What is generally meant by diversity in the workplace in your jurisdiction? Which factors are the primary focus?

Diversity in the workplace is a matter of soft law in Luxembourg as no legal framework exists in this regard. The legislature has focused its efforts on non-discrimination and equal treatment in the workplace.

The national website dedicated to diversity defines it as:

"[The] term used to speak of differences or similarities between individuals. These differences are reflected by sex, race, ethnic or cultural origin, physical abilities, age, religion, beliefs, sexual orientation (non-exhaustive list) and includes opinions, ideas, professional and life experiences, diverse skills and knowledge of individuals."(1)

Therefore, in Luxembourg, diversity in the workplace relates to the variety of people that make up a company or an organisation.

What progress has been made to date in your jurisdiction to foster diversity in the workplace?

Diversity in the workplace has been fostered in Luxembourg through:

  • the establishment of the Diversity Charter Letzebuerg; and
  • the introduction of several provisions to national legislation regarding the general principles of non-discrimination and equal treatment in the workplace.

Diversity Charter Letzebuerg Inspiring More Sustainability (IMS) Luxembourg is an independent national association that was created in 2007 to assist organisations in their commitment to 'corporate social responsibility' (ie, a voluntary approach by companies to foster their economic, environmental and social responsibilities) by enhancing their dialogue with stakeholders. The goal of the association, which has over 100 members, is to promote diversity in the workplace. For example, IMS Luxembourg contributed significantly to the implementation of the national Diversity Charter Letzebuerg in September 2012.

The Diversity Charter Letzebuerg comprises six articles and can be signed by any organisation or company in Luxembourg that wants to commit to fostering diversity through concrete actions that exceed the legal obligations regarding non-discrimination. The charter aims to encourage organisations and companies established in Luxembourg to guarantee and promote diversity within their workplaces. To date, 164 organisations have signed the charter.

Introduction of provisions to national legislation From a legal perspective, several laws have enacted the general principles of non-discrimination and equal treatment, including in the workplace.

Constitution Article 10bis of the Constitution provides that "Luxembourgers shall be equal before the law".

Article 11(2) of the Constitution provides that "men and women are equal in rights and duties. The State shall actively promote the removal of barriers that may exist in equality between women and men".

Finally, Article 111 of the Constitution provides that "any foreigner found on the territory of the Grand Duchy of Luxembourg, enjoys the protection accorded to persons and goods, subject to the exceptions established by law".

Penal Code Article 454 of the Penal Code, which was introduced by the Law of July 19 1997, prohibits in a general manner discrimination based on:

  • nationality;
  • race;
  • actual or supposed membership of an ethnic group;
  • gender, including gender reassignment;
  • sexual orientation;
  • family status;
  • age;
  • health;
  • disability;
  • moral, political or philosophical opinions;
  • trade unions activities;
  • religion; and
  • membership or non-membership of a group or community.

This article applies to natural persons and the members of a legal person. The latter may not be discriminated against based on its members' characteristics.

Labour Code In particular, the Labour Code upholds the principles of non-discrimination and equal treatment in the workplace. Article L.251-1(1) of the code prohibits direct or indirect discrimination based on:

  • religion or beliefs;
  • incapacity;
  • age;
  • sexual orientation;
  • race; or
  • actual or supposed membership or non-membership of an ethnic group.

Discrimination based on gender is covered by Article L.241-1 onwards of the code, which prohibit direct or indirect discrimination based on gender.

The prohibitions provided for by these articles apply to all employees (including part-time, temporary and fixed-term employees) and employers regarding the following matters:

  • access to employment, self-employment or occupation – such as selection criteria and recruitment conditions –whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
  • access to all types and levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
  • employment and working conditions, including dismissals and pay conditions; and
  • the membership of, and involvement in, an organisation of employees or employers or any organisation whose members carry out a particular profession, including the benefits provided for by such organisations.

What positives measures can employers adopt to foster diversity in the workplace without running the risk of positive discrimination claims?

From a practical perspective, employers can adopt the following measures to foster diversity in the workplace without running the risk of positive discrimination claims:

  • Employers can adopt internal diversity policies and practices which are designed to create an equitable, respectful, stimulating and productive working environment. Through such policies, employers can commit to:
    • fighting discrimination in the workplace; and
    • ensuring that everyone enjoys job and career opportunities that are in keeping with their skills and aspirations, ensure that they can be recognised for their talents and respect and take into consideration their characteristics (eg, gender, race, age, ethnic and social origin, country, region, disability, surname, education, language, religion, criminal convictions, political opinions, sexual orientation or family situation).
  • Employers can appoint an internal person to be in charge of diversity or can create a special work group dedicated to the matter.
  • Employers can sign the Diversity Charter Letzebuerg, which provides the following measures to foster diversity in the workplace:
    • raising awareness and training decision makers and partners regarding the challenges of diversity as a source of enrichment, innovation, progress and social cohesion;
    • developing a diversity policy and implementing practices and action plans to manage differences between employees;
    • applying equal opportunity and promotion of diversity principles in decision-making and management processes, as well as in the management of human resources; and
    • regularly assessing these practices and their results and effects.

From a legal perspective, the Labour Code provides several exceptions to the non-discrimination principle. For instance, a difference in the treatment provided by an employer based on a characteristic protected by law will not constitute discrimination where – by reason of the nature of the particular occupational activities concerned or the context in which they are carried out – such a characteristic constitutes a genuine and determining occupational requirement, provided that:

  • the objective is legitimate; and
  • the requirement is proportionate.

When religion or beliefs constitute an essential professional requirement, which is legitimate and justified in view of the organisation's ethics, different treatment based on the religion or belief will not constitute unlawful discrimination.

Labour legislation allows employers to treat people differently based on age if:

  • the treatment is objectively and reasonably justified by a legitimate aim, including a legitimate employment policy, the labour market or vocational training objectives; and
  • the means of achieving the above aim are appropriate and necessary.

The equal treatment principle cannot be used to prevent the application of measures to avoid or compensate disadvantages linked to any of the grounds specified in the labour laws, provided that the measures are used to ensure full equality in practice.

As regards disabled persons and employees with a limited capacity to work, labour legislation provides that provisions on health and safety at work or measures to safeguard or promote integration in the workplace do not constitute discrimination.

According to legislation, an employer that wants to hire a person from an under-represented gender can tailor or edit employment offers to favour employees of that gender.

Finally, labour legislation allows specific measures to prevent or compensate for disadvantages on the basis of a person's family or matrimonial situation in order to guarantee equal treatment in practice.

What training methods and key performance indicators can employers use to promote and assess diversity in the workplace? Can the resulting data be shared if it includes confidential employee information?

In order to promote diversity, employers can, among other things:

  • organise training courses or workshops for employees and managers. It is important to raise managers' awareness of diversity so that they can enforce the non-discrimination against colleagues principle;
  • sign the Diversity Charter Letzebuerg and display it in their premises;
  • communicate regarding diversity internally (eg, through newsletters) or externally (eg, by advertising the measures that they have taken in this regard);
  • participate in the workshops organised by Diversity Charter Letzebuerg members;
  • organise events annually on May 12 (ie, national Diversity Day); and
  • include provisions regarding diversity in their internal regulations.

Employers can assess diversity in the workplace by compiling statistics before and after the implementation of diversity-related measures regarding, for example:

  • the composition of their workforce and management team as regards, for example, race, ethnicity and gender; and
  • the hiring of candidates from under-represented groups.

Further, the Law of July 23 2016 on the disclosure of non-financial and diversity-related information, which is applicable to certain large companies and groups, transposed the EU Corporate Social Responsibility Directive (2014/95/EC) into Luxembourg law.(2) Under this law, public interest entities (ie, entities whose transferable securities are admitted to trading on a regulated market in the European Union, EU credit institutions and EU insurance and reinsurance undertakings) with over 500 employees must disclose non-financial and diversity-related information, including in regards to:

  • environmental issues;
  • employee-related social issues;
  • the respect of human rights; and
  • anti-corruption.

Within the scope of the law, public interest entities must include in their corporate governance statement:

  • a description of the diversity policy applied in relation to their administrative, management and supervisory bodies regarding age, gender and educational and professional backgrounds;
  • the aims of the diversity policy; and
  • the results of the reporting period.

For companies outside the scope of the law, the main risks of sharing diversity-related data involve individuals' data protection rights, as the information will be personal data and may amount to sensitive personal data.

Diversity-related data can be shared for statistical purposes only if it is anonymised.

What are the implications for global businesses working in multiple jurisdictions with different diversity laws? Do the approaches taken by domestic and multinational enterprises differ in your jurisdiction?

Global businesses working in multiple jurisdictions can adopt a general policy regarding diversity that is applicable to all of the group's companies and a more specific policy tailored to comply with each jurisdiction's public policy provisions.

If one company of the group is established in Luxembourg, it must comply with Luxembourg's labour and employment laws and regulations regarding non-discrimination and equal treatment, which are public policy provisions.

For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (guy.castegnaro@castegnaro.lu or ariane.claverie@castegnaro.lu). The Castegnaro website can be accessed at www.castegnaro.lu.

Endnotes

(1) For further details please see www.chartediversite.lu/en/glossary.

(2) EU Corporate Social Responsibility Directive (2014/95/EC) amending EU Accounting Directive (2013/34/EC) as regards disclosure of non-financial and diversity-related information by certain large undertakings and groups.

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