Spanish Social Security Deemed Unfair to Women

(CN) - Spain discriminates against women by requiring more time from its mostly female part-time work force, as compared to full-timers, if they want social security, the EU Court of Justice ruled.

To qualify for social security in Spain, applicants must be 65 or older and have worked at least 15 years of full-time work. Spanish law establishes that a year of full-time work equals 1,826 hours, and makes concessions for part-timers by multiplying the number of days they work by 1.5.

For workers like plaintiff Elbal Moreno however, Spain's attempts at prorating left social security out of reach. Moreno worked four hours a week for 18 years as a cleaner, and when she applied for her social security pension at the age of 66, the government rejected her application.

Moreno sued, claiming that her 18 years of four-hour workweeks constituted less than three years of contributions under the Spanish scheme. She would allegedly have to spend 100 years working to receive a $136 monthly social security check.

In its judgment Thursday, Europe's highest court said that Spain's scheme amounts to indirect discrimination and violates EU law, working "to the disadvantage of part-time workers, such as Ms Elbal Moreno, who have worked part-time for a long time, since, in practice, such legislation excludes those workers from any possibility of obtaining a retirement pension because of the method used to calculate the requisite contribution period."

Spain's social security scheme affects women far more than men, since in Spain at least 80 percent of part-time workers are women, the court said, citing a statistic from the Spanish court that referred the case.

"It follows that such legislation is contrary to [EU law] unless it is justified by objective factors unrelated to any discrimination on grounds of sex," the decision states. "That will be the case where the measures chosen reflect a legitimate social-policy objective of the member state whose legislation is at issue, they are appropriate to achieve that aim and they are necessary in order to do so."

Such factors are not the case here.

"In that regard, it should be noted that, as emerges from the order for reference, the part-time workers concerned have paid contributions designed, in particular, to finance the pension system," the justices wrote. "Furthermore, it is common ground that, if they were to receive a pension, the amount of that pension would be reduced in proportion to the time worked and the contributions paid. However, as the Belgian government and the commission correctly noted, there is nothing in the documents before the court to suggest that, in those circumstances, the exclusion of part-time workers, such as Ms Elbal Moreno, from any possibility of obtaining a retirement pension is a measure genuinely necessary to achieve the objective of protecting the contributory social security system, to which the INSS [Instituto Nacional de la Seguridad Social] and the Spanish government refer, and that no other measure less onerous for those workers is capable of achieving the same objective."

The court rejected Spanish government contentions that it leveled the playing field with corrective measures such as multiplying the number of days a part-timer worked by 1.5.

In fact, it "does not appear that the corrective measures have any positive effect whatsoever on the situation of part-time workers such as Ms. Elbal Moreno," the court said.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit