Summary

A distinction is made between direct and indirect discrimination. Both forms of discrimination are prohibited, as is harassment of a person on the grounds of ethnicity, religion, belief, disability, age, sexual orientation, gender identity and gender, in particular also on the grounds of pregnancy and parenthood, and victimisation. Incitement to discrimination is also prohibited.

The examples given below are generally applicable illustrations and are deliberately not reproductions of real cases.

Direct Discrimination

Direct discrimination occurs when one person is treated less favourably than another on the basis of the characteristics listed in the definition.

Examples:

• A staff member makes negative remarks about a female colleague wearing a headscarf who reports to him or her.
• Despite experience and a good performance record, a 53-year-old person is no longer accepted for employment because prospects are no longer opened up due to her age.
• A job ad contains different remuneration schemes for men and women, even though they perform the same job.
• A company does not hire sales staff of foreign origin because they are concerned that their clients will not place orders with them.
• A probationary employment relationship is terminated because the employee is pregnant.
• An applicant is not hired because he/she is from a foreign country but has the same qualifications as a domestic applicant.

Indirect Discrimination

Indirect discrimination occurs when a neutral regulation is misused to discriminate against someone in a particular way on the basis of the aforementioned characteristics.

Examples:

• Part-time employees earn 15 percent less per hour (hourly wage) than full-time employees. Since women make up the majority of part-time employees, they are at a particular disadvantage compared to men.
• The regulation of a minimum size at the police academy regardless of gender, since women are usually smaller.
• A female employee is treated less favourably by the employer because she has absences due to the treatment of her disabled child.
• An applicant is not hired because he is married to a dark-skinned partner.
• In a company where mainly women work as part-time employees, part-time employees are excluded from management positions.
• The business space is only accessible via a staircase. Therefore, wheelchair users are not hired as employees.

Protections Against Harassment

In contrast to sexual harassment as defined in Section 6 GlBG, “gender-based harassment” refers solely to the biological sex itself, without sexual harassment. The harassment thus refers to the gender of the person concerned without addressing the sexual behaviour. Sexual harassment is considered a special case of gender-based harassment. Since the 2013 amendment of the Equal Treatment Act, the distinction has been central: While the statute of limitations for asserting claims for compensation based on sexual harassment is three years, it is only one year for claims for compensation based on gender-based harassment.

Gender-based harassment exists, for example, if harassment is targeted at gender. In particular, stereotypical statements (e.g. “women are too weak for that”, blonde jokes, “men are too insensitive”, “men are not suitable for jobs in education since they are not empathetic enough”, “women talk all day, men never listen, this makes women less suitable for leadership roles and men unsuitable for HR departments as they don’t listen to employees”) come into question here. Gender-based harassment must exceed a certain minimum level of intensity.

One of the possible manifestations of gender-based harassment is bullying if it occurs because of gender.

So far, there is no uniform concept of mobbing although mobbing cases are occurring. There is not much case law on mobbing so far. According to literature, mobbing on the basis of gender is in any case covered by the prohibition of discrimination of sexual or gender-related harassment. According to the case law of the Supreme Court, the aim of mobbing is to systematically exclude employees, to undermine their position and to force them out of the employment relationship. Thus, while mobbing requires repeated conduct aimed at a specific goal, harassment can also be present if only one act is committed. Furthermore, it is not necessary that harassment has the goal of ousting the harassed person from his or her workplace.

The concept of harassment in the GlBG is more comprehensive than mobbing, but the Equal Treatment Act only protects against harassment that occurs for the reasons stated in the law. If someone is harassed or bullied for other reasons in connection with an employment relationship, he/she can merely invoke the employer’s duty of care.

The prohibition of both sexual harassment and gender-based harassment is directed, on the one hand, at employers who violate their duty of care if they themselves harass or, in the case of (sexual) harassment by third parties, culpably fail to take remedial action. On the other hand, the prohibition is also directed against third parties who harass either directly in connection with an employment relationship or in the other world of work.

Liability for direct harassment by employers or third parties is strict, i.e. it does not depend on the subjective motivation or feelings of the harassing person. If employers fail to take appropriate remedial action in the event of harassment by third parties, they must at least be accused of slight negligence. This means that employers must know about the harassment but must then also take the appropriate measures. A measure is appropriate if it is suitable for protecting the harassed person from further harassment, e.g. warning or transferring harassing colleagues, terminating or, if necessary, dismissing them or banning customers from the premises, whereby the principles of proportionality must be applied.

The Equal Treatment Act provides for compensation for non-material damage in the event of gender-related harassment, with a minimum of 1,000 EUR.

Employer’s Obligation to Provide Reasonable Accommodations

As part of its legal mandate, the labour inspectorate checks whether employers comply with ergonomic requirements for workplaces and accessibility when employees with disabilities are employed. However, there is no legal or general regulation on the practice of religious prayers during working hours or on the provision of appropriate accommodation.

Remedies

The Austrian legal system provides for various legal protection institutions to safeguard the legal protection of the individual(s): the so-called legal remedies. The provision of legal remedies is intended to guarantee compliance with the law.

A distinction must be made between the jurisdiction of public and private law. In the area of public law, appeals against official decisions are particularly worthy to mention. These include appeals and appeals by default to the Federal Administrative Court or the respective provincial administrative court. In addition, there is the possibility of appealing to the Constitutional Court as the court of last resort, or of lodging a complaint with the European Court of Human Rights.

• Burden of Proof

Central to the enforcement of rights in anti-discrimination law is the burden of proof, which is already decisive in the substantiation of a claim, even before legal protection is granted through an appeal. In all EU anti-discrimination directives and thus basically in all areas of (employment and private) anti-discrimination law in the Austrian legal system, there is a special rule of burden of proof that facilitates the enforcement of claims by potentially discriminated persons. The person claiming discrimination in a procedure only has to make the discrimination credible; therefore, he or she has to present facts that make discrimination probable. Thereupon, the person accused of discrimination has to prove that no violation of the equal treatment requirement has occurred.

• Equal Treatment Commission/Ordinary Courts

In the case of violations of the Equal Treatment Act, the Equal Treatment Commission can be called upon to determine whether or not a violation of the Equal Treatment Act has occurred. If discrimination is established in the proceedings before the Equal Treatment Commission, the discriminating person or the discriminating company is often more willing to accept an out-of-court settlement (e.g. through payment of damages), since in the event of a subsequent referral to an ordinary court, the court must deal with the expert opinion or the examination result of the Equal Treatment Commission in the reasons for the judgment and justify a judgment that deviates from it.