İpek Pınar Yazıcı (1)
1. INTRODUCTION AND SCOPE
Discrimination, in general terms, refers to treating an individual differently based on certain characteristics they possess. Discriminatory actions and statements have persisted throughout history, embedding the concept of discrimination in many areas of law. In legal terms, it is crucial to define discrimination clearly, set boundaries, and prevent it.
This article will first discuss the concept of discrimination in legal terms, its legal basis, and the types of discrimination. The main focus will be on “workplace discrimination and its legal consequences.” Additionally, Constitutional Court and Supreme Court decisions, as well as a question-and-answer section related to discrimination, will aim to provide a broad perspective on workplace discrimination.
Examining workplace discrimination along with the principle of equal treatment offers further insights into the prohibition of discrimination.
2. WHAT ARE DISCRIMINATION AND THE PRINCIPLE OF EQUAL TREATMENT?
Individuals or groups facing discrimination are subjected to negative statements and actions (2). The principle of equality, a related concept, requires that everyone is treated equally before the law, without any discrimination based on language, race, color, gender, political opinion, philosophical belief, religion, sect, or similar reasons.
The principle of equality is regulated in Article 10 of our Constitution:
Equality Before the Law
Everyone is equal before the law, regardless of language, race, color, gender, political opinion, philosophical belief, religion, sect, or similar reasons.
Men and women have equal rights. The state is responsible for ensuring this equality in practice. Measures taken for this purpose cannot be interpreted as contrary to the principle of equality.
Measures taken for children, the elderly, people with disabilities, widows and orphans of martyrs, and veterans cannot be considered contrary to the principle of equality.
No privilege can be granted to any individual, family, group, or class.
State bodies and administrative authorities are obliged to act in accordance with the principle of equality before the law in all their proceedings.
As seen in Article 10 of the Constitution, equality does not mean absolute sameness in all cases. It allows for differential treatment for specific individuals or situations. This is known as positive discrimination, and our legal system has an equality regulation that embraces positive discrimination. This approach does not undermine the principle of equality. If those who are not in the same situation were treated equally, indirect discrimination could arise. Thus, equality means not treating those in the same circumstances differently without an objective, concrete, and reasonable basis. When this principle is violated, discrimination occurs.
The prohibition of discrimination serves as a protective form for the principle of equality. Both the prohibition of discrimination and the principle of equality are widely recognized and protected legal norms in international arenas and in our country. Discrimination is a concept that has been combated globally, regulated in detail through both international conventions and domestic laws, including our Constitution.
Discrimination was first prohibited internationally in the 1948 United Nations Universal Declaration of Human Rights (Article 2 – Article 23).
Various international regulations, such as the Universal Declaration of Human Rights, the European Convention on Human Rights, the European Social Charter, the Treaty of the European Economic Community, and conventions of the International Labour Organization, address non-discrimination and equal treatment. The European Parliament and Council Directive 2006/54/EC of 5 July 2006, on the implementation of the principle of equal treatment between men and women in matters of employment and occupation, also includes related provisions.
The International Covenant on Economic, Social, and Cultural Rights includes a general prohibition of discrimination, with Article 3 introducing a specific prohibition for women. In this context,
Turkiye is a party to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women. In Europe, discrimination is prohibited by the European Convention on Human Rights (ECHR), which Turkiye is also a party to. According to Article 14 of the ECHR, the prohibition of discrimination is a fundamental right and principle. Additionally, Protocol No. 12 to the ECHR broadens the scope of the prohibition of discrimination compared to Article 14. Article 4 of the ECHR stipulates that men and women performing equal work should receive equal pay.
In Turkish law, the principle of equal treatment and the prohibition of discrimination are also enshrined in Article 10 of our Constitution and the Labor Law No. 4857.
3. TYPES OF DISCRIMINATION IN THE WORKPLACE
Employers may violate anti-discrimination laws when hiring, employing, or terminating employees. These violations can stem from various factors such as environmental influences, economic conditions, prejudiced beliefs, social pressure, and similar reasons.
Discrimination in the workplace can take many forms, such as:
1. Mobbing / Psychological Pressure / Psychological Harassment: Employers may attempt to wear down employees through harassment, derogatory remarks, unfair accusations, emotional distress, or degrading treatment, constituting mobbing.
2. Gender Discrimination: Gender-based discrimination involves providing different rights and freedoms based on gender. This commonly manifests as unequal pay, blocking opportunities, or impeding career development, especially affecting women.
3. Language, Religion, Race, or Culture Discrimination: Employers may treat employees differently based on language, religion, ethnicity, or cultural background. This can also result in wage discrimination.
4. Age Discrimination: Employers may discriminate based on age by offering preferential treatment to older employees, providing them with additional rights and freedoms.
5. Wage Discrimination: This includes offering different wages for the same work or not fairly compensating those who work harder.
6. Discrimination in Sharing Information with Employees: Some employers may withhold company secrets or necessary information from employees they dislike or do not feel close to, thereby engaging in discrimination. Additionally, employers may make management decisions that disadvantage certain employees, violating the obligation to treat employees equally.
7. Disability Discrimination: Some employers discriminate against individuals with physical or mental disabilities by avoiding hiring them, even if they are capable of performing the job.
8. Discrimination in Working Conditions: Employers may violate anti-discrimination laws by offering more comfortable working conditions, flexible work systems, or lighter workloads to certain employees. Discrimination can also occur in terms of providing different social benefits.
9. Discrimination Against Short-term or Fixed-term Employees: Employers may treat short-term or fixed-term employees disadvantageously compared to employees with indefinite contracts.
4. ANTI-DISCRIMINATION LAW AND PRINCIPLE OF EQUAL TREATMENT UNDER THE LABOR LAW
According to Article 2 of the Labor Law, a person who works under an employment contract is called an employee; a person or entity employing them is called an employer, and the relationship between them is called an employment relationship. Employers have an obligation to treat their employees equally.
Principle of Equal Treatment – Article 5:
In an employment relationship, discrimination based on language, race, color, gender, disability, political thought, philosophical belief, religion, sect, or similar reasons is prohibited.
Unless justified by substantial reasons, employers cannot treat part-time employees differently from full-time employees, nor can they treat fixed-term employees differently from indefinite-term employees.
Unless necessitated by biological or job-related factors, employers cannot treat an employee differently based on gender or pregnancy in the formation, conditions, application, or termination of the employment contract.
A lower wage cannot be determined for a female employee for the same or equivalent work.
The application of special protective provisions due to an employee’s gender does not justify a lower wage.
Article 5/1 of the Labor Law emphasizes general equal treatment, aligning with Article 10 of the Constitution.
Article 5/2 of the Labor Law focuses on equality in terms of the duration of the employment contract. Employees should be treated equally regardless of whether they are employed on a short-term, fixed-term, or indefinite basis, as long as they perform the same type of work.
Article 5/3 introduces an indirect limitation with the phrase “unless necessitated by biological or job-related factors,” implying that certain reasons may justify different treatment of employees in specific cases. A similar provision is found in paragraphs 1 and 2 of Article 50 of the Constitution.
Article 5/4 addresses gender equality directly, stipulating that men and women performing the same work cannot receive different wages. This is further reinforced by Turkiye’s commitment to the “Equal Remuneration Convention,” which mandates equal pay for work of equal value based on objective and concrete criteria.
Under Article 5/5 of the Labor Law, employees granted work or lactation leave, for example, cannot receive lower wages during these periods.
In conclusion, applying the principle of equality and preventing violations of the anti-discrimination law does not require all employees to be identical in every characteristic. If employees perform the same type of work, they should be treated equally regardless of their education, experience, age, or gender. However, if the work is not of the same type, differential treatment does not constitute discrimination.
To apply the principle of equal treatment, the Supreme Court has established specific criteria: the presence of an equivalent group within the workplace, the employees working in the same establishment, discrimination occurring among these employees, exclusion from collective benefits, the discriminatory situation being concurrent, and, most importantly, the employees being employed under an employment contract.
5. ACTIONS AND SITUATIONS THAT MAY CONSTITUTE DISCRIMINATION
Many circumstances can constitute discrimination. Examples include: a woman with a child or a woman with a disabled child being denied employment or paid a lower wage due to the assumption that her work may be disrupted, the prevention of non-Turkish citizens from working in positions where Turkish citizenship is not required, offering higher pay to some workers performing the same tasks while offering lower pay to others, and paying more to experienced workers than to younger workers performing the same job.
5.1. Does Providing Childcare Services to Some Female Employees While Excluding Others Constitute Discrimination?
The Supreme Court of Appeals and the Constitutional Court have issued differing rulings on this matter.
According to the Constitutional Court, this situation is considered discriminatory. In its Burcu Reis decision regarding childcare services, the Constitutional Court stated that providing childcare services to some female employees while excluding others constitutes discrimination, thus violating the anti-discrimination rule (Decision No. 2016/5824, dated 28/12/2021). You can access the detailed article on the Burcu Reis decision via this link.
The 9th Civil Chamber of the Supreme Court of Appeals ruled differently in this case, concluding that since the plaintiff failed to prove that the discriminatory conditions specified in Article 5 of the Labor Law had been met, compensation in favor of the employee could not be awarded.
The differing perspectives of the Constitutional Court and the Supreme Court of Appeals are due to the following views: the Supreme Court of Appeals holds that not every instance of differential treatment warrants discrimination compensation. Rather, it requires that discrimination be based on specific motives set forth in the law, and it is the employee’s responsibility to prove discrimination. In contrast, the Constitutional Court holds that denying the plaintiff access to childcare services granted to other women constitutes visible discrimination, and the employee is not required to prove the employer’s motivation. Furthermore, in cases of clear discrimination, the burden falls on the employer to demonstrate a reasonable and justifiable reason, proving the lack of discriminatory intent.
5.2. Can Paying Female Workers Less Than Male Workers for Performing the Same Job Be Considered Discriminatory?
Yes, it can be considered discriminatory depending on the specific case. Such a situation may represent gender-based discrimination. According to a ruling by the 9th Civil Chamber of the Supreme Court of Appeals, if it is determined that a female employee is paid less than male counterparts for performing the same job, compensation for discrimination can be awarded (Decision No. 2017/16279, 2020/10415, dated 05/10/2020).
5.3. Does the Underpayment of Wages Through Fraud Constitute Discrimination?
According to a decision by the 9th Civil Chamber of the Supreme Court of Appeals, the underpayment of wages through fraudulent means does not constitute discrimination unless it is claimed and proven that the underpayment is based on language, race, gender, political opinion, philosophical belief, religion, sect, etc. Thus, the lack of evidence regarding these factors resulted in the rejection of the discrimination compensation claim (Case No. 2016/24252, 2020/10625, dated 6.10.2020).
5.4. Does Termination of Employment Due to Pregnancy Constitute Discrimination?
Yes, depending on the specifics of the case, if the employer’s intent is proven, such a situation may be considered discriminatory. This scenario reflects discrimination based on the woman’s biological condition. According to a precedent set by the 9th Civil Chamber of the Supreme Court of Appeals, the evidence in the file indicated that the employee’s contract was terminated due to her pregnancy, establishing grounds for discrimination compensation (Case No. 2016/1423, Decision No. 2019/11167, dated 15/05/2019).
6. WHAT ARE THE LEGAL CONSEQUENCES OF WORKPLACE DISCRIMINATION AND WHAT CAN DISCRIMINATED EMPLOYEES DO?
6.1. Workplace discrimination and its negative consequences:
Employees may experience discrimination in situations such as hiring, selection, promotion, and dismissal when they are not granted equal rights or are subjected to differential treatment.
Discriminated employees naturally cannot work in a happy, peaceful, and safe environment, which can hinder their productivity. Motivation may drop, stress levels may increase, talents may stagnate, and physical and mental health may be negatively affected. This can reduce the quality and efficiency of work, with potential negative impacts on all employees in a discriminatory atmosphere.
Discriminated employees may file a compensation lawsuit against the employer or pursue the employer’s administrative or criminal liability. In such cases, the employer’s and workplace’s commercial reputation may be damaged, clients may be lost, and penalties or compensations may bring financial burdens.
6.2. Legal actions for discriminated employees:
6.2.1. Immediate termination for just cause: Within the employment relationship, both the employee and the employer have obligations, with equal treatment being a primary responsibility of the employer. If the employer violates this, the employee gains the “right to immediate termination for just cause.” This regulation is found under Article 24/2 of the Labor Law, titled “employee’s right to immediate termination for just cause.”
6.2.2. Compensation for discrimination: Article 5 of the Labor Law provides a legislative remedy for employees who experience discrimination.
Labor Law Article 5/4: In cases of violation of the above provisions in employment or termination, the employee may demand compensation up to four months’ wages, in addition to other rights they were deprived of. The provisions of Article 31 of the Unions Act No. 2821 are reserved.
An employee facing discrimination may pursue “discrimination compensation / compensation for the violation of the principle of equal treatment.”
However, it’s important to note that Article 5/4 of the Labor Law applies only if the employee is still working at the workplace or was terminated due to discrimination. If an employee was subjected to discrimination before being hired and was not hired as a result, they may request moral compensation under general provisions instead of Article 5.
For discrimination compensation, it is not necessary for the employee to suffer any damage; it is sufficient that the employee experienced discrimination from the employer to request compensation.
Discrimination compensation has specific characteristics and arises only from the employer’s violation of the obligation to act equally. It does not require the termination of the employment contract, only that discrimination occurred. Bad faith compensation, on the other hand, is awarded when an employer terminates an indefinite employment contract in bad faith, without just cause. It is thus distinct from discrimination compensation, although practices regarding awarding both are inconsistent. Some courts rule that both can be awarded, while others rule that discrimination compensation excludes bad faith compensation.
When conditions permit, employees may also request severance pay and notice pay in addition to discrimination compensation. In some precedents, courts have awarded both bad faith compensation and discrimination compensation.
An important point is the statute of limitations for discrimination compensation, which is five years, starting from the date the employment contract was terminated.
6.2.3. Material and moral compensation in discrimination cases: Employees who suffer additional losses due to discrimination may also request material and moral compensation under general provisions for these damages. In short, any lost rights or earnings may be claimed as compensation. For instance, if the employee was denied a pay raise or additional payments given to other employees, these can be claimed.
6.2.4. Criminal liability in discrimination cases: Employers who violate the prohibition of discrimination and the duty to act equally may face criminal liability.
Labor Law Article 99/1: An employer or their representative who violates the principles and obligations set forth in Article 5 of this Law shall be subject to an administrative fine of one hundred fifty Turkish Liras for each employee affected.
The employer has the right to object to this administrative fine.
Additionally, Article 122 of the Turkish Penal Code criminalizes discrimination. Those who commit the crime of discrimination may face imprisonment from one to three years. The article states:
Hate and Discrimination
Article 122–
(1) Due to hatred based on language, race, nationality, color, gender, disability, political opinion, philosophical belief, religion, or sect:
a) Preventing a person from selling, transferring, or renting a movable or immovable property made available to the public,
b) Preventing a person from benefiting from a publicly offered service,
c) Preventing a person from being hired,
d) Preventing a person from engaging in ordinary economic activities,
shall result in imprisonment from one to three years.
7. WHO BEARS THE BURDEN OF PROOF IN DISCRIMINATION CASES AND WHAT EVIDENCE IS ACCEPTABLE?
7.1 Burden of Proof:
According to Article 5 of the Labor Law, excluding the provisions of Article 20, it is the employee’s responsibility to prove that the employer has violated the provisions mentioned above.
However, if the employee demonstrates a situation that strongly suggests the possibility of a violation, then it becomes the employer’s responsibility to prove that such a violation did not occur.
Additionally, it should be noted that if the employment contract is terminated by the employer and the employee has filed a compensation or reinstatement lawsuit claiming unjust termination, the employer must prove that they did not violate the prohibition of discrimination.
If the employee cannot fully prove discrimination but presents strong indications of its existence that convince the judge, then it is up to the employer to prove that discrimination did not occur.
In a ruling, the Constitutional Court stated that it is sufficient for the employee to prove they were subjected to discrimination to claim compensation. It is not necessary for the employee to prove the reason behind the discrimination or the employer’s intent. According to the Court: “The primary protection provided by the prohibition of discrimination is to prevent individuals from being subjected to differential treatment that is not based on objective and reasonable grounds. Therefore, in cases of discrimination, the primary matter of examination is not the reason for differential treatment but whether it is based on objective and reasonable grounds.”
7.2 Evidence:
The employee or employer may use any legally permissible evidence to substantiate claims related to discrimination. Examples include workplace security footage, payroll records, workplace logs, cell phone records, and other relevant documentation.
Among the types of evidence, witness testimony may be the most significant.
Does Recording Audio to Prove Discrimination Constitute a Crime?
Under Turkish Law, unauthorized audio recordings are generally considered a crime and are evaluated as unlawful evidence. However, there are instances where proving certain offenses may not be possible without such recordings. For this reason, certain divisions of the Court of Cassation have ruled that in cases involving offenses difficult to prove, such as sexual assault, harassment, insult, threat, blackmail, discrimination, mobbing, or defamation, it may be permissible to record audio if the individual cannot otherwise obtain evidence or access legal authorities immediately.
Additionally, it is crucial that the recording is not premeditated but done spontaneously to prevent the loss of evidence of an unexpected offense.
It is conceivable that discrimination, which can occur suddenly and in a situation where obtaining further evidence may not be possible, could qualify as such a situation. Therefore, an employee who faces discrimination may, in light of the Court of Cassation’s rulings, resort to audio recording to gather evidence.
8. WHAT CAN EMPLOYERS DO TO PREVENT DISCRIMINATORY ACTIONS AND SITUATIONS?
One of the most important obligations of an employer is to act fairly and equitably. To do so, they must first have a comprehensive understanding of international and national regulations and implement policies in the workplace that align with these standards. Furthermore, employers should be aware of best practices and incorporate them into their workplace policies. In this framework:
- Employers should establish and actively enforce anti-discrimination policies in the workplace.
- A work environment where all employees feel comfortable and safe should be created.
- Employers should implement a training program at a level that can prevent discrimination, ensuring participation from both management and all employees.
- Employers should avoid language that could foster discrimination against employees.
- The work environment should respect the lifestyles of employees and accommodate them.
- Employers can organize various activities to promote cooperation and teamwork within the workplace.
- A company hotline or internal digital platforms that employees can access anytime should be set up to report discrimination.
- Internal investigations should be conducted in accordance with legal regulations to examine any reported discrimination cases within the workplace.
9. CONCLUSION
In brief, discrimination is the differential treatment of an individual due to their characteristics compared to others. The prohibition of discrimination is enshrined in Article 10 of our Constitution under the principle of equality and is further supported by both international regulations and Turkish legal codes, which prohibit discrimination in all areas.
Moreover, within the employer-employee relationship, Article 5 of the Labor Law imposes an obligation on employers to act fairly. Employers are thus expected to avoid discrimination among employees.
There are legal avenues available to employees who experience discrimination:
An employee may immediately terminate their employment for just cause due to discrimination under Article 24 of the Labor Law. They may also claim discrimination compensation, along with general compensation if they have suffered any other damages. In addition, employees may pursue the criminal and administrative accountability of the employer and other responsible parties. This process may result in punishments such as imprisonment or administrative fines for those accountable.
(1) Istanbul Kültür University 4th year student
(2) The sub-types of discrimination and positive discrimination, which essentially expresses an affirmative action discourse, are not included in our article, and the focus is on the legal appearance of discrimination in the negative sense.
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