Gender Equality Act: New study analyses case law of the Federal Supreme Court
Bern, 21.01.2021 - The Federal Supreme Court ruled in favour of 27% of the gender discrimination appeals based on the Gender Equality Act. These are the findings of a study commissioned by the Federal Office for Gender Equality. It also shows that two-thirds of the cases concern wage discrimination. More than half of the cases come from the healthcare or education sectors. The study recommends facilitating employees’ access to the courts to file employment discrimination complaints.
The study analyses the 81 judgments delivered by the Federal Supreme Court between 2004 and 2019 based on the Gender Equality Act. Two-thirds of the cases concern wage discrimination complaints. The Court ruled favourably in 40% of the appeals, upholding 29% of the sexual harassment appeals and 7% of the appeals against discriminatory dismissal. Even if the court upholds the appeal, this does not mean that the employing party will eventually win the case, since the Federal Supreme Court often refers the matter back to the lower court for a new decision.
More than half of the cases considered by the Federal Supreme Court come from the healthcare or education sectors. 63% of the judgments concerned public employment relationships. The study cannot provide a conclusive answer to the question of whether employees on private-law contracts believe they run a higher risk of losing their job and therefore refrain from bringing their appeal to the Federal Supreme Court. The study also shows that it is mostly private individuals who bring their cases to the Federal Supreme Court, while organizations are very reluctant to exercise their right of action.
The study carried out by the University of Geneva on behalf of the Federal Office for Gender Equality adds to the knowledge of judicial practice on the Gender Equality Act. In 2017, the cantonal case law was already examined.
The study contains various recommendations seeking to improve access to justice in cases of discrimination in the workplace and calling for strengthening the right of organizations to initiate proceedings or for reconsidering reducing the burden of proof for cases of sexual harassment and discrimination in hiring. The latter would mean that the persons lodging the complaint must only make a prima facie case of discrimination before the court, but do not need to provide definitive proof. Likewise, the further training of judges, attorneys and members of arbitration authorities, and the information made available to the public about the Gender Equality Act would have to be stepped up.
The Gender Equality Act came into force in 1996. It prohibits gender discrimination in the workplace. True equality between women and men in the world of work is also a high priority for the Federal Council: it is a focal point of the national gender equality strategy, which is to be adopted this year.
Address for enquiries
Federal Office for Gender Equality