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The emergence of family responsibilities discrimination in Spain

Sun, 24 Jul 2011 01:00:00 +0200

The traditional concept of discrimination at workplace is changing. In fact there have emerged new ways of discrimination called second generation employment discrimination. The new manifestations are relational, subtle and more complex than the called first generation employment discrimination. Contemporary discrimination concept is in crisis and the strategies to prevent and eliminate emerging ways of discrimination are calling for a new approach due to its special complexity.

The ground family responsibilities discrimination belongs to new category and means discrimination against employees based on their responsibilities to care for family members. It includes pregnancy discrimination, discrimination against mothers and fathers, and discrimination against workers with other family caregiving responsibilities. It wants to remove the Maternal Wall or invisible barrier to the workplace advancement of mothers, analogous to the glass ceiling for all women, what some mothers and fathers face when want to be caregivers. The Maternal Wall refers to the hostility women experience when they return to work after having a baby. The focal point of the theory is that employers presume that a mother, particularly a mother of a young child, will have more family responsibilities than other workers and will prioritize those responsibilities over her work. The Maternal Wall typically arises at one of three points: when a woman gets pregnant; when she becomes a mother; or when she begins working either part-time or on a flexible work arrangement.

In Spain it has recently been created the new ground of discrimination by the case Constitutional Court 26/2011, March 14. The plaintiff worked at a special education’s home (autonomous community of Castilla and León). He had asked to work night shift for the school year 2007-2008 to care his two young children. The employer refused this request and the plaintiff alleged sex discrimination. The Constitutional Court holds that the employer must not refuse to accommodate an employee’s caring responsibilities. There is only one exception to this general rule: if the employer alleges important reasons of organization. The Court provides a reasonableness test which includes the number of children, their age and school situation, as well as the working situation of his wife and the potential effect that the refusal of night schedule to employee would mean to balance his work with the care of his children. Furthermore it is necessary to consider if the work arrangements are possible without cause important organizational difficulties. The case reflects the reality that men as well as women are affected by the maternal wall when they request parental leave or otherwise assume traditionally feminine family caregiving roles. The Maternal wall does not penalize people of a certain sex: it penalizes anyone who plays a certain sex role.

This new ground of discrimination is not prohibited under the European Union Law. However it is illegal under the American Law. In the United States, the work-family conflict has historically been framed as a problem for equality and antidiscrimination law. In 2007, the U.S. Equal Employment Opportunity Commission (EEOC) adopted an Enforcement Guidance on Family Responsibilities Discrimination.

The Problem of Air Traffic Controllers in Spain. Labour Aspects

Wed, 24 Mar 2010 10:33:00 +0100

On February 11th 2010, the Chamber of Deputies made the decision of validating the Real Decreto Ley 1/2010 de 5 de febrero (BOE Nº 43 y 32, respectively), generally known as “the decree of controllers”. This regulation has two main objectives. On the one hand, taking steps in order to make possible for new suppliers/providers to render aerial navigation, what releases this sector, while on the other hand, modifying some labour conditions from AENA’s air traffic controllers.

In relation to the labour measures, four of them should be highlighted: a) suspending the right to obtain a special paid license for three years and, consequently, the impossibility of stopping work at the age of fifty two, when continuing to earn an ordinary salary until the age of the retirement; b) establishing the working day, including the breaks and the duty services in 1,750 hours; c) conferring competences on AENA to decide on the temporary trip of their workers outside work, as it is established in the worker’s statute, while there is no other collective agreement, (this will carry some restrictions to the state workers affected by these measures). AENA has also competences to change the working day because of its own needs or variations in the timetables, modifying the starting time, the work permits, holiday periods and other issues; d) AENA is permitted to contract new controllers through any of the contractual headings from the ET.

Certainly, from the point of view of workers in relation to these types of rules, the first reaction is to refuse them, as it substitutes the collective agreement carried out by the Government. However, this situation can be changed because of the particular moment when it was dictated. In fact, we are in a sector in which the workers are fighting for their rights notably, much more than what the employers/management is doing, in a moment when the deferral in the collective agreement has given the aerial controllers quite a privileged benefit.

The main problem has been caused by the increasing cost of paying extra hours, which is 2,65 times more than the ordinary hour (accepted by the aerial controllers in several extraestatutarios pacts, which have not been incorporated to the collective agreement, nor authorized by the LPGE though). Actually, these are extra working hours. Although the agreement says that they are 1200 annually, 1800 are done on the contrary. The consequence has been the following: aerial controllers earned up to 304.874 euro in 2007, exceeding that of 210.316 euro in 1999, since which the annual IPC had been updated. (While the President of the TS, the person who earns the most in this sector, will receive 146.000 euro in 2010; the President of the State will just earn around 92.000 euro).

With this Decree, the amount of ordinary hours is agreed to 1,750, with 80 the maximum number for extra hours (art. 35 ET). This fact decreases its remuneration to 200.000 euro. It seems that the Decree has helped in the negotiation, but the generalization of exceptions, like this one, can damage itself and lead it to unconstitutional issues.

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Tue, 05 May 2009 16:30:00 +0200

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