CMS Expert Guide on discrimination in the workplace in Austria

In Austria, the Equal Treatment Act (Gleichbehandlungsgesetz, GlBG), which applies primarily to employment relations under civil law, implements the requirements of European law and all other aspects of equal rights. The GlBG covers direct and indirect discrimination, but distinguishes between them by rendering indirect discrimination easier to justify. Discrimination also includes instructions by a person to discriminate.

Separate regulations exist for employees with disabilities in the Disabled Persons Employment Act (Behinderteneinstellungsgesetz, BEinstG).

The Federal Equal Treatment Act (Bundes-Gleichbehandlungsgesetz, B-GlBG) applies to civil servants and employees of public authorities and state-affiliated companies. For the regulation of employment relationships of provincial and municipal employees, various provincial equal treatment laws exist.

These laws regulate the equal treatment of men and women in the workplace and prohibit discrimination on the grounds of ethnicity, religion or belief, age or sexual orientation and discrimination on the grounds of disability in the context of employment.  

The law applies to all legal entities that determine working conditions including the employer and social partners. 

In principle, every employee/civil servant who is affected by discrimination is entitled to compensation for personal detriment suffered. Depending on the type of violation, the anti-discrimination laws provide for additional sanctions:

If the work relationship was not established due to discrimination, the individual may claim damages at a fixed rate. In the case of discrimination in connection with professional advancement, there is no entitlement to actual advancement/promotion, but to a compensation payment.

In the event of discrimination in connection with remuneration, voluntary social benefits or other working conditions, the discriminated employee is entitled to the difference in remuneration, the voluntary social benefit or to the respective working conditions.

In the event of (sexual) harassment, the employee may claim damages against the harasser and/or against the employer that failed to protect the respective employee.

If an employment relationship is terminated because of a discriminatory motive or because of the justified assertion of claims under the GlBG, the termination may be challenged in court.

These claims are enforceable through legal proceedings before the labour and social courts. In addition, employees may turn to the Equal Treatment Ombudsman and/or the aforementioned Equal Treatment Commission. 

The Equal Treatment Commission (Gleichbehandlungskommission), which issues expert opinions on whether discrimination has occurred and if so what measurements are to be taken to end it, is particularly relevant. The procedure before the Equal Treatment Commission is an upstream (mediation) procedure that suspends all judicial deadlines. A court, however, is not bound by the commission's findings.

There are no special obligations for employers other than not to discriminate on the aforementioned grounds and not to treat some individual employees worse than other employees on an arbitrary or extraneous basis. Employers are also obliged to take action in the event of harassment.

In the case of job advertisements, there is a legal obligation to use gender-neutral and/or non-discriminatory wording.

Publicly listed corporations are required by law to prepare a consolidated corporate governance report. This report must contain a diversity concept and information on measures for the advancement of female employees. If a company that is subject to reporting requirements does not have any such diversity concept, reasons must be given.

There is no general legal obligation to implement a D&I policy. Exceptions exist only for certain (publicly listed) corporations.

For corporations that are required to publish a consolidated corporate governance report, non-compliance with these requirements may result in mandatory penalties.

All companies with more than 150 employees are required to submit a report every two years on remuneration analysis (i.e. an income report). This report must state – separately for women and men – in anonymised form how many employees are classified in the respective collective bargaining agreement and/or company application groups and application group years. In addition, the median or average income of women and men must be specified.

General data protection regulations are applicable, including most importantly the EU's General Data Protection Regulation, or GDPR (known as Datenschutz-Grundverordnung, or DSGVO, in German). Since diversity data are mostly personal data that qualify as "sensitive", they may only be processed on the basis of an explicit legal authorisation. In particular, Article 9 paragraph 2b, which permits processing if the controller fulfils obligations arising from labour and social law, may be considered as such. However, if there is no explicit legal obligation that requires the processing of diversity data, these data must not be processed. This especially applies if the use of this information is only intended for non-obligatory diversity management. In the case of unlawful processing, the GDPR provides for significant fines.   

In addition, pursuant to § 96 ArbVG, the consent of the working council must be obtained if company owners wish to introduce legally effective "systems for the computer-aided determination, processing and transmission of personal data of employees which go beyond the determination of general information on the person and professional requirements". Furthermore, the working council has the right to consent to the "introduction of systems for the assessment of employees in the company, provided that data is collected which is not justified by operational use". 

In June 2017, the Equality of Women and Men on Boards Act (GFMA-G) was passed in Austria, affecting boards of publicly-listed and large companies. It stipulates a minimum percentage of 30% for women and men on the supervisory board. The target applies to new appointments. In the event of non-compliance, the mandate remains unfilled (i.e. the "empty chair" clause).

See question 4.