Spain: Top Courts See Maternity Discrimination in Denied Incentives, Promotions

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By Brett Allan King

Denying incentive compensation or seniority-based job choices to employees on maternity leave is discriminatory toward women, both the Supreme Court and the Constitutional Court in Madrid announced Jan. 27.

Without questioning existing maternity rights and compensation, the country's two top courts recognized in two separate discrimination cases that women by reason of their gender need time off for imminent pregnancy and childbirth while men have no such biological obligation and thus see their rights unaffected.

‘Direct Discrimination'

The Supreme Court ruling revoked an Andalusian High Court of Justice (TSJA) judgment against a class action by the regional Workers' Commissions (CCOO), which had sued the call center firm Centro de Asistencia Telefónica S.A (CATSA) over denial of incentive payments to new mothers upon returning to work at centers in Granada and Málaga ( CC.OO.-A v. CATSA; Tribunal Supremo, Sala IV; Madrid; Jan. 10, 2017).

The telemarketing company had an incentive compensation system in place to reward commercial success, the court said, but did not count time off for maternity leave or high-risk pregnancy as “productive days” for the calculation of incentives, a policy the court said “entails direct discrimination” against employees' right to maintain and preserve their working conditions, while penalizing those who exercise their right to maternity protection.

“It's not the same to miss work because I tore my meniscus playing soccer as it is to be taken off the job because I've got high blood pressure during my pregnancy or because I have a right to maternity leave once I've given birth,” Maribel Díaz, secretary-general of services for CCOO Granada, told Bloomberg BNA by telephone Jan. 31.

According to Díaz, the telemarketing sector is “highly feminized,” close to 90 percent of positions held by women with precarious wages who get some “breathing space” through incentive payments, and CATSA's policies clearly discriminated against women, essentially “punishing them for being mothers.”

‘Socially Responsible'

The court recognized that while Spanish law does allow for maternity rights to be passed on to men, the benefit is overwhelmingly used by women. As a consequence, even if measures were gender-neutral, there would be “indirect” discrimination against women, harming them in much greater numbers that men.

In the name of equal gender opportunity, the court determined that employee incentive compensation may not be contingent upon physical workplace presence during the month prior to their payment, given that parental leave would make such presence impossible. Women must therefore be paid the same as when they were taken off the job due to pregnancy.

According to Díaz, the Supreme Court ruling is not just a victory for telecom sector workers or women, but for all workers who might face discrimination for taking parental leave.

“What companies should start doing now is be socially responsible with their workers and adhere to what the Supreme Court is saying—and obviously in this type of leave not punish their workforce by stopping the payment of incentives,” Díaz told Bloomberg BNA.

Situation ‘Unique to Women'

In a separate decision revoking another TSJA ruling, the Constitutional Court held that denying a woman the opportunity to “improve her working conditions” due to time off for pregnancy and maternity constituted sex discrimination ( Gómez v. Eurolimp S.A., Tribunal Constitucional, Sala Segunda, Madrid, Jan. 17, 2017).

In this case, a woman with an indefinite contract as cleaner for 20 hours weekly took time off for pregnancy and childbirth. Upon returning to her job, she discovered that another worker had been hired for 30 hours weekly at a new center. Despite her seniority, the new mother was denied the right to claim the job at the new center.

The court determined that this denial of rights was the direct result of a “differentiating factor,” meaning the “biological fact” of pregnancy that is limited to women, and that the company's actions harmed the worker professionally because she was a woman.

“This was due exclusively to the fact of being on work leave for imminent pregnancy and ensuing motherhood, a unique situation a person could only find themselves in if they are a women,” states the ruling.

The court determined that the company, by not communicating with the worker so she could exercise her preference, had violated Article 14 of the Spanish Constitution and thus the plaintiff's right to not suffer discrimination by reason of sex.

While the Spanish Supreme Court is the country's highest court, the Constitutional Court is the highest authority on matters relating to the Spanish Constitution.

To contact the reporter on this story: Brett Allan King in Madrid at

To contact the editor responsible for this story: Rick Vollmar at

For More Information

The Supreme Court ruling is available here, the Constitutional Court ruling here.

For more information on Spanish HR law and regulation, see the Spain primer.

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