He article 14 of the 1978 Constitution proclaims the right to equality and non-discrimination, citing birth, race, sex, religion or opinion as especially objectionable reasons, and prohibiting discrimination based on any other personal or social circumstance. Furthermore, the second paragraph of article 9 establishes the obligation of public powers to promote the conditions and remove obstacles so that the equality of the individual and the groups in which they are integrated is real and effective. Thus, non-discrimination is constituted as a complement to the right to equality and as a guarantee of the enjoyment of all fundamental rights and public freedoms. Its immediate connection with the dignity of the person, one of the foundations, according to the article 10 of the Constitution, of political order and social peace, also expresses the necessary nature of equality as an essential element for the construction of an increasingly just society.
This law aims to become the minimum common normative that contains the fundamental definitions of Spanish anti-discrimination law and, at the same time, houses its basic guarantees, aware that, in its current state, the difficulty of the fight against discrimination lies not so much in the recognition of the problem as in the real and effective protection of the victims.
It aims to place the guarantee of equality and non-discrimination in its rightful place, to place Spain among the States in our environment that have the most effective and advanced legal institutions, instruments and techniques for equal treatment and non-discrimination.
The law pursues a double objective: prevent and eradicate any form of discrimination and protect the victims, trying to combine the preventive approach with the reparative approach, which also has a general training and prevention sense. To this end, the articulated text is characterized by three notes: it is a law of guarantees, which does not aim so much to recognize new rights as to guarantee those that already exist,a general law against sectoral laws, which operate as general legislation to protect against any discrimination and a comprehensive law, regarding the reasons for discrimination, as reflected in its Preliminary Title, which establishes the objective and subjective areas of application.
The law is structure in a Preliminary Title, which includes its object and subjective and objective scope of application, and five Titles.
In it article 1, it establishes the object of the Law:
"1. The purpose of this law is to guarantee and promote the right to equal treatment and non-discrimination, respecting the equal dignity of people in accordance with articles 9.2, 10 and 14 of the Constitution.
2. For these purposes, the law regulates the rights and obligations of persons, natural or legal, public or private, establishes principles of action of public powers and provides for measures aimed at preventing, eliminating, and correcting all forms of discrimination, direct or indirect, in the public and private sectors.
In it article 2 It is established that for the purposes of this law the following will be understood to be included in the public sector:
“e) the institutional public sector, in the terms established in article 2.2 of the Law of Common Administrative Procedure of Public Administrations, and contains measures related to the right to equal treatment and non-discrimination in employed employment, which are applicable to both the public and private sectors.”
In it article 9 The right to equal treatment and non-discrimination in employed employment is established, determining in section 4 and 6:
"4. The Labor and Social Security Inspection, in the terms provided in the applicable regulations, must particularly ensure respect for the right to equal treatment and non-discrimination in access to employment and working conditions.
To this end, in the exercise of its function of monitoring and demanding compliance with social standards, the Labor and Social Security Inspection will include in its annual integrated action plan as a general objective, the development of specific plans on equal treatment and non-discrimination in access to employment and working conditions.
Likewise, in work centers and military establishments this work will be carried out by the competent organizations of the Ministry of Defense. In the field of public employment, it will be carried out by the general inspection of services and the equivalent bodies of the autonomous communities.
"6. By regulation, employers whose companies have more than 250 workers may be required to publish the salary information necessary to analyze the factors of salary differences, taking into account the conditions or circumstances of article 2.1" (The right of everyone to equal treatment and non-discrimination is recognized regardless of their nationality, whether they are minors or adults or whether or not they enjoy legal residence. No one may be discriminated against due to birth, racial or ethnic origin, sex, religion, conviction or opinion, age, disability, sexual orientation or identity, gender expression, illness or health condition, serological status and/or genetic predisposition to suffer pathologies and disorders, language, socioeconomic situation, or any other personal or social condition or circumstance).
In it article 11 The right to equal treatment and non-discrimination in self-employment is established.
He article 15 establishes the right to equal treatment and non-discrimination in health care.
In it article 19 The right to equal treatment and non-discrimination in the administration of justice is established.
"1. The public powers, within the scope of their respective powers, will ensure the suppression of stereotypes and promote the absence of any form of discrimination in the administration of justice due to the causes provided for in this law.
2. Public administrations will promote information and accessibility to justice for especially vulnerable groups according to the causes established in this law.”
He article 28 determines the judicial protection of the right to equal treatment and non-discrimination.
“Judicial protection against violations of the right to equal treatment and non-discrimination will include, in the terms established by procedural laws, the adoption of all necessary measures to put an end to the discrimination in question and, in particular, those aimed at the immediate cessation of discrimination, and may agree to the adoption of precautionary measures aimed at preventing imminent or subsequent violations, compensation for damages caused and the restoration of the injured person in the full exercise of their right, regardless of their nationality, whether they are adults or minors or whether or not they enjoy legal residence.”
In it article 30 The rules relating to the burden of proof are established.
"1. In accordance with the provisions of the procedural and regulatory laws of administrative procedures, when the plaintiff or the interested party alleges discrimination and provides well-founded evidence of its existence, it will be up to the defendant or to whom the discriminatory situation is attributed to provide an objective and reasonable justification, sufficiently proven, of the measures adopted and their proportionality.
2. For the purposes of the provisions of the first paragraph, the judicial or administrative body, ex officio or at the request of a party, may obtain a report from the public bodies competent in matters of equality.
3. The provisions of the first section will not apply to criminal proceedings or administrative sanctioning procedures, nor to the measures adopted and the procedures processed under the rules of organization, coexistence and discipline of educational centers.
In it article 31 administrative action against discrimination is determined.
In it article 37 Regarding subsidies and contracting, it is established:
"1. Public administrations, in the strategic subsidy plans that they adopt in the exercise of their powers, will determine the areas in which their regulatory bases must include the assessment of actions for the effective achievement of equal treatment and non-discrimination by the requesting entities.
2. Public administrations, within the scope of their respective powers, through their contracting bodies and in relation to the execution of the contracts they enter into, may establish special conditions in order to promote equal treatment and non-discrimination and will encourage the inclusion of qualitative criteria in public procurement that facilitate the participation of members of vulnerable groups among the people assigned to the execution of the contract, in accordance with the provisions of the public sector contract legislation.
3. In accordance with the legal system, public administrations will not subsidize, subsidize or provide public aid to those natural or legal persons, public or private, sanctioned by a final administrative resolution for any of the infractions classified as very serious, in the terms and deadlines provided for in Title IV of this law.
4. Under no circumstances may public administrations grant aid that aims to carry out an activity or fulfill a purpose that threatens, encourages or tolerates practices classified as infractions in Title IV of this law.
5. In order to comply with the provisions of this article, the department responsible for equality will create a database to monitor and verify compliance with the sanctions provided for in this article.
In it article 40 The creation of the Independent Authority for Equal Treatment and Non-Discrimination is established as an independent authority in charge of protecting and promoting equal treatment and non-discrimination of people due to the causes and in the areas of State jurisdiction provided for in this law, both in the public and private sectors. In the first additional provision It is established that within the period of six months From the entry into force of this law, the Independent Authority for Equal Treatment and Non-Discrimination will be integrated into the functions, entities, organizations and administrative services assigned to the General Administration of the State that are determined by Royal Decree, approved with the authorization of the Ministries of Economic Affairs and Digital Transformation and Finance and Public Service, with the prior approval of the Ministry of the Presidency, Relations with the Courts and Democratic Memory. Within the period of six months From the entry into force of this law, the Government, at the initiative of the Independent Authority for Equal Treatment and Non-Discrimination, and at the proposal of the Ministries of the Presidency, Relations with the Courts and Democratic Memory, Economic Affairs and Digital Transformation, Treasury and Public Service, Territorial Policy and Social Rights and Agenda 2030, will approve, by Royal Decree, the Statute of the Independent Authority. Within one year of its constitution, the Independent Authority for Equal Treatment and Non-Discrimination will present to the Department responsible for equal treatment a proposal for the constitution of a Documentation and Memory Center on Discrimination, Hate and Intolerance.
In the fourth additional provision It is determined that the provisions of this law are understood without prejudice to the regulation established in Organic Law 4/2000, of January 11, on the rights and freedoms of foreigners in Spain and their social integration and in its implementing regulations.
The fifth additional provision determines compliance with the provisions set forth in the Comprehensive Law for equal treatment and non-discrimination in matters of collective and labor bargaining.
In the single transitional provision The Transitional Regime of Procedures is established, noting that the same will not apply to administrative and judicial procedures already initiated prior to the entry into force of this law, being governed by the previous regulations.
The second final provision determines:
- the modification of article 11 bis of Law 1/2000, of January 7, on Civil Procedure regarding the legitimacy for the defense of the right to equal treatment and non-discrimination.
- Section 5 of article 217 of Law 1/2000, of January 7, on Civil Procedure, is modified in the following terms:
“5. In those processes in which the plaintiff alleges discrimination and provides well-founded evidence of its existence, it will be up to the defendant to provide an objective and reasonable justification, sufficiently proven, of the measures adopted and their proportionality.
For the purposes of the provisions of the previous paragraph, the judicial body, ex officio or at the request of a party, may obtain a report from the public bodies competent in matters of equality.
- Section 3 of article 222 of Law 1/2000, of January 7, on Civil Procedure, is modified in the following terms:
”3. Res judicata will affect the parties to the process in which it is issued and their heirs and successors in title, as well as the subjects, non-litigants, holders of the rights that support the legitimacy of the parties in accordance with the provisions of articles 11 and 11 bis of this law.
In rulings on marital status, marriage, filiation, paternity, maternity and incapacity and reintegration of capacity, res judicata will have effects against third parties from its registration or annotation in the Civil Registry.
The rulings issued on challenging corporate agreements will affect all partners, even if they have not litigated.”
In thed isposition third final s and establish modifications to Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction.
- Letter i) of article 19.1 of Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction, now has the following wording:
“i) To defend the right to equal treatment and non-discrimination and intolerance, in addition to the affected persons and always with their authorization, the Independent Authority for Equal Treatment and Non-Discrimination will also be legitimized, as well as, in relation to persons affiliated or associated with them, political parties, unions, professional associations of self-employed workers, organizations of consumers and users and legally constituted associations and organizations that have among their purposes the defense and promotion of human rights, in accordance with the provisions of the Comprehensive Law for Equal Treatment and Non-Discrimination.
When the affected persons are an indeterminate plurality or one that is difficult to determine, the legitimacy to initiate judicial actions in defense of diffuse rights or interests will correspond to the Independent Authority for Equal Treatment and Non-Discrimination, to the most representative political parties, unions and professional associations of self-employed workers, as well as to the organizations of consumers and users at the state level, and to the organizations, at the state or territorial level in which the situation of discrimination occurs, that have Among its purposes is the defense and promotion of human rights, in accordance with the provisions of the Comprehensive Law for Equal Treatment and Non-Discrimination, without prejudice in any case to the individual legitimacy of those affected persons who are determined.
The harassed person will be the only one with standing in litigation regarding sexual harassment and discriminatory harassment.”
- Section 7 of article 60 is modified, which now has the following wording:
”7. In those processes in which the plaintiff alleges discrimination and provides well-founded evidence of its existence, it will be up to the defendant to provide an objective and reasonable justification, sufficiently proven, of the measures adopted and their proportionality.
For the purposes of the provisions of the previous paragraph, the judicial body, ex officio or at the request of a party, may obtain a report from the public bodies competent in matters of equality.
In the fourth final provision The modification of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations is established.
A new section 3 bis is added to article 77 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, with the following wording:
"3 bis. When the interested party alleges discrimination and provides well-founded evidence of its existence, it will be up to the person to whom the discriminatory situation is attributed to provide an objective and reasonable justification, sufficiently proven, of the measures adopted and their proportionality.
For the purposes of the provisions of the previous paragraph, the administrative body may obtain reports from the public bodies competent in matters of equality.
This law has a supplementary nature in the autonomous communities with their own powers in the matter that have legislated on it. Coming into force the day following its publication in the Official State Gazette.
Fraternidad-Muprespa implements actions included in the commitment that the Mutual acquires with compliance with the SDG, this new Law promotes SDG number 5 on gender equality and number 10, which advocates for the reduction of inequalities.
