The workplace is a pocket version of our society. It is therefore also a place of discrimination. Discrimination, in fact, seems to find more fertile ground in the workplace. It is true that important steps have been taken towards the elimination of stereotypes and social prejudices. The phenomena, however, of unfavorable treatment of employees due to their physical or acquired characteristics have not disappeared; they continue to be identified throughout the employment relationship: from hiring to termination.
The legislator’s goal is to eliminate discrimination in the workplace. Attempts are being made in this context (at international, EU and national level) to address any discriminatory (and ultimately unfavorable) treatment through the introduction of prohibitive rules.
The prohibition of discrimination in EU law
Prohibition of discrimination has been a goal of the EU legislature (among others) for decades. Relevant regulations can be found, for example, in the Treaty on European Union (Article 19 §1) and in the Charter of Fundamental Rights (Article 21).
Of particular importance are the Anti-Discrimination Directives: Directives 2000/43 and 2000/78 aim to combat discrimination based on racial or ethnic origin (the first) and to combat discrimination based on religion or belief, special needs, age or sexual orientation (: the second). Finally, Directive 2006/54 aims to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of work and employment.
The prohibition of discrimination in national law
The prohibition of discrimination is adopted and imposed by the national legislator through the transposition into national law of the above Directives:
The transposition of Directives 2000/43 and 2000/78
The transposition of the specific Directives was carried out with law 3304/2005. Its purpose was to establish a general regulatory framework for combating discrimination based on racial or ethnic origin, religion or other belief, disability, age or sexual orientation in employment and work, in order to ensure that the principle of equal treatment is applied (Article 1).
Law 3304/2015 was limited to repeating the reasons for discrimination, as they were included in the aforementioned Directives. It was subsequently replaced by the current Law 4443/2016, which aims to create a single, clear and legally sound framework for the application of the principle of equal treatment. This law adopted, moving in this direction, the prohibition of the discriminations mentioned immediately above, but chose to add others as well: (a) color, (b) ethnic origin, (c) descent, (d) chronic illness, (e) marital status, (f) gender identity, (g) gender characteristics. It replaced the term “gender orientation” as anachronistic (see Explanatory Memorandum) with the term “sexual orientation”.
This law added to the concepts of discrimination (in addition to the concepts of direct and indirect discrimination – as will be discussed below) the concepts of “discrimination on the basis of relationship”, “discrimination on the basis of mental characteristics”, “multiple discrimination” and “denial of reasonable adjustments”.
Part of the legal theory maintained a critical attitude towards the specific expansion of the reasons that are forbidden to be a reason for discrimination. Their main argument was the possibility of potential interpretive issues based on the overlap of certain (pre-existing and added) personal traits. Also, the vagueness of the wording in relation to some of them. The concern (reasonably) recorded is that the widening of grounds for discrimination may lead to the excessive restriction of contractual and business freedom. And this without necessarily providing a higher level of protection.
The transposition of Directive 2006/54
Directive 2006/54 was transposed with law 3896/2010 (which replaced the pre-existing law 3488/2006). The purpose of the law is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of work and employment, with regard to (Article 1):
(a) access to employment (including vocational development), and vocational education (including vocational training);
(b) working terms and conditions, including pay; and
(c) occupational social security systems.
In order to understand the prohibition of discrimination sought through the Directives and consequently the regulations of the national legal order, it is not enough to mention the features that are not allowed to become grounds for discrimination. Further, it is much needed to approach some critical concepts, which are mentioned in national legislation (as well).
Direct discrimination is considered to be the least favorable treatment of a person because of a personal trait, which is forbidden to be a reason for discrimination. A measure of comparison is the treatment that another person receives, has received or would receive in a similar situation (article 2 of laws 4443/2016 and 3896/2010).
The provision of effective legal protection against discrimination, however, and the avoidance of circumvention practices, in addition, require the prohibition of indirect discrimination (as well).
Indirect discrimination exists when a seemingly neutral provision, criterion or practice may cause a person who bears one of the protected personal characteristics to be treated less favorably than others (Article 2 of Laws 4443/2016 and 3896/2010).
In the case of indirect discrimination, however, the fact that disadvantageous treatment is not due to the protected trait is to be proved. This occurs when: (a) the provision, criterion or practice in question is objectively justified by a legitimate goal and (b) the means to achieve that objective are appropriate and necessary.
The concept of discrimination also includes the case of harassment. Harassment occurs when unwanted behavior is associated with one of the protected traits, with the intent or effect of violating the dignity of that person and creating a threatening, hostile, degrading, humiliating or aggressive environment.
The concept of harassment is of special importance and needs to be effectively addressed in the context of the new labor law (: 4808/2021), as we analyzed extensively in our relevant article (on the prohibition of violence and harassment).
Grounds for discrimination
The prohibition of discrimination has not become (and rightly so) absolute. On the contrary, according to Law 4443/2016, specific objective reasons are recognized which, if any, justify certain discriminations. The legal theory, however, argues that the non-absolute nature of the prohibition of discrimination must be accepted also in the case of Law 3896/2010.
The provision of a. Law 4443/2016 provides for exceptions (general and specific) that render conditional the protection against discrimination.
In particular, the general exception may apply to any protected personal trait. In this context, any discrimination is not considered prohibited, in case the different treatment is connected with a substantial and decisive professional condition and if the relevant purpose is legitimate and the condition is proportional. For example, the distribution of a role to an elderly person does not constitute a prohibited discrimination, if this is required for reasons of authenticity.
Special exceptions include any discrimination based on religious or other beliefs or age. The exceptions regard discriminatory treatment that is an essential, legitimate and justified professional requirement.
Effectiveness in tackling discrimination is also sought through the procedural facilities provided to victims of discrimination. These facilities include:
(a) Reversal of the burden of proof: In the event that a case of prohibited discrimination is brought before the courts (or other competent authorities), it is provided that it is sufficient that the plaintiff proves the facts (to provide indications) from which the existence of direct or indirect discrimination is presumed. This means that the defendant is required to prove that any discrimination, if it took place, is not based on a protected feature (Article 9 of Law 4443/2016 and 24 of Law 3896/2010).
(b) The possibility of representing the alleged victim of discrimination: The alleged victim may be represented before the courts, administrative authorities and bodies by an organization whose purpose is – inter alia – to ensure compliance with the principle of equal treatment. Necessary condition is the consent of the victim (article 8 §3 law 4443/2016 and 22 §2 law 3896/2010).
Discrimination, as mentioned in the introduction, is, unfortunately, a trait of our society.
However, it significantly and with great intensity burdens the workplace.
Several pieces of legislation (national and EU) aim to reduce discrimination and its consequences, with the aim of assisting (for a number of reasons) those affected.
The protection, however, of those employees who have certain characteristics or who, for some reason, have a disadvantage compared to others, should not take place because of an obligation to comply with the law but it should rather be an act of individual and social responsibility. That is when the undoubted positive results will not only affect those with the special characteristics mentioned in the law, those who have a disadvantages and the workplace.
They will primarily affect the businesses and society itself.-
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 12th, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.