Section 1 Purpose (1 - 1)
Section 2 Equality at Work (2 - 7)
Section 4a Equal Pay Analysis and Audit (13 - 13)
Section 5 Financial Aid (14 - 15)
Section 7 Final Provisions (17 - 18)
The Federal Assembly of the Swiss Confederation,
This Section applies to employment relationships under the Swiss Code of Obligations1 as well as to all employment relationships under public law in the Confederation, cantons and communes.
1Employees must not be discriminated against on the basis of their sex, whether directly or indirectly, including on the basis of their marital status, their family situation or, in the case of female employees, of pregnancy.
2This prohibition applies in particular to hiring, allocation of duties, setting of working conditions, pay, basic and continuing education and training, promotion and dismissal.
3Appropriate measures aimed at achieving true equality are not regarded as discriminatory.
Any harassing behaviour of a sexual nature or other behaviour related to the person’s sex that adversely affects the dignity of women or men in the workplace is discriminatory. Such behaviour includes in particular threats, the promise of advantages, the use of coercion and the exertion of pressure in order to obtain favours of a sexual nature.
1Anyone who is the victim of discrimination within the meaning of Articles 3 and 4 may apply to the court or to the administrative authority for an order:
2If the discrimination relates to the refusal of employment or to dismissal under the Code of Obligations, the person concerned is entitled only to a compensatory payment. This payment must be fixed by taking all the circumstances into account and is calculated on the basis of the probable or actual salary.
3In the case of discrimination through sexual harassment, the court or the administrative authority may also award the person concerned compensation, unless the employer proves that it took measures that have been proven in practice to be necessary and adequate to prevent sexual harassment and which it could reasonably have been expected to take. The compensation must be fixed by taking all the circumstances into account and is calculated on the basis of the average Swiss salary.
4The compensation in the case of discrimination through the refusal of employment in terms of Paragraph 2 must not exceed an amount equivalent to three months’ salary. The total amount of compensation must not exceed this sum even if two or more persons claim compensation for the discriminatory refusal of the same position. The compensation in the case of discrimination through dismissal under the Code of Obligations in terms of Paragraph 2 and in the case of discrimination through sexual harassment in terms of Paragraph 3 must not exceed an amount equivalent to six months’ salary.
5Claims for damages for financial loss and pain and suffering as well as further contractual claims are reserved.
In relation to the allocation of duties, setting of working conditions, pay, basic and continuing education and training, promotion and dismissal, discrimination is presumed if the person concerned can substantiate the same by prima facie evidence.
1Organisations that have been in existence for at least two years and that have as their object in terms of their articles of incorporation the promotion of gender equality or safeguarding the interests of employees may in their own names have a finding of discrimination declared if the probable outcome of proceedings will have an effect on a considerable number of jobs. They must allow the employer concerned the opportunity to state his position before they institute conciliation proceedings or bring an action.
2The provisions on actions and appeals by individuals also apply by analogy.
1Persons whose application for employment has been refused and who claim discrimination may request a written statement of reasons from the employer.
2The right to compensation in accordance with Article 5 paragraph 2 is forfeited unless an action is brought within three months of the employer giving notice of refusal of employment.
If an employee is discriminated against in the case of dismissal, Article 336b of the Code of Obligations1 applies.
1The termination of employment by an employer may be challenged if it takes place without good cause following a complaint of discrimination by the employee to a superior or the initiation of proceedings before a conciliation board or a court by the employee.
2Protection against dismissal applies for the duration of any complaints procedure at the place of work, and of any conciliation or court proceedings, and for six months thereafter.
3The dismissal must be challenged in court before the expiry of the period of notice of termination. The court may order the temporary reinstatement of the employee for the duration of the proceedings if it appears likely that the requirements for overturning the dismissal are well founded.
4The employee may opt not to continue in employment for the duration of the proceedings and may instead claim compensation in accordance with Article 336a of the Code of Obligations1.
5This Article applies by analogy to dismissals that result from a complaint filed by an organisation in terms of Article 7.
1Legal protection in the case of employment relationships under public law is governed by the general provisions on the administration of federal justice. In the case of complaints made by federal staff, Article 58 of the Federal Act of 30 June 19271 on Public Officials also applies.
2If a person is discriminated against in the rejection of an application that would establish an employment relationship for the first time, then Article 5 paragraph 2 applies. Compensation may be requested at the same time that a complaint about the decision rejecting the application is made.
3Federal employees may have recourse to a conciliation board within the period provided in terms of Article 50 of the Federal Act of 20 December 19682 on Administrative Procedure. This Board advises the parties and attempts to bring about a settlement.3
5The proceedings are free of charge, other than in cases of vexatious litigation. In proceedings before the Federal Supreme Court, costs are governed by the Federal Supreme Court Act of 17 June 20055.6
1 [BS 1 489; AS 1958 1413 Art. 27 let. c, 1997 2465 annex 4, 2000 411 No II 1853, 2001 894 Art. 39 lett. 1 2197 Art. 2 3292 Art. 2. AS 2008 3437 No I 1]. See now Art. 35 and 36 of the Federal Personnel Act of 24 March 2000 (SR 172.220.1).
2 SR 172.021
3 Amended by No I of the Federal Act of 8 Oct. 2004, in force since 1 March 2005 (AS 2005 1023; BBl 2003 7809).
4 Repealed by Annex No 1 of the Federal Supreme Court Act of 17 June 2005, with effect from 1 Jan. 2007 (AS 2006 1205; FF 2001 4202).
5 SR 173.110
6 Sentence inserted by Annex No 1 of the Federal Supreme Court Act of 17 June 2005, in force since 1 Jan. 2007 (AS 2006 1205; FF 2001 4202).
1Employers who employ 100 or more employees at the start of any year shall conduct an internal equal pay analysis for that year. Apprentices are not regarded as employees for this purpose.
2The equal pay analysis shall be repeated every four years. If the number of employees falls below 100 during this period, the equal pay analysis shall be repeated when the number reaches 100 again.
3If the equal pay analysis indicates that equal pay requirements are being met, the employer concerned shall be exempted from the obligation to conduct an analysis.
The obligation to conduct an equal pay analysis does not apply to employers:
1The equal pay analysis shall be conducted according to a scientific method and in accordance with the law.
2The Confederation shall provide all employers with a standard analysis tool free of charge.
2The Federal Council shall lay down the criteria for training the lead auditors.
3The Federal Council shall regulate the conduct of the audit of the equal pay analysis at federal level.
4The cantons shall regulate the conduct of the audit of equal pay analyses in their fields of responsibility.
1The employer shall provide the firm of auditors all documents and provide all the information required to carry out the audit.
2The firm of auditors shall verify whether the equal pay analysis has been conducted in a formally correct manner.
3It shall draw up a report for submission to the management of the company audited on the conduct of the analysis within a year the conduct of the equal pay analysis.
The employer shall enter into an agreement with the organisation under Article 7 or the employees’ representation on the procedure for the audit and reporting to the management of the company.
Employers shall inform the employees in writing of the result of the equal pay analysis within one year of the conclusion of the audit.
Companies whose shares are listed on a stock market shall publish the result of the equal pay analysis in the annex to their annual accounts (Art. 959c para. 1 no 4 of the Code of Obligations1).
1The federal government may grant financial aid to public or private institutions that conduct programmes for the promotion of gender equality in the workplace. It may conduct its own programmes.
2The programmes may serve:
3Priority for the granting of aid will be given to programmes that are exemplary or innovative in character.
The federal government may grant financial aid to private institutions for:
1The Federal Office for Gender Equality promotes the equality of women and men in all areas of life and is committed to eliminating any form of direct or indirect discrimination.
2For this purpose, it carries out the following tasks:
Claims in terms of Article 5 paragraph 1 letter d are assessed under the new law provided the civil law action has been raised subsequent to the Act coming into force or the competent authority of first instance has not issued a ruling up to that point in time.
1The Federal Council shall specify the date by which employers under Article 13a must have carried out the first equal pay analysis.
2It may specify different dates for different sizes of company.
1The Federal Council shall arrange for an evaluation of the effectiveness of Articles 13a–13i to be carried out.
2It shall report to Parliament after the second equal pay analysis is carried out, but nine years at the latest after the articles mentioned in paragraph 1 come into force.