Organic Law 3/2007 [LOIEMH]: Reversal of the Burden of Proof and Compensation

Alteration of the Principle of Evidence in Equality Matters

Organic Law 3/2007 introduced procedural mechanisms of fundamental importance to consolidate effective judicial protection and eliminate the vulnerability of victims in non-criminal litigation regarding sex-based discrimination and harassment.

Among these safeguards, the alteration of the traditional rules regarding the burden of proof in civil, administrative, and labor proceedings stands out.

Pursuant to Article 13 of this law, when the plaintiff provides well-founded and reasonable evidence of having suffered discriminatory treatment or harassment, the burden of proof shifts to the defendant.

This procedural change does not imply an absolute presumption of guilt, but rather requires the defendant to provide objective, transparent, and irrefutable proof that its decisions or omissions were based on neutral, legitimate criteria, free from any bias or discriminatory motivation.

In this way, the law balances the structural power imbalance that typically characterizes these disputes, preventing the extreme technical difficulty of providing direct evidence regarding the perpetrator’s or employer’s intent from hindering the punishment of unlawful conduct.

The law requires that the initial circumstantial evidence be sufficiently robust to raise a reasonable doubt regarding the violation of the right to equality; at that point, the burden of proof shifts fully to the defendant in the proceedings.

Protection Against Retaliation Through Immunity

At the same time, the law guarantees the inviolability of the rights of those seeking justice through the guarantee of indemnity.

This legal instrument shields workers and members of the institutional community from potential adverse consequences arising from their active efforts to combat discrimination.

In practice, the guarantee of indemnity invalidates and automatically nullifies any punitive or prejudicial measure—such as dismissals, substantial changes to working conditions, disciplinary sanctions, forced transfers, or downgrades in academic and professional eva luations—adopted in response to or as retaliation for the filing of a complaint, claim, or lawsuit.

The protective scope of indemnity is not limited solely to the person directly affected or the complainant, but extends to those who participate in the proceedings as witnesses, legal representatives, or collaborators in the investigation of the case.

This prevents the intimidating effect that the threat of retaliation often has on the victim’s environment, thereby safeguarding the freedom to report violations and provide ethical testimony.

This guarantee ensures that the use of formal complaint or reporting channels does no