Spain: New Obligations for Companies Regarding LGBTI Create Doubts and Uncertainties

On 2 March  2023, Law 4/2023 of February 28, for the real and effective equality of trans people and for the guarantee of the rights of LGBTI people, came into force in Spain.

This law introduced important new features that create new obligations for companies with more than fifty employees, under the penalty of being sanctioned for committing serious infringements. Among all the new features, there are two that stand out for their importance and for the doubts and uncertainty they generate, which this article aims to address.

The first novelty is a regulatory change that will not be enforceable until 2 March 2024, since this is the deadline that the regulation grants to the company to adopt “a set of measures and resources” to achieve real and effective equality for LGBTI people. Among these is to include a protocol of action to address of harassment or violence against LGBTI people. However, the content of the measures is still pending regulatory development by the institutions. Finally, it should be noted that the measures must be agreed upon by the workers’ representatives.

Although the company still has time, the deadline is approaching without the regulation having been developed. Therefore, companies have to act quickly to comply with the regulation when it comes into force. In addition, the regulation better provides answers to questions that generate doubts, such as, for example, what happens when there is no employee representation in the company? Are these measures autonomous, or can they be integrated into the negotiation of an existing equality plan and protocols?

The other novelty that generates even more uncertainty for the company is the obligation to include in the elaboration of the equality plan an express mention of trans people, especially trans women.

Doubts emerge everywhere because of this feature, starting with the scope of the regulation. It is not clear whether existing equality plans will also be affected, or whether they will only affect those negotiated thereafter. On the other hand, the term used in the regulation, elaboration, clearly evokes the obligation to include such a mention in the diagnostic phase of the plan but seems to exclude the plan’s conclusive phase, which would have an innocuous effect on the intended purpose.

And the doubts do not stop here. They are expanded because of the change that has affected Article 16. 1-c) of the Law on Infractions and Penalties of the Social Order, which now provides for penalties of between 7,501 Euros and 225,018 Euros for “requesting personal data” in the selection processes or for establishing conditions that constitute discrimination, among others, on the grounds of sexual orientation. This, in addition to the fact that the regulation does not provide for a mechanism to facilitate the company’s access to data on the sexual orientation of employees, raises serious doubts about the application of the new regulation within the company.

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