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Can lactating women be excluded from working overtime?

It is discriminatory to exclude lactating women from the possibility of working overtime. This is established by judgment 30177-2022 of the Constitutional Court.

By means of a circular dated September 8, 2022, the head of the Emergency Service of the San Vicente de Paul Hospital announced that, as of October of that year, overtime would not be assigned to lactating women. The appellant challenged this decision before Constitutional Court.

The Constitutional Court concluded that the Hospital’s actions were discriminatory. In the opinion of the Court, it is discriminatory to exclude a woman from the possibility of working overtime simply because she is breastfeeding. The Court recalled that the decision of the medical center also affected the previous conditions of these workers on the basis of breastfeeding alone, which is prohibited by human rights instruments.

The Chamber also assessed the argument of the authorities regarding the reason for the prohibition. The authorities indicated that the prohibition on working overtime was to protect the best interest of the minor. However, the Court recalled that this constituted a surreptitious form of discrimination against women. In the opinion of the Chamber, “[f]ollowing the same logic as the appealed authority, the best interest of the minor would require that the mother not work at all during the breastfeeding period, given that a minor will be better cared for if his mother dedicates herself to full time to him. However, by such a route, basically there would be discrimination against women, since their right to work would be annulled”.

At CELIG we believe that ruling 30177-2022 of the Constitutional Chamber is essential for the protection of women against all forms of discrimination. This ruling reminds employers of the scope of the prohibition of discrimination against lactating women. It also opens the possibility of going directly before the Constitutional Court to challenge discriminatory measures that impact more than one person in the workplace.

At CELIG we provide specialized services to the LGBTQI+ community. If you want more information or make an appointment with us, call us at 2245-0402/ 2245-0855 or write to info@celigcr.com.

We are located in San José, Barrio Escalante.

M.Sc. Ana Isabel Sibaja Rojas

CELIG – Center for Equal Litigation