Workplace Discrimination: Protection Under Swiss Law

Constitutional and Legal Framework

Art. 8 FC prohibits discrimination. The main anti-discrimination law is the Gender Equality Act (GEA), in force since 1996, prohibiting direct or indirect sex-based discrimination in employment (art. 3 GEA).

The GEA

Applies to all employment relationships from hiring to termination (art. 3 para. 2 GEA). Prohibits discrimination in: hiring, task assignment, working conditions, training, promotion, and termination.

Equal Pay

Art. 8 para. 3 FC guarantees equal pay for equal work. Since 1 July 2020, employers with 100+ employees must conduct an equal pay analysis (art. 13a et seq. GEA). ATF 130 III 145: comparison concerns work of equal value, not necessarily identical work.

Sexual Harassment (art. 4 GEA)

Unwelcome conduct of a sexual nature or gender-based conduct violating dignity. The employer who fails to prevent or stop it is liable (art. 5 para. 3 GEA) for up to six months' salary.

Procedural Benefits

Reversed Burden of Proof (art. 6 GEA)

The employee need only render discrimination plausible; the employer must then prove it does not exist. Applies to all forms except hiring and sexual harassment.

Retaliation Protection (art. 10 GEA)

Dismissal during/after GEA proceedings is voidable if the employee acts during the notice period.

Free Procedure

Art. 12 para. 2 GEA: first-instance proceedings are free.

Other Legal Bases

Discrimination on grounds other than sex (age, origin, religion, sexual orientation) is covered by art. 328 CO (personality protection) and art. 336 para. 1 let. a CO (abusive dismissal). Art. 261bis CP punishes racial discrimination. Sexual harassment may constitute criminal coercion (art. 189 CP).