The Manila Times

VALIDITY OF NO-SPOUSE EMPLOYMENT POLICY

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Dear PAO,

Can a private company validly dismiss a female worker who marries her co-worker? We heard that the company next to our offiCE MIGHT BE IMPLEMENTING THAT kind of policy, and we are worried THAT OUR COMPANY MIGHT DO THE same. Incidentally, some of us have spouses within the company. With the pandemic and all other ECONOMIC PROBLEMS RIGHT NOW, we do not want our wives to lose THEIR JOBS.

Nelson

Dear Nelson,

As a general rule, a female worker cannot be terminated simply because she is married, she marries or will marry a co-employee. Our laws safeguard the rights of female laborers, especially from unreasonable termination on account of their marital status. Article 134 of the Labor Code of the Philippines, as amended, explicitly provides:

“Art. 134. [136] Stipulation

Against Marriage. It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.”

However, jurisprudence has clarified that employers may impose a policy against marriage between co-employees if there is a bona fide occupational qualification to justify it. In the recent decision of the Supreme Court, as penned by Associate Justice Marvic M.V.F. Leonen, it was made clear that:

“x x x An employer’s dismissal of a female employee solely because of her marriage is precisely the discrimination that the Labor Code expressly prohibits. This Court cannot countenance respondents’ unlawful act. x x x Indeed, employers may freely conduct their affairs and employ discretion and judgment in managing all aspects of employment. However, their exercise of this right to management prerogative must be in accord with justice and fair play. x x x

“In determining whether an employer’s policy prohibiting spouses from working in the same company or a ‘no spouse employment policy’ is unlawful, Star Paper Corp. vs. Simbol discussed the bona fide occupational qualification that may possibly justify it:

“’The courts that have broadly construed the term ‘marital status’ rule that it encompassed the identity, occupation and employment of one’s spouse. They strike down the no spouse employment policies based on the broad legislative intent of the state statute. They reason that the no spouse employment policy violates the marital status provision because it arbitrarily discriminates against all spouses of present employees without regard to the actual effect on the individual’s qualifications or work performance. These courts also find the no-spouse employment policy invalid for failure of the employer to present any evidence of business necessity other than the general perception that spouses in the same workplace might adversely affect the business. They hold that the absence of such a bona fide occupational qualification invalidates a rule denying employment to one spouse due to the current employment of the other spouse in the same office. Thus, they rule that unless the employer can prove that the REASONABLE DEMANDS OF THE BUSINESS REQUIRE A DISTINCTION BASED on marital status and there is NO BETTER AVAILABLE OR ACCEPTABLE POLICY WHICH WOULD BETTER ACCOMPLISH THE BUSINESS PURPOSE, AN employer may not discriminate AGAINST AN EMPLOYEE BASED ON the identity of the employee’s SPOUSE. THIS IS KNOWN AS THE BONA fiDE OCCUPATIONAL QUALIfiCATION exception.

“’We note that since the finding of bona fide occupational qualification justifies an employer’s no-spouse rule, the exception is interpreted strictly and narrowly by these state courts. There must be a compelling business necessity for which no alternative exists other than the discriminatory practice. TO JUSTIFY A BONA FIDE OCCUPATIONAL QUALIfiCATION, THE employer must prove two factors: (1) that the employment qualifiCATION IS REASONABLY RELATED TO THE ESSENTIAL OPERATION OF THE JOB

involved; and (2) that there is a FACTUAL BASIS FOR BELIEVING THAT ALL OR SUBSTANTIALLY ALL PERSONS MEETING THE QUALIfiCATION WOULD BE UNABLE TO PROPERLY PERFORM

THE DUTIES OF THEIR JOB.” (Catherine dela Cruz-Cagampan v. One Network Bank, Inc./or Alex V. Buenaventura, President/Myrna S. Viado, HR Head, GR 217414, June 22, 2022; emphasis supplied).

Hence, absent any bona fide showing that the “No-Spouse Employment Policy” is related to work and that it is reasonable, it will be struck down for being discriminatory. We hope that we were able to answer your queries.

This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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en-ph

2022-09-21T07:00:00.0000000Z

2022-09-21T07:00:00.0000000Z

https://digitaledition.manilatimes.net/article/281608129293459

The Manila Times