No spouse employment policies

The emergence of women in the workforce is of public knowledge. Women not only outnumber men, but female employees now play a more significant role in nation building. In fact, at the College of Law of the University of San Carlos in Cebu City where I am teaching labor laws, more than 50 percent of my students are women.

With more women in the workplace, some employers have adopted various employment policies regulating the hiring and employment of women. These policies involve their personal or intimate relationship with the opposite sex, whether with their fellow male workers, or with employees of a rival company. In fact, employment policies on one’s personal or marital relationship have also been the subject of regulation. Women employment discrimination? Well, let us see.

An issue of first impression on the matter was decoded by the Supreme Court, recently in the case of Star Paper Corporation et al., vs. Simbol, et al., (G.R. No.164774, April 12, 2006, 2nd Division). In that case, the employer had a policy banning spouses from working in the same company. One woman employee had to resign from her job after she fell in love and married her fellow employee. Another woman employee also faced the same fate, although it was quite unfortunate as she was impregnated by her fellow married worker (whom she thought was already separated, when in fact he was not). In setting aside as void the subject employer’s policy, the Supreme Court, through Justice Reynato S. Puno, ruled that, while there is no express prohibition in our jurisdiction on marital discrimination, the "no spouse employment policy" violates the employees’ marital status because it arbitrarily discriminates against all spouses of present employees without regard to the particular individual’s qualifications or work performance. It is invalid for failure of the employer to present evidence of business necessity, other than the general perception that spouses in the same workplace might adversely affect the business. This policy violates the bona fide occupational qualification rule. To justify such an employer’s no spouse rule, the employer, according to the High Court, 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 the job.

Interestingly, this bona fide occupational qualification rule was considered as parallel to the standard of reasonableness applied in a prior case involving a policy of a pharmaceutical company which prohibited its employees from having a personal or marital relationship with an employee of a competitor company. In that case, where the issue was likewise of first impression, the Supreme Court, through Justice Dante O. Tinga, ruled, inter alia, that the employer has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors especially so that such employer and another pharmaceutical company were rivals in the highly competitive pharmaceutical industry. The policy does not impose an absolute prohibition against relationships between its employees and those of competitor companies. Its employees are free to cultivate relationships with, and marry, persons of their own choosing. What the employer merely seeks to avoid is a conflict of interest between the employee and the company that may arise out of such relationships. (Duncan Association of Detailman-PTGWO et al, vs. Glaxo Wellcome Phils., Inc., G.R. No. 162994, September 17, 2004, 2nd Division)

In sum, for any such policy involving an employee’s personal or marital relationship to be considered valid, it must apply to men and women equally, and there must be compelling business necessity involved.

(The author is the Resident Partner of the Cebu Branch of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He is also a Professor of Labor Law at the University of San Carlos College of Law, Cebu City. He may be contacted at tel. no. (032) 2311449; fax no. 032-231-3614)