Chapters of the article
What is meant by direct and indirect discrimination?
The basic types of discrimination are direct and indirect. Direct discrimination means that one person is treated less favourably than another in a comparable situation, for example because of their race, ethnic origin, nationality, religion, world view, gender, disability, age or sexual orientation. It is typified by the pay gap between men and women, which still persists in some workplaces. If it is a difference in pay for the same work, performed under the same conditions, then it is highly likely to be discrimination. In recent years, the pay gap for men has been slowly narrowing, but according to figures from the Office for National Statistics last year, discrimination in this respect still persists for women, who face a pay gap of 13 per cent.
Indirect discrimination is more insidious. It is an act where an employer acts seemingly within the law, but the employee is discriminated against as a result. This is because a seemingly neutral criterion is chosen (for example, a ban on wearing a head covering that applies to everyone), but in effect it mainly affects certain people (those who, because of a particular religion, wear a head covering all the time). However, it is important to distinguish situations where objective reasons make such bans appropriate, whether for reasons of safety or, for example, hygiene in hospitals.
Refusal or failure to take reasonable measures to ensure access for disabled people is also considered indirect discrimination. However, there would be no such discrimination if any such measure were too great a burden on the employer. In most cases, the costs would outweigh the benefits that might accrue to disabled people.
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Other forms of discrimination can include sexual harassment and stalking. Harassment can take many different forms, from verbal to written language, gestures or behaviour, but it must be sufficiently severe to create an intimidating, humiliating or offensive atmosphere. There is no need to be afraid to hold the door or help a woman (or man) into a coat, as some people fear under the influence of media scandals. A specific, but fortunately less common, situation is sexual coercion, where a certain workplace advantage (bonus, promotion) is directly linked to some form of sexual cooperation.
An insidious form of discrimination is long-term workplace bullying. This can be perpetrated by colleagues systematically excluding a person from the team, ridiculing and humiliating them. In professional terminology, such behaviour is referred to as mobbing. If it is also perpetrated by the boss of the person concerned, it is referred to as bossing. The personal boundaries of each person (both perpetrator and victim) in such a situation can vary considerably, so that what is a completely innocent joke for one person may represent long-term stress for another. However, proving that it was not a prank but actually serious bullying is difficult.
Tip: If you think your workplace situation has led to an unfair dismissal, read on to find out what to do.
A legally permissible form of disparate treatment is so-called positive discrimination. It is a behaviour or practice that is de facto intended to remedy an existing unequal situation. An example of positive discrimination is a situation where we give preference to a man in a selection procedure between two equally qualified candidates because there are many more women currently employed in the same positions in the workplace.
What are the employer’s obligations?
Discrimination is linked to the duty to treat all employees equally. This should be applied throughout the employment process, as discrimination in the labour market can occur right from the advertisement or job interview.
So far, we can see advertisements that include gender discrimination, i.e. directly encourage, for example, a young woman or a strong man to apply for a position. Such requirements may be justified if we are looking for dancers for a ballet company or, on the other hand, a worker for work with heavy loads (which is forbidden to women according to the Labour Code) or work at heights such as window cleaning, painting facades, cutting down trees, repairing roofs, etc., which requires special climbing equipment and poses an increased risk of injury, etc.
However, when it comes to positions such as nurses (brothers) or assistant directors (assistants), we should not automatically discriminate against men by only looking for women in the advertisement. The same applies to typically male occupations such as drivers, technicians or couriers. The fact that we naturally get a gender predominance in the selection process is a different matter.
We sometimes encounter racial discrimination in selection procedures. Often, it is easy to identify a candidate of Roma, Vietnamese or other nationalities on the basis of his or her name alone. This should certainly not be a clue for eliminating (but not favouring) a person in interviews.
However, it is not discrimination or unequal treatment if the employee does not meet the requirements for the job. However, they must be sufficiently appropriate to the job.
How do I defend myself against discrimination?
If you feel you are facing discrimination at work, consult a lawyer. If you believe that your employer is violating employment law by discriminating against you, you can file a complaint or initiate an investigation with the relevant regional labour inspectorate or the State Labour Inspection Office. However, it is good to know what you can claim and who is the right authority to contact.
Tip: If you are upset about your workplace situation and are considering giving notice, find out what it involves and how to do it.
The court comes into play only when other procedures have failed. Don’t underestimate the preparation and consult a lawyer who can advise you and outline the likely outcome of the litigation. If there has been discrimination, you can seek redress in court. In certain cases where a person’s reputation or standing in society has been damaged, the victim may be entitled to compensation for non-pecuniary damage. The amount of monetary compensation shall be determined by the court in the light of the gravity and the circumstances in which the infringement occurred. A fine may also be imposed.