (a) y (c)) reconoce los derechos de las mujeres embarazadas. Estos incluyen beneficios sociales durante el embarazo. En consecuencia, el deterioro que resulta de la terminación debe pagarse e incluye: (a) facturas médicas y pagos realizados a instituciones médicas privadas debido a la falta de beneficios de seguridad social y (b) el pago del salario completo del último mes anterior al nacimiento, así como los dos meses posteriores al mismo, a menos que exista un fallo judicial en relación con los salarios impagos. Esta disposición de la Constitución mexicana, así como otras disposiciones de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW) y la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará" obliga a los tribunales a gobernar con una perspectiva de género para garantizar la justicia para este grupo social históricamente vulnerable.



Employment Termination (Jurisprudential Thesis Docket: 2a./J.66/2017 (10a.)) Supreme Court of Mexico (2017)

Employment discrimination, Gender discrimination, Sexual harassment

“EMPLOYMENT TERMINATION. WHEN EMPLOYMENT IS TERMINATED DURING AN EMPLOYEE’S PREGNANCY, THE EMPLOYER BEARS THE BURDEN OF PROOF TO DEMONSTRATE THAT SUCH TERMINATION WAS NOT DISCRIMINATORY.”

This jurisprudential thesis is a relevant example of case law, as the criteria issued by the Mexican Supreme Court is binding on all courts in the country. Mexico recognizes labor matters as independent from other matters of law, with a unique set of courts, legislation, and doctrine. This case law in particular comes from two different isolated theses, as settled by two different federal courts. The first case was settled by the Third Collegiate Tribunal in Labor Matters of the Third Circuit, and the second case was settled by the Third Collegiate Tribunal of Circuit in the Assistant Center of the Tenth Region. Both court resolutions contained contradictory substantive issues, which prompted the Supreme Court to settle these discrepancies. The Supreme Court acknowledged that all pregnant women should enjoy certain specific rights resulting from pregnancy. The Court also found that these rights should be extended to the postnatal period. The Supreme Court recognized that most pregnant women will likely face a lack of job security given the costs that maternity leave implies for most employers. The Supreme Court determined that pregnant women require certain social security benefits in order to eliminate the barriers and obstacles that they may face during the pre- and postnatal periods. When a pregnant employee is terminated and argues that the termination was discriminatory, the employer bears the burden of proving that such termination was not due to the woman’s pregnancy or any other discriminatory reason. In such scenarios, the courts must take a gender perspective approach in deciding such controversies in order to be able to effectively guarantee the rights of women recognized under the Mexican Constitution and international treaties to which Mexico is a signatory.

 

“TERMINACIÓN DEL EMPLEO. "CUANDO EL EMPLEO SE TERMINA DURANTE EL EMBARAZO DE UN EMPLEADO, EL EMPLEADOR ASUME LA CARGA DE PROBAR QUE DICHA TERMINACIÓN NO FUE DISCRIMINATORIA".

Esta tesis jurisprudencial es un ejemplo relevante de jurisprudencia, ya que los criterios emitidos por el Tribunal Supremo de México son de relevancia para todos los tribunales del país. México reconoce que los asuntos laborales son independientes de otros asuntos de la ley, con un conjunto único de tribunales, legislación y doctrina. Esta jurisprudencia en particular proviene de dos tesis diferentes, según lo resuelto por dos tribunales federales diferentes. El primer caso fue resuelto por el Tercer Tribunal Colegiado en Asuntos Laborales del Tercer Circuito, y el segundo caso fue resuelto por el Tercer Tribunal Colegiado de Circuito en el Centro Asistente de la Décima Región. Ambas resoluciones judiciales contenían cuestiones sustantivas contradictorias, lo que llevó a la Corte Suprema a resolver estas discrepancias. La Corte Suprema reconoció que todas las mujeres embarazadas deberían disfrutar de ciertos derechos específicos derivados del embarazo. El Tribunal también determinó que estos derechos deberían extenderse al período postnatal. La Corte Suprema reconoció que la mayoría de las mujeres embarazadas probablemente enfrentarán una falta de seguridad laboral, dado los costos que la licencia de maternidad implica para la mayoría de los empleadores. La Corte Suprema determinó que las mujeres embarazadas requieren ciertos beneficios de seguridad social para eliminar las barreras y obstáculos que pueden enfrentar durante los períodos pre y postnatal. Cuando una empleada embarazada es despedida y argumenta que la terminación fue discriminatoria, el empleador tiene la responsabilidad de probar que dicha terminación no se debió al embarazo de la mujer ni a ninguna otra razón discriminatoria. En tales escenarios, los tribunales deben adoptar un enfoque de perspectiva de género al decidir tales controversias para poder garantizar de manera efectiva los derechos de las mujeres reconocidos en la Constitución mexicana y los tratados internacionales de los que México es parte.



Case of Clarisa Velázquez de Acosta Supreme Court (1995)

Employment discrimination, Gender discrimination

Quijote, S.R.L., (the “Company”) fired the plaintiff while she was pregnant.  The Labor Appeals Court (the “Court”) found that the firing was illegal because the law seeks to protect pregnant women, and though the medical certificate is a guarantee for the employer, it is not a requirement.  The Court ordered the company to reinstate the plaintiff to her position and pay her lost wages.  The Company challenged the court order in 1993, but the Supreme Court dismissed the challenge as an unconstitutional action in 1995.  Consequently, the Labor Appeals Court ruling remained in effect.



Young v. United Parcel Service Inc. Supreme Court of the United States (2015)

Employment discrimination

Plaintiff brought a claim of pregnancy discrimination alleging that her employer violated the Pregnancy Discrimination Act by refusing to accommodate her pregnancy related lifting restriction. The Supreme Court held that a petitioner may state a prima facie case of pregnancy discrimination according to the McDonnell Douglas Corp. v. Green burden-shifting framework by showing: (1) she belongs to a protected class; (2) she sought an accommodation; (3) the employer refused to accommodate her; and (4) the employer has accommodated others "similar in their ability or inability to work." If a petitioner makes out a prima facie case of discrimination, the employer may rebut with legitimate, nondiscriminatory reasons for refusing to accommodate the employee. The employee must then establish that the employer's justification is pre-textual. The Supreme Court determined that there was a question as to whether the UPS provided more favorable treatment to other employees under similar circumstances and remanded the case for judgment.



Yousuf v. Fairview Health Services Court of Appeals for the Eighth Circuit (2015)

Gender discrimination

Plaintiff Khadara-Ayan Yousuf, a U.S. citizen and a Muslim woman of Somali national origin, sued her former employer, Fairview Health Services for discrimination based on race, sex, pregnancy, religion, and national origin in violation of Title VII, 42 U.S.C., and 42 U.S.C. § 1981. Fairview Health Services, her former employer, alleged that they terminated her employment when she allegedly did not return from a leave of absence. Plaintiff claimed discrimination as violations of Title VII and 42 U.S.C. §1982. She appealed the district court’s grant of summary judgment in favor of the defendant. The Court of Appeals partially vacated the judgment with respect to the sex and pregnancy discrimination citing that Title VII has been amended via the Pregnancy Discrimination Act to prohibit employers from discriminating against a woman for her capacity to become pregnant, not merely because she is pregnant.



Noorfadilla Binti Ahmad Saikin (Plaintiff) v. Chayed Bin Basirun et al. (Defendants) High Court of Malaya at Shah Alam (2011)

Employment discrimination, Gender discrimination, International law

The Plaintiff interviewed with the education officers of the Education Office of the Hulu Langat District to become an untrained teacher. During the interview, the Plaintiff was asked questions pertaining to her general knowledge, personal details, problem solving skills and residential address. She was not asked about her pregnancy status. The Plaintiff was accepted for the position and presented herself at an instructional meeting as instructed. At the meeting, she was told to report for duty immediately. Subsequently, an education officer asked whether anyone at the meeting was pregnant. Once the Plaintiff admitted that she was pregnant, her placement memorandum was withdrawn. The High Court held that it was not relevant whether or not there was a binding contract, as the the Defendants’ decision interfered with the Plaintiff’s right to be employed, which is contrary to Article 8(2) of the Federal Constitution, which provides that there shall be no discrimination on the ground of gender in the appointment of any office or employment under a public authority. This Article of the Federal Constitution was adopted to comply with Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The High Court declared that using pregnancy as a factor in employment is a form of gender discrimination under the Malaysian Constitution, applying CEDAW in interpreting Article 8(2) of the Constitution, because of the basic biological fact that only a woman has capacity to become pregnant.



Strickland v. Prime Care of Dothan United States District Court, M.D. Alabama, Southern Division (2000)

Gender discrimination, Employment discrimination

Ms. Strickland sued her former employer, Prime Care of Dothan, on the theory Prime Care terminated her employment as a medical assistant because of her pregnancy. Prime Care filed a motion for summary judgment on the sole issue of whether Ms. Strickland had sufficient evidence to create an issue of fact on the question of pretext. In order to rebut the inference of discrimination, Prime Care was required to articulate a legitimate nondiscriminatory reason for its decision to terminate Ms. Strickland. To this end, Prime Care asserted that it based its termination decision on violation of work rules, including that Ms. Strickland was rude and/or unprofessional on several occasions, was frequently tardy, and failed to return to work after attending a doctor’s visit. Because, if true, the reasons asserted by Prime Care were nondiscriminatory, the burden shifted back to Ms. Strickland to show that the proffered reasons were really pretext for unlawful discrimination. Ms. Strickland achieved this by showing her conduct did not violate Prime Care’s established policies, and presenting circumstantial evidence that, if true, demonstrated her supervisor harbored a discriminatory animus toward unmarried pregnant women. Prime Care also argued that even if it did discriminate against unmarried, pregnant women, such discrimination did not violate Title VII because the differential treatment was not based on sex. Rather, Prime Care claimed such a policy was neutral toward women, since women were both members of the group of married pregnant women and unmarried pregnant women. The court held that Congress and the Supreme Court had expressly rejected this argument, finding that the terms “because of sex” or “on the basis of sex” include because of or on the basis of pregnancy. Thus, an employer violated the Pregnancy Discrimination Act when it premises an employment decision, in whole or in part, on the fact that one of its female employees or applicants was pregnant out of wedlock. For these reasons, the court denied Prime Care’s motion for summary judgment.


Badih v. Myers California Court of Appeal (1995)

Gender discrimination

In 1987, Fatmeh Badih (“Badih”), a recent immigrant from Sierra Leone, was hired by the medical offices of Dr. Leonard Myers (“Myers”) as a medical assistant. Almost three years later, Badih told Myers she was pregnant. He immediately fired her. According to Badih, when she told Myers the news he replied, “If you told me you were going to get married and have babies, I wouldn’t have hired you in the first place. I need an office girl when I need her, not a person that has responsibilities the way you do now. . . . You’re going to have to go.” Badih filed a compliant against Myers and alleged pregnancy discrimination, among other claims. Myers denied that he fired Badih because she was pregnant. The jury found that Myers had terminated Badih because of her pregnancy, awarded her $20,226 in damages, and granted Badih’s motion for attorney fees. Myers appealed the judgment and attorney fees order. He argued that because he employed less than five people he was not subject to the pregnancy discrimination provisions of California’s Fair Employment and Housing Act (“FEHA”). He also argued that no other constitutional or statutory provisions prohibited pregnancy discrimination. The Court of Appeal affirmed the trial court’s judgment and attorney fees order. It held that pregnancy discrimination in employment was a form of sex discrimination. Because article I, section 8 of the California Constitution prohibits sex discrimination in employment regardless of the employer’s size, those who work for employers not covered by FEHA can maintain pregnancy discrimination claims under the California Constitution.



Reports

Analysis of the precedents of the Cantonal Courts on the Gender Equality Act (2017)

Employment discrimination, Gender discrimination, Sexual harassment

The study is an in-depth analysis of 190 records of cantonal conciliation hearings and judgments under the Federal Gender Equality Act, 1996 (the “Act”) over the period of 2004 to 2015 by authors Karine Lempen (Law Professor, University of Geneva) and Aner Voloder (Lawyer, Office for Gender Equality of the Municipality of Zurich).  Among the major findings and conclusions reached in the study are the following:

Proceedings under the Act are nearly always brought by private individuals (mainly women) and very rarely by organizations, notwithstanding the provision of the Act authorizing court actions relating to gender discrimination to be brought by organizations. Individuals bringing a case of gender discrimination to the courts most commonly complain of pay discrimination or discriminatory dismissal, and in the vast majority of cases employment has ceased before the court issues its judgment.  Bringing an action under the Act very often entails losing one's job. Almost one-third of discrimination cases relate to pregnancy or maternity, with discrimination often occurring on return to work after maternity leave and the mother being dismissed by the employer. Discriminatory or constructive dismissal cases are often adjudged solely under Swiss employment laws rather than under the specific provisions of the Act. In some cases this has resulted in a failure to relax the plaintiff’s burden of proof as provided in the Act. Most persons bringing proceedings for gender-based discrimination do not win their cases, with the analysis showing that 62.5% of rulings enforcing the Act find mostly or entirely against the claiming employee. Similarly, it is not unusual for the employee in the action to be ordered to pay costs which may amount to several thousand Swiss francs. The protection in the Act against constructive dismissal has proved to be fairly ineffective in practice, with court actions rarely being brought under that provision and all but one of such actions failing. The failure rate is particularly high (82.8%) when the alleged form of discrimination is sexual harassment, with the courts often failing to recognize that the intention of procuring sexual favors is not necessary to a finding of a hostile working environment, and therefore of sexual harassment under the Act.  Moreover, it is rare for judgments to assess the extent to which the employer has met its obligation to prevent harassment. The special compensation allowed under the Act for sexual harassment is rarely awarded.

Based on the conclusions reached in the study, the authors make a number of recommendations -- for amendments to the Act and other specific legislative changes, improved training of the judiciary with regard to the Act, actions by Swiss equality offices (including improved data collection, more in-depth study of maternity-based discrimination in Switzerland and actions to raise awareness generally of the Act and the rights it provides), and universities (to require study of the Act as part of the bachelor’s degree course of study in law) -- in order to improve access to justice for people discriminated against on grounds of gender in working life.