Italy: Protecting women from ‘dismissal for marriage’ is not discriminatory

The Italian Supreme Court of Cassation recently confirmed its opinion that the prohibition on dismissing an employee during the period from the date of publication of marriage banns to the first anniversary of the wedding (known as ‘dismissal for marriage’) only applies to women.

In its judgment (no. 28926) of 12 November 2018, the Supreme Court stated that there are no grounds to hold that Article 35 of Legislative Decree no. 198/2006 (the ‘Italian Equal Opportunity Code’) is unconstitutional. Article 35 states that the dismissal for marriage of a female employee will be null and void, unless the employer can demonstrate that the dismissal falls within one of the exhaustive list of strict exceptions set out in the Italian Equal Opportunity Code.

The Court held that, despite referring exclusively to women, the provision in question does not discriminate on the grounds of sex. Rather, it offers additional protection to female employees despite them having the same rights as their male counterparts. It is justified in light of the position of women in society and is grounded in a number of constitutional principles:

• the protection of human rights, including freedom of marriage;
• the principle of substantive equality through the elimination of any obstacle to full personal development;
• the principle of facilitating family life by ensuring working conditions for women are compatible with their family duties and responsibilities, based on their freedom to become wives and mothers.

In particular, according to the Supreme Court, different treatment of male and female workers on the issue of marriage is legitimate, since it is based on the difference between men and women and takes into account women’s role as mothers. Furthermore, this difference in treatment is aimed at protecting motherhood, which is constitutionally safeguarded. This protection seeks to ensure mothers can fulfill their ‘essential family function’, especially during pregnancy and immediately after giving birth, and secures special and sufficient protection for the mother and her child.

For the same reason, Article 35 of Legislative Decree no. 198/2006 does not violate the Charter of Fundamental Rights of the European Union. Article 23 (para. 2) and Article 33 (para. 2) allow Member States to adopt measures that are more favourable for the underrepresented sex and establish that individuals have the right to be protected from dismissal for reasons connected to motherhood as well as to benefit from paid maternity leave.

However this Supreme Court decision may be viewed, it emphasises the distinction between men and women, especially in their roles in child rearing, a distinction that has a direct impact on the employment relationship.