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05. Pay Equity Laws

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05. Pay Equity Laws

Extent of Protection

The Workers’ Statute explicitly prohibits employment discrimination based on gender. It is also established that hiring, job definition and promotion must be in accordance with regulations that are equally applicable to employees of both sexes.

Legislative Decree no. 145 of 30 May 2005 implemented the European Directive no. 73/2002 and modified the Law no. 125 of 10 April 1991, subsequently replaced by Legislative Decree no. 198 of 11 April 2006 which has been recently amended by Law no. 162 of 5 November 2021 by enlarging the rights of equal access to the job market, professional education and training, and equal working conditions.

The new regulation has mainly two purposes: on one hand, to contrast the gender pay gap, and on the other, to encourage the adoption of measures that encourage the participation of women in the labour market.

Remedies

Section 28 of the Legislative Decree no. 198 of 11 April 2006 clearly states that job classification systems and salary shall be determined by adopting common criteria for men and women and be tailored to eliminate discrimination. To challenge possible unfair practices, the employee may file a claim before the Labour Court, also with the assistance of the Councillor for Equal Treatment. The burden of proof usually lies with the party who files the claim. However, for the cases of discrimination based on gender, the Italian law envisages a partial reversal of the burden of proof. In particular it is provided that, if the employee provides presumptive elements of discrimination, the burden of proof on the non-existence of discrimination lies with the employer, thus giving rise to a conditional inversion.

Enforcement/Litigation

In our jurisdiction litigation concerning specific matter of equal pay still represents a marginal practice. Indeed, litigations triggered by discrimination concerning violations of equal pay practices are still rather uncommon in Italy.

In general, discriminations in Italy are more likely to be challenged by employees in occasion of dismissal and this trend may be connected to the fact that among the cases whereby the employer may be ordered to reinstate the employees are included also the case when the Labor Court considers the dismissal unlawful for discriminatory grounds.

Other Requirements

Among the measures to reduce gender gap at workplace, employers with more than fifty employees are required to file a report every two years about male/female equal treatments (Legislative Decree no. 198 of 11 April 2006, section 46 as amended by Law no. 162 of 5 November 2021).

Starting from 1 January 2022, the Italian law has introduced the “certification of gender equality” which is a document aimed at certifying the policies and concrete measures adopted by employers to reduce the gender gap in relation to growth opportunities in the company, the equal pay for equal tasks, policies for the management of gender differences and maternity protection (Legislative Decree no. 198 of 11 April 2006, section 46 bis). In addition, the law has set up a permanent technical committee on gender certification for companies at the Department for Equal Opportunities of the Presidency of the Council of Ministers.

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