Extent of Protection
Any direct or indirect discrimination included in regulatory provisions, clauses in collective agreements, individual agreements, and unilateral decisions by employers shall be deemed null and void and could be subject to a complementary claim for damages. Among other causes of discrimination, are those for reason of age or disability handicap and in regarding remuneration, working hours and other working conditions for reasons of sex, origin, including racial or ethnic origin, marital status, social status, religion or beliefs, political ideas, sexual orientation, membership or not of unions and their agreements, kinship links with other workers in the company and language in Spain. The decisions of the employer that involve unfavourable treatment of employees as a reaction to a complaint or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment and non-discrimination would also be null and void.
Protections against Harassment
The employees are entitled to protection and respect of their privacy and due consideration for their dignity, including protection against harassment. The harassment for reasons of racial or ethnic origin, religion or belief, disability, age or sexual orientation employer or people working in the company is considered a breach of contract. The employer could face a constructive claim for dismissal via article 50, which basically would entitle the employee to the same amount as an unfair dismissal, if it brings to court serious evidence of the harassment activities by the employer. This claim can be complemented with an action for moral damages against the company.
Employer’s Obligation to Provide Reasonable Accommodations
Employers are required to take appropriate measures for adapting the workplace and accessibility of the company, depending on the needs of each specific situation, in order to enable people with disabilities access to employment, job progress and access to training, unless such measures would impose a disproportionate burden on the employer. To determine whether a charge is excessive the court will consider whether taken it is sufficiently remedied by measures, public grants or subsidies for people with disabilities. Spanish regulations oblige companies with more than 50 employees to reserve a quota of 2% of their staff for disabled people.
The Organic Act 3/2007 of 22 March for Effective Equality Between Women and Men establishes the principle of equal treatment and opportunities for men and women. The central, regional and local governments will actively mainstream this principle in the adoption and implementation of their legislative provisions. Moreover, from time to time, the State Government will approve a Strategic Plan for Equal Opportunities covering all areas of its competence, which will include measures to attain the objective of equality between women and men and eliminate discrimination on the grounds of gender.
Article 11 of the same law regulates affirmative actions, stating that in order to ensure the effectiveness of the constitutional right to equality, public authorities will adopt specific measures favouring women to correct situations of obvious inequality with respect to men. Such measures, which will be applicable while the situation exists, must be reasonable and proportional to the objective pursued in each case.
In addition, throughout Chapter lll of said law, equality plans are regulated. These regulations establish that corporate equality plans comprise a set of measures adopted after a diagnosis of the situation and designed to attain equal treatment and opportunities for women and men in a company. Equality plans will stipulate the specific equality objectives to be reached, the strategies and practices to be adopted to attain them and the establishment of effective monitoring and assessment systems.
Remedies
If an employee considers that the employment relationship has been extinguished by any discriminatory reason, he/she is entitled to judicially demand the protection of their labour rights. When the employer’s decision to terminate a contract includes some of the causes of discrimination prohibited by the Constitution or the law or had occurred in violation of fundamental rights and public freedoms of workers, the termination decision will be deemed null and void, and the employee will be entitled to reinstatement and -whenever proven- to moral damages as well.
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Source: WP L&E Global Knowledge
