Compliance and enforcement aspects (horizontal provisions of all directives)

AuthorThomasberger, Martina
11 Compliance and enforcement aspects (horizontal provisions of all
11.1 General (legal) context
11.1.1 Surveys and reports about the particular difficulties related to obtaining legal
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.
125 RIS-Justiz RS0127723,

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