LUXEMBOURG (CN) — Keeping domestic workers from a national unemployment system amounts to gender discrimination, since most are women, a magistrate for the European Union’s highest court said Thursday.
Advocate General Maciej Szpunar wrote the nonbinding opinion for the European Court of Justice, finding that Spain tramples EU law by forbidding domestic help from participating in a public unemployment protection fund.
The complaint was referred by Administrative Court No. 2 in Vigo, a city on Spain’s northwest coast. A woman working there as domestic help in a private home complained to the court after her application for unemployment benefits through the national General Social Security Fund was rejected.
Spain has a special social security scheme for domestic workers, with which the woman was registered, but that program excludes assistance for workers who lose their jobs. The country’s General Social Security Fund includes a provision for unemployment benefits, but domestic-labor workers are excluded. The Spanish government defended the law, claiming it prevents illegal employment.
According to data from the Spanish government, 95% of people employed as domestic workers in the country are women. The Spanish judge referred the matter to the Luxembourg-based court, wondering if this exclusion constituted gender discrimination.
Szpunar, a legal adviser to the European high court, concluded that since the overwhelming majority of domestic workers are women, legislation shutting them out from parts of Spain’s social safety net amounted to gender discrimination. Women, he found, were more likely to be employed as domestic workers because of historical and contemporary perceptions of the type of work that is appropriate for women to do.
“The exclusion at issue has the effect of reinforcing the traditional social view of gender roles,” the Polish judge wrote. A copy of Szpunar's opinion is not available in English, but the court summarized his findings in an English press release.
Even setting aside concerns about the gender imbalance, Szpunar found that the legislation was illegal under EU law. Noting that the Spanish government’s goal of cutting down on work performed under the table is admirable, Szpunar wasn’t convinced the exclusion from unemployment insurance helped to achieve it.
The provision, he wrote, “does not seem … genuinely to reflect a concern to attain those aims,” but rather worsens working conditions for workers who are already prone to exploitation.
Though Szpunar’s conclusions are not themselves legally binding, final European Court of Justice rulings agree with magistrates’ legal reasoning in about 80% of cases. A decision is expected later this year.
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