Preliminary title
At the beginning of the preliminary title of the law, its object is established, already mentioned at the beginning of the article. It should be noted that it is considered a law developing articles 9.2, 10 and 14 of the Constitution, which say the following:
Regarding the subjective sphere (article 2); The law recognizes the right to equal treatment and non-discrimination of all people, regardless of their nationality, age, or whether they have legal residence or not. Likewise, it prohibits discrimination based on birth, racial or ethnic origin, sex, religion, conviction or opinion, age, disability, sexual orientation or identity, gender expression, disease or health condition, serological status and/or genetic predisposition to suffer pathologies and disorders, language, socioeconomic situation, or any other personal or social condition or circumstance. On the other hand, it binds the public sector (as far as this law is concerned; General State Administration, Administrations of the autonomous communities, Local Administration "Local Administration (Spain)"), Administration of Justice, institutional public sector (in the terms established in article 2.2 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations) and the associations and foundations constituted by the Administrations, entities, organizations and entities that make up the public sector) and to private natural or legal persons who reside, are found or act in Spanish territory, regardless of their nationality, domicile or residence.[1].
Finally, this title closes by regulating the objective scope of the law, which applies to employment (both public and private, in all its modalities and in the entire process), to membership and participation in political, union, business, professional and social or economic interest organizations, in education, in health, in transportation, in culture, in the field of citizen security and the administration of justice, in social protection, benefits and social services, in the access, offer and supply of goods and services available of the public, including housing, that are offered outside the scope of private and family life, in access and permanence in establishments or spaces open to the public, as well as the use of public roads and stay there, to Advertising, media and information society services, on the Internet, social networks and mobile applications; in sports activities and in artificial intelligence and massive data management, as well as other spheres of similar significance.[1].
Title I
Title I is one of the most relevant. It regulates the Right to equal treatment and non-discrimination in all areas; Likewise, in addition to being a right, it is considered an informing principle of the legal system and, as such, it will be integrated and observed transversally in the interpretation and application of legal norms.[1].
Employment as an employee.
The law prohibits establishing limitations, segregations or exclusions due to the causes provided for in this law for access to paid employment, public or private, including selection criteria, in training for employment, in professional promotion, in remuneration, in working hours and other working conditions, as well as in suspension, dismissal or other causes of termination of the employment contract. The criteria and systems for access to employment, public or private, or in the working conditions that produce situations of indirect discrimination due to the causes provided for in this law will be understood to be discriminatory. Likewise, it expressly prohibits the employer from asking applicants for the position about their health conditions.
The above is not allowed to be carried out under collective bargaining, although it is allowed to agree on positive actions to end or correct, where appropriate, situations of discrimination that may exist, as well as to prevent them.
Self-employment.
As in employed employment, no segregations or exclusions can be established for the reasons provided for in this law in access to the exercise and development of a self-employed activity "Self-employed worker (Spain)").
Political, union, business, professional and social or economic interest organizations.
All these and similar organizations are obliged to respect the right to equal treatment and non-discrimination in membership, registration or affiliation, their organic structure and operation, participation and enjoyment of any of the advantages they offer to their members.
In this sense, public powers have the obligation to support legally constituted groups and organizations that carry out awareness-raising, advice and training activities in defense of these rights, as well as assistance to victims and judicial representation in procedures. Likewise, they must promote, encourage and support social organizations in activities to celebrate commemorative dates, acts and events that contribute to promoting human rights, equality, freedom, tolerance and non-discrimination, as well as the incorporation of deontological codes consistent with these values.
Education.
Educational administrations, within the framework of their respective powers, have the obligation to take effective measures to suppress stereotypes and guarantee the absence of any form of discrimination due to the causes provided for in this law, and in any case, in the criteria and practices on admission and permanence in the use and enjoyment of educational services, regardless of the ownership of the centers that provide them. In this sense, the law prohibits public authorities from financing any educational center that imposes income limitations that involve discrimination according to the causes of this law (article 13.2).
In addition to these measures, the law requires training in these areas for both teachers and students.
Finally, in the field of non-formal education, that is, that which is outside the strict school environment, administrations must also promote democratic values and human rights.
Health and social services.
Health administrations and social services, within the scope of their powers, must guarantee the absence of any form of discrimination in access to health services and benefits or the different social services due to any of the causes provided for in this law. No one can be excluded from a health treatment or health action protocol due to the presence of a disability, being homeless, due to age, sex or pre-existing or intercurrent illnesses, unless duly accredited medical reasons justify it. In addition to actions to avoid discrimination, they must also promote actions in favor of population groups with specific health needs and, specifically, those in favor of equal treatment and prevention of discrimination.
No one may be removed or suspended from their shift of basic or specialized health care under conditions of equality, nor be excluded from health treatment due to lack of documentary accreditation or demonstrable minimum length of stay.
Offer to the public of goods and services.
The law prohibits discrimination by public administrations, entities, companies or individuals in access to those goods and services they offer to the public. Likewise, access to the contracting of insurance or related financial services cannot be denied nor differences in treatment established in their conditions due to any of the causes mentioned in article 2 except those that are proportionate to the purpose of the insurance or service and the objective conditions of the applicants in the terms provided for in the insurance regulations.
Websites and computer applications will tend to meet accessibility requirements to guarantee equality and non-discrimination in access for users, particularly people with disabilities and the elderly.
Citizen security.
The standard establishes a specific obligation for the Security Forces and Corps "Security Forces and Corps (Spain)") to avoid the use of discriminatory profiles that do not have an objective justification. The same obligation is established for the field of private security.
Administration of Justice.
The public powers, within the scope of their respective powers, must ensure the suppression of stereotypes and promote the absence of any form of discrimination in the Administration of Justice due to the causes provided for in this law. Likewise, they must promote information and accessibility to justice for especially vulnerable groups according to the causes established in this law.
Dwelling.
Public urban planning and housing policies must respect the right to equal treatment and prevent discrimination, including residential segregation, and any form of exclusion for any of the causes provided for in this law. Specifically, the needs of homeless people and those who are in a situation of greater vulnerability or are more susceptible to suffering some form of discrimination will be taken into account.
Providers of sales, leasing, real estate brokerage services, advertising portals, or any other natural or legal person that makes an offer available to the public, are also obliged to respect the right to equal treatment and non-discrimination in their commercial operations. In particular, the law prohibits them in two situations:
• - Refuse an offer to purchase or lease, or refuse to start negotiations or in any other way to prevent or deny the purchase or lease of a home, due to any of the causes of discrimination provided for in this law, when a public offer of sale or lease has been made.
• - Discriminate against a person regarding the terms or conditions of the sale or lease of a home based on the aforementioned causes.
Establishments or spaces and shows open to the public.
The criteria and practices regarding the admission of people to establishments or spaces open to the public, public shows or recreational activities must guarantee the absence of any form of discrimination due to the causes provided for in the first section of article 2. This includes both the conditions of access to the premises or establishments and the permanence in them, as well as the use and enjoyment of the services provided therein, without prejudice to the existence of organizations, activities or services intended exclusively for the promotion of groups identified by some of the causes mentioned in article 2.
The owners of the establishments and premises referred to in the previous sections or the organizers of public shows or recreational activities will make known in a visible space the criteria and limitations resulting from the exercise of the right of admission.
Social media and advertising, internet and social networks.
All social media will respect the right to equal treatment, avoiding all forms of discrimination in the treatment and accessible format of information, in its content and programming. Public administrations must promote the adoption of self-regulation agreements for social media, advertising, the Internet, social networks and information and communication technology companies that contribute to compliance with legislation on equal treatment and non-discrimination and intolerance for the reasons that inspire this law, and to the promotion of a non-stereotypical image of different people and population groups, including the sales and advertising activities that are carried out in them and urging language and messages contrary to discrimination and to intolerance. Likewise, they will promote the adoption of agreements with companies and internet service platforms that improve effectiveness in the prevention and elimination of content that violates the right to equality in this area.
Commercial or institutional advertising communication that contains elements of discrimination due to the causes provided for in this law is considered illicit advertising.
Artificial intelligence.
Public administrations must encourage the implementation of mechanisms so that the algorithms involved in decision-making used in public administrations take into account bias minimization, transparency and accountability criteria, whenever technically feasible. These mechanisms will include their design and training data, and address their potential discriminatory impact. To achieve this goal, impact evaluations will be promoted to determine possible discriminatory bias. Likewise, in the field of algorithms involved in decision-making processes, they will prioritize transparency in the design and implementation and the ability to interpret the decisions made by them.
Cultural and sports activities.
In the development of any cultural or sporting activity, the right to equal treatment and respect for the dignity of the person must be respected, avoiding all discrimination for any of the causes provided for in the law. Public administrations will support the creation and dissemination of content and studies that contribute to raising awareness in the cultural field about discrimination in all the forms and expressions included in this law.
• - Right to information. Victims of discrimination have the right to receive complete and understandable information.
• - Right to advice. People who are victims of discrimination have the right to receive advice related to their personal situation adapted to their context, needs and abilities. Likewise, you have the right to free legal advice immediately prior to filing the complaint.
Article 6 of the law establishes specific definitions on:
• - Direct and indirect discrimination.
• - Discrimination by association and discrimination by error.
• - Multiple and intersectional discrimination.
• - Discriminatory harassment.
• - Induction, order or instruction to discriminate.
• - Retaliation.
• - Positive action measures.
• - School segregation.
Likewise, article 7 establishes that the law must be interpreted in accordance with the applicable international instruments to which Spain is a party in matters of human rights, as well as with the jurisprudence issued by international jurisdictional bodies and other applicable legislation, and will take into account the recommendations and resolutions adopted by multilateral and regional international organizations. When different interpretations are presented, the one that most effectively protects people or groups that are affected by discriminatory or intolerant behavior should be preferred.
The law considers discriminatory any inducement, order or instruction to discriminate or commit an action of intolerance for any of the causes established in this law and may entail liability.
Title II
Title II is divided into two chapters, one dedicated to guarantees and the other to the promotion of the right to equal treatment and non-discrimination and positive action measures.[1].
As for guarantees, it begins by establishing the existence of protection measures and, although not specific, these must be sufficient to end discriminatory situations. Failure to do so may generate administrative and, where appropriate, criminal and civil liabilities. Likewise, in addition to achieving an end to the discriminatory situation, the authorities must ensure its non-repetition. On the other hand, it establishes the nullity of all those provisions, acts or clauses of legal transactions that constitute or cause discrimination for any of the reasons provided for in the law.
It continues with the establishment of financial responsibility for whoever caused the discrimination and repairing the damage, in a way that restores the victim to the situation prior to the discrimination. Employers or providers of goods and services are also responsible when discrimination, including harassment, occurs within their scope of organization or management and they have not complied with their protection obligations.
The chapter ends with the judicial and administrative areas. On the one hand, judicial protection of the right to equal treatment and non-discrimination is guaranteed; In addition to the direct victims, political parties, unions, professional associations of self-employed workers, consumer and user organizations and legally constituted associations and organizations whose purposes include the defense and promotion of human rights are legitimized to defend the rights and interests of members or associates or users of their services in civil, contentious-administrative and social judicial processes, provided they have their express authorization; The burden of proof is reversed, in such a way that, if the complainant provides well-founded evidence of the existence of discrimination, it will be the defendant who must demonstrate that it carried out sufficient and proportional measures to put an end to said situation. Likewise, the role of the Public Prosecutor's Office, responsible for promoting and coordinating criminal investigations, is recognized.
On the other hand, in the administrative field, when a public authority is aware of any of these discriminatory situations, it must, if competent, initiate the corresponding administrative procedure or, if not, notify the competent body. Likewise, in the administrative field, unions, professional associations of self-employed workers, organizations of consumers and users and legally constituted associations and organizations that have among their purposes the defense and promotion of human rights, may be considered interested parties in administrative procedures, provided that they have the authorization of the person or persons affected. This authorization will not be necessary when the affected persons are an indeterminate plurality or one that is difficult to determine, without prejudice to the fact that those who consider themselves affected may also participate in the procedure.