At work, people have the right to be treated equally in recruitment, pay, working hours, training and promotion. This lesson explains the basic ideas and the laws that protect them.
Where the right comes from
- The Constitution (article 14) prohibits discrimination on grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.
- Ley Orgánica 3/2007 on the effective equality of women and men (the "Equality Act") develops that right at work.
- The Estatuto de los Trabajadores (Workers' Statute) recognises the right not to be discriminated against in employment (article 4.2.c) and declares void any employer decision that discriminates (article 17.1).
- Ley 15/2022, the comprehensive law on equal treatment and non-discrimination, extends protection to many more grounds: racial or ethnic origin, religion or belief, disability, age, sexual orientation or identity, gender expression, illness or health condition, socio-economic situation and others.
Direct and indirect discrimination
- Direct discrimination: a person is treated worse than another in a similar situation because of a protected ground. Example: not hiring a woman in case she becomes pregnant.
- Indirect discrimination: a rule or practice that seems neutral puts a group at a disadvantage, without an objective justification. Example: requiring a minimum height that the job does not need and that excludes most women.
The Equality Act also treats the following as discrimination on grounds of sex:
- Any unfavourable treatment of a woman related to pregnancy or maternity (article 8).
- Sexual harassment and harassment based on sex (article 7).
- Any reprisal against someone who complains, reports or brings a claim so that equality is respected (article 9). This is called the guarantee of protection against retaliation (garantía de indemnidad).
What areas it covers
Equality applies to the whole cycle of employment:
- Access to employment: job adverts, interviews and selection tests.
- Job classification, pay and supplements.
- Training, promotion and advancement.
- Working conditions: shifts, hours, holidays.
- The end of the contract, including dismissal.
A job advert cannot ask for a particular sex, age or "good appearance" unless the job genuinely justifies it.
Differences that are allowed
Not every difference in treatment is discrimination. It can be lawful when there is an objective, reasonable and proportionate reason that has nothing to do with a protected ground. For example, paying more for a qualification the job requires, or for the seniority that the collective agreement recognises.
Positive action (article 11 of the Equality Act) is also lawful: temporary measures to correct a real inequality, as long as they are reasonable and proportionate. One example, often found in the collective agreement, is giving preference, where merits are equal, to the sex that is under-represented in a post.
What happens to a discriminatory decision
- It is void: it has no effect (Estatuto de los Trabajadores, article 17.1).
- A dismissal that violates fundamental rights, or that is a reprisal, is void (Estatuto de los Trabajadores, article 55.5): the employer must take the person back and pay the wages they did not receive (article 55.6), and may also owe compensation for the harm caused.
- The employer can be penalised by the Labour Inspectorate (Inspección de Trabajo) under the Law on Social Order Infringements and Penalties (LISOS).
- Burden of proof: if the person affected provides signs of discrimination, it is for the employer to show that there was no discrimination and that its decision was proportionate (article 13 of the Equality Act).
What you can do
- If you think you are being treated worse because of a protected ground, write down what happened, when and who was present.
- Speak to the workers' representatives, to human resources or to the person designated in your company.
- You can go to the Labour Inspectorate or to a labour court (juzgado de lo social). A later lesson explains how.
Remember: nobody can take reprisals against you for claiming your right to equality.