No reasonable business necessity

(Second part)

As mentioned yesterday, a "no spouse employment policy" maybe valid if it is based on a bona fide occupational qualification (BFOQ). To justify BFOQ the employer 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.

BFOQ is parallel to standard of reasonableness of a company policy recently applied in the case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome Philippines, Inc. (G.R. No. 162994 September 17, 2004). In said case, it was held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors. So the prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s employees was considered valid and reasonable under the circumstances because relationships of that nature might compromise the interests of Glaxo. In laying down the assailed company policy, Glaxo’s only purpose was to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures.

The standard of reasonableness of a company policy as a valid exercise of management prerogative was also at issue in the 1997 case of Philippine Telegraph and Telephone Company vs. NLRC (G.R. No. 118978 May 23, 1997). In said case, the employee was dismissed in violation of PT&T’s policy of disqualifying from work any woman worker who contracts marriage. It was held there that the company policy violates the right against discrimination afforded all women workers under Article 136 of the Labor Code. A requirement that a woman employee must remain unmarried could be justified as a "bona fide occupational qualification," or BFOQ, if it reflects an inherent quality reasonably necessary for satisfactory job performance.

The cases of Duncan and PT&T therefore lay down the rule that the requirement of reasonableness must be clearly established to uphold the questioned employment policy. The employer has the burden to prove the existence of a reasonable business necessity. The burden was successfully discharged in Duncan but not in PT&T.

In other words the no-spouse policy could be a valid exercise of management prerogative provided it reflects an inherent quality reasonably necessary for satisfactory job performance and the employer has the burden to prove the existence of this reasonable business necessity.

There is no reasonable business necessity in the case at bar. That said policy was only meant to carry out its no-employment-for-employees-within-the-third-degree rule is not the valid reasonable business necessity required by the law. Ronnie and Wilma were hired because they were fit for the job but were asked to resign when they married a co-employee. SPC failed to show how their marriage could be detrimental to its business operations. It is based on mere fear that employees married to each other will be less efficient. If the questioned rule would be upheld, the employer can create policies based on unproven presumption of a perceived danger at the expense of an employee’s right to security of tenure.

SPC contends that their policy will apply only when one employee marries a co-employee, but they are free to marry persons other than co-employees. The questioned policy may not facially violate Article 136 of the Labor Code but creates a disproportionate effect and under the direct impact theory, the only way it could pass judicial scrutiny is a showing that it is reasonable despite the discriminatory, albeit disproportionate effect. The failure of SPC to prove a legitimate business concern in imposing the questioned policy cannot prejudice the employee’s right to be free from arbitrary discrimination based upon stereotypes of married persons working together in one company.

Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot benefit SPC. The protection given to our labor in our jurisdiction is vast and extensive that inferences cannot be prudently drawn from the legislature’s silence that married persons are not protected by our Constitution and declare valid a policy based on prejudice or stereotype. Thus for failure of SPC to present undisputed proof of reasonable business necessity, its questioned policy is an invalid exercise of management prerogative. Ronnie and Wilma’s dismissal is therefore illegal and they should be reinstated to their former positions without loss of seniority rights and with full back wages. (Star Paper Corp. et.al. vs. Simbol et.al. G.R. 164774, April 12, 2006)

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