Legal Instruments Against Discrimination in Employment in Switzerland

Author(s) : Kurt Pärli

Source :https://www.taylorfrancis.com/chapters/edit/10.4324/9781003306962-13/legal-instruments-discrimination-employment-switzerland-kurt-pärli

Abstract:

Discrimination on different grounds occurs throughout the entire life cycle of an employment relationship (i.e. in the context of job advertisements and job applications), when contracts are concluded and their contents, including insurance related to the employment relationship, in the context of promotions, salary increases, voluntary benefits from employers and finally in the event of dismissals, including change notices. There is little reliable data available in Switzerland on the extent of discrimination in employment. Research into the reality of discrimination is still in its infancy.

In our chapter we propose to examine the legal situation in Switzerland in the light of international obligations under human rights treaties. As is well known, Switzerland is not a member of the EU. The EU obliges the member states to adopt comprehensive antidiscrimination legislation for the characteristics of age, disability, race/ethnic origin, religion/belief and sexual orientation. An obligation for the legal anchoring of effective protection against discrimination arises from the numerous conventions under international labour law, which are (also) binding on Switzerland. Particularly noteworthy are the obligations regarding disability and race/ethnic origin. Deficits are apparent in the implementation of these obligations under international law. The Swiss government and legislators are very reluctant to remedy this situation. However, there is also potential for implementation by the courts. They can (and should) use legislative concepts from EU anti-discrimination law, relevant ECJ decisions and the rulings of the human rights treaty monitoring bodies to interpret the contract law provisions on the protection of personality (under labour law) in order to find fair solutions in cases of discrimination. It goes without saying that the limits of interpretation and further judicial development of the law must be respected here. Ultimately, the legislature is (also) required to implement full the obligations under international labour law for effective protection against discrimination. The legislature can certainly orientate itself towards EU anti-discrimination law, but a “copy-paste” method is not obligatory because Switzerland is not part of the EU. The Swiss solution could also be that instead of a new legal regulation, the existing civil law instruments are supplemented.