Prohibition of discrimination
The Gender Equality Act prohibits an employer from treating a person unequally on the basis of their gender. Discrimination can be direct, i.e. explicitly based on gender or a gender-specific criterion, or indirect, in that unequal treatment that is not gender-specific leads to discrimination against one gender. The most common form of discrimination is unequal pay. However, there are other manifestations, such as discrimination in recruitment, in the allocation of tasks, in the organisation of working conditions, in granting education and training, discrimination in promotion or in dismissal. Unequal treatment is permitted if it is justified by an objective reason.
Measures against sexual harassment
Employers must take measures to prevent sexual harassment from occurring in their companies. In the case of sexual harassment in the workplace, the person affected has legal remedies under the Gender Equality Act against the employer - and not, as you might expect, against the person from whom the harassment originates.
Remedies of the employees
If an employee is affected by discrimination, he or she can take legal action to have the impending discrimination prohibited or to have an ongoing discrimination eliminated or established by the court. In addition, there is the possibility of a claim for back pay for the past five years. Finally, they can claim damages and satisfaction.
In cases of discriminatory refusal of employment or dismissal or sexual harassment in the workplace, the employer may be required to pay compensation to the person concerned, determined according to the nature and severity of the discrimination. There is no requirement of intent or harm on the part of the employer.
If an employee has taken action against a discrimination, he or she is protected against dismissal. In the case of a revenge dismissal, the dismissal is contestable and the employee has the choice between continuing the employment relationship or receiving compensation.
Procedure and costs
Disputes under the Gender Equality Act are first dealt with by the specialised cantonal arbitration authority and then by the locally competent court. The proceedings are free of charge; the only costs incurred are the lawyers' fees. If a party loses, it must also pay the legal fees of the counterparty.
Has a specific case of discrimination occurred in your company or do you have additional questions about preventive measures? Contact our labour law team, we will be happy to help you.