SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
Claims brought under the Gender Equality Act have a reduced burden of proof; discrimination is presumed if the person concerned can substantiate the claim by prima facie evidence (Article 7 of the Gender Equality Act). The Gender Equality Act also provides additional pro - tections against dismissal, including the possibility of requesting reinstatement (Articles 9 and 10 of the Gender Equality Act) and, in some instances, organi - sations may bring actions or appeals, if the proba - ble outcome of proceedings will have an effect on a considerable number of jobs (Article 7 of the Gender Equality Act). It should be noted that in 2019, the Swiss Federal Supreme Court, in a controversial ruling, concluded that discrimination based on sexual orientation is not covered by the Gender Equality Act (ATF 145 II 153). The Swiss Federal Supreme Court has not yet ruled as to whether gender identity is covered under the Gender Equality Act, but some lower instance courts have considered this to be the case. 8.3 Other Forms of Discrimination and/ or Harassment Including Bullying and/or Mobbing As noted above, the case law is not clear as to whether gender identity is protected under the Gender Equal - ity Act. With respect to other forms of discrimination and har - assment, the main protection is the general protection of employee personality rights contained in Article 328 of the Swiss Code of Obligations, as well as require - ments to protect employee health under the Labour Act and its ordinances. As discrimination and/or harassment are considered unlawful treatment, the employer has an obligation to act when it suspects discrimination and/or harass - ment. In this context, action involves conducting an HR internal investigation to investigate the situation, taking measures during the investigation to protect employees pending an outcome and taking the neces - sary disciplinary measures following the outcome of the HR internal investigation.
Additionally, some public sector employers (eg, the federal government, cantons and municipalities) have additional protection against discrimination. For instance, the Federal Disability Discrimination Act provides protection to employees of the Swiss gov - ernment against discrimination founded on disability. Further, employees of the Canton of Geneva have specific protection against discrimination founded on sex, sexual orientation, gender identity and gender expression under the Loi sur l’égalité et la lutte contre les discriminations liées au sexe et au genre , which provides a general definition of harassment, sexual harassment and sexual violence and also defines specific types of discrimination, including biphobia, homophobia, lesbophobia and transphobia. Moreover, Switzerland is party to the European Con - vention on Human Rights (ECHR). The European Court of Human Rights has ruled that protection of private life (Article 8 ECHR) applies to the workplace, including with respect to private employers, and that this includes protection against discrimination (in con - junction with Article 14 ECHR) (see Niemietz v Ger‑ many , No 13710/88, ECtHR (16 December 1992) and Sidabras and Džiautas v Lithuania , Nos 55480/00 and 59330/00, ECtHR (27 October 2004)). Article 328 of the Swiss Code of Obligations also pro - vides protection against bullying and/or mobbing, as do the requirements to protect employee health under the Labour Act and its ordinances. These terms are not defined in statutory law. However, the Swiss Federal Supreme Court has defined bullying and mobbing as a type of psycho - logical harassment involving “[a] series of hostile com - ments and/or actions, frequently repeated over a fairly long period, by which one or more individuals seeking to isolate, marginalise or even exclude a person in the workplace” (translated, see Swiss Federal Supreme Court decisions 4A_215/2022 of 23 August 2022, 4A_310/2019 of 10 June 2020, and 4A_381/2014 of 3 February 2015). As bullying and/or mobbing are also considered unlawful treatment, the employer has an obligation to act when it suspects bullying and/or mobbing. In this context, action involves conducting an HR inter -
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