EMPLOYMENT LAW: WORKPLACE GENDER EQUALITY

Equal work = equal treatment

In Switzerland, the Gender Equality Act, based on the Federal Constitution mandate to the legislature to do so (art. 8 §3 Federal Constitution), ensures equality at work between men and women, both in public and private sectors. It only applies to employee-employer relationships and not to self-employed ones.

This law protects men and women against discrimination during the entirety of the professional relationship: since the dispatch of the application form to the termination of the working relationship including all of the events happening in between (ex. hiring, firing, career-development opportunities, sexual harassment etc.).

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Combatting Discrimination: Legal Actions and Protections

In cases of unjust discrimination, options include legal action to halt or prohibit discrimination, claiming owed wages, seeking capped allowances, and pursuing civil or moral damages. The burden of proof is reduced in discrimination cases, except for hiring or sexual harassment situations, which require higher thresholds. Positive measures promoting equality are acceptable within proportional limits. Procedural steps for complaints include considerations for gender equality in legal proceedings.

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What to do against discrimination?

When confronted with any type of unjustified direct/indirect discrimination, one may take different actions. Firstly, the individual can complain to the company’s management.

legal paths:

He/she can later pursue the following legal paths:

  • ask the court to pronounce the prohibition of an imminent discrimination; an injunction to stop a current one, or even a declaratory judgement in order to officially take note of the discrimination;
  • ask for the payment of the owed wage (ie. the difference between the effectively received salary and the non-discriminatory one that was supposed to be payed); this can be requested retrospectively for a time limit of five years.

Additionally, in some cases, the victim can ask for specific capped allowances:

  • in case of a discriminatory refusal to recruit, the amount of the indemnity might be up to 3 months salary;
  • in case of a discriminatory dismissal, the maximum is set at 6 months salary;
  • in case of sexual harassment or discriminatory termination of employment, the equivalent of 6 months salary might be due unless the employer proves that he undertook reasonable steps in order to prevent such an event.

Finally, the victim might seek for civil and moral damages. Such an indemnity for moral wrongs is likely to be granted to the victim in case he/she suffered from an important physical/psychological trauma and/or when his/her personality suffered from important harm.

The Act also contains a specific protection against a “retaliation notice/eviction” which mainly concerns the case of a termination following a discrimination complaint emanating from the employee. In this case, the employee can ask for a monetary allowance but also for the annulment of the decision, which is the only case where such a notice can be annulled with regards to the private sector (art. 10 Leg).

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IMPORTANT TO NOTE…

The Act alleviates the burden of proof from the plaintiff, since a simple likelihood of discrimination is sufficient to induce a presumption of discrimination. However, in case of discrimination during the hiring process or sexual harassment, the threshold is put higher.

Appropriate measures taken in order to promote equality, called “positive measures”, don’t constitute a case of discrimination even if they are directly based on sexual criterion. Nonetheless, such a measure has to respect the principle of proportionality which mainly requires the measure not to be too incisive.

For example, the priority can be given to an underrepresented gender in a company when equally-qualified people apply for a position. A rule giving automatically the preference to a gender group without any consideration of qualifications is likely to be recognized as discrimination and, therefore, sanctioned (ATF 131 II 361 §5.4., March 14th 2005).

HOW TO PROCEED?

The procedural steps to follow are detailed here. However, in case of a gender equality complaint, some procedural arrangements have to be observed, in compliance with the Geneva Labor Court’s legislation which institutes an equality principle even within the legal procedure. Indeed, the conciliatory authority panel and the Labor Court one have to be constituted of at least 1 gender representative (ie. a woman and a man) when sitting in conciliation/court (art. 11 and 12 LTPH). Obviously, regarding the parties, when the employer is a man, the employee has to be a woman and vice versa.

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What do to...

Despite the fear of losing your job (and, consequently, permits and right to stay in Switzerland), this type of behavior should not be tolerated at all. Fast-paced and effective actions can be taken.

The first step is to urgently report the situation to your superior or to the HR department.

If no concrete action is taken by your employer to put a stop to this situation, you can report the case to the cantonal Labor Inspectorate, which will summon the company’s management staff to comply with its duty to protect its employees’ personhood (ie. to prevent and put a stop to any type of harassment).

You can also suspend your work performance and give your employer a formal notice in order to push him/her to respect his/her duty of care. Nonetheless, this path should only be followed when a violation of such a duty is clear and obvious. This will save you from being accused of abandoning your position. It could be useful in case you expressively complained about the situation and obtained strictly no reaction.

If you want to, you can also resign with immediate effect; repeated harmful behavior can constitute a sufficient ground to do so, this will also give you the right to obtain a specific indemnity (art. 337b CO).

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REPORTING

Simultaneously, you can also undertake certain legal actions.

  • You might seek for the prevention of imminent harm or an injunction to stop a current one.
  • In addition, you might ask for damages directly from the author of the harassment or from your employer (with respect to his previously mentioned duty of care). Moral damages might also be asked for if the case is of serious importance and if the author did not already compensate the victim by any other means.
  • A specific indemnity can be sought in case of sexual harassment. Its amount can be up to six months’ salary payment, based on the average salary in Switzerland.
  • If any criminal offence took place (ex. rape or physical harm), the complaint should directly be addressed to the Public Prosecutor.

Evidence of such conduct might really be hard to collect. A case can be constituted if the combination of few element creates a preponderant likelihood of such a psychological or sexual harassment. For instance, testimonies from colleagues or medical certificates can provide a valuable support to your arguments.

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Protection during sick leave

If, due to some kind of harassment, you take sick leave (supported by a medical certificate), your employer is not allowed to terminate your contract during a certain protected period, depending on how long your working relationship lasted.

The legal protection is of:

  • 30 days maximum during the first year of employment;
  • 90 days from the second to the firth year (included) of employment;
  • up to 180 days from the sixth year of employment.

After the period of protection, it is generally the employer’s loss of earnings insurance that covers from 80 to 100% of the employee’s salary, up to 720 days if the sick leave is extended until then (ATF 127 III 318).

If you receive a termination notice during the period of protection, the law considers the notice as void.

The employer will have to wait until you are back at work (ie. once the period of protection has ended) to be able to issue such a termination notice.

If you voluntarily resign under the pressure of repeated conflicts, the period of protection does not apply and it could be difficult to ask for indemnities. However, any evidence of abusive behavior will constitute a key element to support the case. This could be personal notes resuming the events, emails or any correspondence being exchanged, a witness testimony or even medical certificates.

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Protection against an abusive termination of contract

Although Swiss employment law is very liberal when it comes to the termination of an employment contract, some terminations are considered abusive and can lead to penalties. A termination is deemed to be abusive when the employment contract is terminated because of the personal characteristics of the other party or to solely frustrate the formation of claims by the other party arising out of the employment relationship.

In other words, if, respecting the procedure, you tried to complain about your uncomfortable situation at work and received a termination notice, it might be presumed that the latter was solely based on your claim. Nonetheless, the fact that this was the employer’s decisive motivation to terminate the contract will have to be demonstrated (TF 4C.60/2006, §7.1., May 22nd 2006).

In that case, you should contest the termination before the end of the notice period. To do so, you simply have to send a letter to your employer without specifying any reason. If no satisfactory answer is given to you, you can follow paths detailled here.

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