The judgment contains an interesting reflection on gender bias in labor matters, as well as the flaws involved in the investigation process.
A female worker who held the position of “supervisor” filed an action for protection of fundamental rights and unjustified dismissal against her former employer, after being dismissed on the grounds of eviction, alleging that her dismissal violated the right to physical and psychological integrity, respect and protection of privacy, as well as the honor of the individual and her family.
The plaintiff emphasized that, shortly before the dismissal, she had ended a sentimental relationship, receiving threats from her ex-partner, both of death and of a possible scandal that she would make in the company due to the alleged link of the plaintiff with substances that could be qualified as “drugs”, reason for which she informed her employer.
Despite the above, the company subjected her, along with other workers, to a compliance procedure due to the complaint of alleged drug use within the company, consulting on issues related to this point but also extending to other matters.
In this regard, the judge of the Second Labor Court of Santiago stated with respect to the investigation carried out by the company that “The tenor and extent of the interview has all the characteristics of a criminal investigation, with the difference that in a criminal court, the person accused of an illegal act is the one who is accused of the crime, the person accused of a crime has a defense attorney, is instructed about his right to remain silent, his statement is read and signed at the end of the interrogation, and there is no obligation to keep the investigation confidential, which is therefore endowed with a series of guarantees respectful of fundamental rights“.
In addition, he indicated that “We must mention that we do not reproach the fact that the plaintiff has initiated an investigation, because with a complaint of this nature, the employer should have done so, however, what is reprehensible is the way in which it was carried out“.
Thus, considering the way the company proceeded in the investigation, the fact of ignoring the fact that the plaintiff had informed her employer of the threats received by her ex-partner, the act of dismissing the worker and her co-worker on the same day, under identical grounds, lead the judge to conclude that “Not only have the constitutional guarantees invoked been violated, but there is also a discriminatory dismissal, given the fact that the plaintiff is a woman“.
In relation to the latter, the judge of the instance expressed that “The defendant dismissed her for having “lost confidence” in the worker, without having the ability to articulate coherently what is the reason for this loss of confidence, since there is only an ambiguous basis for not constituting a reference from the value perspective“.
“So, how can we understand the dismissal of the worker? The only way to understand it is to make visible the existence of various biases, prejudices and stereotypes given her condition as a woman” he adds.
In this way, the court makes an interesting analysis of the biases present with respect to the plaintiff. Thus, it states that “First of all, we note the presence of a credibility bias, “women are intrinsically unreliable or manipulative”. The complainant, in a desperate action, brings to the attention of her boss specific facts of her private life, given the threats of her ex-partner to denounce her at work for an illicit drug trafficking“.
“The complaint is made through a public channel and the employer initiates an investigation. However, neither her direct boss, nor the three people who conduct the interrogation – the only elements of the investigation that are accredited – grant or provide a space of objectivity, impartiality and credibility […] Ignoring absolutely the context in which she reveals facts of her private life, which she does precisely in order to reaffirm her credibility before her employer, paradoxically this fact produces the opposite effect, and the accused is installed in distrust in relation to the integrity and veracity of what is reported“, he emphasizes.
She continues, referring to a bias of appreciation, “As women should be based on normative standards”, there is a reproach to her conduct in the area of private life. But, likewise, the absolving party herself (…) representative of the denounced party mentions that she could no longer perform her duties, since the position she held required a leader with qualities and values (…). We wonder what are those values that she no longer had? It seems that from one moment to the next, she went from being a very good professional to a dishonest woman. How does this appreciation change so drastically?“.
Subsequently, it refers to the so-called performance bias: “Women are permanently required to demonstrate their legitimacy for the position, with a double requirement, statements such as “she is no longer a good reference as a leader” show that she must not only have a professional performance in accordance with the requirements of the company, but must also have an unblemished personal life, in order to be a reference for the team she leads.
Finally, the court emphasizes that “Conduct or behavior verified by a person outside the work environment cannot be judged by the employer, even less so in light of the position and business line of the company, namely the sale of clinical products. If it had been a criminal offense, why was it not reported?”.
In short, the sentencing judge determined that the complainant had been “doubly violated both by her ex-partner and by her employer who, without any agreement of course, made concrete the threats of her ex-partner, and it was enough that the aforementioned biases and prejudices were imposed to drastically change the perception of the worker, to the point of firing her for facts verified in the area of her personal life with an evident affectation in her psyche and honor”.
The sentence has interesting reflections on existing gender biases in labor matters, as well as the vices that in this case were carried out in the investigation process conducted by the company.
In any case, the present case is before the Court of Appeals of Santiago as a result of an appeal for annulment filed by the defendant company.
For more information on these topics, please contact our #azLabor group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
