Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Switzerland (Ratification: 1961)

Anti-discrimination law. In its previous observation the Committee noted that on 23 March 2007 a motion was tabled in Parliament to draft a law on equal treatment for the purpose of preventing or eliminating all forms of discrimination based on sex, skin colour, ethnic origin, religion, philosophical conviction, age, disability or sexual identity. The Committee notes that by a decision of 21 September 2009 the National Council dropped the motion on the grounds that the applicable law was sufficient to ensure protection against discrimination. The Committee recalls that the Federal Constitution contains a general provision to the effect that no one shall suffer discrimination on grounds, inter alia, of origin, race, sex, age, language, social position, mode of life, religious, philosophical or political conviction or on grounds of a corporal, mental or physical disability (article 8). The Federal Act on equality between men and women prohibits direct and indirect discrimination against workers on grounds of sex, including in respect of pregnancy, civil status or family situation (section 3) and the Act on equality for persons with disabilities seeks to prevent, reduce or eliminate inequalities effecting persons with disabilities, in particular in the area of training and further training. As regards to discrimination on other grounds, the protection afforded to workers is derived from section 328 of the Code of Obligations, “Protection of the worker’s personality”, section 28 of the Civil Code on unlawful affront to the personality, and section 261bis of the Penal Code establishing racial discrimination as a criminal offence.

The Committee is of the view that, although important, the provisions of the Constitution have on the whole been insufficient to remedy specific situations of discrimination in employment. The same is true of the provisions in the Penal Code which could prove difficult to enforce in dealing with discrimination in employment. Furthermore, given the persistence of discrimination the Committee considers that generally comprehensive legislation on anti-discrimination is necessary if the Convention is to be applied effectively. The Committee wishes to draw the Government’s attention to a number of features noted in the national laws it has examined in the past few years, which may make an effective contribution to addressing discrimination and promoting equality in employment and occupation: coverage of as many workers as possible; a clear definition of direct or indirect discrimination; prohibition of discrimination at all stages of employment; explicitly assigning supervisory responsibilities to competent national authorities; providing dissuasive penalties and appropriate means of redress; shifting or reversal of the burden of proof; protection against reprisal; the possibility to take affirmative action; adoption and implementation of policies or plans on equality at the workplace; collection of relevant data. The Committee accordingly asks the Government to re-examine the possibility of taking legislative measures to define and prohibit discrimination based on at least all the grounds enumerated in Article 1(1)(a) of the Convention, at all stages of employment, including in vocational training and recruitment and in terms and conditions of employment, so as to afford workers effective protection against discrimination and enable them to assert their rights effectively. The Committee requests the Government to provide information on any such measures taken to reinforce the legal framework pertaining to discrimination in employment and occupation.

Articles 2 and 3 of the Convention. Equality of opportunity and treatment without distinction as to race, colour, national extraction or religion. The Committee points out that in its previous comments it encouraged the Government to introduce in the legislation an express prohibition on racial discrimination in employment and occupation so as to afford workers better protection against discriminatory practices and thus move towards full application of the principles of the Convention. The Committee notes that in June 2009 the Service to Combat Racism (SLR) published a legal guide on racial discrimination, which deals among other matters with racial discrimination in the world of work, citing examples and pointing out available remedies. On the matter of recruitment by private employers, the Committee notes that the guide stresses the difficulty of proving discrimination in the absence of any witnesses, the complexity of civil proceedings and the lack of clarity as to the legal consequences of discrimination in practice. On the matter of recruitment by public employers, the guide states that in the absence of express rules on the subject, in the event of discriminatory conduct in the course of job interviews, it is difficult to know how candidates are to defend themselves. Regarding the legislation to protect workers against discrimination based on race, colour, national extraction or religion, the Committee notes the Government’s statement that no legislative measures are envisaged in the area of contractual relationships established under private law. The Committee also notes that, in a study published in 2010 on the law against racial discrimination, the Federal Committee against Racism (CFR) indicates that the lack of any express ban on racial discrimination is the cause of considerable legal uncertainty, particularly as regards indirect discrimination. The CFR likewise points out that the lack of any provisions in private law and administrative law is an incentive for victims to resort to penal law, which sanctions only the most serious and public cases of discrimination and omits the most subtle or less visible forms, particularly in the world of work. Noting recommendations made by the Federal Committee against Racism in the study published in 2010, the Committee requests the Government to indicate the action taken to follow up on them, more particularly the recommendation for an in-depth examination of the “anti-racism legislation”, including the problems of multiple discrimination, the inclusion in the legislation of a ban on direct and indirect discrimination in work relationships between individuals and the establishment of effective instruments for enforcement. The Committee also asks the Government to continue to provide information on the awareness raising and information measures taken to prevent discrimination on the grounds of race, colour, national extraction or religion and to promote tolerance.

The Committee is raising other points in a request addressed directly to the Government.