Under Austrian law employers are not bound by the constitutionally guaranteed principle of equality before the law (Gleichheitssatz). They are, however, subject to the general principle of equal treatment in working life (Gleichbehandlungsgrundsatz), which has been developed by case-law and carries (at least in essence) quasi-legal force. This principle is formulated by the courts as follows: “It is forbidden for the employer, without objective grounds, to treat a particular employee or group of employees less favourably than other employees”. It is interpreted as prohibiting employers from applying discriminatory treatment against a minority of employees without objective justification. If an employer is actually applying less favourable terms and conditions of employment to particular employees, they can take legal action on the basis of the case-law on equal treatment and specifically invoke the difference between, for example, benefits paid to themselves and those paid to other employees. The general principle of equal treatment is mainly viewed in terms of discretionary supplementary payments and company benefits provided by the employer (such as special bonuses or occupational pensions). Whether it is also applied to contractually agreed employment conditions is, however, a matter of debate. It can be assumed, at least, that the principle applies to core employment conditions. Case-law restricts the circle of individuals who can be included in the comparison to (comparable) employees within the same establishment. Comparison with employees in other establishments is included only in special circumstances.
Equal treatment for men and women
A distinction must be made between the general principle of equal treatment as discussed above and the particular obligation to apply the principle of equal treatment for men and women at work (Gleichbehandlungsgebot) explicitly laid down in the Equal Treatment for Men and Women Act (Gleichbehandlungsgesetz). This prohibits any direct or indirect discrimination against an individual on the ground of sex as regards the formation of an employment relationship, the determination of pay, the award of discretionary company benefits, training and further-training schemes, promotion, all other employment conditions and termination of the employment relationship. The Act classes as discrimination any form of prejudicial differentiation which is not justified on objective grounds. Sexual harassment (sexuelle Belästigung) also counts as sex discrimination. The penalties prescribed for infringements of anti-discrimination law include the following: as regards hiring, compensation for the applicant amounting to two months' pay; as regards promotion, compensation limited to the difference over four months between the pay that would have been received in the event of promotion and the employee's current pay; and as regards the continued payment of remuneration, payment of the difference involved. On the burden of proof, the rule applied runs as follows: “Where in a dispute the employee or applicant alleges an instance of discrimination, he or she must establish its existence. Such a claim will be dismissed if, when all the circumstances are weighed up, it is deemed more probable that some other reason established by the employer underlay the differential treatment concerned or the other sex is an essential qualification for the type of work concerned.” Special rules on compensation have been issued in regard to cases of sexual harassment, in which the general rule on the burden of proof applies. Victims of sex discrimination are not only able to pursue claims through the courts but can also (as an alternative) refer the matter to the Equal Opportunities Commission (Gleichbehandlungskommission) or the Equal Opportunities Ombudswoman (Anwältin für Gleichbehandlungsfragen). The latter has general responsibility for advising and supporting individuals who feel that they are victims of sex discrimination, and in particular she can establish contact with the employer concerned or enlist the services of the Equal Opportunities Commission. The Commission itself is responsible for dealing with all issues relating to discrimination and with instances of non-compliance with the obligation to apply equal treatment for men and women at work. In particular, it has the task of providing expert opinions on aspects of the infringement of that obligation.
The legislators have imposed a special obligation to apply equal treatment for men and women at work in relation to occupational pension schemes. The situation is, however, different as regards the parties to collective agreements: although they are not bound by the general principle of equal treatment in working life, they are bound by the constitutional principle of equality before the law and by the explicit provisions of the Equal Treatment for Men and Women Act.