Everyone has the right to work without being discriminated against because of their sexual orientation, gender identity or sex characteristics. This lesson summarises what the law says and what employers must do.
Ley 4/2023
Ley 4/2023, for the real and effective equality of trans people and for the guarantee of the rights of LGBTI people, recognises the right not to suffer discrimination in employment. The Estatuto de los Trabajadores now lists sexual orientation, sexual identity, gender expression and sex characteristics among the prohibited grounds of discrimination.
What it prohibits at work:
- Not hiring, not promoting or dismissing on those grounds.
- Asking questions about private life that have nothing to do with the job.
- Harassing, ridiculing or making "jokes" about someone's orientation or identity.
- Revealing a person's orientation or identity without their permission.
Respect for privacy also counts: nobody is obliged to disclose their sexual orientation or identity at work.
What employers with more than 50 workers must have
Article 15 of Ley 4/2023 requires employers with more than fifty workers to have a planned set of measures and resources to achieve equality for LGBTI people. It must include an action protocol for dealing with harassment or violence against LGBTI people.
Note the difference from equality plans between women and men: here the figure is more than 50, not "50 or more". Employers with 50 or fewer may negotiate the measures, but are not obliged to.
Real Decreto 1026/2024
This royal decree, in force since 10 October 2024, develops that obligation:
- The total workforce, on any type of contract, is counted on 30 June and 31 December.
- The measures are negotiated in the collective agreement, or with the workers' legal representatives, or with the trade unions if there is no representation.
- The negotiating committee had to be set up within three months of its entry into force (six months for employers with no agreement or legal representation), or from the point when the employer exceeds 50 people.
- If the negotiation does not end in agreement within three months, or the agreement does not include them, the minimum measures in the royal decree itself apply.
- The minimum measures cover: equal-treatment clauses, access to employment, classification and promotion, training and awareness, safe and inclusive workplaces, leave and social benefits for diverse families, and a disciplinary system that penalises conduct against sexual freedom, sexual orientation and identity and gender expression.
The anti-harassment protocol
The protocol can be a specific one, or a general anti-harassment protocol that expressly includes measures for LGBTI people. It must also apply to job seekers, to people placed by temporary work agencies, and to suppliers, customers and visitors.
Its minimum contents include: a statement of principles, the principles of the procedure (speed, privacy, confidentiality, protection of the victim, the right to be heard and the prohibition of reprisals), how the complaint is submitted and the time limit for resolving it, interim measures to separate the victim from the harasser, and what happens if the harassment is confirmed (disciplinary proceedings and corrective measures).
Other rules that also apply
- Ley Orgánica 3/2007, article 48, requires all employers, whatever their size, to promote working conditions that prevent sexual harassment and harassment based on sex.
- Ley 15/2022 protects against discrimination on grounds of sexual orientation, gender identity and gender expression.
- LISOS penalises harassment based on sexual orientation and gender identity when the employer knows of it and does not act.
What you can do
- Ask your employer whether it has the set of measures and the protocol; they must be made known to the workforce.
- If you suffer discriminatory treatment or harassment, use the protocol, speak to the workers' representatives or go to the Labour Inspectorate.
The employer still has to negotiate and approve its measures. This course does not replace them.