Women and Justice: Keywords

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.

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.

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 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.

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.

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.”

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.

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.

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.

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.

Discriminación contra una niña en la escuela por estar embarazada. Chile acordó cubrir los gastos educativos de una adolescente embarazada que fue expulsada de su escuela por estar embarazada.

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.

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.