Discrimination in the workplace based on skin color, faith, political views or sexual orientation has no right or reason to exist nowadays. Therefore, no self-respecting company would attempt to segregate employees based on their individual characteristics that have nothing to do with the work they perform. Moreover, in line with political correctness, many companies even overdo it in their attempts to fight discrimination, favoring all kinds of minorities, whether based on faith, nationality or gender, not realizing that this is also a manifestation of harmful employee discrimination.

While women’s fight to equalize wages to those received by men in the same positions is fully justified, trying to force the establishment of parity in employment, paying no attention to the education of employees, is a form of open discrimination. Discrimination in the workplace also occurs when Polish entrepreneurs wish employees a „happy holiday” instead of, among other things, „Merry Christmas”. The problem may also appear in the job advertisement itself, when the company is looking for a „young person with a university degree” or „a person with the right to a pension or a disability certificate”. Unequal treatment of employees in any form, both direct and indirect, should be stigmatized, and entrepreneurs should be liable for their actions with high financial penalties.

Discrimination should be considered any action characterized by worse treatment of a given person or group of people distinguished due to some feature or criterion, e.g. due to skin color, ethnic origin, age or gender. The distinctive feature then becomes a discrimination criterion. However, this is about „apparently worse” treatment of a given person than other people.

The issue of discrimination at work is dealt with by the Act of June 26, 1974 – Labor Code (hereinafter referred to as the Labor Code). The Code establishes general principles of employee equality and the prohibition of discrimination in employment. These are general principles that should guide every employer, such as that employees have equal rights for equally performing the same duties, and that any discrimination in the workplace, direct or indirect, is unacceptable. However, if we would like to learn about the matter in question in a comprehensive and precise way, we should refer to the case law.

The Supreme Court in its judgment of September 10, 1997 (reference number: I PKN 246/97) found that discrimination within the meaning of the Labor Code is unlawful deprivation or limitation of rights arising from the employment relationship or unequal treatment of employees on the basis of gender, age, disability, nationality, race, beliefs, especially political or religious ones, and trade union membership, as well as, for these reasons, granting some employees fewer rights than those enjoyed by other employees in the same factual and legal situation. At the same time, the Court emphasized that the principle of equal treatment of employees and the principle of non-discrimination in employment may be violated only when the differentiation of employees’ situations results solely from the employer’s use of a criterion prohibited by law, which is directly based on the assumption that the difference in employee rights is not based on in differences related to the duties incumbent on given persons, the manner of fulfilling them or qualifications.

Discrimination in the workplace is prohibited and applies to all stages of employment, from recruitment, through the establishment of an employment relationship, the stage of actual employment, up to the termination of this relationship.

Equal treatment of employees stipulated in Art. 112 of the Labor Code reflects the provisions of Art. 32 and 33 of the Constitution of the Republic of Poland and acts such as the UN Universal Declaration of Human Rights of 1948 or the Charter of Fundamental Rights of the European Union. Pursuant to this provision, the employer should, first of all, comply with the following principles:

• equal pay for equal work;
• equal pay for working men and women for work of equal value;
• equal opportunities and treatment of employees of both sexes with family responsibilities;
• equal treatment of people regardless of racial or ethnic origin.
• However, it should be remembered that the principle of equal treatment cannot be equated with the obligation to treat all employees equally. The approach to an employee may be equal depending on age, degree of disability or gender (e.g. pregnant employees).

In some cases, granting additional privileges to certain groups is treated as fulfilling the principle of employee equality. For example, reference should be made to the judgment of the Constitutional Tribunal of March 3, 1987 (reference number: P 2/87), in which the Tribunal found that „granting additional rights to women compared to men is intended to guarantee the implementation of equal rights, therefore, it does not contradict the principle of equality, but implements it.”

Moreover, the jurisprudence of the Supreme Court is of the opinion that differentiating the situation of employees due to differences resulting from their personal characteristics and differences in the performance of work does not in any way violate the equal treatment of employees. At the same time, comparison of the situation of employees can only take place within the same employer, and not within the same industry or market. Therefore, it cannot be said that the principle of equal treatment of employees is being violated, taking as an example the fact that a woman with the same studies and in the same position earns less than a man who works in another company.

The types of discrimination in employment are covered by the provisions of Art. 183a and art. 183b of the Code of Criminal Procedure These provisions state that, in particular, there must be no signs of discrimination in terms of establishing and terminating an employment relationship, employment conditions, promotion, access to training to improve qualifications, the type of employment contract concluded and working time.

The above provisions also distinguish between direct and indirect discrimination. Indirect discrimination occurs in apparently neutral circumstances when its negative effects may be felt by some or all employees of a given company. However, these circumstances cannot be justified by other objective reasons. Indirect discrimination may occur when a given provision, seemingly having nothing to do with the categories of gender, age, disability, race or ethnic origin, leads to unequal treatment of a specific group when applied.

An example may be the resolution of the Supreme Court of January 21, 2009 (reference number: II PZP 13/2008), in which the Court stated that terminating an employee’s employment contract only because she has reached retirement age and has acquired pension rights , if the retirement age is lower for women than for men, it constitutes indirect discrimination on grounds of sex.

Direct discrimination, in turn, applies to an individually defined person. This discrimination occurs when an employee is or could be treated less favorably than other employees in a comparable situation. An example of such behavior may be a situation when the employer applies lower pay rates for part-time employees, or when only people with longer experience are sent to courses and training in a given group of employees, even though they all work in the same position.

Labor Code in Art. 183b § 3 indicates when the employer’s apparently differentiating behavior will not constitute a manifestation of discrimination. Pursuant to this provision, actions taken over a specified period of time aimed at equalizing the opportunities of all or a significant number of employees distinguished for some justified reason will not constitute discriminatory behavior if its purpose is to actually reduce actual inequalities in favor of such employees.

Although it may seem ethically inappropriate, according to EU regulations, a positive action in the case of two candidates with similar qualifications will be the employment of a candidate who constitutes a minority in the workplace, e.g. due to gender or race.

According to the position of the Court of Justice of the European Union, the purpose of the so-called Positive discrimination is to guarantee people belonging to an underrepresented group, characterized by a specific characteristic, the opportunity to compete with other employees on equal terms, while having „equal opportunities”.

Provisions of the Labor Code in Art. art. 183b § 4 also make it possible to differentiate employees based on their religion or denomination. This regulation states that in the case of professional activities of churches or other public or private organizations whose ethics are based on religion or beliefs, different treatment of job candidates due to religion or beliefs does not constitute discrimination. However, it is important that this type of differentiation is implemented with respect for constitutional provisions and principles as well as the principles of European Union law.

Any type of discrimination, whether direct or indirect, is harmful, not only to the injured party, but also to the entire society. Therefore, in any situation when an employee feels that the employer differentiates employees for some reason, he or she should report it directly to the employer, trade unions or other organization dealing with employee rights – e.g. the National Labor Inspectorate, which also has the right to verify whether discrimination in the workplace I actually perform.

However, if such behavior does not bring the intended results, the discriminated employee can take legal action. Bearing in mind the fact that employees are the weaker party in the event of a conflict, the legislator has established several institutions to help employees protect their rights.

Firstly, labor law cases benefit from preferential rules regarding the payment of court costs. Pursuant to Art. 35 section 1 of the Act of July 28, 2005 on court costs in civil cases, in cases where the value of the subject matter of the dispute is lower than or equal to PLN 50,000. PLN, the employee is exempt from court fees.

Secondly, in cases of discrimination in the workplace, pursuant to Art. 183b § 1 of the Code of Criminal Procedure, the distribution of the burden of proof has been changed. This means that the above provision shifts the burden of proof to the employer if it is probable that the employee has violated the order of equal treatment and the prohibition of discrimination. The employer must therefore prove that it has not committed a violation in this respect, i.e. that it acted within the permissible law and was guided by objective considerations.

It is also worth noting that during a court dispute between the employee and the employer, the employee cannot be dismissed. The Labor Code also establishes a prohibition of repression against persons who acted against the employer in court proceedings. In addition to the plaintiff himself, these will also include, among others: witnesses.

See more:https://poradnikprzedsiebiorcy.pl/-dykrymination-w-miejscu-pracy

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