Fifteen years ago, a partial revision of the Swiss Federal Constitution anchored womens' rights to equal treatment in respect of family, education and work, guaranteeing them in Article 4(2) the right to equal pay for equal work. The Swiss Federal Parliament has now enacted an Equality Act (Gleichstellungsgesetz) which came into effect on July 1 1996. The main focus of the Act is on furthering the equal treatment of men and women at work. The following are the most important changes.
The provisions of the Act are addressed both to public entities and private businesses. Working conditions, pay, education, promotion and notice of termination are subject to the rules of the Act.
Article 3(1) prohibits discrimination against a person on the basis of sex, marital status, family situation or pregnancy. The Act prohibits both direct and indirect discrimination.
An employee only has to make out a prima facie case that he or she has been discriminated against. The burden of proof of the non-existence of discrimination is on the employer.
Besides the situations mentioned above, discrimination will also be penalized during the employment process, ie before a person has actually been taken on. This will drastically change the legal situation by restricting the traditional concept of party autonomy, which allowed employers to conclude a contract with whomsoever they wanted.
The Act requires that jobs be advertised in a neutral manner. Within three months of being rejected, the applicant is entitled to receive a written explanation from the employer giving a reason for the rejection. If no such explanation is forthcoming, the employer can be sued for damages up to the amount of three months' salary.
Trade unions and associations whose articles explicitly mention the protection of men and women from discrimination can, after consulting the victim concerned, apply for an injunction ordering an employer to avoid discrimination in the future.
Employers should inform their personnel managers of this new legal situation. The chances of ending up in court are not to be underestimated, albeit court proceedings can be preceded by a hearing before a Conciliation Committee.
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