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Legal framework

This section lists Switzerland's protected characteristics.

In the Swiss Constitution preamble it talks of “respect for their diversity”.  In Title 1, Article 1, it names every Canton individually highlighting its confederal nature and how it forms the Swiss Confederation.  In Article 2, It states that it “shall protect the liberty and rights of the people”, “promote cultural diversity of the country”, and “ensure the greatest possible equality of opportunity among its citizens”.  Article 4, states there are four national languages German, French, Italian and Romansh.  In Title 2, Chapter 1, Article 7 is on fundamental rights and states that “Human dignity must be respected and protected”.  Article 8 covers “Equality before the law” and states that “every person is equal before the law” and that “No person may be discriminated against in particular on grounds of “origin, race, gender, age, language, social position, way of life, religions, ideological, or political convictions, or because of a physical, mental or psychological disability”.  Men and Women have equal rights, the law shall ensure their equality, both in law and in practice, most particularly in the family, in education, and in the workplace. Men and women have the right to equal pay for work of equal value.  Finally, the “law shall provide for the elimination of inequalities that affect persons with disabilities”.  Article 14 states that all have the “right to marry and to have a family”. Article 15 states that the “freedom of religion and conscience is guaranteed, every person has the right to choose freely their religion or their philosophical convictions, and to profess them alone or in community with others”. Furthermore, “every person has the right to join or to belong to a religious community, and to follow religious teachings” but at the same time, it is very clear that “no person may be forced to join or belong to a religious community, to participate in a religious act, or to follow religious teachings.  Article 18, states that “the freedom to use any language is guaranteed”.  In Article 22, freedom of assembly is guaranteed, and everyone has the “right to organise meetings and to participate or not participate in meetings” depending on one’s wishes. In Article 23, freedom of association is guaranteed and “every person has the right to form, join or belong to an association and to participate in the activities of an association”. Article 25 specifically mentions that “refugees may not be deported or extradited to a state in which they will be persecuted by” and “no person may be deported to a state in which they face the threat of torture or any other form of cruel or inhumane treatment or punishment”.  In Article 34, all “political rights are guaranteed” and the “guarantee of political rights protects the freedom of the citizen to form an opinion and to give genuine expression of his or her will”.   In Chapter 3, Social Objectives, Article 41, “endeavour to ensure that every person is protected against the economic consequences of old-age, invalidity, illness, accident, unemployment, maternity, being orphaned or being widowed. 

http://www.servat.unibe.ch/icl/sz00000_.html

Abortion on request became legal in the first 12 weeks of pregnancy in 2002 and at the same time the morning-after pill was released for sale without prescription.

Federal statute does not provide any specific rights in the case of adoption.  However,  exceptions in Cantonal legislation may do so. 

https://uk.practicallaw.thomsonreuters.com/1-503-3698?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1

Single people, regardless of sexual orientation, may adopt children, and a bill legalizing stepchild adoption for same-sex couples was approved by Parliament in spring 2016. 

Joint adoption is currently illegal for same-sex couples as it is restricted to only heterosexual married couples. 

Age is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination. 

However, it is restricted to employment relationships governed by Swiss public law (e.g. members of the civil service).  It does not apply to individuals and therefore, not to employment relationships governed by Swiss private law. Over the last few years, the Swiss Federal Supreme Court had to decide several cases where elderly and/or long-serving employees claimed that they were unfairly dismissed.  These decisions were rendered based on individual circumstances of each case, which is why their binding effect is limited.

The High Court of the Canton of Zurich recently rejected a claim of a 51 years old accountant against a company which had rejected his application responding that it is not interested in applicants who are older than 40. The court held that there is no legal provision preventing the company from rejecting applicants due to their age.

http://www.agediscrimination.info/international-age-discrimination/switzerland

The Age of consent has been equal at 16 for all couples regardless of gender since 1992. In a national referendum on 17 May 1992, 73% of voters accepted the reform of the Swiss federal legislation on sexual offences, including the elimination of any discrimination against homosexuality from the Penal Code. Article 186 of the Criminal Code states that the general age of consent is 16.   

Asylum and refugees are a protected characteristic as outlined in Article 25 of the Swiss Constitution and which there are therefore grounds for protection against discrimination.

There has been legal recognition for same-sex relationships since 2007 when the Registered Partnership Act came into force.  Prior to this some Cantons, Geneva, Fribourg, Neuchatel and Zurich already allowed registered partnerships. 

 

The Swiss Federal Council announced in January 2016 to undertake measures to outlaw conversation therapy on LGBT minors following the request to investigate by Conservative Democrat MP Rosmarie Quadranti, such that the government believed that anyone doing this would be considered a criminal offence, and therefore be sanctioned by the appropriate court. 

Swiss law has only limited provisions to outlaw discrimination in the private sector or between individuals.  On 7 March 2013, Matthias Reynard member of the Social Democratic party introduced to the Swiss parliament a bill to outlaw all “discrimination and incitement to hatred” on the basis of race, ethnicity, religion or sexual orientation”. On 11th March 2005, the National Council voted 103-73 to allow the bill to go further.  In February 2017, the Committee of Legal affairs of the National Council approved, in 15-9 vote to add an amendment to the bill to include gender identity. The National Council has fixed a 2019 deadline by which the bill must be finalised and ready to vote on.  The Bill is officially opposed by Swiss People’s Party which sees it as unnecessary, however it is now hoping that the Council of States will hold a final vote which is expected to take place in December 2018.

Due to Switzerland’s approach to separating out criminal and civil law, there are gaps in Switzerland’s anti-discrimination legislation.  Criminal liability for discrimination protects against hate speech, and discriminatorily depriving another person of a service intended for the public. The prohibition on hate speech includes public incitement to hatred or discrimination, propagation of a racist ideology, or organisation or encouragement of acts of propaganda against a person or group or persons but only on account of their race, ethnic origin or religion.  Swiss courts have described “public” as acts that do not consider the family circle, a circle of friends or personal relationships of trust true.

A number of Civil laws provide protection against discrimination on the basis of protected characteristics, i.e. Federal Act on Gender Equality, or the Federal Act on the Elimination of Discrimination against Persons with disabilities, or the Foreigners Nationals Act, Languages Act and the Partnership Act. However all these acts don’t cover everything across the Board, and it is hoped that a complete anti-discrimination Bill will become law before 2019 deadline. 

www.legislateonline.org-Anti-Discrimination-Law-in-Switzerland-March-2013_report_en%20(2).pdf

https://www.humanrights.ch/upload/pdf/171011-UPR_Switzerland_Factsheet_Discrimination.pdf

Disability is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination. The Swiss Constitution is very progressive and therefore identifies physical, mental and psychological disabilities individually.

Ethnic origin is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Faith or Belief is a protected characteristic as outlined in Article 8 and Article 15 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Employees with family duties have a statutory right to stay away from work for up to three days to take care of sick children. Statute does not provide other special rights for parents or carers. In practice, many employers have internal regulations that allow parents or carers to have some flexibility in unusual family situations. 

https://uk.practicallaw.thomsonreuters.com/1-503-3698?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1

Gender is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Switzerland was one of the last countries in Europe to afford women the vote from 1971 onwards. Only Liechtenstein and Moldova held out longer.  This was decades after the most of the western world, and nearly 100 years since New Zealand had in 1893.  As all laws are changed by referendum, men had to vote for this and did so on the second attempt in 1971, after rejecting the idea in 1959. 

In 1981, gender equality and equal pay for equal work were written into the Swiss Constitution. In February 28th 1981 the Council of States – the upper House of the Swiss parliament snubbed a Swiss government proposal aimed at guaranteeing equal pay for women and men. Under the proposal, firms with over 50 employees would have been required to undergo an audit evert four years with information on how much they paid to male and female staff made available to the public and shareholders. 

 

There is no specific mention in the Constitution regarding gender identity however, the terminology of “way of life” could be interpreted in such a manner, and therefore your life style or way of life is a protected characteristic as outlined in Article 8 of the Swiss Constitution and which is therefore grounds for protection against discrimination.

There has been a legal procedure for the registration of sex change following gender reassignment surgery outlined in 1993.  However, since 2010 authorities have since followed a practice whereby registration of gender change has been done without the requirement of surgery but this all requires judicial proceedings. 

In May 2018, the Federal Council proposed amending Swiss legislation to allow transgender individuals to change their registered gender and first name(s) without any red tape, simply by making a declaration to civil status registry officials. This is now going before a public consultation before being submitted to the Federal assembly. 

There is no recording of hate crime/speech against LGBT community.  In August 2017, following a motion proposed by Conservative Democratic Party, the Swiss government announced that they would not register hate crimes because it would be too difficult to keep track of these crimes, as they didn’t know if it was clear that the victim’s sexual orientation or gender identity was a factor. 

Ideology is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination.

In 2018, the lower house of parliament expressed support for an “X” sex descriptor on identity documents with 107 votes in favour, and a separate motion to allow intersex individuals to leave their entry blank was also accepted- 109 votes in favour, so the Federal Council will review both motions in due course. 

Language is a protected characteristic as outlined in Article 8 and Article 18 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Learning or intellectual difficulties are included under disability as a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Marriage is a protected characteristic and right to have a family as outlined in Article 14 of the Swiss Constitution and is therefore grounds for protection against discrimination.

However, same-sex marriage is not currently legal in Switzerland.  In 2013, the Green Liberal Party introduced an initiative to legalise same-sex marriage. It was approved 12-9 by a National Council Committee in February 2015, and 7-5 by a Council of States committee in September 2015. An Act is currently being drafted and is expected to be finalised by February 2019 and then be presented to Parliament for final deliberation. 

In September 1985 referendum, women were granted equal rights with men within family life, until this date men had legal authority over their wives, meaning a husband could prevent his wife from working, choose where she would live and manage her money, including preventing her from opening a bank account without his approval. 

Amazingly, pregnant women became legally entitled to paid maternity only after the idea had been rejected by voters in four previous referendums. Paid maternity leave was finally introduced in Switzerland on 1 July 2005 — a full 60 years after Swiss citizens voted to include maternity benefits in the Swiss constitution. Maternity benefits (EO) are overseen by the Federal Social Insurance Office within the Federal Department of Home Affairs.

The EO benefit scheme is funded by the EO contributions towards the social security system that you are required to pay along with AHV/IV contributions for old-age pensions and disability benefits.  Under mandatory public laws, women are not allowed to work (and employers cannot employ women at this time) for a period of eight weeks after they have given birth. Moreover, they have a right to a total of 14 weeks of maternity leave after they have given birth. If a woman chooses to take her maternity leave, and provided she fulfils the statutory requirements, the state pays her a compensation amounting to 80% of her average last salary during a 98-day time period from the date of birth. The compensation is currently capped at CHF196 per day.  There are additional statutory rules protecting women during pregnancy and following birth. In particular, a pregnant woman is protected against dismissal during the whole pregnancy and for 16 weeks following birth. Also  there may be extensions in some cantons which provide extension to the federal legislation.  You are able also to extend this 14 weeks of maternity leave by a further two weeks, but you will not be paid for this extra period.  Furthermore, if you return to work between the eight and fourteenth week following the birth, you waive your rights to maternity compensation. 

https://uk.practicallaw.thomsonreuters.com/1-503-3698?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1

https://www.internations.org/switzerland-expats/guide/29458-social-security-taxation/swiss-maternity-benefits-spending-time-with-your-little-one-19018

Mental health is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination. The Swiss Constitution is very progressive and therefore identifies mental health specifically.

Migrants who if deported to countries where they be persecuted or tortured are protected against discrimination under Article 25 of the Swiss Constitution

LGB people are allowed to serve openly in the military. 

Nationality is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination. 

Employees with family duties have a statutory right to stay away from work for up to three days to take care of sick children. Statute does not provide other special rights for parents or carers. In practice, many employers have internal regulations that allow parents or carers to have some flexibility in unusual family situations. 

https://uk.practicallaw.thomsonreuters.com/1-503-3698?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1

There are no specific statutory paternity rights in Switzerland.  In April 2016, an initiative introducing the idea of two weeks’ paternity benefits for new fathers was rejected by the Swiss parliament. This means that there is no law in Switzerland granting leave to those whose partners have just had a baby.  Fathers are allowed to take one or two family days when the baby is born.

However, this is not to say that fathers will not be entitled to any leave. In some cases — particularly in the private sector — employers have outlined a father’s right to paternity leave in employment contracts. This leave allowance can range from three days to a week or even more. In any case, it’s best to check with your employer when your partner is expecting as you may be entitled to some additional paternity leave.

https://uk.practicallaw.thomsonreuters.com/1-503-3698?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1

Fathers who are employees, or the husband or partner of the mother - including same-sex partners – are entitled to a maximum of 2 weeks’ Statutory Paternity Leave. Those with more than 26 weeks’ service have an entitlement to Statutory Paternity Pay.

https://www.gov.uk/paternity-pay-leave/leave

Place of Birth or Origin is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Political affiliation is a protected characteristic as outlined in Article 8 and Article 34 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Treating a woman unfavourably because of pregnancy is prohibited under the Equality Act 2010.

Race is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Refugees are a protected characteristic as outlined in Article 25 of the Swiss Constitution and which is therefore grounds for protection against discrimination.

Religion is a protected characteristic as outlined in Article 8 and Article 15 of the Swiss Constitution and is therefore grounds for protection against discrimination.

There is no specific mention in the Constitution regarding sexuality however, the terminology of “way of life” could be interpreted in such a manner, and therefore your life style or way of life is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination. 

Same sex sexual acts have been legal in Switzerland since 1942 (and in Cantons of Geneva, Ticino, Vaud and Valais since 1798).

 

Social position or status is a protected characteristic as outlined in Article 8 of the Swiss Constitution and is therefore grounds for protection against discrimination.

Trade Union Affiliation is a protected characteristic as outlined in Article 23 and Article 34 of the Swiss Constitution and is therefore grounds for protection against discrimination.

In 2018, the lower house of parliament expressed support for an “X” sex descriptor on identity documents with 107 votes in favour, so this motion is now being considered by the Federal Council.