The Constitutional Court considers that "it is not discriminatory for men" the regulations that establish longer maternity leave than paternity leave in Spain because they obey the need to protect the health of women after pregnancy and childbirth. The high court rejected the appeal for amparo requested by a man who was a father in September 2015 and began a judicial process to claim identical permits from the Platform for Equal and Untransferable Birth and Adoption Permits (PPIINA).
The sentence, issued in full debate on the extension of parental leave in Spain, it has been backed by 10 favorable votes and one particular vote against María Luisa Balaguer, who criticizes the fact that the court has not considered possible discrimination against women, since the permits "discourage the hiring of women in fertile age". "The sentence ignores that there is a clear effect of indirect discrimination against women," he says.
According to the ruling, the "primordial" purpose of the legislator with maternity leave is "the protection of the health of the working woman during pregnancy, childbirth and puerperium". The current maternity leave provides that at least the six weeks following delivery should be assumed by the mother and the rest up to a total of 16 weeks can be transferred to the parent, something that in practice occurs in a tiny percentage of occasions, less of 2% of cases.
Against this, paternity leave – which is currently five weeks and at the time of the demand was 13 days – aims, according to the TC, "favor the reconciliation of personal, family and work life, encouraging the joint responsibility of mothers and fathers in the care of their children ".
"There are currently no minimum standards for paternity leave in the framework of the European Union," says the sentence, whose content was advanced by The Spanish. The magistrates recall a European Parliament directive that states that this permit "should not be less than 10 working days". And they add that there is no rule of international law that fixes it differently.
The plaintiff, an employee who has made the judicial journey with the Ppiina and a group of eight other parents, went to the Constitutional Court after having rejected the request for equalization that he had requested, first in the Social Security and then in the Court of the Social number 30 of Madrid and the Social Chamber of the Superior Court of Madrid. The TC admitted the recourse considering that "the issue raised raises a relevant legal issue and of general social repercussion".
The ruling comes just a couple of weeks after the budget project agreed by the PSOE and Podemos, pending approval, plans to extend the dispensation to eight weeks in 2019. The Congress of Deputies also approved in June focus the debate on equal and non-transferable permits, the last horizon of this negotiation.
A "disincentive" to hire women
The ruling is based on the recognition of biological differences due to pregnancy and childbirth, although maternity leave of 16 weeks also includes adoption cases, as recalled by the magistrate of the private vote, who reproaches her colleagues for remaining " a much more complex reality ". The matter that resolves the sentence, in his opinion, "provided an exceptional occasion to analyze the negative impact that part of these measures guarantee the phenomenon of motherhood, in the equal treatment of women in the framework of the labor market."
The Court, continues the magistrate, "has lost the opportunity to explain why measures of protection of parenthood" can provide a "relative" guarantee for women who are working but "without a doubt stand as a clear barrier to entry in front of to those who are outside and an obstacle to the promotion of those who are inside, because they generate a disincentive effect on those who hire that only affects women, and that, therefore, affects the perpetuation of labor discrimination. "
Defends that these permits should be articulated to allow the father and the mother to share "the labor cost that the decision to have offspring has on the people, in such a way that this decision impacts equally, in the sense that it is (positive or negative) in both men and women. " "A Constitutional Court of this century should have recognized the necessary evolution of social reality and deepened in the analysis of the real effects of the protection measures that are being questioned here," according to the private vote. Unlike her colleagues, the judge does consider that "the normatively arranged difference between the newborn child care permits attributed to men and the one granted to women is based on sex, that is, on one of the prohibited categories contained in article 14 of the Spanish Constitution.