Ratified treaties;¹ Instruments not subject to ratification²

Pregnancy/ Dismissal/ Maternity protection/ Direct resolution of a dispute on the basis of international law

In this decision, the Constitutional Court resolved 33 actions calling for legal protection (tutela)³ in which all the workers applied to be reinstated in their jobs and awarded compensation for having been dismissed for no reason other than that they were pregnant. The group of claimants included cases in which the workers notified their employers of their pregnancy before the termination of the contract, other cases where the workers notified their employers of their pregnancy following the termination of their contract and others in which notification had been verbal and, therefore, no evidence of such notification existed. They also included a range of possible employment relations.⁴

In order to determine the scope of protection of pregnant women, the Court took stock of the international instruments that refer to the elimination of discrimination against women, their protection during pregnancy and nursing, as well as the commitments undertaken by the Colombian State to promote equality between men and women in the field of employment in accordance with the instruments it had ratified. In this respect, the Court observed: 

“The State of Colombia has undertaken international obligations to guarantee the rights of women during pregnancy and nursing. Likewise, the Universal Declaration of Human Rights states in article 25 that ‘Motherhood and childhood are entitled to special care and assistance’. Article 12.2 of the UN Convention on the Elimination of All Forms of Discrimination against Women indicates that ‘States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary’. 

[…] The International Labour Organization (ILO) establishes in its Constitution and various Conventions the fundamental duty of States to promote equality of opportunity and treatment between men and women in the workplace [...] The ILO Maternity Protection Convention, 2000 (No. 183) establishes that States shall adopt the appropriate measures to ensure that ‘maternity does not constitute a source of discrimination in employment, including […] access to employment’ (Article 9).” 

Basing its conclusions on international law, including ILO Convention No. 183 and the constitutional principles on the protection of pregnant women, life, and the family, equality and the elimination of all forms of discrimination in the workplace against pregnant women, the Court ruled that the protection of pregnant women was applicable regardless of whether the woman in question had notified her employer of her condition; what must be proven was whether the pregnancy had occurred during the period of the employment relation, regardless of the type of employment contract in force. The employer’s knowledge of the employee’s pregnancy would only serve to define the type of protection awarded by the judge in the event that the employee was dismissed.

¹ ILO Maternity Protection Convention, 1919 (No. 3); ILO Equal Remuneration Convention, 1951 (No. 100); ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111); International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR); International Covenant on Civil and Political Rights, 1966 (ICCPR); American Convention on Human Rights, 1969 (ACHR); UN Convention on the Elimination of All Forms of Discrimination Against Women, 1979; ILO Workers with Family Responsibilities Convention, 1981 (No. 156); ILO Maternity Protection Convention, 2000 (No. 183).

² Universal Declaration of Human Rights, 1948; ILO Maternity Protection Recommendation, 1952 (No. 95).

³ Tutela is a constitutional mechanism that seeks to protect fundamental rights where these have been breached or put at imminent risk and no other mechanisms are available to make effective such rights.

⁴ The contract types analysed included the following: Permanent contracts, fixed-term contracts, temporary contracts for specific projects, agency workers, and civil servants appointed by means of administrative acts, and contracts for services (commercial contracts).