Civil justice condemned the General Directorate of Schools (DGE) to compensate a teacher that suffered discrimination for having overweight.
The ruling signed by Judge Fabiana Martinelli of the First Associated Judicial Management Court, orders the DGE to pay the sum of 1,350,000 pesos for damages. And took into account for it the non-pecuniary damage to which she was subjected women by the institutional apparatus.
In 2002, LM – the teacher who sued the State – began working for the DGE after the corresponding pre-employment study carried out by the Ministry of Health, in which she was considered suitable for the job for which she was applying.
In 2004 his certificate of psychophysical fitness was issued as “suitable with pre-existing pathologies”, That is to say being overweight. When she was summoned to obtain a new certificate, she obtained the qualification of “not suitable”, having as reasons the obesity and an apparent problem in the vocal cords.
After going to an otolaryngologist and a nutritionist, and losing weight, he managed to change this situation, obtaining in 2013, a certificate of fit with preexistence, taking obesity as the only pathology.
From there, he was kept under nutritional controls, managing to lose around 10 kilos. But early of the year 2016 and faced with the need for a new certificate of psychophysical aptitude, occupational health determined that it was “not suitable”, both for administrative tasks and for teaching tasks.
At the time of filing this action, the condition of this certificate had not yet been modified, although the woman had submitted to the medical board accompanying different medical certificates that confirmed her aptitude to perform the tasks corresponding to the positions she held. . It was only in May 2017 that he obtained a suitable certificate with pre-existence to carry out teaching tasks.
The damages suffered by the teacher, according to the judge
Judge Fabiana Martinelli considered that “the damage claimed is that produced by the situation that arises from 2016, when Mrs. Martínez, upon processing her certificate of aptitude, obtains a“ not suitable ”for the performance of their administrative and teaching tasks and the vicissitudes suffered before the medical board that corresponds to the subsequent evaluation of the unfit obtained ”.
That is why he argued that “beyond the special laws applicable to the case, in terms of damages, the New Civil and Commercial Code of the Nation applies, both to the assumptions of liability and to the consequences of the damage.”
“The body mass index by itself is not enough in any way to determine the existence of obesity pathology, being necessary other parameters and studies that have not been carried out on the plaintiff or at least, there is no evidence that they have founded the non-aptitude declared by the defendant’s agents, “said the judge.
In relation to the claim for non-pecuniary damage – that is, any disparaging alliteration of the psychophysical well-being of a person by an action attributable to another– The judge held that the situation experienced by the teacher meant a negative experience to which they joined “The constant controls to which he had to undergo, various studies and treatments, the refusal of the possibility of obtaining a promotion in his workplace and the obstacles that it has meant in his work performance the attitude assumed by the defendant, which has undoubtedly had repercussions in their sphere of relationship, generating great anguish due to the loss of a job and what its remuneration implies for their family ”.
By declaring itself unsuitable for teaching and administrative tasks, It implied the concern of not being able to obtain the change of functions foreseen for people with specific pathologies.
“I can not forget, in addition, that for long periods he has not been able to access substitute teaching positions, which also paid him a very important extra salary in the moments in which we live”, warns the ruling.
To this she added that -as pointed out by a psychologist- “all these issues were added to the effects of the discrimination experienced, modifying her daily life and determining a significant state of anxiety that generates a partial and permanent disability of 5% that must be undoubtedly taken into account when evaluating psychic damage ”.