Workplace Discrimination as a Crime in Spain: Art. 314 CP Explained

An order from the Labour Inspectorate concerning a decision the labour authority regards as discriminatory is not yet a criminal matter, but it is the very thing that can turn it into one. Art. 314 of the Spanish Criminal Code (CP) builds the offence of workplace discrimination on a requirement found in almost no other provision of the Code: discriminatory conduct, however intense, becomes punishable only where the person responsible, having been ordered or penalised by the administrative authority, fails to restore equality and to repair the financial harm. As criminal lawyers in workplace discrimination cases, we set out what the provision requires on its own wording, how the route from the administrative file to the criminal court works, and where the boundaries with hate crimes and workplace harassment lie.

You have been reported for workplace discrimination: what it means and what happens next

Almost nobody reaches this offence by surprise. Before the court summons there was a file: an inspection by the Labour Inspectorate, an infringement notice or a decision of the labour authority finding discrimination and ordering that equality be restored. Art. 314 CP does not punish the discriminatory decision as such: it punishes persisting in it after that order or that administrative penalty. So when the summons arrives, the first thing to reconstruct is not what was done at the time but what exactly was ordered, on whom it was served and what was done within the period granted.

What is at stake are alternative penalties: six months to two years' imprisonment or a fine of twelve to twenty-four months, with no disqualification attached. Which of the two the court chooses is not a detail of enforcement but a defence objective from the first submission, and a custodial sentence not exceeding two years falls squarely within the suspension regime of Art. 80 CP. There is also a feature this offence shares with almost no other: while time remains within the period set by the order, restoring equality and repairing the financial harm deprives the offence of its precondition. That window exists, but it is closed by the calendar, not by the investigation.

What to do (and what not to do) once the order arrives

• Identify the deadline and the exact content of what is required. What must be restored, in respect of which people, and by when. That is what decides whether the precondition of the offence can still be removed, and the critical moment is that notification, not the court summons.
• Calculate the harm from the outset, not merely going forward. The repair the provision demands reaches the financial harm already caused; a correction that only looks to the future leaves the order unfulfilled and the offence intact.
• Leave a documentary trail of every step. The notification received, the calculation applied, proof of payment and the communication sent to the authority that issued the order. Real compliance that nobody can evidence reads, in court, as no compliance at all.
• Preserve the company's documentation in full. Selection files, pay scales, performance appraisals and internal correspondence, with no later tidying: comparison with workers in an equivalent position is the central evidence of objective justification.
• Do not respond to the Inspectorate or to the employment court without coordinating with the criminal defence. Submissions made before the Inspectorate or in the employment proceedings will later be read in the criminal case, and an explanation drafted to resolve an administrative formality proves hard to qualify afterwards.
• Do not make a statement without a lawyer and without having examined the case file. Art. 118.1 of the Criminal Procedure Act (LECrim) gives you the right to remain silent and to examine the proceedings before your statement is taken; Art. 775 LECrim, the right to speak with your lawyer in private before and after it.

What Art. 314 CP Actually Requires

The provision is a single paragraph, and it is worth taking apart because each of its pieces is a separate battleground. It punishes those who cause serious discrimination in public or private employment against a person on one of the grounds it lists, and who do not restore the situation of equality before the law after an administrative order or penalty, repairing the financial harm that has resulted, with six months to two years in prison or a fine of twelve to twenty-four months.

Four cumulative requirements follow. The first is discrimination: unfavourable differential treatment lacking any objective and reasonable justification, since employment law accepts differences grounded in the organisation of production, qualifications, length of service, performance or the structure of the applicable collective agreement. The second is seriousness, which is not a rhetorical adjective but an element of the offence, introduced to reserve criminal intervention for the most intense cases; it is measured by the extent of the harm, by its impact on the core of the relationship — access to employment, pay, promotion, termination — and by whether it is systematic or isolated. The third is the field of application: employment, whether public or private, an expression covering both the employment and the civil-service relationship and taking in a refusal to hire just as much as a sustained difference in pay or a dismissal decision. The fourth — the most distinctive — is the failure to comply with a prior administrative order or penalty: without it, Art. 314 CP simply does not bite.

The List of Grounds: What Counts and What Does Not

Art. 314 CP does not protect against differential treatment on any ground whatsoever, but against an exhaustive list: ideology, religion or belief; family situation; membership of an ethnic group, race or nation; national origin; sex, age, sexual or gender orientation or identity; gender-related grounds; grounds of aporophobia or social exclusion; illness suffered or disability; holding the legal or trade-union representation of the workforce; kinship with other workers in the undertaking; and the use of one of the official languages within the Spanish State.

The last three are the ones most often overlooked, and they describe very real disputes: pay or promotion reprisals against someone elected as a staff delegate or works council member, detriment directed at a worker because of a family connection with another employee, or the penalising of someone who uses a co-official language. The exhaustive character of the list also has an immediate consequence: differential treatment based on a ground outside the list falls outside Art. 314 CP however arbitrary it may be, and its correction belongs to the employment courts.

The Unheeded Order: What Turns Discrimination Into a Crime

The second half of Art. 314 CP — the failure to restore the situation of equality before the law after an administrative order or penalty, repairing the financial harm caused — is generally treated as an objective condition of punishability. Its precise doctrinal nature is debated, but the practical effect leaves no room for doubt: without a prior administrative order or penalty and without its breach, there is no offence. The legislature has used the same technique elsewhere in the title: Art. 311.2 CP punishes those who impose unlawful conditions on their workers by contracting under arrangements outside the employment contract or who maintain such conditions against an administrative order or penalty.

The order must come from the competent authority and must identify precisely which situation of inequality is to be corrected; a generic order will hardly allow compliance to be measured afterwards. It must also set a reasonable period for compliance, materially sufficient to carry out what has been ordered, and the conduct is not complete before it expires.

Compliance, moreover, is twofold. Ceasing the conduct is not enough: the situation of equality must be restored — which may mean reinstating, regrading, aligning pay or re-running a selection process — and, in addition, the financial harm caused must be repaired. Partial compliance that restores equality going forward without compensating the loss already suffered, or that pays a sum while the unequal situation continues, does not meet the statutory requirement. Hence room for manoeuvre rarely available in criminal law: timely compliance with the order prevents the offence from being completed, and not as a mitigating factor but through the absence of a precondition of the offence itself.

From the Labour Inspectorate File to the Criminal Court

The natural consequence is that these cases hardly ever begin in court. They begin with an inspection by the Labour and Social Security Inspectorate, usually triggered by a complaint from the worker or from the trade-union representatives, in which the inspector may issue an order to remedy the situation or draw up an infringement report. In administrative terms, employer decisions involving discrimination on protected grounds constitute a very serious infringement under Art. 8.12 of the consolidated Law on Infringements and Sanctions in the Social Order, known as the LISOS.

Running in parallel is the employment law route, which in practice is the one that resolves the dispute. Art. 4.2(c) of the Workers' Statute recognises the right not to be discriminated against in the employment relationship, and its Art. 17 declares void any regulatory provisions, collective agreement clauses, individual arrangements and unilateral employer decisions that give rise to situations of discrimination. The general framework is completed by Law 15/2022 on equal treatment and non-discrimination. The employment courts declare the decision void, order reinstatement and set compensation; they are also the forum where the restoration of equality demanded by Art. 314 CP usually takes place in practice.

The move into the criminal sphere therefore occurs late: once an administrative intervention already exists and has been disregarded. Criminal proceedings then take precedence, so that if the inspector finds evidence of an offence the file is sent to the Public Prosecutor or the investigating court and the administrative penalty procedure awaits the outcome. The material gathered during the inspection thus enters the criminal case already assembled, carrying the presumption of accuracy attaching to facts directly observed by the inspector — a presumption that admits evidence to the contrary and does not extend to legal assessments or inferences. That framework is examined in our article on the Labour Inspectorate and the employer's criminal liability.

Boundaries with Hate Crimes, Workplace Harassment and the Rest of Title XV

The hate crimes in Art. 510 CP do not look at the employment relationship but at the public promotion of hatred, hostility, discrimination or violence and at attacks on the dignity of persons because of their membership of a group. Its first subsection carries one to four years in prison and a fine of six to twelve months; its second, six months to two years in prison and a fine of six to twelve months. The penalties are imposed in their upper half where the acts are carried out through the mass media or the internet so as to be accessible to a large number of people (Art. 510.3 CP), and in every case the disqualification from educational professions in Art. 510.5 CP is added. No administrative order is required. How this offence operates online is addressed in our article on hate crimes and discrimination on social media.

Arts. 511 and 512 CP punish the discriminatory refusal of services on those same grounds: Art. 511 CP applies to the private individual in charge of a public service, with six months to two years in prison, a fine of twelve to twenty-four months and disqualification from public employment or office for one to three years, imposed in their upper half on public officials; Art. 512 CP applies to those who refuse such a service in the exercise of their professional or business activities, and its penalty consists solely of disqualification from the exercise of a profession, trade, industry or commerce and from educational professions for one to four years. Both concern the relationship with the user or customer rather than the employment relationship, and neither requires a prior order.

Workplace harassment is punished under Art. 173.1 CP, which imposes six months to two years in prison on those who, within any employment or civil-service relationship and taking advantage of their position of superiority, repeatedly carry out hostile or humiliating acts against another which, without amounting to degrading treatment, constitute serious harassment of the victim. The difference lies in the object of protection: Art. 173.1 CP protects moral integrity against repeated hostile conduct; Art. 314 CP protects equality against a discriminatory decision, even a single one. The threshold of harassment is developed in our article on workplace harassment and when it becomes a crime.

Within Title XV itself, Art. 311 CP punishes with six months to six years in prison and a fine of six to twelve months the imposition of harmful conditions through deceit or abuse of a situation of need; Art. 315 CP punishes with six months to two years in prison or a fine of six to twelve months those who by those same means prevent or limit the exercise of trade-union freedom or the right to strike, and with one year and nine months to three years in prison or a fine of eighteen to twenty-four months where coercion is involved; and Art. 316 CP punishes with six months to three years in prison and a fine of six to twelve months the failure to provide safety measures where this seriously endangers workers' lives or physical integrity, with the penalty reduced by one degree where the offence is committed through gross negligence (Art. 317 CP). The full picture is set out in our guide to crimes against workers' rights, and its most serious end in our article on illegal labour trafficking under Art. 312 CP.

Who Is Liable Where the Employer Is a Company

Art. 314 CP describes employer conduct, but the employer is usually a legal person. The answer is given by Art. 318 CP: where the facts covered by the articles of this title are attributed to legal persons, the penalty is imposed on the directors or managers of the service who were responsible and on those who, knowing of the facts and being able to remedy them, took no measures to do so, and the court may in addition order one of the measures in Art. 129 CP. One frequently confused point deserves emphasis: the offences in Title XV are not listed in Art. 31 bis CP, so the company is not prosecuted as a legal person and no corporate fine is imposed on it for an offence under Art. 314 CP. The contrast with workplace harassment is telling, because Art. 173.1 CP does expressly provide for corporate liability under Art. 31 bis CP, with a fine of six months to two years, in addition to the penalties in points (b) to (g) of Art. 33.7 CP.

Art. 318 CP opens two circles of individual liability: whoever decides on or carries out the measure — de facto or de jure director, human resources manager, head of the unit concerned — and, built on an omission, anyone who knew of the situation and had the effective capacity to correct it and did not. Against that second circle the defence works on actual knowledge — not knowledge presumed from the office held — on the existence of an effective delegation of duties, and on who actually received the order and had authority to act on it.

Penalty, Limitation and Suspension of the Sentence

The penalties in Art. 314 CP are alternative: six months to two years in prison or a fine of twelve to twenty-four months. The court chooses one or the other with reasons, and that choice is a genuine objective for the defence, since the provision adds no disqualification. The fine is imposed under the day-fine system of Art. 50 CP, whose daily rate has a minimum of two and a maximum of 400 euros and is set solely by reference to the convicted person's financial circumstances.

Limitation is governed by Art. 131 CP and is often got wrong. The ten-year period is reserved for offences whose maximum penalty is imprisonment or disqualification of more than five years and not exceeding ten; here the maximum custodial penalty is two years, so the residual five-year rule applies. The alternative fine does not change the outcome: even applying Art. 131.2 CP, which requires the penalty demanding the longer period to be taken where the penalty set by law is compound, the period remains five years; and because Art. 314 CP carries no disqualification — unlike Arts. 511 and 512 CP — the rule tying the period to the length of such a penalty does not come into play either. The starting date matters as much as the period: under Art. 132.1 CP time runs from the day the punishable offence was committed, and here the offence is not complete until the period set in the order expires without equality having been restored or the harm repaired.

Finally, suspension of the sentence. Art. 80.1 CP allows custodial sentences not exceeding two years to be suspended, and the maximum under Art. 314 CP is exactly two years, so any custodial sentence for this offence falls within the scope of the benefit. Art. 80.2 CP requires that the convicted person be a first offender, that the sentence or the sum of the sentences imposed does not exceed two years, and that civil liability has been satisfied, a requirement treated as met where the convicted person undertakes to satisfy it in line with their financial capacity and it is reasonable to expect that undertaking to be honoured. In an offence whose very core is the failure to repair financial harm, that requirement is no formality: the effort to repair the damage, which Art. 80.1 CP expressly lists among the assessment criteria, carries particular weight here.

Lines of Defence

The defence is built on verifiable material and, to a large extent, on documents. The first line is the objective and reasonable justification for the difference in treatment: establishing that the decision responded to criteria of organisation, qualifications, availability, performance or collective agreement structure, applied consistently across the rest of the workforce, with comparison against workers in an equivalent position as the central evidence. The second line is seriousness: being an element of the offence, its absence leads to no offence at all rather than to mere mitigation. The third line is compliance with the order, the most effective where there is still room to act: documenting the restoration of equality and the repair of the harm within the period granted deprives the offence of its precondition.

The fourth line is mistake under Art. 14 CP. An unavoidable mistake as to a fact constituting the offence excludes criminal liability and, where avoidable, the offence would be punished as negligent where applicable — which here likewise means no liability, because Art. 314 CP has no negligent form: Art. 317 CP, the only negligence provision in the title, refers exclusively to the offence in the preceding article. It has real scope where the order was served on someone other than the person with authority to act on it, where its content was ambiguous as to what had to be restored, or where the criterion applied derived from a collective agreement or an internal instruction whose unlawfulness was not apparent; mistake as to unlawfulness is governed by Art. 14.3 CP, with the penalty reduced by one or two degrees where the mistake was avoidable. The fifth line is proof of the ground: the prosecution must establish that the decision was taken on one of the grounds exhaustively listed in the provision.