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21 October 2016 - Luxembourg Employment Newsletter 

Prohibition for employers to discriminate against transgender individuals  

21 October 2016

The principle of equal treatment strictly prohibits employers from discriminating against their employees, either directly or indirectly, because of their gender, religion, disability, personal beliefs, age, sexual orientation or their membership, whether real or alleged, to a specific race or ethnic group.

Nevertheless, the European Commission criticised Luxembourg for not having entirely implemented the EU directive concerning equal treatment on the grounds that the Luxembourg legislation has not explicitly provided that the scope of non-discrimination also applies to discrimination arising from the gender reassignment of a person (Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation).

Hence, in light of this context, the law of 3 June 2016 on equal treatment amended and completed the provisions related to the principle of non-discrimination contained in the Labour Code and the Criminal Code.

The legislator extended the scope of the principle of non-discrimination by providing that any discrimination based on gender reassignment is assimilated to a sex discrimination (Article L.241-1 of the Labour Code).

Thus, any contractual clause contrary to the abovementioned principle is null and void. It therefore strictly prohibits employers from dismissing or discriminating an employee based on a gender reassignment.

The employees believing that they are the victim of an unfair dismissal based directly or indirectly on a gender reassignment may claim by simple request to the President of the Labour Court, within a 15-day period starting at the receipt of the notification of termination, the nullity of their dismissal. The President of the Labour Court may order the employer to keep them in their functions or, where appropriate, to reinstate them.

The Criminal Code was also amended by the law of 3 June 2016 which extended its scope. As a consequence, from now on, any distinction between employees arising from a gender reassignment constitutes a discrimination and the employer may therefore incur criminal sanctions (Article 454 of the Criminal Code).

Hence, the employer who discriminates against its employees’ having changed their gender, dismisses them or denies hiring them, is punished with an imprisonment from 8 days to 2 years and / or a fine from 251 to 25,000.

For any queries or further information please contact:

Yuri Auffinger, Managing Associate, yuri.auffinger@linklaters.com

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