Answer ... The Federal Act on Gender Equality (SR 151.1) provides that employees must not be discriminated against on the basis of gender, whether directly or indirectly, including on the basis of marital status, family situation or, in the case of female employees, pregnancy.
This regulation chiefly applies to the following:
- allocation of duties;
- working conditions;
- basic and continuing education and training;
- promotions; and
Appropriate measures aimed at achieving true equality are not regarded as discriminatory.
Specifically, any harassing behaviour of a sexual nature or other behaviour related to the person’s gender that adversely affects the dignity of women or men at the workplace is discriminatory. Such behaviour includes, in particular, threats, the promise of advantages, the use of coercion and the exertion of pressure in order to obtain favours of a sexual nature.
Answer ... Although protected classes are not recognised under Swiss law, several laws provide for similar protection. For example, unlawful dismissal may apply if a termination notice was given purely based on the grounds of age, race, religion, disability or gender, and despite the fact that the employee has performed his or her job well (Article 336(1)(a) of the Code of Obligations).
Answer ... In Switzerland, there is no statutory provision which describes what specific protection must be employed against discrimination in the workforce. The duty to protect against discrimination emanates from the employer’s duty to protect employees’ personality and privacy rights. The employer must safeguard employees’ personality rights, have due regard for their health and ensure that proper moral standards are maintained. In particular, it must ensure that employees are not sexually harassed.
In order to safeguard the personal safety, health and integrity of its employees, an employer must take all reasonable and appropriate measures that are shown by experience to be necessary and that are feasible under the circumstances using the latest technology.
Specifically, employers may arrange for meetings between co-workers, coaching sessions and other measures to stop discriminatory behaviour at the workplace.
Answer ... Employees which feel discriminated against in the workplace may file a complaint with the employer. The employee is then protected against unfair dismissal for the duration of any proceedings to examine the complaint at the place of work, and of any conciliation or court proceedings, and for six months thereafter.
In case of dismissal, the employee may challenge the termination if it takes place without good cause following a complaint of discrimination by the employee to a superior or the filing of a complaint with a conciliation board or a court.
The dismissal must be challenged in court before the expiry of the period of notice of termination. The court may order the temporary reinstatement of the employee for the duration of the proceedings if it appears likely that the requirements for overturning the dismissal are well founded. Instead, the employee may opt not to continue employment and may claim for compensation on the grounds of unfair dismissal.
Job candidates whose application has been refused and who claim discrimination may request a written statement of reasons from the employer. A claim must be brought within three months of the employer giving notice of refusal of employment.
Answer ... If there is unlawful discrimination at the workplace, the following remedies are available:
- court order prohibiting or preventing threatened discrimination;
- court order requiring actual discrimination to cease;
- court ruling confirming that discrimination is taking place if it is continuing to have a disruptive effect;
- claim for the payment of any salary due that is calculated free of any discriminatory element;
- claim for compensation on the grounds of discrimination. Courts will fix the amount of compensation by taking all circumstances into account. As a rule, compensation will not exceed an amount equivalent to six months’ salary; and
- claim for compensatory damages based on other grounds than discrimination.
Answer ... Under Article 328 of the Code of Obligations (SR 220), employers are obliged to safeguard their employees’ health and ensure that proper moral standards are maintained. In particular, they must ensure that employees are not sexually harassed and that any victims of sexual harassment suffer no further adverse consequences. Sexual harassment is a crime pursuant to Article 198 of the Swiss Criminal Code (SR 311.0).
Employees may claim for medical costs and other damages, if the employer fails to stop bullying and victimisation among co-workers.