The United Nations Committee on Economic, Social and Cultural Rights (CESCR) found that Ecuador violated Marcia Cecilia Trujillo Calero’s rights to social security, non-discrimination and gender equality under the International Covenant on Economic, Social and Cultural Rights (ICESCR) when it failed to provide her with timely and adequate retirement plan eligibility information and denied her pension based on disproportionate and discriminatory grounds.
Marcia Cecilia Trujillo Calero made 29 years’ worth of retirement contributions to the Ecuadorian Institute of Social Security (IESS). Of the 305 contributions she made, approximately half were voluntary contributions made from 1981 through 1995, when she was an unpaid care worker at home, caring for her three children. During an eight-month period starting in 1989, Ms. Trujillo paused her voluntary payments, though she retroactively paid them in full in April 1990. Afterward, Ms. Trujillo continued her contributions into the system until 2001, when IESS staff informed her several times that she would be eligible for early retirement if she were to resign from her then paid job. She subsequently resigned and applied for early retirement.
Following a series of negative administrative decisions, the IESS denied Ms. Trujillo’s retirement application, alleging she did not have the required minimum 300 contributions because her eight-month pause in voluntary payments had disaffiliated her from the retirement scheme and hence invalidated all her subsequent voluntary payments. Ms. Trujillo was only made aware in 2007 of these administrative decisions dating from 2002 and 2003. She appealed one of those rulings before the IESS to no avail. Ms. Trujillo then sought relief sequentially from the District Court No. 1 of the Contentious Administrative Court of Quito, the National Court of Justice and the Constitutional Court. She was denied at each step.
Ms. Trujillo’s 2015 communication to CESCR argued that Ecuador had violated her right to social security and to non-discrimination based on gender. By the time her petition was before CESCR, Ms. Trujillo had spent 14 years pensionless and was unemployed, impoverished, divorced and facing serious health problems, including diabetes, hypertension, auditory deficiency, bone malformation in her feet and sporadic mental lapses.
The Committee found that Ecuador violated Ms. Trujillo’s Covenant rights to social security (Article 9), to non-discrimination (Article 2(2)) and to gender equality (Article 3), reading the latter two in conjunction with the former. The Committee reasoned that while Ecuador has some scope to adopt measures to regulate its social security scheme, the regulations must be reasonable, proportional, clear and transparent and be publicly communicated in an adequate and timely way. The Committee ruled that Ecuador had failed to meet these standards, adding that the violation of Ms. Trujillo’s rights was aggravated by Ecuador’s lack of a comprehensive non-contributive pension scheme based on age.
First, the Committee noted the state failed to provide adequate and timely information about retirement requirements to Ms. Trujillo. IESS agents verbally confirmed to Ms. Trujillo that she had met the 300-contribution requirement and was eligible for early retirement. Furthermore, even though Ms. Trujillo’s voluntary affiliation had been voided since the pause in contributions in 1989-90, IESS continued to accept Ms. Trujillo’s monthly payments for several years afterward. These combined factors gave Ms. Trujillo a reasonable expectation that she could retire and receive social security, leading her to resign from her job.
Second, the Committee found the Ecuador’s policy of voiding all voluntary payments received after a six consecutive month pause was disproportionate to its potential policy goals, such as the protection of social security resources. The Committee observed that Ecuador did not show that there were no alternative measures that could have affected Ms. Trujillo’s rights less gravely (e.g. excluding the contributions for the eight-month pause from the calculation of benefits).
Finally, the Committee found the state responsible for discriminating against Ms. Trujillo. The Committee observed that Ms. Trujillo was vulnerable to intersecting forms of gender and age discrimination, which demanded that Ecuador’s regulations and conduct be subjected to “a level of particularly special or strict scrutiny.” The Committee noted that women comprised nearly the full population of unpaid care workers, who could face discrimination from purportedly neutral retirement programs not devised with them in mind. Voluntary contributors, who were mainly women, were at a disadvantage because they were expected to pay both their share and the employer’s share of the monthly payments, even though they lacked an employer providing a fixed income. Ecuador did not show that the conditions it set for voluntary affiliation were reasonable and proportional and not an indirect form of discrimination against women who performed unpaid care work.
The Committee found that Ecuador must make reparations to Ms. Trujillo and prevent similar violations in the future. Moreover, the Committee determined that Ecuador has a duty to:
Ecuador must submit a response to the Committee within six months of being notified of the decision and include information on measures that have been taken based on the recommendations of the Committee. Ecuador must also publish the Committee’s views and distribute them to the public. The Committee will, in turn, pursue its Follow-Up to Views procedure.
This decision marks the first time a United Nations treaty body has ruled on the link between unpaid care work and gendered access to social security. In doing so, the Committee advanced a strong articulation of the rights to social security and to substantive gender equality on a topic of global relevance. According to the Organisation for Economic Co-operation and Development (OECD), “[a]round the world, women spend two to ten times more time on unpaid care work than men.” This disproportionate burden of unpaid care work borne by women contributes to a worldwide pensions gender gap. According to a 2016 ILO study drawing on data from 107 countries, “[n]early 65 per cent of people above retirement age without any regular pension are women.” The International Labour Organisation (ILO) found that “the way in which inequalities in the labor market and in employment translate into the sphere of social protection often turns on the extent to which there are mechanisms in existence that can compensate for gender inequality in employment, such as the recognition of periods spent caring for children or older persons in the pension system.”
The Committee’s decision also provides a paradigmatic example of how an intersectional analysis can justify heightened scrutiny of potential sources of discrimination. In applying such a lens, the Committee made sure to look for disparities both in intent and result, as well as direct and indirect manifestations of discrimination. The result is a United Nations ruling calling out purportedly “neutral” regulations for their discriminatory harms to the rights of women performing unpaid care work. The decision thus represents a challenge to traditional conceptions of labor prevalent in social security schemes that do not duly value women’s unpaid care work. Importantly, the Committee also applied this analysis to non-contributive pension schemes based on age, noting that such systems should, “take into account the fact that women have a greater probability of living in poverty than men; that they often are the only ones responsible for the care of children; and that they, with greater frequency, lack contributive pensions.”
Special thanks to ESCR-Net member: Program on Human Rights and the Global Economy (PHRGE) at Northeastern University
Last updated on 28 August 2018
Ms. Trujillo was represented by the Public Defender’s Office (Defensoria del Pueblo) of Ecuador, including its office on the Rights of Good Living (Derechos del Buen Vivir). The following ESCR-Net members jointly filed a third-party intervention, as coordinated by ESCR-Net: Amnesty International, Asociación Civil por la Igualdad y la Justicia (ACIJ), Center for Economic and Social Rights (CESR), Economic and Social Rights Centre – Hakijamii, Foro Ciudadano de Participación por la Justicia y los Derechos Humanos (FOCO), Global Initiative for Economic, Social and Cultural Rights (GI-ESCR), International Women’s Rights Action Watch Asia Pacific (IWRAW AP), Legal Resources Centre (LRC), Social Rights Advocacy Centre (SRAC) and individual members Professor Lilian Chenwi (of the School of Law, University of Witwatersrand) and Viviana Osorio Pérez.
