ItalyLegislative Decree 216/2003, equal treatment in employment and working conditions
Decreto legislativo 9 luglio 2003, n. 216, artt. 2-5
In force since .
An AI sector rules rule binding public and private bodies.
- Criminal exposure
- No
- Private right of action
- Yes
- Obligation class
- Prohibition
- Audit expectation
- none
What it requires
- Do not treat workers or applicants less favourably than others in a comparable situation because of religion, personal convictions, disability, age, nationality, or sexual orientation, and do not apply a seemingly neutral provision, criterion, practice, act, agreement, or conduct that puts persons with one of those characteristics at a particular disadvantage (art. 2, comma 1).
- Do not harass anyone on those grounds through unwanted conduct that violates a person's dignity and creates an intimidating, hostile, degrading, humiliating, or offensive climate, and do not order anyone to discriminate (art. 2, commi 3 and 4).
- Apply the equal treatment principle to access to employment and work, including selection criteria and hiring conditions, and to employment and working conditions, including career advancement, pay, and dismissal, in both the public and private sector (art. 3, comma 1).
- Be able to show that an indirectly discriminatory difference of treatment is objectively justified by a legitimate aim pursued through appropriate and necessary means (art. 3, comma 6).
- If you are an employer, adopt reasonable accommodations for workers with disabilities in the workplace (art. 3, comma 3-bis).
- Do not take detrimental action against a person harmed by discrimination, or against anyone else, as a reaction to activity aimed at obtaining equal treatment (art. 4-bis).
These lines are LexLint's reading of the law's text.
Who enforces it
Enforcement body
The ordinary civil court (tribunale) of the place where the claimant is domiciled, which hears discrimination claims under Article 28 of Legislative Decree 150/2011 as Article 4, comma 2 provides; trade unions and representative associations may sue for the person harmed (Article 5).
Settledness
- As of
- Open questions
- Does 'convinzioni personali' in Article 2, comma 1 cover trade-union activity such as joining a strike, which the Bologna labour court held it does in its order of , following a ruling of the Court of Cassation?
- Does 'una disposizione, un criterio, una prassi, un atto, un patto o un comportamento apparentemente neutri' in Article 2, comma 1, lettera b) reach an automated scoring or ranking system that treats every absence the same whatever its cause?
- What must an employer show under Article 3, comma 6 ('giustificate oggettivamente da finalità legittime perseguite attraverso mezzi appropriati e necessari') to justify an algorithmic criterion that disadvantages workers with a protected characteristic?
What record it asks for
Logging duty
Articles 2 to 5 define discrimination and the equal treatment principle, set its scope, route civil proceedings to Article 28 of Legislative Decree 150/2011 and give unions and associations standing to sue. None of them states a duty to create, keep or produce a log or record.
- Kind
- None
- As of
What this law does
The decree implements Directive 2000/78/EC and defines the principle of equal treatment as the absence of any direct or indirect discrimination on grounds of religion, personal convictions, disability, age, nationality, or sexual orientation. Direct discrimination occurs when, on one of those grounds, a person is treated less favourably than another is, has been or would be treated in a comparable situation.
Indirect discrimination occurs when a seemingly neutral provision, criterion, practice, act, agreement, or conduct can put persons with one of those characteristics at a particular disadvantage compared with other persons. Harassment, meaning unwanted conduct that aims or has the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating, or offensive climate, and an order to discriminate are also treated as discrimination.
The principle applies to all persons in the public and private sectors in access to employment and work, including selection criteria and hiring conditions, and in employment and working conditions, including career advancement, pay, and dismissal. A difference of treatment that is indirectly discriminatory is not discrimination where it is objectively justified by legitimate aims pursued through appropriate and necessary means.
Public and private employers are required to adopt reasonable accommodations for workers with disabilities. Civil proceedings against discriminatory acts and conduct are governed by article 28 of Legislative Decree 150/2011. The judicial protection also applies against any detrimental conduct towards the person harmed, or any other person, as a reaction to activity aimed at obtaining equal treatment.
Trade unions, associations, and organisations representing the right or interest harmed may bring the action, on delegation, in the name of or in support of the person discriminated against. They may also bring the action in cases of collective discrimination where the persons harmed cannot be directly and immediately identified.
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