More than 60 years after it started functioning, the European Court of Human Rights (ECtHR) has finally delivered its first two judgements on pregnancy discrimination. Even if these two judgements stand in stark opposition as regards their outcome, they do outline a few laudable general principles for future pregnancy discrimination cases coming before the Court.
The first judgement, Napotnik v. Romania, concerned the recalling of a female diplomat from a posting abroad after she announced her second pregnancy. In this highly criticized judgement, the Court did not find discrimination as it considered that the early termination of Ms Napotnik’s posting was justified by the need to offer timely consular assistance to Romanians abroad. The second judgement Jurčić v. Croatia regarded the refusal of an employment-related benefit to a pregnant woman due to the suspicion that her employment contract had been fictitious since it was concluded 10-days after she underwent in vitro fertilization. In contrast with Napotnik, in this acclaimed judgment, the Court found that such refusal was based on harmful stereotypes about pregnant women’s “inability” to work and was hence discriminatory and unjustified. Read comparatively, the two judgements show serious inconsistencies in the Court’s reasoning, a blog post being too short to detail on them. However, the reasoning in Jurčić is built on exactly the same generally principles developed in Napotnik which are likely to be crucial in deciding future pregnancy cases by the ECtHR.
Perhaps the most important principle spelled out by the Court in Napotnik (and reiterated in Jurčić) is that pregnancy discrimination amounts to discrimination based on sex since “only women can be treated differently on grounds of pregnancy” suffering disadvantage due to stereotypes related to their condition. This holding is very important since in ECtHR’s case law “sex” together with other grounds such as “race” or “sexual orientation” are considered “suspect grounds” that require the existence of “very weighty reasons” to justify a difference in treatment. Said in other words, when a “suspect ground” is at stake, states have to show they had no other alternative in reaching their “legitimate aims” than through a difference of treatment based on that suspect ground. In this type of cases, the margin of appreciation of states in fulfilling their obligations under the Convention is narrow, states coming under the close scrutiny of the ECtHR.
By referring to the case law of the Court of Justice of the European Union, the Court has further inferred another important principle, namely that no comparator is needed in cases of pregnancy discrimination since pregnancy is a condition uniquely related to the female sex. This means that, unlike US courts for example, the ECtHR does not find it necessary to inquire whether pregnant women are treated less favorably than groups considered to be in a “similar” situation like ill or disabled men; rather the ECtHR inquires whether or not pregnant women were treated unfavorably on account of their pregnancy. This approach is significant as it enables the Court to uphold special measures to protect pregnant women (such as leave of absence for medical checkups), independent of the existence of such measures for other groups. This idea is further strengthened by the Court’s explicit acknowledgement (in both cases) of the principle that pregnancy needs special protection and of the fact that the Convention allows “treating groups differently in order to correct “factual inequalities” so to achieve substantive equality.
The Court’s explicit spelling out of these principles is important. However, a question remains about their application to concrete facts and the leeway of the Court in reaching different outcomes when pregnancy discrimination occurs as was the case in Napotnik and Jurčić. Since Ms Napotnik was still working for the Romanian Ministry of Foreign Affairs as a diplomat when the judgement was delivered, probably she was not in a position to ask for a referral of her case to the Grand Chamber. The Croatian Government in Jurčić can still ask for a referral until 4 May 2021. Such eventual referral or other future cases would be a good opportunity for the Court to solidify the protection of pregnant women in the ECHR’s framework.