Equality between women and men in the employment relationship: all you need to know

 

  1. General

 

Equality between women and men is enshrined in both cantonal and federal law. Art. 8 para. 3 of the 1999 Swiss Federal Constitution provides, inter alia, that:

Men and women are equal in law. The law shall provide for de jure and de facto equality, in particular in the areas of family, education and work. Men and women have the right to equal pay for work of equal value”.

In addition, there is a special law: the Equality Act (LEg), which came into force on 1 July 1996 and aims to promote de facto equality between women and men. This special law applies to all areas of working life (hiring, dismissal, further training, salary, sexual harassment in the workplace).

Various Swiss surveys and statistics have shown that women earn on average 20% less than men. This glass ceiling is due to gender discrimination. In most cases, women are paid much less than their male colleagues for work of equal value. 

  1. Rights
  1. Prohibition of discrimination

Art. 3 of the LEg prohibits direct and indirect discrimination on the basis of sex in the field of employment. This includes not only unequal pay but also all aspects of the employment relationship.

In addition, Art. 4 of the same law sanctions any employer who does not take the necessary measures to prevent and avoid sexual harassment in the workplace. 

People who are directly or indirectly discriminated against on the basis of sex should address their employer directly and contact a trade union or an equality office to discuss the matter. If negotiations are not successful, victims can then take legal action (Art. 343 CO). This is also quick and free of charge. Finally, an action for damages is also possible cumulatively.

  1. Wage inequalities

The law emphasises that all work of “equal value” deserves equal pay. However, in practice it is relatively complicated to prove such discrimination. If, however, the victim succeeds in proving such discrimination, then she can claim the difference in salary with her male colleague over the last 5 years (Art. 5 LEg).

  1. Discrimination in hiring

The victim of discrimination in employment can claim compensation of up to three months’ salary. In addition, if the victim can prove the existence of damage, he or she can claim damages in addition (Art. 5 and 8 LEg).

  1. Discriminatory dismissal

If the dismissal was given because of the person’s sex, the victim can object to the dismissal with his or her employer until the end of the dismissal period. The dismissed person may also take legal action within 6 months of the end of the contractual relationship to obtain compensation of 6 months’ salary. In addition, the victim may try to claim damages if he/she can prove the existence of the damage (Art. 5 and 9 LEg, 336b CO).

  1. Sexual harassment

The victim of sexual harassment in the workplace can take legal action to have the harassing behaviour established and prohibited. In addition, the victim can also claim compensation (maximum 6 months’ salary) and possible damages, provided that the victim can prove the damage. However, such compensation will only be awarded if the employer fails to demonstrate that he has taken all necessary measures to prevent, detect and put an end to the harassment (Art. 5 LEg).

Finally, the victim of sexual harassment in the workplace may also invoke the provisions of the Criminal Code referring to offences against sexual integrity as well as the provisions on violation of personality in the Civil Code (Art. 27 ss CC).

 

 

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