Spain: New law that strengthens promotion of existing equal treatment and non-discrimination rights

Last week, Spain passed a new law (‘Law’) to guarantee and promote existing rights of equal treatment and non-discrimination and to respect persons’ equal dignity.

The Law, which was adopted on 12 July and entered into force on 14 of July, sets out some new obligations for employer.

It provides for the right to equal treatment and non-discrimination of employees regardless of nationality, age or right to legal residency or not.  The Law further provides for a broad list of grounds, on which discrimination is prohibited, such as: birth, racial or ethnic origin, sex, religion, convictions or opinions, age, disability, sexual orientation or identity, gender expression, sickness or health condition, serological status and/or genetic predisposition to pathologies and disorders, language, socio-economic status or any other personal or social condition or circumstance.

The specific acknowledgement of sickness as a protected ground, opens the door to any termination of employment executed whilst the employee is sick to be considered discriminatory and, therefore, null and void.

The Law further states that sickness alone will not be a sufficient ground to justify differences in treatment, aside of those resulting from the specific treatment, limitations set out for the exercise of certain tasks or those required by reasons of public health.

The Law forbids any rule, action, criteria, behaviour or practice that may go against the right to equal treatment, including direct or indirect discrimination, discrimination by association or by mistake, multiple or intersectional discrimination, rejection of reasonable adjustments, harassment, the order, instruction or enticement to discriminate or to commit an act of intolerance, reprisal, non-compliance with affirmative action measures deriving from legal obligations, lack of action, neglect of duty or breach of duty.  The law does provide for the possibility of affirmative action.

Prohibition of discrimination in all stages of employment, starting from the application

Employers may not set any limitations, segregation or exclusions in access to employment, including through selection criteria, training for employment, professional promotion, remuneration, working hours and other working conditions, nor in the suspension, dismissal or other causes of termination of the employment contract.  The same applies to collective bargaining.  It will be possible for collective bargaining to establish affirmative action measures to prevent, eliminate and correct all forms of discrimination, including targets and mechanisms for information and periodic assessment.  The employer should not inquire about the health conditions of any job applicant.

Criteria and systems of access to employment or working conditions that result in indirect discrimination shall also be considered discriminatory, according to the Law

Compliance and reporting obligation

Employers must execute sufficient methods or instruments for detection of discrimination, the adoption of preventive measures, and the articulation of appropriate measures for the termination of discriminatory situations. Furthermore, both management and employees’ representatives will have a duty to ensure compliance with the right to equal treatment and non-discrimination.

The Law also includes certain additional rules on proceedings, including on legal standing and burden of proof.

Employers with more than 250 employees may be required by regulation to publish the wage information, in order to assess whether there are good grounds for any wage differentiations, considering conditions or circumstances that could lead to discrimination.

Companies may undertake various actions to promote non-discrimination in compliance with the Law, as part of their social responsibility policy.  If they do so, they should inform the employees' representatives and can take actions that may be agreed with employees' representatives.  Companies will be able to disclose such actions of responsibility in terms of equality as a way to promote themselves.

The Labour and Social Security Inspectorate will have a specific duty to monitor compliance with the Law, and will set out specific plans on equal treatment and non-discrimination in access to employment and working conditions.

Consequences of lack of compliance

Lack of compliance shall result in administrative responsibilities, as well as in some cases in criminal and/or civil liabilities for the damages and losses that may arise.

Whoever (individual or entity) causing the discrimination shall repair the damage.  Employers shall also be liable for the damage caused when the discrimination, including harassment, occurs within their organisation and they have not complied with the obligations set out above.

Provisions, acts or clauses of legal transactions which amount to or result in discrimination shall be null and void.

The protection of the right to equal treatment and non-discrimination shall include measures necessary to put an end to the discrimination, aimed at its immediate termination, precautionary measures, compensation for damages and reinstatement of the injured party.

Authority for Equal Treatment and non-discrimination

Finally, the Law sets out a new body, the Independent Authority for Equal Treatment and Non-Discrimination, which shall be responsible for protecting and promoting equal treatment and non-discrimination, in both public and private sector.