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04. Anti-Discrimination Laws

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Romania

04. Anti-Discrimination Laws

Summary

Non-discrimination is firstly a constitutional right, with Article 16 of the Romanian Constitution providing for equality of all citizens before the law and public authorities, without any privilege or discrimination. Anti-discrimination legal provisions are stipulated in Governmental Ordinance (GO) no. 137/2000 on preventing and sanctioning all forms of discrimination and Law no. 202/2002 on the equality of opportunity and treatment between women and men. Anti-discrimination provisions targeting employees are stipulated in the Romanian Labour Code and in the Administrative Code.

Extent of Protection

GO no. 137/2000 prohibits any difference, exclusion, restriction or preference based on race, nationality, ethnic origin, language, religion, social status, beliefs, gender, sexual orientation, age, handicap, non-contagious chronic disease, HIV positive status, belonging to a disadvantaged group or any other criterion, aiming to or resulting in a restriction or prevention of the equal recognition, use or exercise of human rights and fundamental freedoms in the political, economic, social and cultural field or in any other fields of public life. Discrimination, whether direct or indirect, is sanctioned under the same rules.

In employment law related matters, special attention has to be paid to discrimination on union affiliation. Also some positive discrimination treatments such as reduced pension age for women, or salary bonuses based on solely the period of service were only recently stopped.

The public authority that handles discrimination is the National Council for Combating Discrimination. An individual claiming to be discriminated against can address the National Council in an administrative procedure, or the competent courts. The NCCD issues administrative rulings that can be challenged in court. In court cases that include discrimination claims (along other claims), the National Council is asked to issue an opinion on the existence of the discrimination. Most of the time the National Council fails to provide an answer in time and judges have the liberty to establish if there is discrimination or not.

Indirect discrimination is defined as any provisions, criteria or practices apparently neutral which may disadvantage certain individuals on grounds of one of the protected groups, except where these practices, criteria and provisions have an objective justification based on a legitimate purpose and the methods used to reach that purpose are adequate and necessary.

As of 2020, the Labour Code also prohibits discrimination by association, meaning that individuals who are not part of a minority are also protected against discrimination, if they are regarded as being associated with that minority.

Victimisation is defined as any adverse treatment triggered by a complaint in general or by a case lodged with the courts of law regarding infringement of the principle of equal treatment and non-discrimination. Protection against victimisation is not limited by Romanian law to the complainant but also extends to the witnesses. As the law does not distinguish, victimisation is prohibited not only in relation to complaints filed with the NCCD but also in relation to those filed with any other public or private institution (labour inspectorate, consumer protection office, etc.). At this time, no legal definition of “affirmative action” exists under the law, nor have any legal provisions been established on this issue.

 

As for the sanctions that can be applied in case of discrimination, the NCCD can issue administrative sanctions – administrative warnings and fines, the courts being the only ones that can award moral compensation. The compensation is not capped by legal provisions, but courts usually award reduced amounts as moral compensation.

Protections Against Harassment

Harassment in general, is defined and sanctioned as any behavior on grounds of race, nationality, ethnic origin, language, religion, social status, beliefs, gender, sexual orientation, belonging to a disadvantaged group, age, handicap, refugee or asylum seeker status or any other criterion, which leads to establishing an intimidating, hostile, degrading or offensive environment.

Moral harassment is defined as being any improper behavior that takes place over a period, is repetitive or systematic and involves physical behavior, oral or written language, gestures or other intentional acts that could affect personality, dignity or psychological or physical integrity of a person. However few cases on harassment were registered in Romanian courts.

Sexual harassment, which is tied to a working relationship, is a criminal offence. For years this was the only type of harassment recognised by Romanian law. However, only a few cases of sexual harassment have been registered in Romanian courts, even when criminally prosecuted.

Employer’s Obligation to Provide Reasonable Accommodations

The concept of reasonable accommodations for persons with disabilities is not included in the Romanian Anti-discrimination Law. Moreover, whilst the special legislation on the promotion and protection of the rights of persons with disabilities prescribes a definition for the term “reasonable accommodations”, it is without any provision for sanctions.

There were no incidents on restriction on the employee’s religious practices, such as wearing distinctive religious objects or working hours. As stated, the Labour Code offers the opportunity to employees of all legally recognised religions to benefit of 2 paid holidays for each of the 3 major religious holidays.

Remedies

In case of suspicion of discrimination, the employee can seek remedies, as stated, either of administrative nature – filing a complaint to the NCCD, or of civil nature, filing a case directly in front of the national courts. For sexual harassment claims, the employee can address the police or the public prosecutor’s office. The employee can ask the NCCD or the court to establish that there is a case of discrimination. Both institutions can order the employer to stop the discriminating treatment and to take measures in order to avoid similar treatment. As stated the NCCD can apply fines to the employer if it finds that there is a case of discrimination. The courts can offer compensation if the employee asks for it and proves that there was a prejudice sustained that can be valued in money.

Other Requirements

There are no quotas legally imposed in order to enforce equal opportunity for female employees. Usually, gender inequality in terms of payment is not a prominent issue; Romania having one of the lowest pay gaps in Europe.

Each employer that employs more than 50 employees, has the obligation to either employ individuals with disabilities or to contribute to a special fund for the inclusion of individuals with disabilities in the workforce.

Any questions

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