Compliance and enforcement aspects (horizontal provisions of all directives)

• Author: Thomasberger, Martina
• Pages: 50-54

50

11 Compliance and enforcement aspects (horizontal provisions of all

directives)

11.1 General (legal) context

11.1.1 Surveys and reports about the particular difficulties related to obtaining legal

redress

None available.

11.1.2 Other issues related to the pursuit of a discrimination claim

Discrimination claims are integrated into the systematic cont ext of labour law and civil

law. Lawsuits concerning discrimination must be filed in the competent civil courts or

labour courts and can generate a significant financial risk for the claimant if they lose the

case. Also, the burden of proof is not completely reversed in discrimination cases;

according to case law it is lightened in comparison to general rules (see also Section 11.5).

11.1.3 Political and societal debate and pending legislative proposals

Currently there is no political or policy debate at federal level.

11.2 Victimisation

The provisions on victimisation have been implemented into national law. Again, the Equal

Treatment Act for the Privat e Sector may serve as a t emplate.124 In several provisions

(Paragraph 5(3) and (4), Paragraph 6(3) and (4), and Paragraph 3(2) and (3)), the same

or very similar wording is used: an order by the employer or by a manager or supervisor

to discriminate against another person (in the context of the workplace or access to goods

and services) constitutes an act of direct or in direct discrimination. In the same way ,

retaliation against persons who have a working or personal relationship with the victim of

discrimination is defined as discrimination in and of itself. This covers the requirements of

the directives.

In case law, the provision in Paragraph 6 of the Equal Treatment Act for the Private Sector

has be en used by the Supreme Court as the legal basis for a ruling that a legal entity

(specifically a business corporation) is accountable for discrimination (here: sexual

harassment) perpetrated by an employee as well as for the inactivity of their supervisor

to stop the discrimination.125

11.3 Access to courts

11.3.1 Difficulties and barriers related to access to courts

Access to the courts is open to citizens and to all persons and enterprises who claim to

have a legal interest that is actionable in Austria. In many cases, claimants do not n eed

professional legal representation, at least at first instance. However, le gal representation

is advisable in discrimination cases. This is because claimants can lose important proof o r

miss decisive legal arguments if these are not presented in the first instance.

124

https://www.ris.bka.gv.at/GeltendeFassung/Bundesnormen/20003395/GlBG%2c%20Fassung%20vom%20

06.04.2019.pdf.

125 RIS-Justiz RS0127723,

https://www.ris.bka.gv.at/Dokumente/Justiz/JJR_20111221_OGH0002_009OBA00118_11K0000_001/JJR_

20111221_OGH0002_009OBA00118_11K0000_001.pdf.