Anti-Discrimination Law in Switzerland

ANTI-DISCRIMINATION LAW IN
SWITZERLAND

Legal Memorandum

March 2013

Anti-Discrimination Law in Switzerland March 2013
EXECUTIVE SUMMARY
The purpose of this memorandum is to provide an overview of the structure
and content of anti-discrimination laws in Switzerland.

The Government of Switzerland has taken a sectoral approach to providing
anti-discrimination protections. Unlike European states that have passed a
comprehensive anti-discrimination law, Switzerland has promulgated a series of
laws that address discrimination within certain sectors of society. These laws are
based on the anti-discrimination clause of the Swiss Constitution, which outlines
the states commitment to non-discrimination, equality between men and women,
and protections for persons with disabilities. They include both civil and criminal
protections against discrimination, and many create federal bureaus with the
mandate of overseeing the implementation of the laws.

While this approach has allowed the government to target discrimination in
certain sectors, it has also come under criticism from the international community
for permitting gaps in protections against discrimination. Several international
organizations, including the United Nations and the Council of Europe, have found
that Switzerlands legislative protections fail to protect minority populations from
discrimination, and have called upon Swiss authorities to take steps to remedy
these deficiencies through, among other things, the passage of a comprehensive
anti-discrimination law.
TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Constitutional Protections 2

Legislative Protections 2
Criminal Liability 2
Civil Liability 3

Protective Agencies 4
Federal Commission Against Racism 5
Federal Service to Combat Racism 5

International Evaluation of Switzerlands Anti-Discrimination Protections 5

Conclusion 8


1
Statement of Purpose

The purpose of this memorandum is to provide an overview of the structure
and content of anti-discrimination laws in Switzerland.

Introduction

The Swiss confederation consists of twenty-six cantons, which are further
divided into political communes.
1
Based on the principle of subsidiarity, powers
are, as much as possible, allocated to the lowest level of government able to
properly administer.
2
All competencies not designated to the confederation by the
Constitution are left to the cantons.
3
Each canton has the exclusive power to
implement federal law (as set forth in Article 46 of the Constitution); draft its own
constitution (Article 51); determine the power of communes (Article 50); manage
education at all levels (Article 62); govern cultural matters (Article 69); govern
matters related to language (Article 70); and manage the church and state
relationship (Article 72). Accordingly, Swiss cantons and communes are
responsible for many areas relevant to combating discrimination.

The Swiss Constitution establishes the framework for anti-discrimination
protections by outlining the states commitment to non-discrimination, equality
between men and women, and protections for persons with disabilities. Swiss
legislation further codifies these protections, establishing civil and criminal rights
and remedies for discriminatory actions. Switzerlands federal anti-discrimination
legislation consists of several laws that seek to address discrimination against
groups with special needs including women, persons with disabilities, and
migrants. This sectoral approach to anti-discrimination law has allowed the Swiss
Government to prioritize particular protections and to address emerging social
issues. However, this approach also has opened the government up to criticism
from international observers, who have pointed out gaps in the laws, and have
called upon officials to consider the passage of a comprehensive anti-
discrimination law.
4

1
The Swiss Portal, Authorites in Switzerland, available at http://www.ch.ch/behoerden/00215/index.html?lang=en.
2
SWITZERLAND CONST. art. 5(a) (1999) available at http://www.servat.unibe.ch/icl/sz00000_.html; See also Arnold
Koller, Introduction to the Swiss Model of Federalism, 4 (2002), available at
http://www.forumfed.org/libdocs/IntConfFed02/ICFE0208-ch-Koller.pdf.
3
SWITZERLAND CONST. art. 3 (1999).
4
Commissioner Urges New Law Amid Rising Racism, swissinfo.ch (Feb. 23, 2012), available at
http://www.swissinfo.ch/eng/politics/internal_affairs/Commissioner_urges_new_law_amid_rising_racism.html?cid=
32177100.

2
Constitutional Protections

The Swiss Constitution establishes the framework for its anti-discrimination
protections by providing the basic principles for state and cantonal legislation. The
Constitution provides that everyone shall be equal before the law, and prohibits
discrimination on the basis of origin, race, gender, age, language, social position,
way of life, religious, ideological, or political convictions, or because of physical,
mental or psychological disability.
5
In addition, the Constitution recognizes the
need to promote equality and non-discrimination between men and woman and to
ensure that persons with disabilities are able to effectively participate in society.
6

The Constitution also provides that the authorities shall ensure that fundamental
rights, where appropriate, apply to relationships among private persons, thereby
establishing equality and non-discrimination as protections owed to individuals by
the state in both the public and private sectors.
7

Legislative Protections

While Switzerland does not have an overarching anti-discrimination law, it
has established a criminal and a civil legal framework for addressing
discrimination. Protections provided through criminal law seek to eliminate hate
speech and discriminatory provision of services to the public. Protections provided
through civil law seek to ensure equal access to employment and other
opportunities for groups with special needs. Civil protections are enforced through
federal bureaus aimed at overseeing the implementation and furthering the purpose
of federal legislation.

Criminal Liability

Criminal liability for discrimination protects against hate speech and
discriminatory denial of public services, and seeks to ensure equal and uninhibited
access of individuals to institutions and services intended for the public. The
Swiss Criminal Code prohibits all people from: (1) publicly expressing hate
speech; and (2) discriminatorily depriving another person of a service intended for
the public.
8
The prohibition on hate speech includes public incitement to hatred
or discrimination, the propagation of a racist ideology, the organization or
encouragement of acts of propaganda against a person or group of persons on

5
SWITZERLAND CONST. art. 8(1)-8(2) (1999).
6
SWITZERLAND CONST. art. 8(3)-8(4) (1999).
7
SWITZERLAND CONST. art. 35(3) (1999).
8
Criminal Code art. 261bis (Switzerland, 1937), available at www.admin.ch/ch/e/rs/3/311.0.en.pdf.

3
account of their race, ethnic origin or religion, and the fact of publically
disparaging or discriminating against these persons [].
9
Swiss courts have
described public as referring to acts that do not concern the family circle, a
circle of friends or particular personal relationships or relationships of trust.
10

The Criminal Code also forbids denying people a service intended for the public
due to their race, ethnicity, or religion. This protection applies to most
commercially offered services, such as restaurants and stores.

Civil Liability

A number of civil laws provide protections against discrimination on the
basis of protected characteristics. To implement these protections, federal laws
provide for the establishment of federal offices empowered to oversee
implementation and to publicly comment on ways in which protections can be
improved. For instance, the Federal Act on Gender Equality seeks to establish
equality between men and women by prohibiting discrimination against women in
employment.
11
The Act establishes the Federal Office for Gender Equality, which
oversees the implementation of the Act.
12
Similarly, the Federal Act on the
Elimination of Discrimination against Persons with Disabilities establishes
framework conditions for better integration of disabled persons in society.
13
The
Act also creates the Federal Bureau for the Equality of People with Disabilities to
oversee its implementation and to provide further guidance in expanding
protections for persons with disabilities.
14
The Foreign Nationals Act, the
Languages Act, and the Partnership Act provide protections for foreigners and
migrants, language communities, and LGBTI persons, respectively.
15

In addition, Swiss law provides a number of civil protections against racial
discrimination. Several provisions of Switzerlands Civil Code and Code of

9
Criminal Code art. 261bis (Switzerland, 1937), available at www.admin.ch/ch/e/rs/3/311.0.en.pdf.
10
Under this definition, the court determined that a closed meeting in the forest of 40-50 skinheads who belonged to
different groups was public. European Commission against Racism and Intolerance, ECRI Report on Switzerland
(Fourth Monitoring Cycle), 14 (Sept. 15, 2009), available at http://www.coe.int/t/dghl/monitoring/ecri/country-by-
country/switzerland/che-cbc-iv-2009-032-eng.pdf (citing ATF 130 IV 111 (May 27, 2004)).
11
Federal Act on Gender Equality (Gender Equality Act, GEA) of 24 March 1995, arts. 1-4 (Jan. 2011), available at
http://www.admin.ch/ch/e/rs/151_1/index.html.
12
Federal Act on Gender Equality (Gender Equality Act, GEA) of 24 March 1995, art. 16 (Jan. 2011), available at
http://www.admin.ch/ch/e/rs/151_1/index.html.
13
The Swiss Portal, Equality and Integration of Persons with Disabilities, available at
http://www.ch.ch/private/00045/00049/00622/00623/index.html?lang=en.
14
The Swiss Portal, Equality and Integration of Persons with Disabilities, available at
15
National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council
Resolution 5/1: Switzerland pars. 15-44, A/HRC/WG.6/2/CHE/1, 9 April 2008, available at http://www.upr-
info.org/IMG/pdf/A_HRC_WG6_2_CHE_1_E.pdf.

4
Obligations prohibit discrimination in employment and contractual relationships.
16

For instance, the Code of Obligations invalidates contractual clauses that
contravene public policy, morality or rights of personal privacy, or are
immoral.
17
The Code of Obligations also forbids the termination of a contract
based on an attribute pertaining to the person of the other party, unless such
attribute relates to the employment relationship or substantially impairs co-
operation within the business.
18
The Civil Code requires every individual to act
in good faith in the exercise of his or her rights and in the performance of his or her
obligations.
19
This good faith requirement precludes people from treating
individuals or groups differently without a reasonable and objective justification.
20

Similarly, the provisions of the Swiss Civil Code dealing with personality
rights, which protect an individuals dignity and reputation, have also been
interpreted to protect people from discrimination.
21
In a recent case, a black
woman was not hired as a caregiver because the employer claimed that her skin
tone might frighten the patients.
22
The Lausanne Labor Court found that this
discriminatory treatment amounted to a violation of the womans right to
personality.
23

Protective Agencies

Two Swiss institutions have been created to oversee the implementation of
protections against racial discrimination the Federal Commission Against Racism
and the Federal Service to Combat Racism.

16
Third Report Submitted by Switzerland Pursuant to Article 25, Paragraph 2 of the Framework Convention for the
Protection of National Minorities ACFC/SR/III(2012)001, para. 23 (Jan. 26, 2012), available at
http://www.coe.int/t/dghl/monitoring/minorities/3_fcnmdocs/PDF_3rd_SR_Switzerland_en.pdf.
17
Code of Obligations art. 19-20 (Switzerland 1911), available at http://www.admin.ch/ch/e/rs/2/220.en.pdf.
18
Code of Obligations art. 336 (Switzerland, 1911), available at http://www.admin.ch/ch/e/rs/2/220.en.pdf.
19
Swiss Civil Code of 1907 art. 1 (Switzerland 1907), available at http://www.admin.ch/ch/e/rs/2/210.en.pdf.
20
21
22
European Commission against Racism and Intolerance, ECRI Report on Switzerland (Fourth Monitoring Cycle),
16 (Sept. 15, 2009), available at http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/switzerland/che-cbc-
iv-2009-032-eng.pdf.
23
16 (Sept. 15, 2009), available at http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/switzerland/che-cbc-

5
Federal Commission Against Racism

The Federal Commission Against Racism, an extra-parliamentary
commission created following Switzerlands ratification of the Convention on the
Elimination of Racial Discrimination, monitors legislation, advises the executive
and legislative branches of government, raises public awareness of racism, and
promotes policies to advance equality. The Commission can also receive
complaints and provide information, support, and referrals to victims of
discrimination. In 2010, the Commission published a report that proposed
measures to strengthen Swiss anti-discrimination legislation in the area of racial
discrimination.
24
The Commission also co-runs the Consultation Network for
Victims of Racism, which monitors the frequency of racist incidents and makes
advice available to those affected by racial discrimination.
25

Federal Service to Combat Racism

The Federal Service to Combat Racism coordinates with federal, cantonal,
and communal partners to educate the public about racism and prevent racial
discrimination.
26
In 2009, the Service published a legal guide to racial
discrimination, and between 2010 and 2012 offered approximately 40 trainings on
legal remedies available in cases of racial discrimination.
27
The Service has also
supported a number of projects aimed at reducing discrimination against
foreigners, Travellers, and members of the Jewish community.
28

International Evaluation of Switzerlands Anti-Discrimination Protections

The international community has recognized the strides taken by the Swiss
Government to provide protections against discrimination. The international
community has also increasingly pinpointed gaps in these protections, however,

24
25
26
The Swiss Portal, Racism and Discrimination: Consultation, available at
27
Universal Periodic Review, National report submitted in accordance with paragraph 5 of the annex to Human
Rights Council reslution 16/2: Switzerland A/HRC/WG.6/14/CHE/1, par. 45 (Aug. 6, 2012), available at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G12/157/02/PDF/G1215702.pdf?OpenElement.
28
Protection of National Minorities ACFC/SR/III(2012)001, paras. 60, 66, 71 (Jan. 26, 2012), available at

6
which have led to a series of recommendations that Switzerland consider passing a
comprehensive anti-discrimination law.

In a 2012 review of human rights protections, the Council of Europe
Commissioner for Human Rights noted that despite the commendable results of
Switzerlands sectoral anti-discrimination efforts, such an approach leaves gaps in
the system, which can best be overcome through the adoption of a comprehensive
29
The Commissioner pinpointed specific areas in which
the sectoral approach was unable to provide adequate protections, noting that, for
example, the existing law and practice appear to fail to protect persons with
disabilities from discrimination in the workplace and to obligate private services
providers to adapt their services to the needs of persons with disabilities.
30

Similarly, the Committee on the Elimination of All Forms of Racial
Discrimination (CERD) noted that while the Convention [on the Elimination of
All Forms of Racial Discrimination] forms an integral part of the Swiss legal
system . . . the Committee remains concerned at the lack of comprehensive civil
and administrative legislation and policies to prevent and combat racial
discrimination in all areas, and at the fact that only 10 cantons, out of twenty-six,
have enacted anti-discrimination laws.
31
The Committee noted limited progress
in halting attacks on minority populations due to a widespread negative perception
of foreigners and minorities.
32
In particular, the Committee noted significant
discrimination against the Roma, Sinti, and Yenish communities in Switzerland,
particularly with regard to housing and education.
33
The Committee called upon
the state to adopt a national plan and legislation at all levels of Government
against racial discrimination, xenophobia, and other forms of intolerance.
34

29
Letter from the Council of Europe Commissioner for Human Rights to Federal Councillor Didier Burkhalter,
Head of the Swiss Federal Department of Foreign Affairs, CommDH(2012)19/28 March 2012 par. 7 (Mar. 12,
2012), available at https://wcd.coe.int/ViewDoc.jsp?id=1926283.
30
Letter from the Council of Europe Commissioner for Human Rights to Federal Councillor Didier Burkhalter,
Head of the Swiss Federal Department of Foreign Affairs, CommDH(2012)19/28 March 2012 par. 11 (Mar. 12,
2012), available at https://wcd.coe.int/ViewDoc.jsp?id=1926283.
31
Consideration of Reports Submitted by States Parties under Article 9 of the Convention, Concluding Observations
of the Committee on the Elimination of Racial Discrimination: Switzerland, CERD/C/CHE/CO/6 par. 9 (Sept. 23,
2008, available at http://www2.ohchr.org/english/bodies/cerd/docs/co/CERD.C.CHE.CO.6.pdf.
32
2008, available at http://www2.ohchr.org/english/bodies/cerd/docs/co/CERD.C.CHE.CO.6.pdf.
33
Amnesty International, Amnesty International Report: Switzerland (2009), available at
http://report2009.amnesty.org/en/regions/europe-central-asia/switzerland.
34
2008, available at http://www2.ohchr.org/english/bodies/cerd/docs/co/CERD.C.CHE.CO.6.pdf

7
The Migrant Integration Policy Index, which measures the strength of anti-
discrimination frameworks, ranks Switzerland second to last among thirty-one
states in Europe and North America with regard to protections against
discrimination.
35
It also found that, due to weak legal protections, residents
encounter discrimination on many grounds in their daily life without
consequences.
36
One particular problem is the narrowness of the criminal code,
which prohibits only discrimination based on race, ethnicity and religion.
37
In one
case, a prosecutor declined to pursue a case in which nationals of the Balkans
had been refused entrance to a nightclub, because nationals of the Balkans cannot
be classified in a religious group or race and do not meet the definition of an ethnic
group.
38
In another case, a restaurant refused service to Albanians and former
Yugoslavs. The judge accepted the classification of Albanian as an ethnicity, but
rejected the claim regarding former Yugoslavs.
39

Switzerlands 2008 Universal Periodic Review process, conducted before
the UN Human Rights Council, addressed a number of issues pertaining to the
improvement of anti-discrimination legislation. The Working Group and
participant states all noted that Switzerland had made great strides in protecting its
population against discrimination, but that these steps had not yet eliminated
problems of racism, xenophobia, and gender discrimination.
40
In its
recommendations, the Netherlands called upon Switzerland to promulgate federal
legislation to provide protection against all forms of discrimination, including on
the grounds of sexual orientation and gender identity.
41

To date, Switzerlands legal protections against discrimination remain
fragmented. In Switzerlands 2012 Universal Period Review, stakeholders

35
Migrant Integration Policy Index, Anti-Discrimination (2010), available at http://www.mipex.eu/anti-
discrimination.
36
Migrant Integration Policy Index, Switzerland (2010), available at http://www.mipex.eu/switzerland.
37
8, 14 (Sept. 15, 2009), available at http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/switzerland/che-
cbc-iv-2009-032-eng.pdf.
38
14 (Sept. 15, 2009), available at http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/switzerland/che-cbc-
39
14 (Sept. 15, 2009), available at http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/switzerland/che-cbc-
40
Universal Periodic Review, Report of the Working Group on the Universal Periodic Review: Switzerland
A/HRC/8/41 par. 10 (May 28, 2008), available at
http://lib.ohchr.org/HRBodies/UPR/Documents/Session2/CH/A_HRC_8_41_Switzerland_E.pdf.
41
Universal Periodic Review, Report of the Working Group on the Universal Periodic Review: Switzerland
A/HRC/8/41 par. 57(18) (May 28, 2008), available at
http://lib.ohchr.org/HRBodies/UPR/Documents/Session2/CH/A_HRC_8_41_Switzerland_E.pdf.

8
observed that some individuals and specific groups were exposed to
discrimination because they were not specifically protected and did not have the
specific legal instruments to claim their rights.
42
In particular, employment
discrimination due to HIV/AIDS is on the rise and LGBTI persons still face
discrimination.
43
Again, Switzerland was called upon to adopt federal legislation
to provide protection against all forms of discrimination, including on grounds of
sexual orientation and gender identity.
44

Conclusion

Switzerlands sectoral approach to anti-discrimination law has permitted the
state flexibility in addressing issues and adapting to the needs of the population.
The Constitutions anti-discrimination clauses establish the framework for this
approach, providing the underlying principles on which anti-discrimination laws
are based. These principles are codified in criminal and civil laws, which provide
rights and remedies for discriminatory action and establish federal bureaus to
oversee their implementation. While these laws have allowed Switzerland to
protect the rights of certain segments of the population, the international
community has noted gaps in this legislation that have allowed discriminatory
practices to continue, and has called upon the government to pass a comprehensive

42
Universal Period Review, Summary of Working Group Report on the Universal Periodic Review: Switzerland
A/HRC/22/x, available at http://arc-international.net/global-advocacy/universal-periodic-review/s/switzerland-2nd-
cycle.
43
cycle.
44
cycle.

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