Main principles and definitions

Direct discriminationtakes place when “a natural person because of gender, race, ethnic origin, nationality, religion, belief, political opinion, disability, age or sexual orientation, is treated less favourably than another is, has been or would be treated in a comparable situation“.

Indirect discriminationis defined as situation in which for a person because of his/her gender, race, ethnic origin, nationality, religion, belief, political opinion, disability, age or sexual orientation, due to an apparently neutral provision, criterion used or practise/action taken, unfavourable disproportions or particular disadvantage  occur or could occur, unless that  decision, criterion or action is objectively justified by a legitimate aim and when the means of achieving that aim are appropriate and necessary.

Harassmentis defined as any unwanted conduct with the purpose or effect of violating the dignity of a natural person and of creating intimidating, hostile, degrading, humiliating or offensive environment. The Act on Equal Treatment also treats as unequal treatment and prohibits less favourable treatment of persons caused by rejection of harassment or submission to harassment.

New 2010 Act on Equal Treatment prohibits instruction to discriminate, both incitement/encouraging and ordering to discriminate.

The Act also introduces general prohibition of victimisation and provides that using somebody’s rights to defend against unequal treatment (“rights stemming from the breach of the rule of equal treatment”) must not be the basis for adverse treatment, must not cause any negative consequences against the person. The protection extends to a person who in any way supports the person exercising his/her rights.

The 2010 Act on Equal Treatment finally implemented the duty to provide reasonable accommodation stating thatthe employer is obliged to provide the necessary reasonable accommodation for a disabled person remaining with him in the employment relationship, participating in the recruitment process or undergoing vocational or professional training, apprenticeship, practice. Necessary reasonable accommodation means introducing, where needed in a particular case, necessary changes and adjustments to the specific needs reported to the employers, stemming from somebody’s disability, unless the introduction of such changes or adjustments would impose a disproportionate burden on the employer. The burden shall not be disproportionate when it is sufficiently remedied by public funds.

The 2010 Act on Equal Treatment extends protection for legal persons on the grounds of race, ethnic origin and nationality of its members. All forms of discrimination are prohibited, right to compensation relates also to legal persons.

Discrimination by associationis not regulated and remains still rather unknown concept (it did not appear in any of several versions of draft law on equal treatment).

Similarly, there are no provisions or clear rules on how to deal with situations of multiple discrimination nor any plans to fill this gap.  

The 2010 Act on Equal Treatment introduces exception regarding genuine anddetermining occupational requirements.The exception covers “possibilities and conditions of undertaking and conducting occupational activities as well as training (including higher education)”. The test of the proportionality of measures and legitimate aim was also introduced. Before the 2008' amendment to the labour codeput national legislation in line with the Directives in terms of genuine and determining occupational requirements within the scope of the labour code.

Similarly other exceptions as provided in Directives are mirrorred in the Act on Equal Treatment and in fact relevant provisions are almost verbatim translation from the text of the Directive. This refers to the employers with an ethos based on religion or belief, discrimination on the ground of age.

Act on Equal Treatment provides also expressis verbis that it does not cover the spheres of private and family life and legal actions related to these spheres as well as it does not cover the freedom of choice of the party to the contract as long as it is not based on the grounds of gender, race, ethnic origin or nationality.