Two-thirds of gender discrimination cases thrown out by Federal Court

Most of the cases concern wage discrimination. © Keystone / Gaetan Bally

A review of 81 judgements in the past 15 years has found that more than two-thirds of gender discrimination appeals were rejected by Switzerland’s highest court. The findings have renewed calls for employees to have better access to justice.

The study, commissioned by the Federal Office for Gender Equality, revealed that some two-thirds of the cases reviewed from 2004 to 2019 concern wage discrimination, of which 60% were rejected. The figures were even less favourable in other areas: nearly 70% of sexual harassment cases and 90% of discriminatory dismissals were rejected by the court.

Even if the Federal Court upholds an appeal, it doesn’t mean that the plaintiff wins the case as it often sends the case back to a lower court for a decision.

About half of all cases come from the healthcare or education sectors and some 63% of the judgments concerned employees in the public sector. However, the report notes that there could be several reasons why there are fewer cases in the private sector. Employees may be more concerned about losing their job if they bring a case against a superior.

Most cases were brought by women, with only six out of 81 cases from men.

High burden of proof

Despite a persistent wage gap in Switzerland, the number of wage discrimination lawsuits has declined in the past few years, according to recent figures. In addition to the cost and awkwardness of suing the company that signs one’s paycheck, potential plaintiffs are put off by the slim chances of winning.

Some experts argue that one key barrier is the high burden of proof in Switzerland.

The study recommends considering reducing the burden of proof for cases of sexual harassment and discrimination in hiring. This would mean that alleged victims would not have to prove discrimination but just that it is presumed to have happened.

The authors also recommend more training on the Gender Equality Act – in force since 1996 – for judges, lawyers and members of arbitration authorities as well as better public information campaigns on gender equality.

Equal pay for equal work is a constitutional requirementExternal link in Switzerland. Yet according to recent figures, men earned 19.6% more than female colleagues in 2016. At the end of 2018, parliament passed a law requiring companies with over 100 employees to perform regular pay equity checks.