The European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe)’s yearly benchmarking instrument, the Rainbow Map and Index, ranks 49 European countries with respect to the level of protection afforded to LGBTIQ+ individuals from a legal and policy perspective. Malta, the host for EuroPride 2023, has secured the highest ranking on the Rainbow Europe Map for 8 consecutive years.
Despite such a high ranking, it is important to note that from a legal standpoint, LGBTIQ+ individuals were not always afforded the highest level of protection against discrimination. In fact, prior to 2014, the supreme law of the land, the Constitution of Malta, failed to recognise sexual orientation and gender identity as grounds on the basis of which an individual can suffer discriminatory treatment.
In 2014, Article 32 of the Constitution was amended to state that every person in Malta is entitled to the fundamental rights and freedoms of the individual, including respect for his private and family life, regardless of, amongst other characteristics, his sexual orientation or gender identity. Article 45 of the Constitution, encompassing an express prohibition of discrimination, also underwent amendments that same year to include sexual orientation and gender identity as grounds for discrimination. The enactment of such amendments has spearheaded Malta as a front runner in LGBTIQ+ rights legislation.
In the realm of employment, non-discrimination provisions on the grounds of sexual orientation, gender identity, gender expression and sex characteristics are found fragmented across the statute book.
The Employment and Industrial Relations Act (EIRA), Chapter 452 of the Laws of Malta, aims to offer protection against discrimination in the work environment. Such protection is extended to the pre-employment stage, which includes the advertising and offering of employment and candidate selection, as well as the employment stage with regards to the conditions of employment like remuneration or dismissal. The EIRA defines discriminatory treatment as being ‘any distinction, exclusion or restriction which is not justifiable in a democratic society’ yet omits sexual orientation or gender identity as grounds on the basis of which discrimination in the workplace can take place.
Despite such omission in the EIRA, both the Equality for Men and Women Act, Chapter 456 of the Laws of Malta, and the Equal Treatment in Employment Regulations, Subsidiary Legislation 452.95, seek to safeguard the rights of LGBTIQ+ employees by promoting the principle of equal treatment in the context of employment. Unlike the EIRA, these pieces of legislation include sexual orientation as a ground for discrimination. The prohibition of discrimination envisaged in the Regulations applies across the board, to “all levels of the professional hierarchy”. Moreover, such prohibition is also applicable to access to employee training and “membership of, and involvement in, any organization of employees and employers”. The Equal Treatment in Employment Regulations impose on employers the duty to play an active role in combatting all forms of harassment in the work environment. Failure to fulfil such obligation amounts to discrimination on the employer’s behalf.
In virtue of the Temporary Agency Workers Regulations, Subsidiary Legislation 452.106, temporary agency workers who are employed with a temporary work agency yet assigned to a user undertaking to work on a temporary basis are also safeguarded against discrimination on the ground of sexual orientation.
From an enforcement perspective, employees can bring claims of discrimination in the employment setting before the Industrial Tribunal within four months of the alleged breach.
Whilst ensuring that the local legal employment framework safeguards LGBTIQ+ rights is crucial in prohibiting discrimination and promoting equality in the labour market, employers must, on a more practical level, actively strive to create a safe, welcoming and supportive work environment. This can be achieved by making use of gender neutral, inclusive language in emails, jobs advertisements and interviews, for example. Gendered job titles such as salesman should be avoided and replaced with gender-neutral titles such as sales representative. Training employees on how to recognise, address and mitigate unconscious bias is an important step in fostering a human-centred organisation which promotes a healthy, diverse and inclusive company culture. Moreover, employers should draw up and guarantee the implementation of an inclusion policy founded on the principles of diversity, equality and empathy. Such policy should expressly forbid LGBTQ+ discrimination and ensure that employees who face discrimination at work are able to report their experiences with no fear of judgment and that such reports are taken seriously. Such policies reflect the company’s commitment towards ensuring that employees, irrespective of their sexual orientation, feel appreciated, valued and respected. This will ultimately improve the company’s employee loyalty, productivity and efficiency.