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11 September 2019
Under the Marriage Act, which applied until 1988, husbands had the status of legal head of the family and married women required their husband's consent to accept paid employment. Added to the fact that women's voting rights were not introduced in Switzerland until 1971, the country is arguably among the more conservative in Europe when it comes to gender equality.
Since 1981, the Federal Constitution has guaranteed equal wages for men and women who carry out similar work; however, a wage disparity exists that arguably cannot be explained by anything other than gender. For example, according to recent data from the Federal Statistical Office, women earned on average 19.6% less than men in the private sector in 2016.(1)
According to prevailing opinion, the gender pay gap is a result of a division of labour in households. Thus, before becoming a parent, men tend to assume paid work positions and continue to develop their job-specific skills, while women opt for occupations that are compatible with child-rearing and home economics and which thus require less intensive training. Once their children are born, mothers tend to spend more time at home, gain less work experience and have shorter working hours, which ultimately reduces the likelihood of promotion and salary increases. Consequently, the gender pay gap cannot be explained by employers' discrimination against women, but by the different investments that women and men make in gainful employment and the household.
According to the Federal Statistical Office, almost half of the pay disparity between men and women is unaffected by factors such as education, number of years of service and management functions, which begs the question of whether gender plays a significant role.
Sociologists from the universities of Lausanne and Munich examined the renumeration rates of 20 to 30-year-olds in Switzerland (ie, individuals who had yet to prioritise parenthood).(2) The data suggested that, long before they have children, young women earn lower wages than young men with comparable skills and occupations. The study found an inexplicable gender pay gap of between 3% and 6%. Converted to annual wages, this means that young women lose half a month's salary each year compared with young men.
The revised Federal Act on Gender Equality, which enters into force on 1 July 2020, aims to remedy this situation. Under the new regime, companies with 100 or more employees will be obliged to carry out an internal wage equality analysis every four years. The Federal Government will provide all employers with a free standard analysis tool based on a scientific and legally recognised methodology. The rationale behind the revision is for companies to eliminate gender inequalities voluntarily.
The Swiss Parliament has implemented a sunset clause which limits the validity period of the obligation to analyse wage equality to 12 years. Therefore, the revision of the Federal Act on Gender Equality and the associated ordinance will automatically expire on 1 July 2032.
Wage equality analyses will be checked by an independent body (ie, an auditing company or employee representative body). After the audit, the auditing body will generate a wage equality analysis report.
The revised Federal Act on Gender Equality is silent on the penalties for employers that fail to conduct a wage equality analysis (in violation of the law) or fail to respond if a gender pay gap is identified. In the latter case, the employer will have their wage structure reviewed every four years until the wage inequality is remedied.
The symbolic effect of the new law should not be underestimated. Employers will be obliged to report (in writing) the results of all wage analyses to their employees and shareholders of companies listed on the stock exchange. This will put gentle pressure on companies to voluntarily remedy any gender pay gaps.
Although the revision applies only to companies with more than 100 employees – just 0.9% of the companies in Switzerland – in theory, around 46% of employees in Switzerland can benefit from this new regulation.
Employees who commence legal proceedings against their employer for wage discrimination will be able to submit the results of wage equality analyses to the courts as important evidence to substantiate any discrimination. Historically, women who have brought lawsuits before the courts have faced additional risks compared with men. As a result, many women shy away from wage disputes before the courts to avoid (for example) conflicts of loyalty with their employer on the one hand and fear of losing their job and facing further discrimination on the other.
While the revised Federal Act on Gender Equality will undoubtedly raise awareness of gender pay inequality, it is unlikely to resolve wage disparities in the short term and could be improved with greater penalties for discriminatory employers. The new law's effectiveness will be tested after the first round of internal wage equality analyses have been carried out (ie, by the end of June 2021 at the latest).
For further information on this topic please contact Hasret Mutlu at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email (email@example.com). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.
(1) For further details please see here.
(2) Benita Combet and Daniel Oesch, 'The Gender Wage Gap Opens Long before Motherhood. Panel Evidence on Early Careers in Switzerland,' European Sociological Review, Volume 35, Issue 3, June 2019, pp 332-345. Available here.
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