LGBT protection in Spanish workplaces lacks guidance from authorities

The president’s cabinet recently agreed to urgently process the draft version of a specific Royal Decree aimed at providing guidance on how to implement measures to ensure equality for LGBTQ+ employees. The new legislation responds to the pressing need to provide clarity on the obligations of companies to foster LGBTQ+ protection and a safe working environment for all employees.

According to the Spanish Company Network for LGBTI Diversity and Inclusion (4 pages / 208 KB), only 38% of the LGBTQ+ community in Spain can freely express themselves in a working environment. In the workforce under 30 this figure is 28%. Some people reported being made fun of, being subject to denigratory comments, rumours, insults, and even physical violence in some cases.

There are also other, less obvious factors affecting LGBTQ+ employees. This includes bias and excessive and discriminatory control over their performance, impairing not only physical integrity but prospects of a successful professional career.

However, the measures potentially clash with existing fundamental rights to physical and moral integrity, as well as to privacy, self-image and honour.  This is because they may require a person to make their sexual orientation or gender expression known to activate protection. This clashes with the express obligation of employers to observe strict confidentiality and respect for privacy and dignity in any claim of unlawful behaviour.

The final text of the Royal Decree requires more detail as to how these measures for equality will work in line with existing protections.

There are no major developments in relation to the real and effective equality of transgender people. However, there are several relevant elements to watch out for. For instance, employers must set up a negotiating committee for the preparation of a protocol. The protocol must be carried out within three or six months as from the date in which the Royal Decree is put in place. The negotiation must include a protocol to protection against harassment and violence as well as preventive practices for related harmful behaviours.  

Companies must demonstrate commitment to stamp out LGBTQ+ discriminatory practice. The scope of protection will include the families of members of the LGBTQ+ community, in addition to third parties outside the scope of the organisation – such as suppliers, customers or visitors – who could claim to be victims of such discrimination.

The legislation body has given a hand to those companies which already include measures to protect the LGBTQ+ community in their existing equality plans and harassment prevention protocols. Thus, a kind of validation of these already existing measures is articulated, as long as they have been developed and implemented with the detail and extension that are now required.

There is no requirement for firms to move away from approach developed in line with the gender equality plan. Instead, the approaches taken may need tweaked to ensure additional protections.

Spain's status as a pioneer in the establishment of public policies for the protection of the LGBTQ+ community is evident. These gender issues will lead not only to the development of mandatory plans and protocols, but also to a profound review of all employers' policies.

Particularly significant will be the issue of attending cases of changes of name and registered sex within the workplace, the adaptation of policies and spaces for employees in the process of gender transition, the use of toilets for sexually and gender-oriented diverse employees, changing rooms or showers according to the chosen gender and not according to the sex of birth, or internal guidelines on uniforms differentiated according to gender expression. No less important will be the obligations to adapt jobs and working hours for people who are in transitional processes from men to women or vice versa.

These issues have already begun to arise in Spanish workplaces. In one recent case, an employee naturally exhibited constant changes in clothing traditionally attributable to different sexes. The employer managed to demonstrate that its decision to terminate his employment agreement was not caused by these issues of changes of clothing, but by employee underperformance.

The fact is the new legislation, and its expected regulatory developments, will correct certain legislative challenges that the judiciary has been facing in multiple decisions. The most relevant is the lack of a normative definition of what could be understood by ‘transgender’, or related terms such as ‘intersexuality’, ‘gender expression’, an ' LGBTQ+ family’, ‘biphobia’ or ‘transphobia’.

Previous regulations were already sufficient to protect trans employees in the field of labour relations. However, this new regulation has undoubtedly reinforced the preventive and original protection in the workplace that the claimant worker may not have enjoyed.