Ruling states that the company could not explain the justification or proportionality of the adopted measure
On December 31, 2024, the Labor Court of Antofagasta (case number T-915-2023) ruled against a company, declaring that it violated the fundamental right to non-discrimination of a female worker by denying her the conditions to exercise her right to breastfeed while having an exceptional work schedule of 7 days of work followed by 7 days off.
The plaintiff stated that despite repeated requests, her employer did not allow her to interrupt her workday to breastfeed, nor did they offer a viable option compatible with her situation as a breastfeeding mother.
In contrast, the employer argued that, although Article 206 of the Labor Code regulates three modalities for exercising the breastfeeding right, these were not applicable to the worker’s exceptional schedule. Furthermore, the employer claimed that it was not true that no options were given, as it was the plaintiff herself who rejected alternatives, such as allowing the father of the child to exercise this right.
Additionally, while the procedure was ongoing, the worker was dismissed for business needs.
In this context, the court emphasized the importance of reconciling family and work life, citing a series of legal and supralegal norms related to the protection of maternity and non-discrimination at work, which frame Law No. 21,155 on measures to protect breastfeeding and its practice. The court held:
“From the evidence presented, clear indications of discrimination against the plaintiff can be derived (…) as she was required to comply with the employment contract as if she were any other employee of the company, without the employer fulfilling the legal conditions that would have allowed her to respect her condition as a mother exercising her right to breastfeed, thereby generating an inadmissible difference in treatment.”
Furthermore, although the worker and the union attempted to negotiate options for exercising the breastfeeding right as soon as her post-natal leave ended, the company responded evasively, stating they would attempt to reassign her position, only to finally declare that they were acting in accordance with labor law, thus taking no action on the matter.
According to the court, this constitutes sufficient evidence to demonstrate a violation of fundamental rights against the plaintiff.
The ruling further notes that the company could not explain the reasoning or proportionality of the adopted measure. Meanwhile, the worker was unable to exercise her breastfeeding right, and there was no compliance with current regulations.
As the court stated: “First, due to the absolute ignorance of the subject matter demonstrated by the defendant, who only, due to judicial intervention – always the most delayed and costly in resolving labor conflicts – and to comply with a precautionary measure, seemed to understand the legal burden they were required to meet, as explained in the review of the evidence presented by the plaintiff. Before a court order, no initiative was proven to allow the plaintiff to exercise her right to breastfeed.”
The court continued, “This total lack of knowledge of the legal regulations to be complied with was made clear beyond any doubt through the confession prompted by the plaintiff, as the defendant (…) admitted that there was no special protocol, but only compliance with basic labor law, stating that they never prepared a lactation room for the worker, even though the worksite [—] was several hundred kilometers from her residence and the contract involved a special work shift with overnight stays for several days, a requirement the company was unprepared for.”
Thus, arbitrary discrimination against the plaintiff was confirmed.
Finally, despite being unable to grant the initial requests in the complaint for protective action due to the termination of the employment relationship, the court ordered the company to pay a reparative measure, valued at eight million pesos, for not allowing the worker to exercise her breastfeeding right under any of the modalities offered by current labor law.
For more information on these topics, you can contact our Labor Group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Senior Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Manuel Sepúlveda | Associate | msepulveda@az.cl
Catalina Díaz | Paralegal | cdiazp@az.cl
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