Job offers by companies must avoid all possible discrimination. This not only helps to safeguard equal treatment in the organization, but also avoids possible fines.
Even now in 2020, we often find job offers that do not guarantee a minimum principle of equal treatment and which are therefore discriminatory according to labor legislation: “Job vacancy for person with an associate’s degree in social education. Sex male.” Or: “Currently recruiting for a hairdresser, without dependent family members either at present, or in the future”. These are just some examples of the job offers published in the press that discriminate on the basis of gender or marital status.
Reviewing the language used in a job offer is crucial, not only to attract the professional profiles we are looking for, but also to avoid discrimination that could lead to a fine.
A labor court in Toledo recently confirmed a fine of 6,251 euros imposed on a company by the labor and social security inspection authorities due to the publication of the following job offer: “Young men required between the age of 25 and 30 to work as estate agents”. According to the company, the offer was worded in this way to avoid hiring women, following a conflict with a previous employee. The court naturally ruled that the publication clearly infringed the right of workers not to be discriminated against in employment for reasons of age and gender.
Discrimination in access to employment is classified independently in the Labor and Social Security Infringements and Penalties Law, since it is considered a very serious infringement to establish discriminatory conditions on access to employment due to gender, origin, age, marital status or disability, among others. As a result, businesses can be punished with fines ranging from 6,251 euros to 187,515 euros, in the most flagrant cases.
Regarding gender in access to a job position, the Law on Effective Gender Equality, establishes that equal treatment and opportunities must be guaranteed in access to employment, although it introduces the possibility of making a distinction by gender when, due to the nature of the activity to be pursued or the context in which it will be carried out, gender is essential and decisive.
However, it is not always easy to find situations in which directing a job offer only at men or women is clearly justified. Case law tends to admit as possible reasons to justify choosing one sex rather than another, cases involving image – a model for example – or in delicate situations – such as workers in lingerie stores. However, the law does not establish any specific cases in which this distinction is possible, which means that it is necessary to interpret whether the offer published is reasonable.
Consequently, given this lack of definition in the law, it is essential to review our business’s recruitment process from the standpoint of equality, not just to avoid a fine, but also to safeguard equal treatment in our organization.
Garrigues Employment & Labor Law Department
