The prohibition of discrimination on grounds of sex against workers laid down in the Equal Treatment Act does not apply to discrimination on grounds of sexual orientation. The Federal Supreme Court decided.
The specific case concerns a homosexual man who, in 2015, entered into a fixed-term contract with a defense group. The man was the commander of the unit with another training function. A year later he asked for the same thing, again offered military service. His contract was not renewed.
The Swiss army justified inaction so that the advertised entity only existed until the end of 2016. The complainant requested a court order. He claimed he was not hired for his sexual orientation. The defense group denied discrimination.
Complaints only in case of gender discrimination
The person initially appealed to the Federal Administrative Court against the decision, but without success. In a judgment published on Tuesday, the Federal Court dismissed a man's complaint.
In its decisions, the Federal Court states that applicants for a federal office are generally not entitled to a revocable decision in the event of failure to act. An exception to this principle, however, would be if discrimination were applied under the Equal Treatment Act.
Women can also be "homosexuals"
If a person is treated unequally based on gender, the discriminatory law provides for direct discrimination. The same applies if the inequality of treatment is based on a criterion that can only be met by a man or a woman.
Homosexuals who claim to be discriminated on the basis of their sexual orientation cannot rely on the Equality Act, as stated by the Federal Supreme Court. The reason for this is that homosexuality is not gender-based because women and men can be homosexuals.
It would be different if, however, they were discriminated against only or predominantly of the same sex because of homosexuality. (SDA)
(Judgment 8C_594 / 2018 of 05.04.2019)