On March 2nd, the deadline stipulated by Law 4/2023, of February 28th, for the real and effective equality of trans people and the guarantee of the rights of LGBTI people, expired, requiring companies with more than 50 employees to have a set of measures and resources that allow them to guarantee and promote the right to real and effective equality of LGBTI people, eradicating any form of discrimination in the workplace, education and health.
Two days after it came into effect, Raquel Romero González, a labor lawyer at Abdón Pedrajas | Littler, and Judith Guillén, an associate in the Labor Law department at Fieldfisher in Spain, stated that companies currently have many doubts and few answers regarding LGBTI Plans, as the regulatory development that was planned in the law itself last year has not yet taken place.
Furthermore, the specialists stated that companies have been consulting on this issue for several months. Currently, they clarified, they are developing their LGBTQ+ policies based on existing regulations, with the primary objective of fulfilling their obligations and anticipating the corresponding regulatory developments.
If there is still no regulatory development, then are companies facing the implementation of this new labor obligation blindly?
“Indeed. In recent weeks there has been considerable discussion on this matter, from the government, unions, employers, and legal experts themselves, but until the regulations are published, there will be no real certainty for businesses. That is why it is so important that companies receive support throughout this entire process,” said Raquel Romero.
However, Judith Guillén clarified that “they are not doing it completely blindly, since the law already establishes that it will be necessary to implement:
(i) A set of measures aimed at achieving equality for the LGBTI community in the workplace. (ii) A protocol for the prevention of and action against harassment and violence directed at the LGBTI community.
All of this will have to be negotiated with the legal representatives of the workers, although we do not yet know if the legitimacy to negotiate will be the same as that foreseen for gender equality plans.”
What deadline will companies have to implement the LGBTI Law starting March 2nd?
Raquel Romero said that the general consensus is that by March 2nd, companies should already have their own LGTBI Plan and protocol for addressing harassment or violence against LGTBI people, since the law is clear regarding the obligation to have both from that date.
“Therefore, initially, all companies with more than 50 employees should comply with these obligations by March 2nd. However, it is true that in recent days some members of the Social Dialogue Committee have suggested that companies should not be penalized until this development takes place, particularly given that it is expected to occur soon. Nevertheless, it is very important that companies begin implementation as soon as possible.”
To the above, Judith Guillén added that “this is a situation we have already experienced before regarding Gender Equality Plans. On that occasion, the obligation came into effect for companies with more than 150 employees on March 2, 2020, and the implementing regulations were not published until October 14, 2020.”
In that case, at the time of publication of regulation 901/2020, companies that had already taken steps to comply with the legal obligation to have an equality plan found themselves needing to adapt it to the new regulations.”
In your experience, what content should this LGBTI plan include?
Raquel Romero explains that companies must have a “planned set of measures and resources,” so, first and foremost, it would be advisable for companies to assess the situation of LGBTQ+ individuals within their organizations. “Once companies have a clear picture of their situation, they must adopt measures to address the identified shortcomings and guarantee equality and non-discrimination for the LGBTQ+ community. This could involve defining specific objectives, indicators for monitoring and evaluating the measures, as well as a timeline for the application, implementation, evaluation, and updating of the LGBTQ+ Plan. In this regard, awareness-raising measures that contribute to cultural transformation, as well as harassment prevention protocols, become crucial.”
Judith Guillén added to the above that, in order to comply with the regulations, she recommends the approval of a policy that includes:
(i) A guide to good practices and recommendations, as well as the company’s commitment to LGBTI equality. (ii) A set of concrete measures aimed at improving the work environment for the LGBTI community. For example, we recommend general measures, such as employee training, or monitoring and support by the company in the event of an employee’s gender transition. (iii) A protocol for the prevention of and response to harassment or violence directed at the LGBTI community. This protocol must be compatible with existing protocols regarding sexual harassment or harassment based on sex.
How could a company diagnose its LGBTI plan? What paths could they follow?
“One of the first steps companies can take is to circulate an anonymous survey to their staff to learn about the situation of the LGBTQ+ community within the company. This is a relatively simple measure for companies that are already accustomed to conducting employee climate surveys on a regular basis.”
However, it is also advisable to conduct a more in-depth analysis and review existing company policies and protocols from the perspective of the LGBTQ+ community, such as recruitment and promotion policies, inclusive communication, training, etc. It would also be beneficial to assess whether working conditions are respectful of the LGBTQ+ community and whether work-life balance measures are inclusive.
Finally, taking into account the special reference that the regulation makes to the protocol for action to address harassment or violence against LGBTI people, it is particularly important to analyze whether there have been situations of harassment, incidents or conflicts in the company (e.g. cases of homophobia, transphobia, biphobia, etc.) and how they were resolved,” emphasized Raquel Romero.
For her part, Judith Guillén added that, besides being a sensitive issue, diagnosis requires the ability to segregate employee data based on gender identity or sexual orientation. “While the regulations may be interpreted as providing a legal basis for companies to collect this data, we are talking about data that is not verifiable and that can change.”
Thus, pending further regulatory development on the matter, it appears that the preparation of a diagnostic report in the same terms as those established for the gender equality plan is ruled out.
However, there are ways to assess a company’s situation regarding LGBTI equality. For example, the company can conduct employee climate surveys aimed at understanding employee feedback on the matter.
Do you think the Equality and LGTBI Plans could be unified into one?
Raquel Romero believes “that what is possible is one thing, and what is advisable is another. These are plans that pursue different goals and will even have different rules of the game.”
In this regard, the Equality Plan must be negotiated with social partners (unitary or union representation), and if negotiations reach a deadlock, it can be imposed unilaterally. However, in LGBTI Plans, the law no longer uses the term “negotiate” but rather “agree,” so they must necessarily be agreed upon with the social partners. Therefore, it is advisable that both documents be addressed separately.
In any case, if unification is chosen, it is important that each plan has a distinct content, since the content of the LGTBI Plan should not be “diluted” in the Equality Plans to guarantee their real effectiveness, as both are independent measures.”
According to what was stated in the previous response, Judith Guillén assured that “it is foreseeable that the process of data collection and analysis will be different in the two cases, a fact that will make it difficult to integrate both plans into a single global policy.
The same applies to the participation in the process of drafting and negotiating the legal representation of the workers, since to date we do not know if the company will have to negotiate the LGTBI Plan in the same parameters as it does with the Gender Equality Plan.
Furthermore, the analysis to be carried out differs based on the distinct discriminatory circumstances to which both groups are subjected. While the causes may share common interests, each group has different experiences and its own unique situation of inequality.
This is without prejudice to the provisions regarding trans women, for whom the law expressly provides that they be included in the Gender Equality Plan. This integration is carried out from an intersectional perspective.”
Could this type of mandatory measure achieve real and effective equality for LGBTI people?
“Certainly. They are a relevant tool for achieving real and effective equality, as they will help raise awareness in society and encourage companies to commit to eliminating discrimination and guaranteeing the rights of all people, regardless of their sexual orientation or gender identity,” said Raquel Romero.
Judith Guillén agreed and said that the development of an LGBTI plan can contribute to the real and effective equality of the group, but like everything else, “it will depend on the specific circumstances of each company and the resources they have at their disposal.
However, this requirement adds to the bureaucratic burden on companies, which in many cases have difficulty investing the resources required for a policy of this nature.
It is therefore difficult to say whether the outcome of implementing the new obligation will be as expected by the legislator or whether it will be sufficient to compensate for the effort to be made by the affected companies.”
Finally, Raquel Romero González, an employment lawyer at Abdón Pedrajas | Littler, and Judith Guillén, an associate in the Labor Law department at Fieldfisher in Spain, recommended that companies seek expert advice to guide them through the implementation and negotiation of these new obligations to avoid uncertainty. Furthermore, it is important that they do not delay implementation, as having an LGBTI Plan may be required as a social clause in contracts with public administrations, which could have a direct economic impact on companies.
They trust that companies will not see this obligation as a new burden, but as an opportunity to stand out from the competition and demonstrate their commitment to diversity, talent, and social responsibility, which will undoubtedly contribute to creating a more inclusive and equitable work environment for all employees.
