What are the obligations under the LGBTI legislation for corporations in Spain?

Better late than never! 

With some delays over the terms set out in the LGBTI Equality Act [see our blog post covering the Act in more detail], the Spanish government has finally approved the measures that corporations must put in place to guarantee equality and non-discrimination for the LGBTI community (the Measures Regulation).

In this blog, we will provide an overview of what these changes mean for companies and their workforce, and how they can navigate this new era of workplace diversity.

The new requirements under the Measures Regulation

The Measures Regulation meets the mandate established in the LGBTI Equality Act to develop by regulation a planned set of measures to achieve real equality for LGBTI employees in Spanish companies.

As already set out in the LGBTI Equality Act, the measures introduced by the Measures Regulation will be mandatory to all companies employing more than 50 people and will be optional for those that do not reach this threshold. 

The Measures Regulation includes minimum content, that may be improved by collective bargaining.  This minimum content is as follows:

1. Including equal treatment and non-discrimination clauses referring expressly to sexual orientation, identify, gender expression and sexual characteristics.
2. Measures to eradicate stereotypes in access to employment for LGBTI people, especially through the appropriate training of the individuals involved in recruiting, guaranteeing an adequate selection process.
3. Criteria for classification, professional promotion and career progression that do not discriminate against LGBTI employees.
4. Specific training on the rights of LGBTI people, which are to be integrated in the companies’ training plans for all staff and which must focus on equal treatment and opportunities and non-discrimination.
5. Promoting heterogeneous work environments to make them diverse, inclusive, and safe.
6. Considering the reality of LGBTI diverse families, spouses and unmarried couples, and guarantee their access to leave, social benefits, and rights without discrimination on grounds of sexual orientation and identity and gender expression.
7. Integration into the disciplinary regime of offences and sanctions for behaviours that infringe on the sexual freedom, sexual orientation, and identity and gender expression of employees.

Before moving forward with implementation, companies must first consult on which measures they will be following via a process of collective bargaining. To do this, companies will need to set up a special negotiating committee which has representatives from both the company and employees. These committees must be created by January 2025 for companies that have an existing collective bargaining agreement or employees’ representative, or April 2025 for companies without either arrangement. 

In addition to implementing these measures, companies must also implement a protocol that protects LGBTI employees against harassment or violence, provide for an agile investigation system, and provide protection for the victim of harassment or violence against reprisals at work with the possibility to adopt precautionary measures.

Questions remain regarding how these measures interact with those relating to equality between men and women, which have been in place for several years now.  Given there are several points of contact between all of these requirements, it seems reasonable to believe that companies should take a holistic approach to diversity, inclusion and employee protections.

In any case companies with more than 50 employees should start considering what they need to do to comply with this new legislation.

If you would like to discuss in further detail any of the points raised in this blog post, please get in touch with your usual Freshfields contact.