Swiss equality law struggles to gain traction

Switzerland’s Gender Equality Act (GEA) came into force 20 years ago, but today women still receive salaries that are significantly less than those of their male colleagues, and both victims and judges remain reluctant to seek recourse to the law. 

Except in certain circumstances, an employer in Switzerland does not have the right to ask a female candidate for a position if she “would like to have children”.

But some do, and in such a case a woman has the right to lie. If she can subsequently prove that she was not hired because of her desire to become pregnant, she can seek recourse via the GEA.

Unfortunately, a woman in such a situation rarely seeks justice from the courts.  

“Sexual discrimination in job interviews happens practically every day in Switzerland,” says doctor of law and University of Neuchâtel professor, Jean-Philippe Dunan. 

However, Dunan has only identified around 50 discrimination proceedings that have taken place since the GEA came into force. Most cases are resolved through the cantonal conciliation authorities, he says. 

There are several reasons for this, not least the fact that discrimination during a recruitment process, which is often conducted almost entirely orally, is difficult to prove. In addition, the candidate who was discriminated against must act within three months, a period of time which is usually taken up looking for another job. 

The penalties are also a “bit dissuasive” says Dunan; the maximum penalty provided for by the law is just three months’ salary.  

“I know victims who have won penalties of CHF1,000 ($1,000), but in the end they had spent more money on the cost of the process,” he says. 

One in 1,500 judgements

There have been few cases which deal with discrimination between men and women in Switzerland. 

“If the GEA lived up to its promises, there would be a lot more proceedings under this law, but this is not the case,” writes federal judge Florence Aubry Girardin in “Equality between men and women in workplace relations – 1996-2016: 20 years of the GEA”. 

The most recent statistics available are from a 2006 federal report, which found 245 cases under the law that had led to a judgement.

Girardin notes that the GEA was cited in some 30 decisions of the Federal Court since it came into force – during the same period the court handed down some 150,000 judgements in total. 

Statistics do show, however, that inequalities exist.

According to the Federal Statistics Office, women in the private sector earned 18.9% less in 2012 than men, and 13.6% less in the public sector.

Around 40% of these differences resulted from discriminatory practices.

If this is the case, why have women not sought recourse to the GEA more often to ensure their rights are respected? Pascal Mahon, doctor of law and professor at the University of Neuchâtel, says the responsibility to act rests entirely with the person who has been discriminated against.

She must dare to attack her employer with the risk of losing her job, being stigmatised and not being able to find another job. 

Girardin suggests another reason: “One of the explanations is that trial judges do not like the GEA or don’t apply it in all the situations when it should be applied.” Their reluctance is linked to procedural specificities of the law, which differ from ordinary rules. 

For example, the victim benefits from a system of facilitated proof (except for cases of hiring discrimination or sexual harassment). It is enough for them to demonstrate the likelihood of discrimination. The employer must demonstrate that there was no difference of treatment or that it was based on objective grounds. 

To guarantee greater efficacy of GEA, Girardin suggests judges need to be better informed. She proposes the introduction of ongoing training for trial judges with the aim of improving their knowledge of the law and having it enter more frequently into the judicial routine. 

Mahan says the law could be improved and calls for the burden of its application not to rest solely on victims of discrimination. 

“We need to think about a more collective process,” Mahon says, adding that a government revision of the law put to consultation at the end of 2015 that would call companies to account, is a “step in the right direction”.

Make business responsible?

Faced with persistent wage disparities between men and women, the Swiss government has decided additional measures should be taken. It proposes modifying the law to oblige employers with at least 50 workers to undertake an internal analysis of salaries every four years, which they must have externally audited and communicate the results to workers.

The initial project does not set down sanctions for businesses. The auditing organisations will simply write the report. One of the possibilities being examined would be to report to the competent authority – presumably the Federal Office for Gender Equality – the employers who do not conduct the salary analysis within the required time frame, or who do not have it independently audited. 

Despite the non-binding character of the proposal, it has already raised the ire of employers who deny any discrimination towards women. Unions, however, say the law doesn’t go far enough. 

What does the law on equality do? 

The Gender Equality Act External linkcame into force on July 1, 1996. Designed to promote equality between men and women, it prohibits both direct and indirect discrimination. It applies to all professional situations from hiring to firing, training, salaries and sexual harassment in the workplace. 

The provisions of the Act aim to facilitate the application of rights in practice. To this effect, the law provides for complaints brought before cantonal courts to be free of charge, a reduced burden of proof, standing organisations and protections against retaliatory leave.

Translated from French by Sophie Douez