What Article 314 of the Criminal Code punishes
Article 314 criminalises serious discrimination in employment, whether public or private, on grounds such as ideology, religion or beliefs, family situation, ethnicity, race or national origin, sex, age, sexual orientation or gender identity, aporophobia or social exclusion, illness or disability, legal or trade-union representation of workers, kinship with other employees of the company, or the use of one of Spain's official languages. Unequal treatment alone is not enough: the offence requires that discrimination be "serious" and, above all, that the responsible party fails to restore equality after a prior administrative requirement or penalty, and to repair the resulting economic harm.
That last requirement makes Article 314 a conditional offence: the criminal route only opens once the administrative channel —action by the Labour Inspectorate and any resulting penalty— has failed to correct the reported discrimination, reflecting the principle of minimum criminal-law intervention in labour relations.
Penalty
The penalty is six months to two years in prison, or a fine of twelve to twenty-four months.
Common scenarios
This offence typically arises in dismissals, non-renewals of contracts or denied promotions actually motivated by an employee's pregnancy or maternity, trade-union membership, ethnic or national origin, or an illness or disability, where, after the corresponding complaint to the Labour Inspectorate and the administrative penalty, the company continues to refuse to reinstate the affected worker or repair the economic harm caused. It can also arise from pay policies or working conditions that are systematically different for protected groups without objective justification, where the company keeps that practice despite having been required to correct it.
Defense strategy
The defense should first check whether the prior administrative requirement or penalty that the offence requires as a prosecution precondition actually occurred, since its absence bars criminal prosecution. It is also essential to show that the challenged business decision was based on objective, unrelated causes —performance, restructuring, verifiable economic reasons— rather than genuine discriminatory intent. Finally, it is worth documenting any attempt to repair the economic harm caused, since effectively remedying the situation of inequality, where it happens, can remove the criminal relevance of the facts. Given how demanding these preconditions are, many complaints that look like Article 314 cases in the media never actually reach the criminal threshold and are instead resolved, definitively, within the labour and administrative sanctioning system. A well-documented HR file, with objective performance records predating the disputed decision, is often the single most effective piece of defense evidence in these cases.