Gender discrimination in the conduct of the Public Administration

Gender discrimination, both direct and indirect is radically forbidden, in the European legislation as well as in the Spanish. Particularly, the Directive 2006/54/CE of the European Parliament and of the Council, of 5 July 2006, on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation considers that:

Equality between men and women is a fundamental principle of Community law under Article 2 and Article 3(2) of the Treaty and the case-law of the Court of Justice. Those Treaty provisions proclaim equality between men and women as a ‘task’ and an ‘aim’ of the Community and impose a positive obligation to promote it in all its activities.”

As an example of that jurisprudence, composed of innumerable resolutions, we find the recent JUDGMENT OF THE COURT OF JUSTICE (Third Chamber) of May 8, 2019 (*), issued in Case C-161/18, whose paragraphs 37 and 38, say as follows:

37. As regards whether such a rule of law constitutes indirect discrimination, it must be recalled that that concept must, in the context of Directive 79/7, be understood in the same way as in the context of Directive 2006/54 (see, to that effect, judgment of 26 June 2018, MB (Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 34). It is apparent from Article 2(1)(b) of Directive 2006/54 that there is discrimination based indirectly on sex in a situation where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

38. The existence of such a particular disadvantage might be established, for example, if it were proved that legislation such as that at issue in the main proceedings is to the disadvantage of a significantly greater proportion of individuals of one sex as compared with individuals of the other sex (see, to that effect, judgment of 14 April 2015, Cachaldora Fernández, C‑527/13, EU:C:2015:215, paragraph 28 and the case-law cited). It is for the national court to determine whether that is the case in the main proceedings.”

Also the Spanish Courts have ruled on the matter, being very exemplary the STC 91/2019, whose Legal Foundation IV exposes:

Lastly, for the differentiation to be constitutionally lawful, it is not enough for the purpose to be pursued, but it is also essential that the legal consequences resulting from such distinction are adequate and proportionate to that end, so that the relationship between the measure adopted, the result that is produced and the purpose intended by the legislator to overcome a proportionality judgment in constitutional headquarters, avoiding especially burdensome or excessive results (SSTC 253/2004, of December 22, FJ 5; 61/2013 , FJ 4 a), and 156/2014, FJ 4). (…) In sum, as we affirm in STC 253/2004, “in these cases, so that the anti-discriminatory law and mandate enshrined in art. 14 EC must produce a different and harmful treatment of a social group clearly formed by women, in relation to relevant assets and without sufficient constitutional justification that can be considered as a possible limit to the aforementioned right ”(FJ 7).

From the provisions above and an analysis of the Spanish and European regulations and jurisprudence it is concluded that:

  1. Before an administrative action, apparently neutral, but which reveals an adverse impact on workers of a certain sex in a significantly higher proportion than that of people of the other sex, we could face a discriminatory situation;
  2. If it is judicially invoked by a person belonging to the traditionally harmed group, the judicial body must analyze in detail and concretely if there is no concealment of a discriminatory discrimination against equality advocated by art. 14 of the Spanish Constitution.
  3. To prove the unequal situation, the data that reveals the statistics must be used.
  4. As repeated constitutional jurisprudence shows, when the plaintiff submits sufficient indication of the existence of this violation in demand, it is the defendant who must distort the imputation of the infringing conduct, reversing the burden of proof. Thus, in the case of a lawsuit that includes the protection of fundamental rights, the administration would have to prove the absence of discriminatory reasons.

What relationship does this have with the interim collective?

There are numerous examples and testimonies of interim women who have suffered problems or reprisals at work for their status as women. The gender discrimination argument is currently being used by interim collectives in the Administration of justice to paralyze open calls for places currently covered by interim workers, since the factual reality is that they will cause an adverse impact on the members of one of the sexes, in this case the workers of the general bodies that are a significant majority, for whose evidence we have to turn to statistics.

In this sense the statistical data are very clear:

The Statistical Bulletin of the personnel at the service of public administrations reveals the gender composition of the officials of the administration of justice. Thus, the number of civil servants is 3,662 men and 7,376 women in the territories that are not transferred personnel competencies. In the Autonomous Communities with transferred staff competencies the number of officials in this area is 10,879 men and 28,883 women. If we combine both data, it turns out that the civil service mass in justice is 50,800, of which 36,259 are women, which is equivalent to a percentage of 71.38% compared to 28.62% of men.

No doubt we find that, when summoning the positions of officials who are covered by interim workers, in a significantly higher proportion (71.38% vs. 28.62%) women will be harmed, revealing the adverse impact in a diaphanous manner.

It is also relevant to mention that women in Spain have less free time to study than men. This is stated in the report of the National Institute of Statistics (“INE”), “Women and Men in Spain 2018”, which clearly demonstrates the inequality of free time available to the study between men and women in Spain. Women devote more time than men to housework and care, so they have less time to study. For example, a man without children and with a partner who does not work has 31.5 hours per week more to study than a woman with children and with a partner who works. This difference is maintained in all categories, for example, a man with children and a working partner will have 16.7 hours more per week to study than a woman in the same situation.

And this difference is decisive in overcoming an opposition process configured to favor those who spend more time studying, as is the case with the elective processes for entering the general bodies of the Administration of Justice.

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