Most jurisdictions grant differentiated and more beneficial treatment – usually in the form of early retirement – to workers in arduous or hazardous jobs. Several justifications for this norm have been advanced, including (i) compensating the worker for the hardship, (ii) protecting the worker from the hazard, and (iii) realizing the principle of equality in the distribution of costs and benefits in the social security system. This article analyzes these justifications for the norm by applying the proportionality test, and hence investigates to what extent it serves a legitimate legal goal, is apt and necessary to achieve the goal, and is strictu sensu proportional when compared to alternative policies. Compensation is only possible if the special benefit conferred to workers in arduous or hazardous jobs is subsidized, and protection requires no subsidy, resulting in the inaptitude of the norm to achieve both goals concomitantly. Moreover, differentiated treatment is not necessary nor proportional to compensate or to protect the worker, as other branches of the social insurance system already perform those functions. In the end, the sole function of the norm that is justified is the realization of the principle of equality by treating unequals unequally, and in proportion to their inequality. Several implications for the design and desirability of special pension benefits are discussed.
Equipe
Coordenação:
Sergio Mittlaender
