Gender equality

Federal Constitution

The Constitution has enshrined equal pay for women and men since 1981. It provides that a woman should receive the same salary as her male colleague for the same work.

Law on equality between women and men

In view of the fact that equality between women and men in labor law is far from being achieved, the legislator has adopted a law on equality between women and men. This law provides for a certain number of rights to which all employees, women and men alike, can avail themselves. Gender equality has many impacts on labor law and extends from the hiring interview to the dismissal.

Hiring

Are you pregnant or planning to become pregnant soon? Are you married? Employers sometimes ask sensitive questions during the job interview. In principle, these questions are illegal, unless they are directly related to the job.

In addition, the employer sometimes reserves the position for a man (manager, director, mechanic) or a woman (secretary, receptionist, social worker). In most cases, this will be discrimination in hiring.

When an employer refuses to hire an applicant because of his or her sex, pregnancy or family status, this is employment discrimination. The employer risks having to pay compensation, unless he/she can prove that he/she had justified and objective reasons for rejecting the candidate.

Salary

Between contractual freedom and equal treatment, equal pay is widely discussed. A female employee must receive the same salary as a male colleague for the same work and skills. Only objective reasons can justify a salary inequality. Personal or employer-specific criteria are admissible, as long as they are not discriminatory.

Salary confidentiality, differences in skills, employer's own criteria for determining salary: proof of salary inequality is sometimes difficult to provide. The employee is granted a relaxation of the burden of proof of unequal treatment if she can make it plausible.

Salary analysis

In order to achieve real salary equality in Switzerland more quickly, the Parliament has decided to introduce an obligation for large companies to carry out a salary analysis.

Only large companies, i.e., those that reach the threshold of employees set by law, are affected by this obligation. To facilitate this analysis, the Confederation provides employers with software that aims to detect salary discrimination within the company.

The analysis carried out by the employer must be verified by an independent body which must have undergone specific training. The employer must then communicate the results to the employees within a certain period of time.

There are no direct consequences for the employer if this analysis reveals wage discrimination. However, the employer will have to deal with potential claims from discriminated employees and/or repeat this type of analysis on a regular basis.

Bonus

The bonus is an exceptional remuneration which depends, as a rule, on the employer's goodwill. In principle, the employer is free to set the criteria it wishes to determine who is entitled to a bonus and how much it will be. An employer may only decide not to grant a bonus to a female employee while her male colleagues are entitled to one if there is a duly established objective reason.

Termination

More frequent absences, breastfeeding breaks, requests for a reduction in the work rate... When the employer discovers that the employee wishes to have children or when the employee announces her pregnancy, the employer is sometimes apprehensive. The employer may be tempted to terminate the employee's employment in order to avoid the hassle. If there are no objective, non-discriminatory reasons for the termination, it will be considered wrongful.

Reprisal-leave

After noticing that employees rarely availed themselves of the Equality Act during the employment relationship, the legislator wanted to protect employees more effectively. Indeed, employees did not dare to exercise their rights for fear of being fired in retaliation. This is particularly the case for wage discrimination, breastfeeding breaks or complaints of sexual harassment.

When the employer dismisses the employee without objective reasons following a complaint of discrimination, the employee may, under certain conditions, request the cancellation of the termination.

Sexual Harassment

Sexual harassment situations can have a significant impact on the employee who is the victim and his/her professional future. The Equality Act formally prohibits unwelcome behavior of a sexual nature or based on sexual orientation that affects the dignity of the employee.

The employer must take all reasonable steps to prevent sexual harassment from occurring. If an employee, customer or supplier of the company engages in such behavior, the employer must respond promptly and put a stop to it. The employer should have a neutral support person in place to whom employees can confide. Otherwise, the employer will be held liable.