Marcia Cecilia Trujillo Calero v. Ecuador, CESCR, Communication 10/2015, UN Doc. E/C.12/63/D/10/2015 (26 March 2018)

Marcia Cecilia Trujillo Calero made 29 years’ worth of retirement contributions to the Ecuadorian Institute of Social Security (IESS). Of the 305 contributions she made, approximately half were voluntary contributions made from 1981 through 1995, when she was an unpaid care worker at home, caring for her three children. During an eight-month period starting in 1989, Ms. Trujillo paused her voluntary payments, though she retroactively paid them in full in April 1990. Afterward, Ms. Trujillo continued her contributions into the system until 2001, when IESS staff informed her several times that she would be eligible for early retirement if she were to resign from her then paid job. She subsequently resigned and applied for early retirement.

Following a series of negative administrative decisions, the IESS denied Ms. Trujillo’s retirement application, alleging she did not have the required minimum 300 contributions because her eight-month pause in voluntary payments had disaffiliated her from the retirement scheme and hence invalidated all her subsequent voluntary payments. Ms. Trujillo was only made aware in 2007 of these administrative decisions dating from 2002 and 2003. Seeking redress within the domestic judicial process, she was denied at each step.

The Committee on Economic, Social and Cultural Rights (Committee) found that Ecuador violated Ms. Trujillo’s Covenant rights to social security (Article 9), to non-discrimination (Article 2(2)) and to gender equality (Article 3).

The Committee reasoned that while Ecuador has some scope to adopt measures to regulate its social security scheme, the regulations must be reasonable, proportional, clear and transparent and be publicly communicated in an adequate and timely way.  It further observed that Ms. Trujillo was vulnerable to intersecting forms of gender and age discrimination, which demanded that Ecuador’s regulations and conduct be subjected to “a level of particularly special or strict scrutiny.” The Committee noted that women comprised nearly the full population of unpaid care workers, who could face discrimination from purportedly neutral retirement programs not devised with them in mind. Voluntary contributors, who were mainly women, were at a disadvantage because they were expected to pay both their share and the employer’s share of the monthly payments, even though they lacked an employer providing a fixed income.

The Committee found that Ecuador must make reparations to Ms. Trujillo and prevent similar violations in the future. Moreover, the Committee determined that Ecuador has a duty to:

a) adopt legislation and other administrative measures that guarantee the rights of all to request, collect and receive information regarding their right to social security in a timely and adequate fashion;

b) take all necessary steps to ensure that social security authorities provide all persons adequate and timely information;

c) ensure that all regulations responsible for managing social security are proportional and not considered obstacles to obtaining a retirement pension;

d) provide timely administrative and judicial remedies to violations;

 e) adopt special measures in relation to women to ensure gender equality, including steps to remove impediments to women unpaid care workers contributing to social security plans; and

f) formulate, within a reasonable time, a plan for a comprehensive non-contributive pension scheme to the maximum of available resources.

This decision marks the first time a United Nations treaty body has ruled on the link between unpaid care work and gendered access to social security. In doing so, the Committee advanced a strong articulation of the rights to social security and to substantive gender equality on a topic of global relevance.

The Committee’s decision also provides a paradigmatic example of how an intersectional analysis can justify heightened scrutiny of potential sources of discrimination. The result is a United Nations ruling calling out purportedly “neutral” regulations for their discriminatory harms to the rights of women performing unpaid care work. The decision thus represents a challenge to traditional conceptions of labor prevalent in social security schemes that do not duly value women’s unpaid care work.

Special thanks to ESCR-Net member: Program on Human Rights and the Global Economy (PHRGE) at Northeastern University

Last updated on 18 July 2018

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