20 February 2024

Enforcement of Promotion Discrimination - A Milestone in Gender Equality in Switzerland?

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  • Legal
  • Employment / Immigration
  • Litigation / Arbitration

The first Swiss judgment, affirming gender-specific promotion discrimination, has been delivered. What does this mean for employees? How can gender-based discrimination be substantiated? And what implications does this hold for employers?

  • Marcel Stucky

    Legal Associate

In the case of a senior physician, a promotion discrimination based on gender was successfully enforced in court. This marks a precedent - in most cases, actions are dismissed, or a settlement is reached. The following article provides an overview of the current legal situation and the procedural challenges concerning gender-specific discrimination and explains the significance of this judgement for both employees and employers.

 

Which law is applicable to gender-specific discrimination?

The Federal Act on Gender Equality (Gender Equality Act, GEA) prohibits any discrimination based on gender in the workplace and thus aims to promote the actual equality of women and men. The mandatory prohibition extends to all areas of the employment relationship, particularly in terms of hiring, allocation of duties, setting of working conditions, pay, basic and continuing education and training, promotion, and dismissal. It encompasses both direct and indirect discrimination.

Difference between direct and indirect discrimination using the example of promotion:

  • Direct discrimination is assumed when the employer makes the promotion decision based on impermissible or suspicious criteria such as gender, pregnancy, or family situation.
  • Indirect discriminatory promotion occurs when neither impermissible nor suspicious criteria are used. Instead, a seemingly neutral selection criterion such as workload, professional experience or seniority is applied. Although this criterion is equally applicable to both genders, it results in one gender being disadvantaged. Both women and men are equally protected in this regard.

The GEA applies not only to private-law employment relationships under the Swiss Code of Obligations but also to all public-law employment relationships at federal, cantonal, and municipal level. Employees in both the private and public sectors enjoy the same substantive legal protection. The only differences lie in certain procedural regulations.

What legal claims are available to affected employees?

According to GEA, employees have the right to bring actions for prohibitory injunction, removal, declaratory judgment, or back payment of wages. Furthermore, potential non-contractual claims for damages and satisfaction remain reserved regardless of the type of discrimination.

Legal claims using the example of promotion:

  • If the discriminatory non-promotion has not yet occurred, there is the option to file an action for prohibitory injunction.
  • In the case of a discriminatory non-promotion that has already taken place, the claimant can insist that the promotion be carried out at a later date when feasible.
  • Furthermore, the claimant can claim the salary he/she would have received after a promotion, with retroactive effect from the date on which he/she should have been promoted.

What procedural aspects need to be considered in GEA disputes?

Conciliation proceedings: The court proceedings are generally preceded by a free attempt at conciliation before a conciliation authority with equal representation. Equal representation means that both genders and both social partners (employer and employee representatives) must be represented.

Court proceedings: While there are no court fees in court proceedings, the claimant usually has to pay the opposing party a compensation fee in the event of an unsuccessful action.

The so-called simplified proceedings apply to these court proceedings (see also our article "The dispute goes to court: what do I need to know?"). The simplified proceedings are subject to less stringent formal requirements. For example, the action can be submitted in an unsubstantiated form or orally presented in court. The underlying concept of simplified proceedings is to enable an expedited process. As such, it is also predominantly oral.

In the case of employment relationships under private law, the simplified proceedings apply regardless of the amount in dispute. In the case of employment relationships under public law, the procedures may vary from canton to canton.

Establishing the facts and evidence: The so-called restricted principle of ex-officio investigation applies. This means that the court must support the parties in presenting the relevant facts and designating the corresponding evidence by exercising an increased duty to ask questions, thereby ensuring that all essential elements of the facts are introduced into the proceedings. However, despite the application of this principle, the parties are not exempt from actively participating in establishing the relevant facts.

Proving unequal treatment: Proving gender-based unequal treatment is no easy task, especially when considering potential information gaps between employees and the employers. Therefore, the GEA provides for a reduced burden of proof in cases of discrimination regarding the allocation of duties, setting of working conditions, pay, basic and continuing education and training, promotion, and dismissal: Employees do not have to be able to fully prove the discrimination in court; they only have to make it credible. However, mere allegations are not sufficient. Facts must be presented that make discrimination appear probable.

If the employee succeeds in establishing credibility, it is then up to the employer to provide full proof that the difference in treatment is based on objective reasons. If the employer fails to do so, he or she bears the consequences of the lack of evidence (i.e., the discrimination is deemed to have been established).

What significance does the judgement on promotion discrimination hold for Swiss employees and employers?

The judgement does not alter the fact that the individual case will continue to be decisive in the future and that establishing the credibility of discrimination remains a high procedural hurdle. However, the judgement carries a signaling effect: After all, for the first time, success was achieved in enforcing a case of promotion discrimination in court. Therefore, it is accurate to characterize this judgement as a milestone (even though it has not yet become legally binding).

Based on this judgement, employees may feel encouraged to initiate gender equality proceedings and benefit from the above-mentioned facilitations. The judgement serves as a reminder for employers that the selection of the "best" candidate for promotion must be free of any gender stereotypes. Consequently, the judgment prompts a reevaluation of promotion criteria and the identification of any potential blind spots. In short: the promotion system should be based on comprehensible objective and subjective criteria that are also made transparent.

Our employment law team is happy to assist you with any questions regarding the topic of gender equality in the workplace. We look forward to hearing from you.
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