CMS Expert Guide on discrimination in the workplace in Italy

The main laws against discrimination in the workplace are as follows:

• Article 3 and Article 37 of the Italian Constitution;
• Articles 15 and 16 of Law No. 300 of 20 May 1970 'Workers' Statute';
• Legislative Decree No. 215 of 9 July 2003 "Implementation of Directive 2000/43/EC for equal treatment between persons irrespective of racial or ethnic origin";
• Legislative Decree No. 216 of 9 July 2003 "Implementation of Directive 2000/78/EC for equal treatment in employment and occupation";
• Art. 25, par. 2-bis, Art. 26 and Art. 35 of Legislative Decree No. 198 of 11 April 2006 "Equal Opportunities Code".

Discrimination is distinguished in the following ways: 

• Direct: when, by reason of the specific criterion considered, one person is treated less favourably than another in a similar situation; 
• Indirect: when an apparently neutral provision, criterion, practice, act, covenant or conduct may lead to a situation of particular disadvantage for certain categories of persons, by reason of the specific criterion considered.

The law expressly prohibits discrimination, directly or indirectly, based on gender, race or ethnic origin, religion, belief, disability age, sexual orientation, membership of trade unions, and participation in strikes.

Both employees and the self-employed (also coordinated and continuous collaborators and workers using digital platforms) are protected against any form of direct or indirect discrimination that is based on grounds prohibited by law.

Judicial protection

Pursuant to Article 28 of Legislative Decree 150/2011, discrimination disputes are governed by the summary process (i.e. a simplified case-handling model within the ordinary process).

Individual actions

In order to oppose any discriminatory behaviour and also for cases of victimisation (cf. Articles 36 and 41-bis, Legislative Decree No. 198/2006) employees may take legal action before the Employment Tribunal, either directly or by delegating the Equality Advisor 1 The Equality Advisor is the institutional figure who makes concrete and feasible those principles of equality, equal opportunity and respect for the dignity of the person contained in our constitutional charter and within the specific scope of the State's competencies.  to protect their rights. 

Collective actions

Pursuant to paragraphs 1-3, art. 37, Legislative Decree No. 198/2006, if the regional or national Equality Advisors (depending on the territorial relevance of the case) ascertain the existence of collective discrimination, even when it is not immediately identifiable who the workers affected by the discrimination are, before taking legal action may request the perpetrator of the discrimination to draw up a plan for the removal of the discrimination within a period not exceeding 120 days, after hearing, in the case of discrimination by the employer, the company trade union representatives or, in their absence, the local associations belonging to the most representative trade-union organisations at national level.

Sanctions

Failure to comply with the provisions contained in Articles 27, 28, 29 and 30 of Legislative Decree No. 198/2006 is punishable by a fine ranging from EUR 250 to EUR 1,500.

On 1 July 2022, the Prime Ministerial Decree on the 'Pink Stamp' (in Italian 'Bollino Rosa') was published, which specifies the policies to be adopted by companies to reduce the gender gap in employment and career advancement. The 'Bollino' also allows companies to obtain a contribution exemption and a bonus score in the awarding of contracts and state aid.

Therefore, private employers are encouraged to take positive action to counter discrimination. Such measures are aimed at removing obstacles that in fact prevent the realisation of equal opportunities within the scope of state competence, and aim to foster employment and achieve substantive equality.

In this regard, Article 43 of the Equal Opportunities Code specifies that positive actions can be promoted by the National Committee for the Implementation of the Principles of Equal Treatment and Equal Opportunities and by the Equality Advisors, the Equality and Equal Opportunities Centres at the national, local and company level, the Employment Centres, public and private employers, vocational training centres, and national and territorial trade union organisations.

D&I Policy is not a legal requirement but is a company's best practice.

Also, collective agreements may provide for further specific measures, including codes of conduct, guidelines and good practice, to prevent all forms of sex discrimination and, in particular, harassment and sexual harassment in the workplace, in working conditions, and in vocational training and development.

There are no direct risks, but a local D&I is recommended both to prevent litigation and to have, in the event of legal proceedings aimed at assessing potential discriminatory behaviour, evidence to build a strong defence in Court.

According to the Prime Ministerial Decree 'Bollino Rosa' (see above), employers are required to draw up an annual report reflecting the degree of compliance with the regulatory provision, to enable company trade union representatives and equality advisors to monitor and verify compliance with specific indicators.

As a general rule, employers may use particular information on their staff (i.e. sensitive profiles of the private life of their employees such as health; sexual habits; political, trade union, religious, philosophical or other beliefs; and racial and ethnic origin) if it is necessary to comply with the obligations of the legislation on the establishment and management of employment relationships, for training purposes and to grant economic benefits and other advantages.

Italian law No. 120 of 2011 requires listed companies and public companies to reserve one-third share of both the Board of Directors and Board of Auditors to the less represented gender within the company.

Please see above.