Analysis of the precedents of the Cantonal Courts on the Gender Equality Act

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The study is an in-depth analysis of 190 records of cantonal conciliation hearings and judgments under the Federal Gender Equality Act, 1996 (the “Act”) over the period of 2004 to 2015 by authors Karine Lempen (Law Professor, University of Geneva) and Aner Voloder (Lawyer, Office for Gender Equality of the Municipality of Zurich). Among the major findings and conclusions reached in the study are the following:

Proceedings under the Act are nearly always brought by private individuals (mainly women) and very rarely by organizations, notwithstanding the provision of the Act authorizing court actions relating to gender discrimination to be brought by organizations. Individuals bringing a case of gender discrimination to the courts most commonly complain of pay discrimination or discriminatory dismissal, and in the vast majority of cases employment has ceased before the court issues its judgment. Bringing an action under the Act very often entails losing one's job. Almost one-third of discrimination cases relate to pregnancy or maternity, with discrimination often occurring on return to work after maternity leave and the mother being dismissed by the employer. Discriminatory or constructive dismissal cases are often adjudged solely under Swiss employment laws rather than under the specific provisions of the Act. In some cases this has resulted in a failure to relax the plaintiff’s burden of proof as provided in the Act. Most persons bringing proceedings for gender-based discrimination do not win their cases, with the analysis showing that 62.5% of rulings enforcing the Act find mostly or entirely against the claiming employee. Similarly, it is not unusual for the employee in the action to be ordered to pay costs which may amount to several thousand Swiss francs. The protection in the Act against constructive dismissal has proved to be fairly ineffective in practice, with court actions rarely being brought under that provision and all but one of such actions failing. The failure rate is particularly high (82.8%) when the alleged form of discrimination is sexual harassment, with the courts often failing to recognize that the intention of procuring sexual favors is not necessary to a finding of a hostile working environment, and therefore of sexual harassment under the Act. Moreover, it is rare for judgments to assess the extent to which the employer has met its obligation to prevent harassment. The special compensation allowed under the Act for sexual harassment is rarely awarded.

Based on the conclusions reached in the study, the authors make a number of recommendations -- for amendments to the Act and other specific legislative changes, improved training of the judiciary with regard to the Act, actions by Swiss equality offices (including improved data collection, more in-depth study of maternity-based discrimination in Switzerland and actions to raise awareness generally of the Act and the rights it provides), and universities (to require study of the Act as part of the bachelor’s degree course of study in law) -- in order to improve access to justice for people discriminated against on grounds of gender in working life.



Avon Center work product