What is the LGBTI plan for companies?

Is it compulsory to have an LGBTI Equality Plan in the company?

From 2 March 2024 it will be compulsory for all companies with more than 50 employees.

We already predicted in the negotiations of equality plans between women and men in the business sphere that we would soon find ourselves having to negotiate plans for equal treatment and equal opportunities, as well as non-discrimination, for LGBTI people.

And so it is, from 2 March 2024 it is mandatory to have negotiated, implemented and registered “a planned set of measures and resources to achieve real and effective equality of LGBTI people” for all companies with more than 50 employees. This equality plan also requires the creation and approval of a protocol for the prevention of and action against harassment and violence against this group.

How to implement the LGBTI plan

Similarly, the collective agreements applicable to each company may also impose measures in this regard, or even the obligation to have the plan in place despite having a smaller workforce, although this is by no means usual.

The law (Law 4/2023, of 28 February, for the real and effective equality of trans people and for the guarantee of the rights of LGBTI people) refers to a regulation of development to know how the LGBTI Plan and the protocol of action should be, however, this has not yet been published as of 26 March 2024, although we know that there is already a draft and everything indicates that it will be approved and published soon.

In any case, we can say in advance that this equality plan, like the equality plans between women and men, must be negotiated with the legal representation of the company’s workers and, if there is none, with the most representative trade unions.

In principle, and unless the regulation establishes otherwise, nothing prevents measures aimed at equality and non-discrimination of LGBTI people from being negotiated within the equality plan that the company already has, or with which it is or will be negotiating, and the draft regulation even establishes that the protocol can be general, although it contemplates specific measures against harassment or violence against LGBTI people.

Penalties and fines for non-compliance with the equality plan

Although the regulation contemplates sanctions for companies that do not have the approved measures in place, if obliged by law or by the applicable Collective Bargaining Agreement, we consider it unlikely that the Labour Inspectorate will start a campaign to sanction companies without having published the implementing regulation, as this is necessary to know how the plan is to be carried out.

However, it should be borne in mind that the following offences are covered by the Act:

Minor (punishable by a warning or a fine of 200 to 2,000 euros):

• Using or uttering vexatious expressions against persons because of their sexual orientation and identity, gender expression or sexual characteristics in the provision of public or private services.using or uttering vexatious expressions against persons on the basis of their sexual orientation and identity, gender expression or sexual characteristics in the provision of public or private services.
• Not facilitating the work or partially refusing to cooperate with the investigative action of the inspection services in the fulfilment of the mandates established in this law.
• Causing damage or tarnishing, when it does not constitute a criminal offence, to movable or immovable property belonging to LGBTI persons or their families because of their sexual orientation and identity, gender expression or sexual characteristics, or intended for the protection of the rights of LGBTI persons, such as LGBTI associative centres, or for the recovery of the historical memory of the LGBTI collective, such as monuments or commemorative plaques.

Serious (punishable by a fine of 2,001 to 10,000 euros, as well as possible accessory measures or sanctions):

• Failure of the provider of an information society service to remove vexatious expressions against persons on the basis of their sexual orientation and identity, gender expression or sexual characteristics on websites or social networks, once it has actual knowledge of the use of these expressions.
• The performance of acts or the imposition of provisions or clauses in legal transactions that directly or indirectly result in less favourable treatment of a person on the basis of sexual orientation or identity, gender expression or sexual characteristics in relation to another person in a similar or comparable situation.
• Absolute obstruction or refusal to allow the corresponding inspection services to act in compliance with the mandates established in this law.

Very serious (punishable by a fine of 10,001 to 150,000 euros, as well as possible accessory measures or sanctions):

• Discriminatory harassment, where it is not a criminal offence, on grounds of sexual orientation and identity, gender expression or sexual characteristics.
• Retaliation, understood as the adverse treatment of a person as a consequence of having filed a complaint, claim, complaint, lawsuit or appeal, aimed at preventing discrimination on the basis of sexual orientation and identity, gender expression or sexual characteristics and at demanding effective compliance with the principle of equality.
• The refusal to attend or assist those who have suffered any type of discrimination on the grounds of sexual orientation and identity, gender expression or sexual characteristics, by anyone who, by virtue of their status or position, is obliged to attend to the victim, when this does not constitute a criminal offence.
• The promotion or practice of methods, programmes or therapies of aversion, conversion or counter-conditioning, whether psychological, physical or pharmacological, intended to modify the sexual orientation, sexual identity or gender expression of persons, regardless of any consent they or their legal representatives may have given.
• The production, use or dissemination in educational institutions of textbooks and teaching materials that present people as superior or inferior in human dignity on the basis of their sexual orientation and identity, gender expression or sexual characteristics.
• The convening of public shows or recreational activities whose purpose is to incite people to engage in conduct classified as serious or very serious by law.
• The denial, where it does not constitute a criminal offence, of access to and supply of establishments, goods and services available to the public, including housing, where such denial is motivated by a person’s sexual orientation and identity, gender expression or sexual characteristics.
• Violation of the prohibition of genital modification practices on persons under twelve years of age, when it does not constitute a criminal offence.
• Secondary victimisation, understood as the failure of the public administrations to comply with the obligations of care provided for in this law that give rise to new psychological harm for the victim.

Do you need advice? Access our area related to the implementation of LGBTI equality plans in companies:

• Labour Law