Marcia Cecilia Trujillo Calero v. Ecuador, CESCR, Communication 10/2015, UN Doc. E/C.12/63/D/10/2015 (26 March 2018)

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:

1. adopt legislation and other administrative measures that guarantee the rights of all to request, collect and receive information regarding their right to social security in a timely and adequate fashion;
2. take all necessary steps to ensure that social security authorities provide all persons adequate and timely information, including on the validity of their contributions and affiliations;
3. ensure that all regulations responsible for managing social security are proportional and not considered obstacles to obtaining a retirement pensions;
4. provide timely administrative and judicial remedies to violations;
5. adopt special measures in relation to women to ensure gender equality, including steps to remove impediments to women unpaid care workers contributing to social security plans; and
6. formulate, within a reasonable time, a plan for a comprehensive non-contributive pension scheme to the maximum of available resources.