Discrimination and harrasement at work in Spain

Introduction

Article 14 of the Spanish Constitution recognises the general principle of non-discrimination. There are also provisions under the Workers’ Statute which aim to ensure the effective application of the constitutional principle of equal treatment by prohibiting discrimination. Protection against any kind of harassment is also now included as a basic employment right.

Grounds on which discrimination is prohibited

It is unlawful to discriminate on the grounds of sex, marital status, race, colour, nationality, ethnic or national origin, disability religion or belief, and age.

Forms of discrimination

The law prohibits direct discrimination, indirect discrimination, harassment, and victimisation.

It is also unlawful to issue instructions to discriminate on one of the prohibited grounds.

Direct discrimination is where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds mentioned above.

Indirect discrimination is where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Harassment is also unlawful (see “Harassment” below).

It is also unlawful to victimise someone who has raised a complaint regarding discrimination.

Can discrimination be justified?

Discrimination may be lawful in certain circumstances. For example:

• Employers may discriminate on certain of the grounds if it is a “genuine occupational qualification”. “Genuine occupational qualifications” are where the “essential nature of the job” calls for either a man or woman for reasons of physiology.
• Indirect discrimination can be objectively justified.
• Discrimination on the grounds of age can be objectively justified and lawful if it is a proportionate (or appropriate and necessary) means of achieving a legitimate aim.

Prohibited discrimination in practice

Discrimination is prohibited throughout the employment relationship, including during recruitment, disciplinary action, dismissal and after termination.

In some situations, policies can be implemented which result in positive discrimination (for example, setting a requirement that certain quotas be met in relation to the number of female employees). Such positive discrimination is lawful.

Harassment

Harassment of an individual is a direct breach of the individual’s constitutional right to privacy and dignity. Harassment is defined as any unwanted conduct related to any of the aforementioned grounds that takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

Employers' liability

An employer (either an individual or a corporation) is potentially liable for any acts of discrimination committed by an employee “in the course of employment”, regardless of whether the employer knew or approved of the acts. The employer can only avoid this liability if he/it can show that he had taken “all such steps as are reasonably practicable” to prevent the discriminatory acts from taking place.

Diversity training for staff

There is no legal requirement at all to have diversity training for staff, it is simply best practice. As diversity training is not a legal requirement, the fact that an employer does not carry out diversity training should not harm a defence to discrimination proceedings. However, as best practice, if an employer does carry out diversity training, this may help a defence to discrimination proceedings.

Enforcement

A person who believes that he/she has been subjected to discrimination or harassment in the employment arena can bring a claim before a labour court. There is no minimum length of service requirement in order to bring a claim.

Remedies

Where a labour court finds that a complaint is well founded, it can make:

• An order declaring the rights of the parties.
• An order requiring the respondent to pay for damages (any such compensation awards are uncapped and can include interest).
• An order that the respondent take, within a specified period, action to obviate or reduce the adverse effect on the complainant of any act of discrimination or harassment complained of.
• Or, if so requested by the complainant in addition to the claim for damages, an order declaring a constructive dismissal, with the right for the complainant to a termination indemnity equivalent to the combination of 33 days’ salary per years of service up to 12 February 2012 and 45 days’ salary per years of service with the company until the effective date of termination, up to a maximum of 24 months’ salary. Where applicable, such termination indemnity is compatible (ie in addition to) with any compensation awards for damages.