by Virginia Guderzo*
The elimination of inequalities and the promotion of equality between men and women are among the fundamental principles of the European Union (Article 8 TFEU). In particular, Article 157 of the Treaty establishes the principle of equality in labour market opportunities and treatment at work, which is expressed both in terms of access to employment and equal pay. However, despite the objective of ensuring full equality between men and women in working life, recent data confirm that gender discrimination in employment and occupation remains a crucial issue.
A serious form of gender discrimination is the unjustified differential treatment of pregnant women in terms of access to employment, working conditions and dismissal. Italy has adopted a series of provisions to prevent and eliminate all forms of discrimination based on sex (among the most important, the “Code of Equal Opportunities,” L.D. n. 198/2006). Yet, an analysis of the case law shows that discrimination is not always correctly identified and this ultimately prevents victims from benefiting from the protection to which they are entitled.
Against this background, the Court of Cassation has stressed the importance of a proper interpretation and application of substantive as well as procedural rules to effectively protect the victims of discrimination. In fact, in its most recent judgment on the matter (judgment of 3 February 2023 no. 3361), the Court has ruled in this direction by reaffirming the scope of the burden of proof rule in discriminatory proceedings concerning pregnant workers.
The Case – Facts and Issues
The case concerned a woman who brought an action against the company where she had been working as an apprentice for several years, after her employer refused to confirm her apprenticeship contract and convert it into a permanent one. The woman claimed that, unlike all her colleagues (around 200), she was the only one whose contract had not been confirmed. Especially, she identified the discriminatory factor in her pregnancy condition and claimed that, in the light of the other circumstances provided, the cancellation of her apprenticeship contract (thus the lack of her permanent hiring) should have been established and repressed as a discriminatory conduct.
Contrary to the first instance judgment, the Court of Appeal dismissed the case on the grounds that the termination of the contract was of a “neutral” nature that could not conceal discriminatory behaviour, and, above all, the employee had not provided sufficient elements from which the discriminatory nature of the employer’s conduct could be inferred. On the contrary, the Supreme Court ruled in favour of the women, reaffirming that Article 40, L.D. 198/2006 “establishes an attenuation of the ordinary burden of proof in favour of the plaintiff, who only has to prove an unjustified difference in treatment or a situation of particular disadvantage, due to the risk factor typified by the law, while it is for the employee to prove the absence of discrimination.” In addition, according to the judges, discrimination can be caused by acts that are not inherently and overtly discriminatory. Thus, those that appear as “neutral” behaviours must be assessed in the broader context of all the concrete circumstances characterising the situation: it is precisely the sum of all these elements, including statistical data, that can establish the discriminatory nature of the employer’s conduct.
The easing of the burden of proof in the framework of pregnant workers protection
Overall, judgment no. 3361 represents the most recent attempt by the Court of Cassation to ensure the effectiveness of the current legal framework for gender equality in the workplace. It offers an important cause for reflection on the principle of equal treatment through procedural tools, such as the proximity and simplification of proof, using them as instruments to ensure the substantive equality of pregnant workers in line with Article 3, par. 2, of the Constitution.
However, it is important to point out that this judgment follows a series of pronouncements in which the Court of Cassation had already drawn attention to pregnant workers, as one of the most vulnerable categories in need of protection (no. 5476/2021; 1/2020; 25543/2018). The Court’s decisions explicitly refer to the ECJ’s interpretation of European legislation on pregnancy and maternity protection (Directives 92/85/EC, 97/80/EC and 2006/54/EC). According to the ECJ, less favourable treatment of a woman solely because of her pregnancy or maternity (such as dismissal, refusal to appoint or non-renewal of a contract) constitutes direct discrimination on grounds of sex (C-179/88 Højesteret; C-177/88 Dekker; C-438/99 Jiménez). This extensive approach to protection has also been adopted by the Italian Supreme Court which has emphasised the importance of effective application of procedural rules in gender discrimination proceedings.
In both direct and indirect discrimination cases (as defined in Art. 2 Dir. 2006/54 and Art. 25 of L.D 198/2006), procedural rules play an essential role in rebalancing the positions of the parties, ensuring the effective enforcement of the principle of equal treatment. As an exception to the ordinary rules of evidence (Art. 2697 c.c.), Art. 40 shifts the burden of proof to the defendant, providing that the plaintiff must prove facts “capable of substantiating, in precise and concordant terms, the presumption of the existence of discriminatory acts, agreements or conduct on grounds of sex”. In this way, on the one hand, victims of discrimination are encouraged to take action against employers, whose position of power is rebalanced with a heavier burden of proof; on the other hand, since Art. 40 is also an expression of the proximity-proof principle, it should be easier to suppress discriminatory behaviour, without running the risk that such conduct, even if it has occurred, cannot be proved by the employee.
It is possible to conclude that Article 40 is still able to embody the EU anti-discrimination principle by playing a fundamental role in the effective protection of a vulnerable category such as pregnant workers. In fact, if the defendant does not exclude discrimination by proving that the same conduct would have been applied to any other non-risk-bearing worker, discrimination is established (as it is not excluded) and the claimant can obtain an order against the employer to cease the discriminatory conduct and, if appropriate, compensation for damages (Art. 36, 38 L.D. 198/2006).
*PhD Candidate, University of Pisa
