Summary
Section 3 of the Italian Constitution guarantees equal treatment of all citizens, and it expressly forbids any kind of discrimination. The Workers’ Statute (Law no. 300 of 20 May 1970) prohibits employment discrimination on the grounds, such as sex, political opinions, union-related activity, religion, race, language, disability, age, sexual orientation, personal beliefs and also nationality (this ground has been recently added by Law no. 238 of 23 December 2021).
Moreover, several laws were issued in Italy (Legislative Decree no. 215 of 9 July 2003; Legislative Decree no. 216 of 9 July 2003; Legislative Decree no. 198 of 11 April 2006) in accordance with the European regulatory framework, which by its Directives on Equal Treatment in Employment and Occupation clearly establish that it is unlawful to apply discriminatory selection criteria at work. The European Directives state indeed that it is unlawful to discriminate in hiring or admission to a training or apprenticeship programme, in career promotion or with respect to compensation and terminations.
According to Legislative Decrees no. 215 and no. 216 of 2003, sexual harassment and gender harassment are also considered discrimination. All behaviour (verbal, non-verbal or physical) related to sex and having the effect of offending the individual dignity of a worker (male or female) are defined as sexual harassment. Gender-based harassment is any behaviour that violates a person’s dignity or creates an intimidating, humiliating and offensive environment because of their gender.
Extent of Protection
Discrimination is prohibited either in form of direct or indirect discrimination. Direct discrimination occurs when a person is treated less favorably because of one of the protected characteristics. Indirect discrimination occurs, conversely, when an apparently neutral provision, criterion, practice, agreement or conduct would have a disparate impact on “protected” categories of employees.
Under employment law perspective, it means that, for instance, it is prohibited to subordinate the hiring of an employee on the fact that the worker is or is not a member of a trade union or that he/she stops being its member, to dismiss an employee for such reasons or to treat him/her differently based on the protected characteristic when assigning a job, changing a place of work or in disciplinary procedures.
Employers cannot retaliate against employees for filing a discrimination lawsuit against the employer. Any adverse action against the employee that could be considered directly or indirectly connected with a claim brought by the employee will be null and void.
Moreover, it is case-law principle that the dismissal served exclusively for reprisal or retaliation are considered not only unlawful but are sanctioned with the same consequences as dismissals grounded on discriminatory reasons.
Protections Against Harassment
Harassment based on racial or ethnic origin, religion or personal beliefs, disability, age and sexual orientation and sexual harassment are very serious infractions of the employment obligations when they take place within the scope of administration and management of the company, regardless of who is actually perpetrating harassment, and as long as the employer is aware of it and has not adopted the measures necessary to stop it. Under Italian law it is not permitted to harass a person, violate its dignity or to create a hostile, degrading, humiliating or offensive environment because of a person’s a protected characteristic. Sexual harassment is also prohibited.
Companies are allowed to establish policies and procedures in employee handbooks that may cover also issues such as prevention of harassments and codes of conduct. Both companies and employees are bounded by the handbooks as they are part of the internal regulations of the company.
Employer’s Obligation to Provide Reasonable Accommodations
Generally speaking, under Italian law there is no legal requirement for the employer to make accommodations to employees due to their protected characteristic. This means that employers are not obliged, for example, to change their internal rules or their organization to allow employees to profess their religious beliefs or provide other accommodations hereof (for example, allowing time-off for praying or grant them with leaves of absence over the days in which religious celebrations take place). However, to ensure compliance with the principle of equal treatment of persons with disabilities, Section 3 of Legislative Decree no. 216 of July 9, 2003, states that employers are required to make reasonable accommodations in the workplace to ensure full equality of people with disabilities with other workers. Also, according to Law no. 68 of 12 March 1999, there is a statutory requirement to occupy a certain number of disabled people. Private and public employers with at least fifteen employees are compelled to hire a number of disabled people. In particular:
- for employers with more than fifty employees, 7% of the employees have to be disabled;
- employers with between thirty-six and fifty employees must hire two disabled employees;
- employers with between fifteen and thirty-five employees must hire one disabled employee.
Employers that are required to hire disabled employees must periodically send to the competent bodies detailed reports specifying the total number of employees, the number and name of employees with disabilities who are covered by the reserved quota, their work positions and those jobs that are available to people with disabilities, considering their physical and mental conditions.
Remedies
An employee may file a claim for discrimination before the Labour Court. The Court may order the employer to stop the discriminatory conduct, to remove the effect of the unlawful conduct and order a plan to avoid future discrimination. The Court can also award damages. There is no minimum or maximum amount of damages established by legislation: the amount is determined at the discretion of the Labour Judge.
There is also a Commission for Equal Treatment that has the power to promote anti-discriminatory practices. It can monitor employers, and in the case of discriminatory conduct, it can ask the employer to arrange a plan to remove the discrimination. It can represent the employee in court and bring proceedings against the employer in cases of collective discrimination.
The Commission for Equal Treatment can issue codes of conduct intended to specify conduct regulations complying with equal treatment and to provide positive actions against discriminations. It has the power to ask employers to provide information so that it can monitor the equal treatment of men and women.
Other Requirements
Companies are required to promote work conditions that avoid sexual and gender-based harassment and are expressly encouraged to bargain with their workers’ representatives specific codes of conduct or guidelines to prevent any form of harassment.
