Federal Act on Gender Equality

This Act has the aim of fur­ther­ing true equal­ity between wo­men and men.

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:

a.

pro­hib­it­ing or stop­ping threatened dis­crim­in­a­tion;

b.

re­quir­ing ex­ist­ing dis­crim­in­a­tion to cease;

c.

con­firm­ing that dis­crim­in­a­tion is tak­ing place if it is con­tinu­ing to have a dis­rupt­ive ef­fect;

d.

for the pay­ment of any salary due.

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

⁴...⁴

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

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:

a.

that are sub­ject to veri­fic­a­tion of equal pay com­pli­ance as part of a pro­ced­ure for the award of a pub­lic con­tract;

b.

that are sub­ject to such veri­fic­a­tion in terms of an ap­plic­a­tion for sub­sidies; or

c.

that have already been sub­ject to such veri­fic­a­tion and have proven that they meet the re­quire­ments, un­less more than four years has elapsed since the ref­er­ence month.

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.

¹Em­ploy­ers sub­ject to the Swiss Code of Ob­lig­a­tions¹ shall have their equal pay ana­lys­is audited by an in­de­pend­ent body. They may choose between:

a.

a firm of aud­it­ors li­censed un­der the Aud­it­or Over­sight Act of 16 Decem­ber 2005²; or

b.

an or­gan­isa­tion un­der Art­icle 7 or an em­ploy­ees’ rep­res­ent­a­tion in ac­cord­ance with the Par­ti­cip­a­tion Act of 17 Decem­ber 1993³.

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).

Pub­lic sec­tor em­ploy­ers shall pub­lish the in­di­vidu­al res­ults of the equal pay ana­lys­is and the audit.

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:

a.

to en­cour­age ba­sic and con­tinu­ing edu­ca­tion train­ing in or out­side the work­place;

b.

to im­prove the rep­res­ent­a­tion of both sexes in the vari­ous pro­fes­sions, po­s­i­tions, and man­age­ment levels;

c.

to im­prove the com­pat­ib­il­ity of work and fam­ily du­ties;

d.

to pro­mote work or­gan­isa­tions and in­fra­struc­tures in the work­place that en­cour­age equal­ity.

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:

a.

the pro­vi­sion of ad­vice and in­form­a­tion to work­ing wo­men;

b.

the en­cour­age­ment of the re­in­teg­ra­tion of wo­men and men who have in­ter­rup­ted their work­ing activ­it­ies in or­der to ful­fil fam­ily du­ties.

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:

a.

it provides the gen­er­al pub­lic with in­form­a­tion;

b.

it ad­vises au­thor­it­ies and private in­di­vidu­als;

c.

it con­ducts stud­ies and re­com­mends suit­able meas­ures to au­thor­it­ies and private in­di­vidu­als;

d.

it may par­ti­cip­ate in pro­jects of na­tion­al im­port­ance;

e.

it par­ti­cip­ates in the draft­ing of fed­er­al le­gis­la­tion in the event that such le­gis­la­tion is rel­ev­ant to gender equal­ity;

f.

it ex­am­ines ap­plic­a­tions for fin­an­cial aid in ac­cord­ance with Art­icles 14 and 15 and su­per­vises the im­ple­ment­a­tion of pro­mo­tion­al pro­grammes.

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.

¹This Act is sub­ject to an op­tion­al ref­er­en­dum.

²The Fed­er­al Coun­cil de­term­ines the date on which this Act comes in­to force.