Answer ... The Italian legal system contains a general constitutional principle of equality, based on citizens’ equal dignity before the law, which prohibits all forms of discrimination and requires public institutions to remove all economic and social obstacles that de facto limit the equality of citizens and workers. The Constitution also expressly provides that working women have the same rights as men and are therefore entitled to equal pay for equal work.
In addition, Italian law more specifically prohibits discrimination in the workplace on the following grounds: sex, political opinion, union-related activity, religion, race – including nationality, ethnic or national origin and colour – language, disability, age, sexual orientation and personal beliefs.
Any action by the employer aimed at creating differential treatment on any of the abovementioned grounds is considered unlawful and discriminatory.
Discrimination may occur:
- during the recruitment process (eg, selection, interview);
- during employment (eg, remuneration, access to benefits, promotions, disciplinary procedures); and
- in case of termination.
Discriminatory actions may be:
- direct – that is, any action, agreement or behaviour that has discriminatory effect (ie, that accords less or more favourable treatment) against workers based on any of the abovementioned categories; or
- indirect – that is, any action, criterion, agreement or behaviour which, although apparently neutral, creates a particularly disadvantageous situation for workers in any of the abovementioned categories.
Answer ... Specific protection is accorded to particular categories of workers who are considered more vulnerable and thus in need of strong regulation:
- Age discrimination: In general, this is prohibited. Different treatment due to age may be acceptable for young or old workers or workers with dependants, if this is aimed at protecting them.
- Sex discrimination: Women and men have equal rights to access the job market, professional training and working conditions. Only if gender is a necessary characteristic of a position is it lawful to ‘discriminate’ between genders.
- Disability discrimination: In general, this is prohibited. This protection further extends to employees with disabled relatives who need caring for. The prohibition does not apply if a disabled worker’s recognised physical, mental or sensory disabilities might place him or her, colleagues or third parties in danger.
- Religious discrimination: Any discrimination connected with personal beliefs (or lack of beliefs) or religion is forbidden. Only in case of occupational activities within public or private organisations based on religion or belief may a genuine difference in treatment not be discriminatory.
- Race and ethnic discrimination: This is prohibited, unless specific legislative dispositions require a certain citizenship or nationality as a necessary condition for a particular type of job (eg, public service, army).
- Union-based discrimination: Every worker within the working premises has the right to found or join a union, carry out union activity and participate (or not) in a strike (unless public essential services are concerned).
Answer ... In addition to the general prohibition on discrimination in the workplace, Italian law provides special protection for some of the abovementioned vulnerable categories:
- Sexual discrimination: In order to promote the representation of women in the workplace, the law provides for positive actions such as incentives for women, flexible work, promotion of vocational training and nurseries inside the workplace. The implementation of positive actions is governed by the National Committee for Equal Opportunities and the equal opportunity advisers appointed at national and local level. These bodies aim to promote equal opportunities between men and women and are involved in several procedures aimed at verifying potential discrimination against female employees. In addition, within public administrations and supervisory bodies of Italian listed companies, reserved quotas for women have mandatory application.
- Disability discrimination: Workplaces and duties must be suitable for disabled employees. Employers must ensure that disabled employees can access facilities and are properly equipped to meet their needs. Public institutions may subsidise the adaptation of the workplace. Employers are also obliged to hire a certain percentage of disabled workers, in relation to the total number of company employees.
- Religious discrimination: Workers cannot, under any circumstance, be obliged to reveal information about their religious beliefs. Furthermore, employees may ask companies to allow them to fulfil their religious mandates (eg, observing a different day of rest instead of Sunday or observing a particular diet in the canteen).
Answer ... Any discriminatory action taken by an employer against an employee is null and void. The claim against discriminatory action is processed by the labour court. With regard to the burden of proof, the employee is required to demonstrate only facts on which a presumption of discrimination can be based; it is then up to the employer to prove that there was no discrimination.
If the employment relationship is still ongoing:
- ordinary claims for a declaration of invalidity of the discriminatory act may be brought;
- an urgent proceeding may be commenced by the employee to obtain an immediate executive decision for cessation of the unlawful conduct, remediation of its effects and compensation for damages;
- a special proceeding can be commenced independently by an equal opportunity adviser if a discriminatory action based on gender has collective relevance; and
- an urgent proceeding may be commenced if the discrimination was caused by anti-trade unionist conduct, to obtain an immediate executive decision for cessation of the unlawful conduct and remediation of its effects. This must be commenced by the trade union, rather than the individual.
If the discriminatory act resulted in dismissal, claims can be commenced to obtain a declaration of invalidity of the discriminatory act, removal of its effects, compensation for damages and reinstatement of the employee.
Answer ... In light of the above, employees (and other institutions so entitled in this respect) can bring claims for discrimination before the Labour Court.
The court may order the employer to stop the discriminatory conduct and remedy its effects, and determine a plan in order to prevent future discrimination. The court might also award damages. In general, there is no minimum or maximum amount of damages established by legislation, as this is usually determined at the discretion of the judge. In some cases, the amount of damages is specified by law; for example, employers that do not comply with the legal requirement to hire a certain percentage of disabled employees are subject to a penalty of €153.20 per day for each disabled worker not employed.
In case of unlawful dismissal based on discriminatory grounds, the court will consider the termination as null and void. All employees, including executives, who are dismissed for discriminatory reasons have the right to reinstatement with payment of lost remuneration from the date of dismissal until the effective reinstatement date, with a minimum of five months’ salary.
Answer ... Harassment, bulling and retaliation/victimisation aimed at violating human dignity, resulting in intimidating, hostile, degrading, humiliating and offensive behaviour, including illegitimate reactions by employers to legitimate conduct of employees, or based on discriminatory grounds, are considered forms of discrimination.
Both while the employment relationship is effective and in case of termination of employment, the same forms of protection and remedies as apply in case of discrimination are also applicable in this regard.
In terms of claims for unlawful dismissal, although the sanctions are the same (dismissal is declared null and void and the employee has the right to reinstatement and compensation for damages), there is a difference between retaliation/victimisation that does not result in discriminatory action and actual discrimination. With regard to the burden of proof, in discrimination claims, if the employee establishes facts on which a presumption of discrimination can be based, it is up to the employer to prove that there has been no discrimination. By contrast, in case of retaliation/victimisation, the employee must also prove that dismissal was based on an intent to retaliate or victimise.
Harassment, bullying and retaliation/victimisation, when not based on discriminatory grounds, may still be considered a form of mobbing. Nevertheless, since Italian law does not include specific provisions on mobbing, in such cases a claim can be brought to court only where such behaviour also constitutes a criminal offence or other unlawful conduct relevant on a civil basis (eg, downgrading or professional deskilling).