Court ruling forces company to hire women only

The Equality for Women Foundation brought a class action against Freddo S.A alleging that it adopts hiring practices that discriminate against women when selecting personnel, as the company does not hire women employees.

The action was rejected in the first instance because a) the plaintiff had not shown that women had presented themselves for consideration and that they has been rejected because of their sex; b) the law forbids women to work in arduous, dangerous and unhealthy tasks; c) the commercial company must determine its own hiring policies; d) the defendant is redressing its tendency of hiring a larger number of male employees.

Division H of the National Court of Appeals in Civil Matters revoked the ruling of the court of first instance, ordering the company to hire only women in future.

This court has indicated in its ruling that one of the problems arising from discrimination in relation to individuals is the difficulty in providing proof, and that therefore, as non-discrimination is a principle that is backed by the Constitution, the burden of proof lies with the employer.

In this case discrimination was not to be found in the rules but in the facts, that is to say, in the conduct displayed over the years by the defendant, giving preference to the hiring of male workers in such a considerable proportion that it became unreasonable, regardless of the discretion that the employer is granted in the selection of personnel.

From the evidence submitted it was determined that in the company’s stores the personnel serving customers was male. In addition, it was determined that employment ads published in the newspaper require males, and the personnel of the company was approximately 95% male.

The ruling adds that by preventing women from working in certain tasks and under certain work conditions for the mere reason of their sex, their right to choose an occupation in line with their skills and needs is being restricted. This right is in effect no more than a manifestation of the exercise of freedom and possibility of choice, which is not limited or subject to conditions in the case of male workers, so that the prohibition places an unarguably discriminatory content in evidence.

In addition, it states that although it is true that the Argentine Constitution guarantees freedom of hiring, it is also true that the rights recognized by the Argentine Constitution are not absolute, being subject to the laws that regulate them. The prohibition on discrimination is a limit on such freedom, obliging employers to use a neutral criterion applicable equally to men and women, rejecting those criteria which, while appearing neutral, lead to an adverse consequence for members of one sex or another.

Finally, the ruling concludes that as the discrimination has been evidenced, and the company has failed to justify its conduct in a reasonable manner, the appeal should be granted and Freddo S.A. should be ordered to hire only women until the existing inequality in relation to male personnel is offset in an equitable and reasonable manner .

In our opinion this unprecedented ruling by Divison H of the National Court of Appeals in Civil Matters violates guarantees enshrined in the Constitution, such as freedom of contract.

In addition, we do not consider the order on the company to hire only female personnel to be prudent, as it could have an impact on the company’s commercial performance.