Our Law, disguised as legal equality, has its own gender, and it is certainly not the feminine one.
"Formal equality has the defect of hiding, behind the principle of equality before the law, inequalities of a material nature."
Laura Clérico
Labor law has gender. It has been designed in the masculine. It is not a subjective assessment, the evidence is there and is shown to us shamelessly from the principles and "social values" that support it, through the development standards as well as a jurisprudence in charge of preserving, through interpretation, the "natural order." The exclusion of values associated with femininity, and in general of the experiences, concerns and aspirations of women, are an act of coherence with a concept of "productivity," imposed by economic powers, which has historically despised motherhood, parenting and family care, denying them economic, social or curricular value, despite being an essential job for the economy, society and for life itself. A job as hard as it is invisible, sustained by women all over the world.
Benefits for risk during pregnancy and natural breastfeeding protect situations of need for working mothers and their babies (born or unborn). They are included within the protective action of Social Security and cover the loss of remuneration of workers who have their employment contracts suspended (see reference 1 at the end of the text) due to incompatibility of the provision of services with pregnancy or breastfeeding. These benefits are a very visual example of the operability of discrimination based on sex, under the formalism of legal equality.
Let's go to the specific examples.
We will focus our attention on COVID-19 and the proliferation of ERTES during the state of alarm, because this has generated multiple controversies in the payment of these benefits, specifically, after the workers move to a situation of temporary unemployment, or, where appropriate, definitive. Given the doubts generated, the General Directorate of Social Security Organization stepped in and issued, on April 17, 2020, a clarifying circular, intended for mutual societies, managers of its recognition and payment. In summary, the circular indicates that when workers see their employment contract totally or partially suspended, their benefits for risk during pregnancy or breastfeeding will also be suspended, and they will receive unemployment benefits in the corresponding amount, and their right to gender benefits will be restored after reincorporation into work activity, provided that it has not ended (9 months duration, in both cases). The above has a triple harmful impact on workers, because it significantly reduces the amount of benefits, implies the loss of benefits during the overlap with unemployment, and the beginning of the consumption of unemployment benefits.
In Labor and Social Security Law it is a paradigmatic example of regulations lacking a gender perspective.
The circular justified this (excluding) legal treatment, in the fact that the risk for pregnancy or breastfeeding disappeared at the moment in which the workers stopped providing labor services, when their contract was suspended. Really convincing, at first glance, especially if we start from the impossibility of finding a comparable situation among male colleagues. But if we delve a little deeper, we come to another conviction, especially if we compare with other Social Security benefits, much more legally protected. This is the case of temporary disability benefits derived from professional contingencies (work accident and occupational diseases), which are mostly received by male workers (2).
Art. 283 of the LGSS that regulates unemployment benefit and temporary disability establishes:
"When the worker is in a situation of temporary disability derived from professional contingencies and during it their employment contract is terminated, they will continue to receive the temporary disability benefit, in an amount equal to the one they had recognized, until said situation is extinguished, then, where appropriate, moving to the legal situation of unemployment, without in this case proceeding to deduct from the period of perception thereof, the time that they had remained in a situation of temporary disability after the termination of the contract."
Although art. 283 of the LGSS refers to access to unemployment benefits while in a situation of IT after termination of the contract, it is equally applicable to contractual suspensions derived from ERTE. If we apply here the same argument of the circular, the right to its receipt should also be suspended, since in the same way "the risk of work" due to incompatibility with the health of the worker disappears with the suspension of the work provision.
Therefore, the commented interpretation incurs in direct discrimination based on sex (3), because it has a restrictive effect on access to the Social Security rights of workers (mothers) due to biological motherhood, receiving a differentiated and more detrimental treatment remuneratively than that given to other modalities of benefits mostly received by workers (men), as is the case of temporary disability (IT) benefits derived from professional contingencies, which are not affected by the passage of workers to a situation of unemployment, neither in their amount nor in their extension.
Benefits for risk during pregnancy and breastfeeding have an unquestionable gender impact, which requires public authorities to interpret with a gender perspective and contextualized according to the pro persona principle, through equitable solutions to unequal gender situations. Law 39/1999 of November 5 to promote the reconciliation of family and work life of working people introduced in the LGSS the chapter dedicated to "risk during pregnancy", in which an independent treatment was given to this biological situation of women, separating it from the consideration of "common disease" causing processes of sick leave that it had until then. Subsequently, Additional Provision 18 of the LOIEMH took a further step, adding benefits for risk during breastfeeding and recognizing both the nature of benefits derived from professional contingencies. And it advanced even further towards (real) equality, by ensuring the mother's full remuneration of 100 percent of the corresponding regulatory base (4).
The gender perspective helps us discover the invisibility of gender asymmetries that still exist in our Law.
Therefore, the circular that I criticize incurs in a mechanical, formalistic interpretation without a gender or childhood perspective, which must also concur here, because the remunerative damage results (directly or indirectly) in the nursing baby or, where appropriate, the unborn child, which requires keeping in mind in the interpretative task "the best interests of the child", as a primary consideration (5).
Labor and Social Security Law is a paradigmatic example of regulations lacking a gender perspective. This is so because the feminine is treated as an exception within the "normality" of a labor market that did not adapt its regulations, after the massive incorporation of women during the last century into the labor world, applying to them a law designed by and for men.
The gender perspective helps us discover the invisibility of gender asymmetries that still exist in our Law that, disguised as legal equality, has its own gender, and it is certainly not the feminine one.
By Gloria Poyatos, Magistrate of the Superior Court of Justice of the Canary Islands. Article published in Huffingtonpost
References
1. We refer to an employment contract on behalf of others and therefore, to workers of the general regime of Social Security.
2. According to the statistical data of the INSS accumulated to December 2019, in the General Regime the days of sick leave due to temporary disability derived from professional contingencies managed by the collaborating Mutual Societies of Social Security whose discharge occurred in 2019, amounted to 17,474,345 days in the case of men and 8,669,458 days in the case of women. Therefore, the processes of sick leave derived from professional contingencies have a greater impact among men (66'83%) in relation to women (33'16%). Available at: http://www.seg-social.es/wps/portal/wss/internet/EstadisticasPresupuestosEstudios/Estadisticas/EST45/EST46
3. According to art. 8 LOIEMH: "Direct discrimination based on sex is any unfavorable treatment of women related to pregnancy or motherhood."
4. According to art. 135.3 LGSS: "The economic benefit will consist of a subsidy equivalent to 100 percent of the corresponding regulatory base. For these purposes, the regulatory base will be equivalent to that established for the temporary disability benefit, derived from professional contingencies" Extensible to benefits for risk during natural breastfeeding, through art. 135 ter LGSS (RD leg.1/1994 version).
5. Art. 3.1 of the International Convention on the Rights of the Child.
