Summary
Pursuant to Swiss employment law, employers are generally prohibited from discriminating against employees based upon an employee’s “personality trait” which has been interpreted to include the employee’s age, gender, religion, race, disability and political affiliation. International agreements between the European Union and Switzerland also expressly prohibit discrimination by a Swiss employer against an employee based upon an employee’s nationality and require that the employee be treated the same with respect to working conditions and compensation as Swiss nationals.
Extent of Protection
In regard to gender discrimination, there is broader and specific statutory protection provided by the Swiss Gender Equality Act, which strictly prohibits both direct and indirect discrimination based upon an employee’s gender in the private and public sector. Employers are not permitted to treat employees less favourably based upon the employee’s marital status, pregnancy or familial status with respect to all conditions of employment including hiring, compensation, working conditions, promotions, demotions, benefits and termination of employment.
Protections Against Harassment
The Swiss Gender Equality Act and the Federal Act on Equal Treatment of Women and Men expressly prohibit sexual harassment of employees. Sexual harassment is defined to include threats, the promising of job-related advantages or coercive acts to obtain favours of a sexual nature. Swiss employers by law are required to take all reasonable steps to prevent sexual harassment. If sexual harassment occurs at the workplace and the employer cannot prove that he has taken the necessary and reasonable measures to prevent sexual harassment, he must pay the affected employee compensation of up to six months’ median salary.
Employer’s Obligation to Provide Reasonable Accommodations
The Federal Disabled Equality Act only directly protects employees of the federal government; hence, in private employment relationships disabled persons are only protected within the framework of the general protection of their rights of personality. There is, however, an increased protection in connection with building laws.
Remedies
An employee can commence a legal action in a Swiss court of proper jurisdiction against an employer alleging discrimination or harassment based upon both statutory law and the employee’s employment contract and seek an order prohibiting further discrimination, compensatory and emotional distress damages and/or a declaratory judgment.
The Swiss Gender Equality Act also provides specific remedies to employees for gender discrimination and sexual harassment including reinstatement, compensation of up to six months’ salary, and in the case of discrimination relevant to unequal pay, the difference in compensation, which resulted from the discrimination.
