The leaking of the draft of the new abortion law, which the Government plans to take to the Council of Ministers next Tuesday, has caused controversy even among the parties of the coalition Executive. One of the sticking points is the possibility that women with disabling rules can take a three-day leave of absence that can be extended to five. There is nothing definitive, but public opinion is also divided between those who applaud the possible measure and those who consider it stigmatizing and harmful to women.
One of the reasons given by those who do not see the legal change as necessary is the possibility that employers are more reluctant to hire female workers. In this sense, the question arises as to whether this could manage to screen the candidates, rejecting those who claim to have incapacitating pain during the days of menstruation. In other words, would it be legal for the candidate to be asked in a job interview if she has painful periods?
Even if the question were disguised to not seem so direct, it is illegal. “It is completely prohibited,” says Víctor Canalda, labor lawyer and professor of Labor Law at the Universitat Oberta de Catalunya. Not only for trying to access data on the candidate’s health, but because “it is an indication of what could be discrimination based on gender.” And it is that “everything that is a differentiation between men and women in which we can fall into stereotypes and a differential treatment can be given to women for the fact of being, would enter the field of direct discrimination.”
In the same sense, for Ana Gómez, president of the National Association of Labor Workers, “it is illegal in capital letters because it is a totally discriminatory question that goes against equality.” By law, she clarifies, “you have the right not to answer and report the company.” As she warns, “the Labor Inspection is already very serious and can impose a very serious sanction.”
Asking something so intimate, adds Álvaro San Martín, labor lawyer at the Casadeley Law Firm, “violates the candidate’s right to privacy protected in article 18 of the Spanish Constitution.” As he explains, the employer cannot ask questions related to the personal situation and, much less, with health, “which is another constitutional right.” Even if the job required a certain state of health, “it could never be asked in the interview, this would have to be verified by means of a prior medical examination.”
The issue of painful periods is primarily a health issue. Under medical supervision, it can be a reason that workers who suffer from them could be temporarily unable to provide their services. But the fact, indicates Canalda, “is a very specific and exclusive issue of women.” Therefore, the applicant would be discriminated against due to her state of health and her status as a woman.
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The rule, in addition, is linked to the reproductive facet of women, another aspect about which the employer is prohibited from asking his candidates. The company cannot request data that implies unequal treatment on the basis of sex, such as if she is pregnant or planning to have children.
legal avenues
The law classifies as a very serious offense requesting personal data in selection processes or establishing “conditions that constitute discrimination in access to employment for reasons of sex, origin, including racial or ethnic origin, age, marital status, disability , religion or convictions, political opinion, sexual orientation, union affiliation, social condition and language within the State”. This is established in article 16.1 of the Law on Infractions and Sanctions in the Social Order. The text provides for fines of between 7,501 euros and 225,018 euros for the company, according to Ana Ercoreca, president of the Union of Labor and Social Security Inspectors.
Although the approach of this type of questions in a job interview may seem unusual, it is necessary to know how to respond if necessary. Canalda advises “saying that they are personal or intimate issues and that you prefer not to answer without going into more detail or confrontation.” Keeping silent, adds Ana Gómez, does not imply a renunciation of the rights of the worker, who can denounce the situation.
Legally, the woman would have two options. One way is to report it to the Labor Inspection and another, not exclusive, to demand protection from the social courts. As Víctor Canalda points out, it is possible to sue for damages for the protection of fundamental rights in a job interview because there is an “expansive view” of the social jurisdiction towards the formulas of access to the employment relationship. The court would give its tutelage or protection if the fundamental rights of the candidate have been violated. In the event that they ask her if she has painful rules, Canalda indicates, “the right to privacy and not to be discriminated against for health or for being a woman could be violated.”
In the event of suing the company, Ana Gómez points out, “the ideal thing would be to obtain evidence.” For example, she points out, “ask for the list of women who have been interviewed and then rejected”, a thread through which the Inspection can investigate. In addition, she explains, “you can record the conversation.” It is lawful to provide as evidence a conversation recorded by one of the participants “even without the consent of the other party.”
Null dismissal
If the employer were to fire a woman alleging lack of productivity due to sick leave due to menstrual cramps, she could see the dismissal declared null and void, says San Martín. “There is jurisprudence that says that a dismissal linked to a long absence from work, which can be assimilated to a disability, can violate the worker’s fundamental right to health.”
In principle, the employer does not have access to the reason for sick leave of their employees. However, he could get access to this information due to clues or because it was transferred to him by the worker herself. If this is the real reason for the dismissal, Ana Gómez flatly affirms, “the dismissal would be null”. “The dismissal cannot have any discriminatory motive”, emphasizes the lawyer. Although the reason alleged by the company was another, “if the woman provides an indication that there is discrimination, the worker is protected and the company has to demonstrate with very solid evidence that the reason for the dismissal has absolutely nothing to do with the down by the rule”. In addition, adds the lawyer, “the judges are very sensitive and judge with a gender perspective.” The consequence, she explains, will be the annulment of the dismissal and compensation for the damages caused to the worker.