Updated on Thursday, 30 September 2021 – 18:05
The Advocate General of the Court of Justice of the EU (TEU) Maciej Szpunar considers this regulation discriminatory on the grounds of sex, as it affects almost exclusively women
Chamber of the Court of Justice of the EU.
The Spanish legislation that excludes domestic workers from unemployment benefits is contrary to European Union law because it constitutes indirect discrimination towards women, according to the General Counsel of the Court of Justice of the European Union (TEU) Maciej Szpunar.
In counsel’s opinion, given that these employees are “almost exclusively women”, denying them the right to unemployment “constitutes an indirect discrimination based on sex and not justified by legitimate objectives and unrelated to any discrimination based on sex.”
The conclusions of the general counsel are not binding for the future sentence that the TEU will have to issue in the coming months to resolve the case of a domestic employee to whom the General Treasury of the Social Security (TGSS) denied an application for a contribution to unemployment protection to acquire the right to the benefit.
The matter was referred to the Luxembourg court by the Contentious-Administrative Court number 2 of Vigo, which asks the TUE to interpret the directive on equality in social security matters to determine whether there is indirect discrimination on the basis of sex.
Thus, Advocate General Szpunar points out that It is up to the Spanish judge to check whether the “particular handicap” that the Spanish legislation establishes for domestic employees can be classified as “indirectly discriminatory measure“.
However, the lawyer highlights that, while the ratio between men and women is “more or less similar” among employed workers included in the general Social Security scheme (in which everyone is entitled to a benefit for unemployment), the proportion in the case of the special scheme for domestic employees “differs considerably”.
In this case, explains the general counsel, las women represent more than 95% of the workers in this system and, therefore, the exclusion clause “negatively affects a significantly higher proportion of female domestic workers than male”.
In this way, Szpunar points out that, sIf the Spanish judge reaches the conclusion that domestic workers are in “a less advantageous position”, he should consider that the legislation is contrary to European standards “Except that it is justified by objective factors and unrelated to any discrimination based on sex.”
The Advocate General then examines this last point and rejects the allegations presented by the TGSS and the Spanish Government, that justified the difference in treatment “by objectives based on the specific characteristics of the category of domestic workers and the status of their employers, as well as by objectives of protecting workers, protecting the level of employment in this sector and fighting against submerged work and fraud “.
The lawyer points out, in the first place, that these are “legitimate” objectives of social protection, but considers that “they are not exempt from all discrimination on grounds of sex and, therefore, cannot justify a harmful discrimination against female persons “.
On the other hand, Szpunar highlights that the reasons based on the characteristics of domestic employees (low-skilled workers who earn the minimum wage) or their employers (heads of household) “seem to be based more on gender stereotypes” and, consequently, “they are hardly oblivious to discrimination by sex.”
In addition, the general counsel rejects in his conclusions that an eventual protection of domestic employees against unemployment may incite them to fraud, as well as that exclusion “leads to reinforcing the traditional social conception of roles”, which allows “not only exploit the structurally weaker position of the people who make up this sector, but also undervalue their work. “
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