The new protection of fundamental rights: equality and non-discrimination
On 13 July 2022, the new Integral Law for Equal Treatment and Non-Discrimination was published. In Spain we have successfully experienced a process of openness and respect for diversity and plurality, we have made great progress in the legislative and social recognition of the right to equality and non-discrimination.
In addition to the Spanish Constitution, there are also multiple international conventions, institutional declarations, European directives and internal regulations for the protection of these rights in the face of specific situations of risk of discrimination on grounds of gender:
- Sex.
- Racism and xenophobia.
- Religion or belief.
- People with disabilities.
- Employment.
- Remuneration.
- Age.
- Etc.
¿Por qué existe esta necesidad de la ley?
The law aims to provide a legal response to the violation of the right in any situation, seeking a double objective: preventive and restorative, following the latest jurisprudential trends.
However, the law goes further, it aims to be the regulatory framework of specific anti-discrimination law, which covers existing and future discriminations, since the challenges of equality change with society and, consequently, so will the appropriate responses in the future.
¿Cuáles son los motivos de discriminación y definiciones?
There are 6 reasons which are as follows:
- Birth.
- Race.
- Sex.
- Religion.
- Opinion.
- Any other personal or social condition or circumstance.
In addition, in its attempt at integration, the introduction of some definitions is particularly interesting, such as the:
- Direct and indirect discrimination, including in the former the denial of reasonable accommodation to persons with disabilities.
- Discrimination by association and discrimination by mistake.
- Multiple and intersectional discrimination, which would particularly affect women and is of special concern to the law.
- Discriminatory harassment.
- Inducement, order or instruction to discriminate.
- Positive action measures.
- School segregation.
The law on the right to equality and non-discrimination in certain areas such as: political, economic, cultural and social life. It cannot be addressed individually in the:
- Employment.
- Collective bargaining.
- Political organisations.
- Trade unions.
- Business organisations.
- Professional or of social or economic interest.
- Education.
- Health care.
- Social services.
- Supply of goods and services.
- Public safety.
- Administration of justice.
- Access to housing.
- Establishments and shows.
- Cultural and sporting activities.
Due to their novelty and the enormous importance they are acquiring in these times with respect to the subject we are dealing with, we highlight the sections dedicated to the:
- Media and advertising, internet and social networks, with a call for self-regulation and the promotion of a non-stereotypical image of different individuals and groups;
- Artificial intelligence and automated decision-making mechanisms, with attention to the criteria for minimising bias in the algorithms used, which should address their potential discriminatory impact.
Guarantees of Law
The law is particularly concerned with safeguards against any situation of discrimination. Non-compliance will give rise to administrative and, where appropriate, criminal and civil liability for damages. What is fundamental is the introduction of a specific regime of infringements and sanctions.
In broad terms, minor infringements: these would be formal irregularities of the law that do not generate or contain a discriminatory effect, nor are motivated by a discriminatory reason.
Serious would be acts of discrimination, retaliation, non-compliance with requirements that are not merely formal, or the third minor offence.
Very serious would be multiple discrimination, discriminatory harassment, pressure on authorities and officials, or the third serious offence.
Sanctions would be as follows:
- 300-10.000 Euro, for minor infringements
- 001-40.000 Euro, for serious infringements
- 001- 500.000 Euro, for very serious infringements
The law under analysis aims to place Spain among the states with the most effective and advanced institutions, instruments and legal techniques for equal treatment and non-discrimination. To this end, it also contemplates the promotion of the right to equal treatment and non-discrimination and positive action measures, and includes a whole title dedicated to care, support and information for victims of discrimination and intolerance, who should be the real protagonists of the law.
If you have any doubts about this issue, please do not hesitate to contact us, by telephone to Núria Martí García or by e-mail to nmg@btsasociados.com, we will be delighted to help you.