Equal treatment – Forms of discrimination

Principle of equal treatment

Nobody should be directly or indirectly discriminated against on the basis of

• gender,
• ethnicity,
• religion or ideology,
• age or
• sexual orientation

in association with an employment relationship.

Homeworkers and employee-like persons are also covered in addition to employees.

Discrimination also takes place if a person is instructed to act in a discriminatory manner. Protection against discrimination extends to persons who are disadvantaged as a result of the close relationship they have to a person who possesses a protected characteristic (discrimination by association).

According to federal support guidelines, funding may only be granted to companies that are compliant with the Gleichbehandlungsgesetz. The law lists various forms of discrimination  and requires companies above a certain size to prepare an income report.

Obligation of employers

The employer is required

• to prevent all unequal treatment of employees and
• to take all reasonable measures to prevent discrimination by third parties, such as colleagues or customers, e.g. sexual harassment (→ oesterreich.gv.at).

Employees who wish to enforce their right to equal treatment must not be disadvantaged as a result of that wish. This also applies to witnesses.

Forms of discrimination

Employers must observe the equal treatment principle in particular:

• when establishing the employment relationship;
• when fixing pay;
• when granting voluntary social benefits that do not constitute salary;
• during training, further training and retraining measures;
• for career development, particularly promotions;
• in other working conditions;
• when terminating the employment relationship (this also applies if an employment relationship is ended discriminatorily during a probationary period or if a fixed-term employment relationship is not extended on discriminatory grounds, for example because the employee became pregnant);

The following are also understood to be discrimination:

• sexual harassment (→ oesterreich.gv.at)
• gender-based harassment;
• harassment on the basis of one of the grounds of discrimination listed in the principe of equal treatment.

Discrimination also exists if a person

• parental leave, part-time parental leave, change of working hours in accordance with the Mutterschutzgesetz (MSchG) or the Väter-Karenzgesetz (VKG);
• paternity leave in accordance with the VKG;
• nursing leave in accordance with the Urlaubsgesetz (UrlG);
• Reduction in working hours, end-of-life care, care for seriously ill children, carer's leave, part-time carer's leave in accordance with the Arbeitsvertragsrechts-Anpassungsgesetz (AVRAG);
•  Leave of absence for urgent family reasons if an illness or accident requires immediate presence in accordance with the Angestelltengesetz (AngG) and the Allgemeinen Bürgerlichen Gesetzbuch (ABGB)

utilises. In these cases, there does not have to be any discrimination on the basis of gender.

Job advertisements

The requirement concerning gender-neutral and non-discriminatory job advertisements applies to employers, private employment agencies and the public employment service. In addition, the applicable minimum salary in line with the collective agreement or stipulated by law or other regulations must be indicated for the position being advertised and reference must be made to the readiness to pay overtime, if applicable.

In economic sectors that are not subject to a collectively agreed minimum wage, the salary that is to be used as a basis for negotiating the salary agreement must be indicated. This does not include employee-like persons and employees in senior management positions (e.g. directors).

Equal pay

Pay criteria in company grading schemes must respect the principle of equal pay for equal work or for work recognised as equivalent. The definition of criteria that result in discrimination on the basis of a prohibited characteristic (e.g. gender, age, sexual orientation) is not allowed.

Employment contracts or works agreements may also be reviewed for possible discrimination on the basis of, for example, disproportionate underpayment of part-time personnel compared to full-time personnel or of temporary workers compared to permanent employees.

Legal consequences

Provision is made for administrative penalties in the event of a violation of the requirement concerning gender-neutral and non-discriminatory job advertisements.

The regulations on compensation for damages in the event of a violation of the requirement for equal treatment provide for the following:

• compensation for financial losses, i.e. direct losses and loss of profits;
• establishment of non-discriminatory status;
• in both cases, additional compensation for non-material damage for personal impairment suffered.

Claims under the Gleichbehandlungsgesetz must be referred to the Labour and Social Court.

Employees may also contact the Equal Treatment Commission. The Commission deals with all matters relating to discrimination and may, in particular, draw up expert opinions and carry out individual assessments.

Claims for damages or performance may not be asserted, however; the court has exclusive jurisdiction in these matters. Decisions taken by the Equal Treatment Commission are not binding. The Equal Treatment Commission and the court may be called upon independently of one another.

The Ombud for Equal Treatment, which is established at the Federal Chancellery, provides advice to and supports people who feel discriminated against.

Further links

• Equal treatment (→ oesterreich.gv.at)
• Online wage calculator (→ BKA)^{German text}
• Equal Treatment Commission (→ BKA)^{German text}
• Ombud for Equal Treatment (→ GAW)^{German text}

Legal bases

• Bundesgesetz über die Gleichbehandlungskommission und die Gleichbehandlungsanwaltschaft (GBK/GAW-Gesetz)
• Gleichbehandlungsgesetz (GlBG)