Discrimination at Work in Spain: How to Act and Your Rights

🇪🇸 Read the original in Spanish

Suffering from inequality, harassment, or unfavorable treatment in the workplace not only undermines the mental and professional health of those who experience it, but also constitutes a flagrant violation of fundamental rights in Spain. Often, victims of discrimination at work—especially foreign workers or those unfamiliar with the intricacies of the Spanish judicial system—remain silent out of fear of retaliation, dismissal, or simply not knowing exactly what steps to take to defend themselves. The Spanish legal system offers powerful tools to combat these practices, protect the victim, and penalize offending companies, provided you act with the right strategy and within the correct timeframes.

The Legal Framework: What is Considered Discrimination at Work in Spain?

Spanish legislation is particularly protective when it comes to equal treatment in the workplace. The supreme law of the land, the Spanish Constitution of 1978, establishes in its Article 14 the principle of equality before the law, prohibiting any type of discrimination based on birth, race, sex, religion, opinion, or any other personal or social condition or circumstance.

On a strictly labor level, the reference regulatory framework is structured through the following legal texts:

• *The Estatuto de los Trabajadores (Workers' Statute - Royal Legislative Decree 2/2015): In its Article 4.2.c, it enshrines the right of workers not to be discriminated against, directly or indirectly, for employment, or once employed, on the grounds of sex, marital status, age, racial or ethnic origin, social status, religion or beliefs, political ideas, sexual orientation, union membership or non-membership, as well as language or disability. Furthermore, Article 17* declares null and void any regulatory provisions, collective agreement clauses, individual agreements, and unilateral decisions by the employer that contain unfavorable discrimination.
• *The Ley Reguladora de la Jurisdicción Social (Law Regulating Social Jurisdiction - Law 36/2011):* This regulates the specific judicial procedures for defending these rights, highlighting the fundamental rights protection procedure, which is characterized by its urgent and preferential processing.
• *The Ley General de la Seguridad Social (General Social Security Act - Royal Legislative Decree 8/2015):* This protects situations of temporary disability arising from professional contingencies when the origin of the medical leave is harassment or discrimination at work.
• *The Ley 15/2022, de 12 de julio, integral para la igualdad de trato y la no discriminación (Comprehensive Law for Equal Treatment and Non-Discrimination):* This expands the spectrum of protection, introducing new grounds for discrimination such as illness or health condition, serological status, or gender identity, and reinforcing the penalties regime.

Direct vs. Indirect Discrimination

It is essential to distinguish how discrimination manifests itself in order to structure your defense correctly:

1. Direct discrimination: This occurs when a worker, for one of the reasons prohibited by law, receives less favorable treatment than another worker receives, has received, or would receive in a comparable situation. (For example, not promoting a woman simply because she is pregnant).
2. Indirect discrimination: This occurs when an apparently neutral provision, criterion, or practice puts people of a protected group at a particular disadvantage compared to others. (For example, requiring a minimum height of 1.80 meters for an office job, which disproportionately excludes women without any real technical justification).

Practical Step-by-Step Steps: How to Act Against Discrimination

If you are experiencing a situation of discrimination in your workplace, it is vital that you do not act impulsively. You must follow an orderly protocol to build solid evidence and protect your legal position.

Step 1: Comprehensive Gathering of Evidence

In Spanish labor law, the principle of the "burden of proof reversal" applies to discrimination matters (according to Article 96 of the Ley Reguladora de la Jurisdicción Social). This means that if you provide reasonable evidence that discrimination exists, it will be up to the company to prove that its decisions were due to objective reasons unrelated to any discrimination.

• Save emails, screenshots of WhatsApp messages, recordings of conversations in which you participate (these are completely legal in Spain as evidence if you are part of the conversation), schedule rosters, payslips, and testimonies from colleagues.

Step 2: Filing an Internal Complaint (Harassment Protocol)

All companies in Spain, regardless of their size, are legally required to have an anti-harassment and anti-discrimination protocol.

• Submit a formal written complaint to the Human Resources department, company management, or workers' representatives (the comité de empresa [works council] or delegados de personal [staff delegates]) to activate this protocol. The company is obliged to open a confidential internal investigation, usually within a maximum period of 10 to 15 days (depending on the applicable collective bargaining agreement).

Step 3: Complaint to the Inspección de Trabajo y Seguridad Social (Labor and Social Security Inspectorate - ITSS)

If the company fails to act or dismisses your complaint, you can file a formal complaint with the Labor Inspectorate.

• This procedure is free and can be done online or in person. A labor inspector will investigate the facts by making an unannounced visit to the workplace. The acta de infracción (infringement report) issued by the inspector carries a presumption of truth and is invaluable evidence in a subsequent trial.

Step 4: The Administrative Conciliation Paperwork (Papeleta de Conciliación)

Before taking legal action in court, it is mandatory by law to attempt an amicable out-of-court settlement.

• You must submit a Papeleta de Conciliación (conciliation petition) to the administrative mediation, arbitration, and conciliation service of your Comunidad Autónoma (Autonomous Community), such as the SMAC in Madrid or the CMAC in Andalusia. Filing this document pauses the statute of limitations deadlines for suing.

Step 5: Lawsuit for the Protection of Fundamental Rights

If the conciliation act ends sin avenencia (without agreement), you must file a lawsuit in the Juzgados de lo Social (Labor Courts).

• Through the specific legal channel of Tutela de los Derechos Fundamentales (Protection of Fundamental Rights), the judge will be asked to declare the discriminatory conduct completely null and void, order its immediate cessation, restore the worker to their previous situation, and award compensation for damages.

Deadlines, Amounts, and Key Figures You Must Know

Timing is critical in Spanish labor law. A mistake with deadlines can cause you to lose your right to claim permanently.

• Deadline to challenge a discriminatory dismissal: You have a strict deadline of 20 business days (Saturdays, Sundays, and public holidays do not count) from the effective date of the dismissal to file the papeleta de conciliación and the subsequent lawsuit.
• Deadline to claim against business decisions on mobility or modification of working conditions: This is also 20 business days.
• Deadline to claim damages for ongoing discrimination (without dismissal): The general statute of limitations is 1 year from the date the discriminatory conduct ceased or its effects were consolidated.
• Financial penalties for the company (LISOS): The Ley sobre Infracciones y Sanciones en el Orden Social (Law on Infringements and Sanctions in the Social Order - LISOS) classifies unilateral company decisions that involve direct or indirect discrimination as very serious infringements (Article 8.12). The associated fines are:
• Minimum level: from €7,501 to €30,000.
• Medium level: from €30,001 to €120,005.
• Maximum level: from €120,006 to €225,018.
• Compensation for the worker: To quantify the moral damages suffered by the worker, Spanish courts usually use the LISOS penalty amounts described above as a guiding scale. Thus, a victim of discrimination can typically receive compensation ranging between €7,501 and €120,000, depending on the severity of the conduct, its duration, and the proven psychological impact.

Real Practical Examples of Damage Quantification

To understand how these rules are applied in judicial practice, let us analyze two common scenarios:

Example 1: Discrimination Due to Maternity and Reduced Working Hours

María works as a marketing manager at a tech company in Barcelona, earning a net monthly salary of €2,100. After returning from her maternity leave, she requests a reduction in working hours for childcare of 12.5% (the legal minimum). The day after her request, the company revokes her access codes to the main management tools, moves her desk to a basement with no natural light, and assigns her basic administrative filing tasks.

María activates the company's harassment protocol, but the company ignores her request. She decides to file a lawsuit for the protection of fundamental rights assisted by a lawyer. The Labor Court declares the company's conduct null and void for violating the right to non-discrimination based on sex and maternity. The judge orders the company to reinstate María to her original managerial duties and, using the minimum level of the LISOS scale as a reference due to the short duration of the harassment (3 months), awards her an additional compensation for moral damages of €12,000, in addition to forcing the company to pay salarios de tramitation (back pay) if there had been any suspension.

Example 2: Discrimination Based on National Origin and Null Dismissal

Jean, a Senegalese citizen with legal residency in Spain, works as a warehouse operator in Valencia with a salary of €1,350 per month. Repeatedly, his direct supervisor addresses him with derogatory comments about his origin, systematically assigns him the hardest night shifts, and denies him the weekly rest days that his Spanish colleagues enjoy. Jean records three of these conversations on his mobile phone, clearly showing the racist insults, and files a complaint with the Labor Inspectorate.

Upon learning of the complaint, the company dismisses Jean, claiming a "voluntary reduction in performance." Jean sues for discriminatory dismissal within the 20 business days deadline. The court determines that the dismissal is an act of retaliation and, therefore, null and void due to racial discrimination. The company is ordered to immediately reinstate Jean, pay all the wages he missed out on since the dismissal (salarios de tramitación) amounting to €5,400 (for 4 months of court proceedings), and pay compensation for moral damages of €45,000 (medium scale of the LISOS due to the severity of the racist offense).

Mistakes You Must Avoid

Making a strategic mistake in the early stages of the conflict can irreversibly weaken your legal position. Avoid making the following errors:

• Voluntarily lowering your performance or skipping work: Even if the situation is unbearable, do not stop going to work or neglect your duties without an official medical leave (baja médica). If you do, the company will have the perfect excuse to dismiss you on justified disciplinary grounds, weakening your discrimination claim.
• *Resigning voluntarily (baja voluntaria): If you submit a voluntary resignation, you will lose your right to severance pay and unemployment benefits (paro). If the pressure is unbearable, the correct legal path is to request the judicial termination of the contract due to a serious breach by the employer (Article 50 of the Estatuto de los Trabajadores*), which entitles you to the same compensation as an unfair dismissal and the right to claim unemployment benefits.
• Failing to keep written or digital evidence: Words are easily forgotten. In a labor trial, testimonies from current colleagues are often weak because they fear losing their jobs. You need solid, objective documentary evidence.
• Letting the deadlines pass: Thinking that "the situation will improve" and letting the 20 business days pass after a penalty or a substantial modification of working conditions will prevent you from legally challenging that business decision in court.

Frequently Asked Questions (FAQ)

Can I record a conversation with my boss or colleagues without their consent to use as evidence?

Yes. Under Spanish labor law, it is fully legal to record conversations in which you actively participate, whether in person or over the phone. You do not need the other person's consent, nor do you need to warn them that you are recording. What is strictly prohibited and constitutes a crime is recording third-party conversations in which you do not participate.

What happens if the company fires me for reporting discrimination?

That dismissal will be legally classified as a despido nulo (null and void dismissal) for violating the garantía de indemnidad (the right not to suffer retaliation for taking legal action). The consequence of a null dismissal is the company's obligation to immediately reinstate you, pay you all the wages you missed during the trial, and, usually, pay you compensation for moral damages.

Can I request a medical leave if the discrimination is affecting my health?

Yes. If the situation of discrimination causes you anxiety, depression, or work-related stress, you should go to your Social Security GP (médico de cabecera). The doctor will issue a temporary disability leave (baja por Incapacidad Temporal). It is very important to explain in detail that the origin of your health condition is the workplace conflict so that it is recorded in your medical history, which will serve as expert evidence in court.

I am a foreigner in an irregular administrative situation, can I report labor discrimination?

Yes, absolutely. The Spanish Supreme Court and Spanish legislation protect the fundamental rights of all workers, regardless of their legal residency or work status. Reporting discrimination or labor exploitation does not lead to your deportation from the country and, in fact, can be a pathway to regularizing your status through arraigo laboral (labor integration residency) or social integration under certain scenarios of cooperation with the Labor Inspectorate.

In Summary

• Spanish legislation strictly prohibits direct or indirect discrimination in employment through the Workers' Statute and the Constitution.
• In a case of discrimination, the first indispensable step is the comprehensive gathering of evidence (emails, audio recordings, documents).
• Deadlines are very strict: you have only 20 business days to challenge dismissals, penalties, or modifications of working conditions.
• Compensation for moral damages is calculated based on the severity of the case, usually ranging between €7,501 and over €120,000.
• Never submit a voluntary resignation (resignation) in a situation of harassment or discrimination; there are legal ways to terminate the contract while maintaining your right to compensation and unemployment benefits.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.