All companies located in Spain with a workforce of 50 employees or more now face the obligation, from this Monday onward, to have a protocol addressing workplace harassment of LGTBI individuals. This is a new labor measure aimed at improving the inclusion of this group, an area where Spain still has ground to cover, according to the latest report from the UGT union: 75% of LGTBI people feel they do not have the same opportunities at work as heterosexual colleagues.
On March 4th, the 12-month deadline established by the equality of treatment law enacted in 2023 will expire. Companies that fail to comply can be sanctioned by the Labor Inspectorate, with fines ranging from 7,501 to 225,018 euros. While legal sources consulted see potential gaps that could minimize or invalidate these penalties. For now, the absence of an official regulation on how to apply this issue will effectively extend the grace period in the eyes of inspectors.
The businesses must have a written protocol for responding to harassment or violence against LGTBI people. The measures will be agreed through collective bargaining and with the legal representation of employees.
In practical terms, companies have to maintain a written manual outlining what to do if harassment occurs: who the affected person can report to, through which channels, and how potential conflicts will be resolved, among other things. This obligation is similar to the harassment protocols for sexual harassment that all firms with 50 or more employees must already include in their equality plans.
The Administration’s data collection to measure the scope of these discriminations has room for improvement. When asked by El Periódico de Cataluña, part of the Prensa Ibérica group, the Equality and Feminisms department of the Generalitat stated that it lacks a formal registry counting how many cases of LGTBI harassment occurred in Catalan workplaces in the last year. They cite data from the Labor Inspectorate. According to the latest report published by this body, regarding 2022, the labor police carried out a total of 65 actions related to “discriminatory harassment on the basis of sex.”
Education, clarity, and everything written down
“Until recently, hearing someone in the office call something a ‘faggot’ was common and no one considered it inappropriate. We have lived too long minimizing discrimination against the LGTBI community,” laments Eva Gajardo, the equality and training secretary of UGT in Catalonia. Sensitizing the workforce is seen as a first, though not the only, step toward eradicating all discrimination.
Gajardo urges keeping all protocols on paper and clarifying responsibilities. The affected person should know at all times whom to report to, whether a human resources manager, a union committee member, or through the anonymous complaint channel that every company with more than 250 employees is legally required to maintain. It is also crucial that those in strategic roles, whether handling complaints or involved in recruitment processes, are not only aware but trained to detect, identify, and act on these issues.
Salary suspension or dismissal
Different sources agree in treating harassment for being part of the LGTBI community as harassment on the grounds of sex, a category already contemplated in most collective agreements. This typically equates to a “very serious” fault, punishable by a period of suspension of employment and salary or by termination of the contract, depending on what each agreement specifies and the severity of the case being investigated by the company.
Collective bargaining has progressively incorporated commitments against LGTBI harassment. For instance, the Barcelona province offices and bureaux collective agreement, updated last year, already urges companies in the sector to ensure that the sexual harassment and sex-based harassment protocol includes actions against discriminatory or harassing conduct based on sexual orientation, guarantees a resolution, reverses the discriminatory situation, and protects the affected employee’s job.
Awaiting an official regulation
Provisions in agreements remain scarce and generic, and companies feel uncertain about the topic. According to sources from employers’ associations and trade unions, in recent months inquiries about how exactly to apply the new rule have surged. “Many companies want to comply but do not know how to proceed. The law is very generic; we expected the government to deliver the regulation it promised,” critiques Itziar Ruedas, head of legal advisory at Pimec.
Even on the very page of the Boletín Oficial del Estado where a 12-month window was granted for firms to draft their protocol, the government promised to issue a regulation that has not arrived. “It had been planned for some time, and we are late,” complains Javier Ibars, director of labor relations at Foment del Treball.
The Ministry of Labor held its first meeting on February 13, three weeks before the mandatory rollout, to reach a consensus on the regulation with employers and unions. The parties have not yet reached an agreement. The department, led by Yolanda Díaz, justifies the delay by disruptions from the political calendar and reminds that, regardless of a regulation, the legal obligation for companies exists and noncompliance is sanctionable.
Sources from Col·lectiu Ronda explain that lacking a protocol against LGTBI harassment could be interpreted as a very serious violation under article eight of the LISOS, section 13bis. This refers to harassment within the company that the employer knew about but failed to prevent. The sanction could thus fall within the 7,501 to 225,018 euro range, depending on inspectorate findings.
Experts from this law firm warn that the law’s wording is not explicit about the absence of a protocol, which could be used by sanctioned companies to challenge penalties in court.