Author: Laura Valderrama
Recently, the Full Chamber of the Constitutional Court through unification judgment SU-067 of 2023, the review of a discriminatory dismissal for reasons of gender and diverse sexual orientation in the workplace with inter comunitis effects, which constitutes obligatory observance by citizens , public servants and judicial operators, and that for non-compliance events generates legal consequences of contempt and other sanctions of Decree 2591 of 1992.
In this regard, the Court reviews the case of a thirty (35) year-old plaintiff with a profession of medicine and a trans and Afro-descendant woman requesting protection of fundamental rights to gender identity, sexual identity , equality, right to work, due process and social security and the protection of constitutional rights of transgender people, stating that they were violated by the employer CLINICA GENERAL.
Among the relevant facts, the trans worker after the beginning of the employment relationship with the clinic began her process of gender identity transformation through aesthetic procedures, for four (4) years she was in psychological treatment for her gender discomfort and accusations in workplace due to effeminate behaviors, feeling cornered and pressured at work, adding excessive workloads and permanent changes of workplace, which she associated with her diverse sexual orientation. Particularly, the worker has an emergency medical news and is issued subsequent disability, however one day prior to the end of the disability, the employer notifies her of the unilateral termination without just cause of the employment contract for an indefinite term.
Subsequently, the worker files a labor lawsuit for dismissal without just cause requesting the ineffectiveness of the dismissal of the unilateral termination of the employment contract and as a consequence the reinstatement with the payment of wages and social benefits during the transfer of the defendant alleges to her defense the dismissal was valid and was not discriminated against.
During the first instance judicial process, the worker was qualified by the disability qualification board, determining a loss of work capacity of 16% with the structuring date of July 19, 2016, after the contract termination date, determining aspects “impairments due to mental and behavioral disordersand for chronic renal failure”
In this regard, the decision issued in the labor process in the first instance was not favorable, denying the plaintiff the claims under particular considerations, the dismissal made by the employer did not require prior authorization from the Ministry of Labor and was not manifestly weak, Subsequently, the second instance appeal resolution confirms the ruling considering that the worker was not subject to reinforced job stability and that on the date of her health situation, suffering from tonsillitis is a temporary pathology devoid of reinforced job stability protection.
Next, the plaintiff files an extraordinary labor cassation appeal for errors of fact and evidentiary evaluation, notwithstanding the Supreme Court of Justice in cassation, decides not to cassate the charges formulated and the elements of judgment in the judicial instances were sufficient to assess the Non-application of reinforced job stability.
Considerations Constitutional Court against discriminatory dismissal for reasons of gender and sexual orientation in the workplace.
Generals:
- Right to gender identity:Despite not being enshrined in the political constitution, it is an unnamed fundamental right by the Constitutional Court linked to the intrinsic rights of human dignity and the right to equality and the free development of personality. Said right that assists all personnel to build, develop and express their gender experience freely and autonomously, as well as to claim for themselves the social category of identity that best represents them.
- Scope of protection of trans women in the workplace:The rights of trans women have been recognized in different norms, international treaties and decisions of national and international judicial authorities, in general they are holders of the rights recognized for all people.
The labor rights of trans women have been seen from the international perspective of the right that assists them to live a life free of violence of any kind, including the workplace. On the other hand, it has been recognized from an international and national sphere that trans women have not to be discriminated against in various scenarios, including labor and social security, taking into account the quality of the person. Its regulatory framework is found in Convention 111 of 1958, ratified by Law 22 of 1967, its purpose is to avoid discrimination in employment. And the state is obliged to promote employment opportunities and treatment.
In this regard, the Yogyakarta principles contain criteria to establish the scope of protection of transgender women in labor settings and the court has accepted the importance of these instruments of white law to establish the scope of protection of the rights of transgender people such as freedom of expression, autonomy, human dignity, health, legal status and dignified and productive work with conditions of equity and protection against unemployment, without discrimination based on sexual orientation and gender identity in public and private employment.
The court analyzes the right to employment stability jurisdiction, which is only protected in international law and that it is not aware of cases or instruments that protect women from said jurisdiction, bringing as an example ILO Convention 158 on the termination of the relationship of work in which it only recognizes the work and includes the legality of the dismissal as a general rule.
- Review of gender employment discrimination:The Constitutional Court reviews the case of gender labor discrimination invoked based on SU-236-2022, analyzing for the purpose of analyzing the unconstitutionality of the dismissal and that it applies exclusively based on a presumption when the dismissal is surrounded by facts, circumstances and indications of the termination of the employment relationship is based on an action or omission to the fundamental rights of the worker and that this presumption is fully applicable to workers with different gender identities after applying a value judgment whose purpose is to validate whether the dismissal was a act of discrimination or violates fundamental labor rights.
Specific to the review case:The constitutional court concludes in this regard:
- The controversy of the trans worker is not a merely legal or economic matter, but rather the fund has legal problems regarding the scope of the non-discrimination clause in labor settings, as well as the content and scope of fundamental rights to the identity of gender, equality and human dignity regarding the judicial decisions adopted against the unilateral termination of the employment contract.
- Conclusion on the part of the Court that the judicial authorities incurred in a factual defect for direct violation of the constitution, among them the improper assessment of the testimonial evidence for discriminatory acts and violations of the guardian’s gender identity, by omitting the study of the circumstantial evidence and decree of practices of trade tests that would allow identifying that the worker was subjected to various discriminatory treatment by co-workers and bosses. And the lack of assessment of the test that could have accounted for the company’s knowledge of the state of health.
The court decides to protect the fundamental rights invoked, leaving without effect the sentences handed down in the ordinary instance and declares the ineffectiveness of the dismissal due to the unconstitutionality of the dismissal, ordering the immediate reinstatement without solution of continuity.
Finally, it orders the Superior Council of the Judiciary to adopt the necessary measures to include the preparation of judges and magistrates in specific training on the rights of people with gender identity and publication of the sentence to be known to all officials, employees of the country and especially to people responsible for labor procedures.
Reflections on the analysis of unconstitutionality of dismissal to companies:
- Development of implementation of internal hiring policies in terms of labor inclusion of people with gender diversity with special protocols of non-discrimination in terms of employment and occupation.
- Special termination procedures prior guarantees of due process for workers with gender diversity.
Sources:
- Constitutional Court SU-067 of 2023 and SU-236 of 2022
- ILO Convention 111 on non-discrimination ratified by Law 22 of 1967
