Problematic approach: Companies ask about sexual orientation when applying

Spread from the USA to Switzerland

Zurich is no special case. More and more Swiss companies are starting to collect and evaluate the diversity characteristics of their existing workforce. This summer, reinsurer Swiss Re wanted to know what the sexual orientation, gender and ethnicity of its employees were. Two years ago, UBS became the first bank to ask about the ethnicity of its employees.

St. Gallen law professor Isabelle Wildhaber has conducted research on whether such surveys are permissible. And he understands the inconveniences they cause. “Diversity monitoring has spread from the US to Europe. “The promotion of diversity in the United States has completely different legal foundations and social backgrounds.”

This also includes supporting disadvantaged groups by providing them with preferential treatment because of their minority status. The U.S. Supreme Court banned so-called “affirmative action” for higher education in June 2023. What this means for the private sector is debatable.

“In Switzerland and most European countries, personal data about ethnicity, sexual orientation, religious and philosophical beliefs are considered particularly worthy of protection,” says Wildhaber. Therefore, one must ask whether such characteristics are important only for suitability for the job. But this is usually not the case. People should be protected by keeping potentially discriminatory characteristics private.

“This could have the opposite effect.”

The manager who applied to Zurich sees the registration of differences as a step backwards in society. “We were on the right track. The workforce at most companies has become more diverse in recent years.” The proportion of women has increased. And it doesn’t matter much anymore how someone marks themselves as sexual, he says. And also because most employees have become much more sensitive to discrimination against minorities. If you break them down into categories now, it could have the opposite effect.

Zurich Insurance denies the accusation that its survey method could have a discriminatory effect. The person deciding on a job in a particular situation does not even find out what the applicants answered. “The data is anonymized and then evaluated on an aggregate basis,” says Zurich spokeswoman Laura Worrall.

Pressure from the USA

So why do companies do this? “This allows us to measure progress in creating a diverse workforce,” says Worrall. Zurich specifically wants to analyze “how the proportion of people belonging to a particular population group changes over time.” Comparison with other companies is also possible.

Surveys are completely non-voluntary. For US-based jobs, large international companies have to inquire about the ethnicity of their employees if they want to accept government contracts. This applies to Zurich. Zurich assures that questions will not be asked for positions in Switzerland.

The Swiss executive was asked about diversity characteristics because London was a possible place to work, along with Zurich. But in Great Britain – unlike the US – there is no obligation to register sexual orientation or ethnicity, as Zurich has acknowledged. He cites another reason: The questions are asked because of participation in international diversity programs and certifications, such as the Stonewall Workplace Equality Index.

Most large companies in Switzerland now have diversity programs. But so far they have targeted characteristics such as gender and age. Features that a company already knows about, because they also relate to social insurance. Measuring the gender ratio within a department or hierarchy level is not a problem, or even legal. Things are different when it comes to highly specific characteristics such as sexual orientation.

Sensitive questions about sexual orientation

“If employees are still being asked about this, it can only be voluntary,” says law professor Isabelle Wildhaber. Whether something is truly voluntary should always be questioned critically in a business relationship.

Even if this is true, another problem arises: the validity of the data. “What does it say about diversity at a company if, for example, 30 percent of employees do not participate in a survey?” Wildhaber asks. he asks.

Asking these questions when applying for a job poses a legal problem. “There is almost no volunteering here anymore because applicants are under pressure to do the best they can in the process,” says Wildhaber. Therefore, relevant questions are answered reluctantly.

Universities communicate better

Companies like Zurich guarantee that there is no impact on employment because the responses are anonymized. However, you are likely to have ideas about which aspects are underrepresented and which are underrepresented in the company. “Otherwise all the data collection and evaluation would be kind of pointless,” says Wildhaber.

He also criticizes the fact that what a company does with such questions is often only vaguely communicated. Should the proportion of different minorities be fundamentally increased? Or are there more precise goals, such as population representation?

According to the law professor, universities are now acting much more aggressively and communicating clearly. “The goal at some universities is to increase the proportion of female professors to 30 percent or more by 2030. This situation is announced in job postings. When a position is advertised, every man who applies knows it.”

It’s allowed to lie

Questions about characteristics worth protecting are clearly unacceptable in a personal job interview. Sexual orientation should not be discussed. “This is similar to questions about desire to have children or religious belief,” says Wildhaber. They didn’t belong in a job interview. If asked anyway, you don’t have to answer.

“Anyone who fears being put at a disadvantage by not answering can exercise their right of self-defense to lie,” says Wildhaber. A person may present himself as heterosexual or homosexual even if this does not coincide with his true orientation. This is a rather negative starting point for superiors who want to comply with company requirements in their hiring decisions.

The job applicant in Zurich found another position. But the experiences left their mark. “With laws and greater awareness, we have ensured that every individual is better protected against discrimination. But now people must be treated and supported differently depending on their group membership. “I don’t see any progress on this.”