Disappointing Federal Council report on protection against discrimination
In its report dated 25 May 2016, the Federal Council presented its views on legal protection against discrimination in Switzerland and fulfilled a postulate by Martin Naef adopted by the National Council on 14 December 2012.
Starting point: the SCHR study
In 2013, the Confederation instructed the Swiss Centre of Expertise in Human Rights (SCHR) to conduct a large scale study to use as a basis for the Federal Council report. In its research, the SCHR focussed on the access to legal protection in cases of alleged discrimination based on gender, sexual identity, sexual orientation, race, religion, or disability.
Designing this study was challenging since socio-scientific research and legal knowledge had to be combined. The SCHR, under Walter Kälin, dedicated two years of hard work and energy to create 11 substudies and a synthesis report which were finished in the summer of 2015.
- Studie «Zugang zur Justiz in Diskriminierungsfällen»
Article on the SCHR website including links to all substudies, 26 May 2016 (in German)
Rejection of a general law on discrimination
For many years, civil society organisations, political parties and international human rights bodies have called for a general law on discrimination for several reasons. First, all minority categories defined in article 8 of the Federal Constitution should be granted legal protection from discrimination. Second, this protection should be extended explicitly to working and other contractual relations (especially for renting dwellings) under private law.
In its study, the SCHR rejected this political demand which follows the German general law on equal treatment. The study indicated that different problems exist in various discrimination areas (cf. synthesis report, page 103, in German), and that with such legal development certain setbacks would be expected on the issue of gender equality in the workplace, where the protection against discrimination is comparatively different.
- Rechtsentwicklung: Verstärkung des gesetzlichen Schutzes vor Diskriminierung
Article on humanrights.ch, 28 March 2017 (in German)
Still, the SCHR has presented a series of founded, different and somewhat controversial recommendations on how to strengthen the protection against discrimination in Switzerland. We would like to highlight the following points from among the constructive recommendations (cf. SCHR synthesis report, especially page 101 et seq., in German):
- Creation of a general law on discrimination supplementing articles 27 et seq. CC
- Inclusion into the definition of criminal ban on hate speech according to article 261 of nationality, resident status, hate against women, disabled persons and LGBTI groups
- General improvement of the legal situation of transgender people
- Government-backed support and advisory services for LGBTI persons
- Extension of the right for associations to bring collective action or their right of appeal
- Alleviation of the burden of proof for all cases of discrimination
- New mechanisms for an out-of-court settlement of disputes in discrimination matters
- Legal reporting of multiple discrimination
- Der Zugang zur Justiz in Diskriminierungsfällen - Synthesebericht
Synthesis report by Prof. Dr. Walter Kälin and Lic. iur. Reto Locher, advocate, MA in Public Management & Policy, Bern, July 2015
Federal Council’s negative position
The Federal Council largely based its report of 25 May 2016 on the SCHR synthesis report. The first part of the Federal Council’s statement (cf. pages 7-16) explains the SCHR recommendations in a brief and factual manner. In the second part (cf. pages 16-26), the Federal Council presents its positions on these recommendations. In doing so it refers to clarifications made by an interdepartmental work group that prepared the positions of the Federal Council under the leadership of the Federal Office of Justice.
Rejection of the most important recommendations
Most of the particularly relevant recommendations listed above are listed under the category “recommendations not to be pursued any further (cf. pages 17 et seq.).”
The Federal Council does not consider the “introduction of a discrimination norm in private law” to have a sustained effect for the following reason: “The proposal of such a regulation could lead to renewed discussions since expectations would be raised which, even with a detailed paraphrasing of the protection from discrimination, could not be completely fulfilled. Furthermore, an effective discrimination regulation in private law would result in something close to a general law against discrimination which has so far always been rejected by Parliament.” (page 17).
TThis convoluted wording provides no reasoning but is instead a barely veiled list of fears. If this obvious anxiety is enough to drop one of the most essential conclusions of the SCHR study, why was this expensive study commissioned in the first place?
Regrettably, this style of argument continues. Further key issues, such as the easing of the burden of proof, the out-of-court settlement or the extension of the scope of protection of Article 261 CC were not assessed more closely, frequently giving way to specious and extraneous arguments (cf. pages 17 et seq.).
Minimal concessions on the need for reform
As a result, only a few issues of importance remain listed in the “recommendations to be examined more closely” (cf. pages 20 et seq.). The extension of the right for associations to bring collective action and the reduction of the costs for civil proceedings have been delegated to ongoing legal revisions. With respect to the awareness of legal specialists and institutions for LGBTI issues, the Federal Council is prepared to assess how that could be achieved (cf. page 22). The assessment of a systematic data collection is also limited to the LGBTI area.
What is particularly characteristic is the reaction by the Federal Council to the call for a legal registration of serial discrimination. It denies the need for any legislative action and at the same time calls for awareness of the issue. But why raise awareness if there is no appropriate legal instrument?
The Federal Council only showed real interest for the concerns of transgender people by simplifying the legislative procedure for the change of sex in civil status registers.
Although the current law against discrimination in Switzerland is confusing, fragmentary and insufficient in many respects, the Federal Council shows disappointingly little willingness for reform. Even after this solid study was published that details the problems and outlines a new constructive approach. Once again, the mountain of concerns has produced little more than a molehill. (cf. guest commentary by Tarek Naguib «Gouverner c'est préserver», in German)
- Bundesrat will Diskriminierungsschutz punktuell stärken
Media release by the Federal Council, 25 May 2016 (in German)
- Recht auf Schutz vor Diskriminierung
Report by the Federal Council, 25 May 2016 (pdf, 26 pages, in German)
- Postulate by Martin Naef 12.3543 of 14 June 2012
Documentation on parlament.ch (in German)