The fact that the pregnant woman performs a trustworthy job does not prevent her reinstatement in the position or the payment of lost wages if she was fired for exercising her right to motherhood . With this ruling, the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) protected the job stability of a worker discriminated against for her pregnancy and for not having a basic contract.
Maternity for the labor market, whether public or private, seems to be a drag and therefore employers from companies or the State continue to unjustifiably dismiss working mothers . According to the National Council to Prevent Discrimination (Conapred), for the last 10 years, dismissal due to pregnancy continues to be the main complaint it has dealt with, with almost 95% of the total.
In this context, during pregnancy, breastfeeding or when performing other care tasks , women and pregnant people find themselves in a situation of work vulnerability. If, in addition, in their employment they do not have a permanent position, but instead work in the regime of trust, with an individual and temporary contract, and without the protection of a union, it is likely that they will be denied other rights that correspond to them.
This happened to a trusted worker from the Ministry of Finance and Public Credit (SHCP). First, she was fired because she was pregnant. Later, although he proved that the dismissal was for that reason and the Federal Court of Conciliation and Arbitration (TFCA) recognized it, “it considered that his reinstatement was not appropriate” because he did not have a basic contract.
His case went through another collegiate court that upheld the sentence under the argument that, because it is trustworthy, “he lacks the right to tenure” and even more: that he has no right to job security . The judges indicated that the restriction “is clearly established in section B of article 123 of our Constitution”
But the Second Chamber of the Court determined “that women who are trusted workers who are fired due to their pregnancy or during the period of postnatal leave, have the right to reinstatement .”
Other antecedents in the Court
The criteria of the SJCN was published this Friday in the Federal Judicial Weekly . It is an isolated labor and constitutional thesis that, however, is added to other considerations that the Federal Judicial Power has planted for the resolution of these cases.
In this case, the draft of Minister Alberto Pérez Dayán establishes that Article 123, section B, section XI, section c), of the Constitution, “does not condition that it is a grassroots work” to protect working mothers .
What is clear, says the minister, is “that working women have the right to keep their jobs because they are pregnant or are on postnatal leave because they have stable employment, regardless of their basic status or trust. ”.
The Convention on the Elimination of all Forms of Discrimination against Women and the International Covenant on Economic, Social and Cultural Rights reinforce this criterion, he points out.
