Workplace discrimination

Coincident to the observance of International Women’s Day last March 8, gender equality at the workplace got a big boost from the recent decision of the Supreme Court with regard to a provision in the 2000-2005 collective bargaining agreement (CBA) between Philippine Airlines (PAL) and its flight attendants union that prescribed mandatory retirement ages based on gender. Under that CBA, female flight attendants are obliged to retire at age 55, which is earlier by five years than their male counterparts.

The distinction is premised on the assumption that by that age, female flight attendants, regardless of their physical or health condition, would no longer have the stamina to meet the strenuous requirements of their job.

The court declared that provision as unconstitutional “… for lack of basis, discriminating against women and being contrary to laws, international convention and public policy.”

Although the ruling specifically relates to PAL, it shall apply to all existing CBAs or employment arrangements of companies that require female employees to quit their jobs upon reaching an age bracket ahead of that of their male coemployees.

Henceforth, their employees’ compulsory retirement age, if any, should be gender-neutral and that goes too for all agreements that may be entered into in the future.

Laudable that ruling may be, it should be appreciated in the context it was issued and its underlying facts and circumstances.

It should not be taken to mean that an employer is prohibited from using gender as one of the criteria in setting employment rules and regulations in, for example, the assignment of work shifts or the grant of employment benefits.

Ideally, gender should not be a factor in the management of employees who work in the same workplace. To maintain their morale, it is essential that they be dealt with equally.

It cannot be denied, however, that there are inherent physical or biological differences between men and women that justify some variance in their treatment in the workplace.

Thus, only female employees can go on maternity leave in case of childbirth, miscarriage or emergency termination of pregnancy. It’s up to the employer, at its initiative or pursuant to a CBA, to expand its number of days or give benefits beyond those required by law.

In the same token, in CBAs that provide for paternity leave benefits, only male employees are allowed to avail themselves of that leave to enable them to assist their better half in attending to the addition to their family.

To the credit of some more enlightened employers, they permit their female employees to take a break from their work (with pay) when their monthly periods prevent them from reporting for work.

For obvious reasons, in the absence of credible medical findings to the contrary, that kind of leave is not available to male employees. Transgenders may have to be taken out of this equation for the time being.

But an employer cannot be faulted if, for safety reasons, it uses gender in deciding on the assignment or rotation of its employees in work shifts, e.g., graveyard shift, or places of assignment, such as in areas where women are prone to be the subject of harassment by outsiders.

Female employees have no reason to complain of discrimination if they are excluded from those assignments, especially if overtime pay, night differential pay or food allowance go with them, because the employer’s action is in the company’s and female employees’ best interests.

It would be unreasonable for the employer to be required to make those assignments gender-neutral and, in the process, incur additional operational expenses to be able to do that.

This is not to say that male employees are “expendable,” but the reality on the ground is they are, in a general physical sense, perhaps better suited for those kind of assignments. (My apologies if this sounds sexist.)

Gender equality in the labor force is a noble objective, but its promotion should not be done at the expense of or in derogation of certain human factors that are inherent to its members. INQ

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