Supreme Court of Justice, Sisnero Mirtha Graciela and others v. Taldelva SRL and others, 20 May 2014, Case No. 932 XLVI
Constitution of the Nation of Argentina
This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of November 11, 1859.
Article 75, paragraph 22
(…) Treaties and concordats have a higher hierarchy than laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. (…)
Protection against discrimination in employment and occupation
Direct resolution of a dispute on the basis of international law
Ratified treaties;1 Instruments not subject to ratification;2 Foreign case law3
Gender-based discrimination/ Burden of proof/ Protection against discrimination in employment and occupation/ Direct resolution of a dispute on the basis of international law
The claimants appealed for the ruling handed down by the lower court, which considered there to be insufficient proof of a breach of their right to equality by the defendant enterprises, to be overturned. The claimants argued that their right to freely choose an occupation and right to non-discrimination had been breached since they had been excluded from the recruitment process to hire public transport vehicle drivers on the basis that they were women.
The Supreme Court of Justice indicated that, despite finding that the breach of the claimants’ right to equality had not been proven, the lower court had acknowledged that the absence of female drivers working in the city of Salta’s public transport service was a symptom of discrimination in that society.
The Court underlined that:
"The principles of equality and prohibition of all discrimination are structural elements of Argentinian and international legal order (American Declaration of the Rights and Duties of Man, Article 2; Universal Declaration of Human Rights, Articles 2 and 7; International Covenant on Civil and Political Rights, Articles 2.1 and 26; ICESCR, Articles 2 and 3; American Convention on Human Rights, Articles 1.1 and 24; and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW))”4
Moreover, the Court highlighted the obligations deriving from two international instruments ratified by Argentina:
“According to the CEDAW, ‘States parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure [...] (b) The right to the same employment opportunities, including the application of the same criteria for selection [...] and (c) The right to free choice of profession and employment’ (in the same sense as that set out in ILO Convention No. 111).”5
The Court then remarked that in previous court decisions the standard for the burden of proof in discrimination cases had been defined according to the guidelines provided by McDonnell Douglas Corp. v. Green of the United States of America. According to this standard, if the claimant could prove the existence of allegedly discriminatory actions, the burden of proving that such discrimination did not exist lay with the defendant. In this case, the Court found that the absence of women on the payroll of transport companies before and after the claimants’ application, along with the other evidence on file, confirmed that this was a case of discrimination and that the defendants had not been successful in proving an objective and reasonable motive for preventing women from being drivers of public transport vehicles.
Making use of the various aforementioned international instruments, including ILO Convention No. 111, the Court resolved the case by overturning the ruling under appeal on the breach of right to equality, ordering the case to be returned to the original lower court in order for a new decision to be made following the lines set out by the Court.
1 ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111); International Covenant on Civil and Political Rights, 1966; International Covenant on Economic, Social and Cultural Rights, 1966; American Convention on Human Rights, 1969; Convention on the Elimination of All Forms of Discrimination against Women, 1979.