It is discrimination to deny parental leave to an intended parent in a same-sex couple
With ruling No. 453 of March 17, 2021,[1] the Court of Appeals of Milan confirmed that the right to receive parental leave is also due to a working mother in a same-sex civil union without the employer having the right to challenge the status of a child resulting from registered civil status.

Failure to grant such leave, even on a “preventive” basis, is discriminatory as it represents an unlawful difference in treatment.

EVENTS IN THE CASE

A Milan-based company filed an appeal against an order issued by the Court of Milan labor section[2] that charged it with discriminatory conduct toward an employee, the mother of a child born with her partner through medically assisted procreation, when it did not grant her parental leave.

Specifically, the court of first instance found that when the employer challenged the legality and correctness of the recognition of the role of intended parent in the civil status certificate issued by the Municipality of Milan, it discriminated against the homosexual parental couple. All an employee needs to do to obtain parental leave is to produce documentation certifying parental status, and the judge felt the employer would never have challenged the authenticity of such documentation had the couple been heterosexual.

Discrimination was even more evident in light of the fact that in order to spend time with her son the homosexual employee had to request unpaid leave.

For this reason, the judge ordered the company to (i) recognize parental leave; (ii) publish the ruling on its website; and (iii) pay the employee EUR 1,707.27 as compensation for the loss of income resulting from the failure to grant leave.

However, the employee’s request for compensation for non-pecuniary damages and her request for recognition of sick leave to care for her son were both denied, given that the request had been submitted to the employer to obtain authorization for future occurrences. The company appealed, arguing that the civil status issued to the employee by the Municipality of Milan was unlawful, as it recognized the employee’s intentional and non-biological parental bond. In the company’s view, such status would be reserved exclusively for the father and mother, thus excluding any intended or social parents as in the case at issue.

The employee, on the other hand, filed an incidental appeal seeking a ruling on the existence of discriminatory conduct in relation to the prior programmatic refusal to grant sick leave for her to care for her son, as well as compensation for non-pecuniary damages, which, as noted, had been rejected by the court of first instance.

 COURT OF APPEALS DECISION

The Court of Appeals rejected the main appeal in its entirety and, conversely, upheld the employee’s incidental appeal; it also upheld the other requests previously rejected in first instance.

Starting with the parental leave request, beyond endorsing the grounds for the initial order, the court noted, first, that the employer does not have the power to challenge the legality of a family status certificate. Likewise, an employer is not among the parties entitled, pursuant to Section 263 of the Civil Code, to challenge the recognition of the child on the grounds of lack of truthfulness.

Considering the above, the Court of Appeals confirmed that in this case there was direct discrimination against the employee, as due to her sexual orientation she was treated less favorably than another person would have been treated in the same situation.

Moreover, as expected, the Court of Appeals also upheld the appellant’s incidental appeal: in fact, according to the court, the prior refusal to grant one month’s leave in the event of the child’s future illness constitutes a deterrent to the employee making such a request in the future.

Finally, the court also granted the request for compensation for non-pecuniary damages amounting to EUR 5,000.00, stressing that in such cases payment not only compensates for the damage suffered but also serves a punitive function aimed at deterring the reiteration of similar conduct (see also Court of Cassation, judgment No. 16601 of 2017). Contrary to what was stated by the court of first instance, in fact, the Court of Appeals pointed out that fundamental rights had been violated, including the right not to be subject to discrimination because of one’s sexual orientation and the right to the family, meant here as the right to engage in a parent-child relationship without hindrances.

CONCLUSIONS

In conclusion, the decision of the Court of Appeals deals with an issue that remains uncertain and the subject of great debate, and it also highlights important considerations.

The Court of Appeals of Milan has aligned itself with the jurisprudential strand according to which for the purposes of maintaining public order there is no reason not to transcribe birth certificates from abroad with dual female parentage, even though a true right to filiation for same-sex couples has not yet been enshrined in Italian law.

The court also pointed out that this particular case deals not only with the right of the homosexual couple not to be subject to discrimination, but also the right of the minor child of this and other similar couples to have a stable personal relationship with both parents. The latter right is expressly recognized by the UN Convention on the Rights of the Child of November 20, 1989, ratified in Italy by Law No. 176 of May 27, 1991, which provides, in Article 3, that the best interests of the child must be the primary consideration in any decision.

Logic dictates that failure to grant parental leave and sick leave to either parent in a homosexual couple might negatively affect their child’s psychophysical development.

[1] The ruling is available at the following link: https://www.rivistalabor.it/wp-content/uploads/2021/05/App.-Milano-17-marzo-2021-n.-453.pdf.

[2] The order is available at the following link: https://www.questionegiustizia.it/data/doc/2748/ordinanza-milano-anonimizzata-final.pdf.

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