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04. Anti-Discrimination Laws

Summary

Employees are entitled not to be discriminated directly or indirectly during their employment for reasons of sex, marital status, age within the limits establish by the law, racial or ethnic origin, social status, religion or belief, political ideas, sexual orientation, affiliation with a union (or not), or for reason of language, inside the Spanish State. Employees may not be discriminated against for reason of disability, provided that, they are fit to perform the job in question.

Extent of Protection

Any direct or indirect discrimination included in regulatory provisions, clauses in collective agreements, individual agreements, and unilateral decisions by employers shall be deemed null and void and could be subject to a complementary claim for damages. Among other causes of discrimination, are those for reason of age or disability handicap and in regarding remuneration, working hours and other working conditions for reasons of sex, origin, including racial or ethnic origin, marital status, social status, religion or beliefs, political ideas, sexual orientation, membership (or not) of unions and their agreements, kinship links with other workers in the company and language in Spain. The decisions of the employer that involve unfavourable treatment of employees as a reaction to a complaint or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment and non-discrimination, would also be null and void.

Protections Against Harassment

Employees are entitled to protection and respect of their privacy and due consideration for their dignity, including protection against harassment. Harassment for reasons of racial or ethnic origin, religion or belief, disability, age or sexual orientation employer or people working in the company is considered a breach of contract. The employer could face a constructive claim for dismissal, which basically would entitle the employee to the same amount as an unfair dismissal, if the employee brings to court serious evidence of the harassment activities by the employer. This claim can be complemented with an action for moral damages against the company.

Employer’s Obligation to Provide Reasonable Accommodations

Spanish Labour Legislation requires the adoption of internal rules in companies or centres that promote and stimulate the elimination of disadvantages or general situations of discrimination against persons with disabilities, including reasonable adjustments.

Employers are required to take appropriate measures for adapting the workplace and accessibility of the company, depending on the needs of each specific situation, in order to enable people with disabilities access to employment, job progress and access to training, unless such measures would impose a disproportionate burden on the employer. To determine whether a charge is excessive, the court will consider whether, if taken, it is sufficiently remedied by measures, public grants or subsidies for people with disabilities.

Spanish regulations oblige companies with more than 50 employees to reserve a quota of 2% of their staff for disabled people.

Remedies

If an employee considers that the employment relationship has been extinguished by any discriminatory reason, he/she is entitled to judicially demand the protection of his or her labour rights.

When the employer’s decision to terminate a contract includes some of the causes of discrimination prohibited by the Constitution or the law, or has occurred in violation of fundamental rights and public freedoms of workers, the termination decision will be deemed null and void, and the employee will be entitled to reinstatement and – whenever proven – to moral damages as well.

Any questions

Ask our member firm Suárez de Vivero in Spain