Judgment No. 3-19-JP / 20 and accumulated
Ecuador Constitutional Court decision formally recognizing the right to care owed to pregnant and lactating women with a focus on the right for employees in the public sector.
The Constitutional Court accumulated 19 cases involving women who, at the time of the events in question, were pregnant, lactating, or on maternity leave, and worked in various positions in the public sector governed by the Organic Law of Public Service (LOSEP). The Court addresses the violation of pregnant and lactating women’s rights and provides further protections by formally recognizing the right to care. They do so by: 1) demonstrating that the cases are exemplary of the situation and experiences of many women in Ecuador; 2) recognizing that the rights of pregnant and breastfeeding women are protected in Ecuador’s Constitution and exist in international human rights instruments; 3) recognizing the right to care as including and being derived from other rights; 4) providing examples of how this right and other rights of pregnant and breastfeeding women can be violated; 5) recognizing the right to judicial protection in relation to these rights and; 6) developing comprehensive reparations for the violation of these rights.
The Court first acknowledges that the women who are plaintiffs accurately represent the experiences of many women in Ecuador. The cases demonstrate examples of women facing obstacles to obtaining permission for medical check-ups; employers forcing women to change their position (often to one with lower pay) during pregnancy or when they return from maternity leave; employers ignoring or firing women who requested for position or location changes due to health risks; a lack of adequate spaces for breastfeeding; and general workplace stigmatization.
In demonstrating the existence of the right to care, the Court turns to Ecuador’s Constitution, and lists the relevant rights as: the right to sexual and reproductive health (articles 332 and 363 (6)), the right to personal and family privacy ( article 66 (20)), the right to work (article 33), the prohibition of discrimination (articles 11 (2) and 43 (1)), the right to special protection (articles 35 and 43), and the right to breastfeed (articles 43 and 332). The Court also cites relevant international instruments, including article 11 (2) of the Convention on the Elimination of All Forms of Discrimination Against Women, which pertains to discrimination against women in the workforce. The Court declares that the right to care is encompassed in these enumerated rights.
As explained by the Court, the right to sexual and reproductive health specifically requires the State to respect, protect, and fulfill the right. The Constitutional Court states that they are developing the scope and content of these rights pursuant to their obligations as part of the State. Additionally, article 43 (3) of the Constitution declares that the State will guarantee “The priority protection and care of their integral health and her life during pregnancy, childbirth and postpartum.” In support of its reading, the Court discusses all of the other uses of the word “care” throughout the Constitution, including rights of the elderly (article 38), adolescents (article 46), people deprived of freedom (article 51), family responsibilities (article 69), and work (articles 325 and 332). The Court also points to international law pertaining to the right to care, such as the human rights of older adults, the Convention on the Rights of the Child, the 2030 Agenda for Sustainable Development of the United Nations, and the Regional Conferences of Women of Latin America and the Caribbean.
The Court compares all of these rights to the principle of “sumak kawsay,” mentioned in the Constitution’s preamble, which pertains to ideas of “good living” in harmony with one’s community and in connection with all living things. Two further tenets include relationality and reciprocity. One of the State’s primary duties is to achieve sumak kawsay, and the Court states that sumak kawsay, along with the aforementioned Constitutional articles, demonstrate the existence of the right to care, which the Court now formally recognizes.
As with the other Constitutional rights, the Court describes the right to care as being made up of three elements: 1) the rights-bearer; 2) the content and scope of the law and 3) the obligated subject. The bearer of the right is any person. Care may be exercised by the bearer as the right to self-care or as an obligation and responsibility for other people, entities, or the State as the right to be cared for. As a recognized right, the right to care allows a person or group of people to do or not do something and demand that third parties do or do not do something. The rights-holder may have positive expectations (action) and negative (omission) ones of a subject who has correlative obligations to the right. The recognition of the right allows its holder, when they believe that the right has been violated, to claim the right through judicial protections. The obligated person is any person who, in relation to responsibilities established by agreement or by the legal system, must care for the bearer. The general obligation of care does not distinguish between men and women or public and private spheres.
Pregnant and lactating women have the right to care in the workplace. The right to care brings together all the obligations that derive from the right to work. During pregnancy, the place of employment must: 1) treat women with dignity; 2) allow access to all necessary health services; 3) adapt the physical space so that it is a safe, adequate and easy to access; 4) take administrative measures to prevent, investigate and punish any type of stigmatization, harassment or discrimination due to pregnancy; 5) help when the woman has any type of pain or discomfort if requested; 6) prevent interference with one’s personal life and decisions related to the reproductive health of women; 7) provide emergency care, which may include transfers to hospitals or health centers, if necessary; 8) respect breastfeeding schedules and promote adequate hydration; 9) avoid exposure to chemicals, toxic fumes, radiation, or any other similar situation that affects one’s health; 10) encourage breaks; 11) avoid inappropriate physical demands; 12) ensure access to and use of the bathroom without limitations and; 13) avoid inappropriate working hours and facilitate other work modalities.
After a woman gives birth, the employer must guarantee a twelve-week paid maternity leave and ten days of paternity leave. If more than one child is born, the leave must be extended ten more days for the mother and five for the father. During the breastfeeding period, the employer must 1) guarantee permission for the care of the newborn for two hours per day for twelve months after the completion of the maternity leave; 2) provide time and space for breastfeeding; 3) guarantee paternity leave so that men can assume mandatory care responsibilities; 4) provide childcare services; and 5) investigate and punish people who obstruct, restrict, or impede breastfeeding or the exercise of the right to care. Women are not required to notify their employer of their pregnancy, but notification must be made to exercise the right to care at work.
The Court discusses how the right to care interacts with various types of employment, including occasional service contracts, provisional appointments, and free appointment and removal positions.
No contract may be terminated due to pregnancy or lactation. In all types of contracts, pregnant women will have special protection until the end of the breastfeeding period. Special protection consists of the guarantee of the same remuneration as that received before pregnancy (or a better one), respect for maternity leave, and guarantee of an adequate work environment. In the event that a worker is terminated due to pregnancy or breastfeeding, the dismissal will not be valid. The woman may immediately return to her position, or if she does not wish to do so, may receive compensation and reparation measures. Based on the accumulated cases, the Court states that the appropriate way to address the claims of pregnant or lactating women is through a protective action, though this should not prevent people from using administrative or other jurisdictional channels that they consider suitable and effective.
The Court describes multiple indicators – structural, process, and outcome – that should be used in creating new public policies and assessing the enforcement of the right to care. The structural indicators require the recognition of the right in the Ecuadorian legal system, having an institutional apparatus to fulfill recognized rights, and policies, plans, and programs to implement the rights. Process indicators should measure the quality and magnitude of the State's efforts to implement rights, by measuring the scope, coverage, and content of strategies, plans, programs, or policies or other specific activities and interventions aimed at the achievement of goals that correspond to the realization of a certain right. The result indicators should measure the real impact of the strategies, programs, and interventions of the State, and provide a quantitatively verifiable and comparable measure of the progressive fulfillment of the right.
Finally, the Court orders the appropriate legislative bodies to introduce legislation to adapt the legal system to the parameters of this judgment and the international standards that regulate the matter; labor and health bodies to make a situational diagnosis and have all the indicators to measure the progressive fulfillment of the right to care and implement a labor protection policy for pregnant and breastfeeding women; and judicial bodies to create indicators and reports. Public institutions where women of childbearing age work must create space for breastfeeding and, where there are more than twenty people who exercise care, men or women, implement childcare centers, nurseries, and guarantee the availability of childcare services in or near the workplace. The governing bodies of labor, health, inclusion, and equality policies must develop and implement a Model of Work Environments for Care. The governing bodies of work, health, and inclusion policies must undertake a permanent campaign to raise awareness and protect and promote breastfeeding in public spaces.
While the Court says that the right to care for pregnant and lactating women already exist within Ecuador’s laws, this case serves as formal recognition of the right, who is owed it, who is obligated to adhere to it, and how it can be violated in the workforce. The Court importantly emphasizes that the experiences of the women involved in the consolidated cases represent the actual experiences of many women in the workforce. The Court cites a number of statistics to show the disproportionate lack of women in the workforce and identifies family responsibilities as a burden traditionally places on women that interferes with their ability to work. Formalizing the right to care is a way to shift the burden from only women, and make sure that employers are not discriminating against fewer women currently employed.
The Court explicitly describes the many responsibilities of employers and the ways that the right to care can be violated beyond discriminatory dismissal. Additionally, the Court provides stipulations for compensation for women who experience discriminatory termination or whose rights are violated in any of the other ways. Crucially, the Court mandates certain bodies to create new policies and reform legislation, as well as develop indicators to measure the effectiveness of the law to protect the right to care, all within set time periods. These bodies are also required to keep the Court up to date on their actions.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.