Equal Treatment Act (Austria)

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Basic data
Title: Equal Treatment Act
Long title: 108. Federal Act of February 23, 1979 on the equal treatment of women and men when determining pay
Abbreviation: GlBG
Previous title: Federal Act on Equal Treatment
of Women and Men in
Working Life (GBK / GAW Act)
Scope: Republic of Austria
Legal matter: Employment contract law
Reference: Federal Law Gazette No. 108/1979
Date of law: February 23, 1979
Effective date: predominantly March 15, 1979, partly April 13, 1979
Last change: BGBl. I No. 40/2017
Expiration date: GBK / GAW law: June 23, 2004
Please note the note on the applicable legal version !

The Federal Act on Equal Treatment ( Equal Treatment Act - GlBG ) regulates equal treatment in Austria .

The Equal Treatment Act is aimed at people who work in the private sector, with particular emphasis on agriculture and forestry ; The Federal Equal Treatment Act (B-GlBG) and the state equal treatment laws / anti-discrimination laws apply to employees of the regional authorities ( public service ) .

Basics

In 2004, the Austrian legislature decided to integrate Directive 2000/43 / EC (Anti-Racism Directive) and Directive 2000/78 / EC (Equal Treatment Framework Directive) into the already applicable equal treatment laws, which until then had included the acquis communautaire for the area of ​​equal treatment of women and men contained. This was argued with legal economy and the similarity of the regulations. This solution continues to meet with criticism from legal practitioners. The Equal Treatment Act (GlBG 2004) came into force on July 1, 2004.

The core of the law is the requirement of equal treatment , a requirement issued by the legislature to employers and employees alike to ensure the required equal treatment in their sphere of activity. It also clarifies terms such as sexual harassment , general harassment in the workplace and discrimination , as well as accompanying measures.

At the same time, the Federal Act on the Equal Treatment Commission and the Equal Treatment Ombudsman - GBK / GAW law was amended, which regulates the establishment and soft law procedure of the Equal Treatment Ombudsman (GAW) and the Equal Treatment Commission (GBK).

The area of ​​protection against discrimination for people with disabilities was excluded from the GlBG 2004 due to an all-party motion in the Austrian parliament and incorporated into a separate body of law ( Disabled Employment Act (BEinstG), Federal Law Gazette No. 22/1970 as amended by Federal Law Gazette I 82/2005 and the Federal Disability Equality Act (BGStG ), Federal Law Gazette I 82/2005).

construction

The GlBG 2004 (ö BGBl I 66/2004) now contains:

  • in Part I the provisions on equality between women and men in the world of work
  • In Part II, the provisions on equal treatment in the world of work on the basis of ethnicity, age, religion or belief and sexual orientation ( anti-discrimination )
  • in Part III the provisions on equal treatment regardless of ethnicity in other areas (goods and services available to the public, including housing, social protection, education, anti-racism )
  • in Part IV (for constitutional reasons) the principles for the regulation of equal treatment in working life in agriculture and forestry
  • in Part V the final provisions.

The principle of equal treatment

The principle of equal treatment is considered to be comprehensive, which means that the law should apply to every case of discrimination based on gender or ethnicity , religion or belief , age or sexual orientation . In addition, the law lists important or typical case constellations as special facts. a. Application and establishment of an employment relationship , access to professional training and further education , professional advancement , termination of the employment relationship .

Anti-discrimination and anti-racism

It is forbidden to discriminate against individuals for one of the reasons stated in the law (gender, age, religion or belief, sexual orientation, ethnic affiliation). In implementing the provisions of Community law, the GlBG differentiates between direct and indirect discrimination . Direct discrimination occurs when a person on any of the protected characteristics less favorable treatment ( less favorable treatment experiences), has been or would be as another person in a comparable situation.

  • Example of direct discrimination: a separate wage group for women, disadvantage due to pregnancy .

Except in two special cases, direct discrimination cannot be objectively justified. For ecclesiastical or religious employers (“churches or other religious institutions whose ethos is based on religious principles or beliefs”) there is a “tendency protection” - belonging to the respective religious community can be an essential and decisive professional depending on the type of activity or the circumstances in which it is carried out Requirement . Direct discrimination based on age can also be objectively justified, in particular when defining minimum requirements for professional experience or when setting a maximum age if specific training requirements are present. When examining objective justifications and professional requirements, a strict objective standard and, in particular, a precise appropriateness test must be used. The employer must provide evidence of the legitimacy of the aim of the disadvantage and of the necessity and appropriateness.

The concept of indirect discrimination was developed by the European Court of Justice . Indirect discrimination occurs when apparently neutral rules, procedures or criteria lead to a disadvantage for persons who have one of the protected characteristics. The rules, procedures or criteria can be objectively justified if they pursue a legitimate aim and represent a necessary and appropriate means.

  • Example of indirect discrimination: A distinction is not made openly according to gender, but according to another characteristic. However, the result is gender-specific discrimination, e.g. B. Part-time employees are excluded from the company pension scheme - if more women than men are employed part-time, this measure represents an indirect disadvantage for women.

Prohibited discrimination is also sexual harassment in the workplace and harassment for the protected reasons. This is intended to protect the sexual integrity of employees and their personal sphere from verbal or physical abuse by superiors, work colleagues or "third parties" (e.g. customers), that are an attack on their dignity.

Discrimination (“victimization”) of people who complain about prohibited discrimination or who support the complainant is also prohibited.

Disadvantages, especially indirect discrimination, are not easy to determine; In any case, it makes sense to contact the appropriate advisory bodies of the Chamber of Labor , trade union , works council etc. in such a case . The judges of the respective labor and social courts also provide information on the official days and the respective regional sub-organizations of the Austrian Bar Association also offer initial legal advice.

Applies to both sexes

The GlBG is gender neutral and therefore protects men and women from gender-specific disadvantages. This was done in implementation of Directive 76/207 / EEA Council of 9 December 1976 as regards access to employment, vocational training and promotion, and working conditions Due to the jurisprudence of the European Court of Justice P vs. S / Cornwall County Council also includes transsexual disadvantage .

In contrast to the B-GBG, the GlBG 2004 does not have any quota rules . Quotas for women are standardized - primarily for the public service - in order to counteract the existing underrepresentation of women.

vacancy

The GlBG stipulates that positions must be advertised in a non-discriminatory manner ( § 9 , § 23 GlBG). In contrast to the German AGG, which sees a discriminatory job advertisement as an indication of disadvantage that is only relevant to civil proceedings , the Austrian legislature has provided for a claim for compensation for job applicants in such cases ( Section 12 Paragraph 1 Item 1 and Section 26 Paragraph 1 Item 1 GlBG) and additionally an administrative penalty ( § 10 , § 24 GlBG). The penalty is aimed at employment agencies and employers as well as the Public Employment Service (AMS).

The Ombudsman for Equal Treatment can submit the relevant notifications to the responsible district administrative authorities . The threat of punishment is a warning for the first offense and penalties of up to € 360 in the case of repetition.

The EU Directives 2000/43 / EC , 2000/78 / EC , Directive 2004/113 / EC and 2006/54 / EC require member states to implement “effective, proportionate and dissuasive sanctions” for all violations of the prohibition of discrimination. It is questionable whether the penalty for violating the requirement of non-discriminatory job advertisements meets this Community law requirement.

literature

Individual evidence

  1. ↑ Case C-13/94 Judgment of the Court of April 30, 1996. - P v S and Cornwall County Council. , EUR-Lex
  2. ↑ as Directive 2000/78 / EC Z 35 , accessed on 10 June 2008