Forms of discrimination

Principle

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.

Forms of discrimination

Employers must observe this requirement 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)^{German text}

• gender-based harassment;
• harassment on the basis of one of the grounds of discrimination listed above.

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).

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. Sections 11 and 25 of the Gleichbehandlungsgesetz prohibits the definition of criteria that result in discrimination on the basis of a prohibited characteristic (e.g. gender, age, sexual orientation).

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.

Evaluation of the tools for enforcing equal treatment

An evaluation was carried out in 2015/2016 on the tools for enforcing equal treatment, under the joint supervision of the Federal Ministry for Labour, Social Affairs and Consumer Protection and the Federal Ministry for Health and Women’s Affairs.

The chief objective of the evaluation was to highlight the numerous facets of the Gleichbehandlungsgesetz and the Federal Act on the Equal Treatment Commission and the Ombud for Equal Treatment and, in particular, to investigate the efficiency of existing regulations from an expert point of view.

The knowledge and findings obtained were summarised in a report, which also detailed the differing views taken by the experts on each individual point. Proposals for improvement and/or further development were also put forward on some points. These proposals have been included in the report despite being mostly regarded as controversial by the experts.

Further links

• Final report on the evaluation of the legislative tools for equal treatment and comments from interest groups (→ BMAW)^{German text}
• Online wage calculator (→ BKA)^{German text}
• Equal Treatment Commission (→ BKA)^{German text}
• Ombud for Equal Treatment (→ gleichbehandlungsanwaltschaft.gv.at)^{German text}

Legal basis

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