Spain: The new comprehensive Law for equal treatment and nondiscrimination also applies to employment

The purpose of Comprehensive Law 15/2022, of July 12, 2022, for equal treatment and nondiscrimination is to guarantee and promote the right to equal treatment and nondiscrimination and to respect the equal dignity of persons.

The legislation recognizes the right to equal treatment and nondiscrimination of persons regardless of their nationality, of whether they are minors or of legal age or of whether or not they are legally resident. Nobody can be discriminated against on grounds of birth, racial or ethnic origin, gender, religion, belief or opinion, age, disability, sexual orientation or identity, gender expression, illness or health condition, serological status and/or genetic predisposition to suffer from pathologies and disorders, language, socioeconomic situation or any other personal or social status or circumstance.

Illness may not justify differences of treatment apart from those arising from the process of treating it, the objective limitations that it imposes for the performance of certain activities or those required for public health reasons.

Any provision, conduct, act, criterion or practice which is contrary to the right to equality, for example, direct or indirect discrimination, by association and by mistake, multiple or intersectional discrimination, denial of reasonable accommodation, harassment, incitement, order or instruction to discriminate or to commit an act of intolerance, reprisals or noncompliance with positive action measures arising from legislative or contractual obligations, inaction, neglect of duties or breach of duties is prohibited.

Among the areas protected by the legislation it addresses, among many others, employment and self-employment (which includes access, working conditions, including remuneration and dismissal, professional advancement and employment training) and membership of and participation in labor unions.

In the employment area, the legislation includes a series of provisions, among which we highlight the following:

• No restrictions, segregations or exclusions may be established for access to employment, including selection criteria, in employment training, in professional advancement, in remuneration, in working hours and other working conditions, and in suspension, dismissal or other grounds for termination of the employment contract.
• Criteria and systems of access to employment, or in working conditions, which cause situations of indirect discrimination, will be considered discriminatory.
• The Labor and Social Security Inspectorate will include, in its annual integrated action plan, the development of specific plans regarding equal treatment and nondiscrimination in access to employment and in working conditions.
• Employers may not ask job applicants regarding health conditions.
• Employers that have more than 250 employees may be required by regulations to publish the necessary salary information to analyze the factors determining salary differences, taking into account the conditions or circumstances that may give rise to discrimination.
• Collective bargaining may not establish restrictions, segregations or exclusions for access to employment, including selection criteria, in employment training, in professional advancement, in remuneration, in working hours and other working conditions, and in suspension, dismissal or other grounds for termination of the employment contract.
• Positive action measures may be established by collective bargaining to prevent, eliminate and correct any form of discrimination in employment and working conditions. Employers and employee representatives may jointly establish reporting and periodic evaluation objectives and mechanisms.
• Employee representatives and employers shall ensure the fulfillment of the right to equal treatment and nondiscrimination and, in particular, in relation to positive action measures and the achievement of their objectives.

Employers may undertake social responsibility initiatives consisting of measures to promote conditions of equal treatment and nondiscrimination of which employee representatives shall be informed. These initiatives may be agreed with employee representatives. Employers may publicize their responsibility initiatives in relation to equality.

Among the guarantees established by the legislation in general, the following are provided:

• The application of sufficient methods or instruments for the detection, adoption of preventive measures, and the establishment of adequate measures to end discriminatory situations, the breach of which shall give rise to administrative liability, and, where applicable, criminal and civil liability for the loss and damage that may arise.
• Individuals or legal entities that cause discrimination must repair the damage caused by providing indemnity and restoring the victim to the situation prior to the discriminatory incident, when possible. Employers will also be liable for the damage caused when the discrimination, including harassment, occurs within the scope of their organization or management and they have not fulfilled the obligations provided for in the previous paragraph.
• Provisions, acts or clauses of legal transactions that constitute or cause discrimination shall be null and void.
• The right to judicial protection of the right to equal treatment and nondiscrimination shall include necessary measures to end discrimination, aimed at immediate cessation, interlocutory measures, indemnity for the loss and damage caused and the reinstatement of the injured party.
• In accordance with procedural laws and those governing administrative proceedings, when the party alleges discrimination and provides prima facie evidence of its existence, the defendant will be required to provide objective and reasonable justification, which is sufficiently proven, of the measures adopted and of their proportionality.

An Independent Authority for Equal Treatment and Nondiscrimination is also created, in charge of protecting and promoting equal treatment and nondiscrimination both in the public and in the private sector.