04. Anti-Discrimination Laws

Summary

1. Brief Description of Anti-Discrimination Laws

The principle of equal treatment and the prohibition of discrimination is based on both the Constitution and Employment Law numbered 4857. No discrimination based on language, race, color, gender, disability, political thought, philosophical belief, religion, sect, and similar reasons can be made in the business relationship. Unless there are fundamental reasons, the employer cannot treat a part-time worker against a full-time worker, or a fixed-term worker against an indefinite-term worker. Unless biological or work-related reasons necessitate, the employer cannot directly or indirectly treat a worker differently in the conclusion of the employment contract, in the creation, implementation, and termination of the employment contract, due to gender or pregnancy. For work of the same or equal value, a lower wage cannot be agreed upon solely based on gender. The application of special protective provisions due to the gender of the worker does not justify the application of a lower wage.

2. Extent of Protection

• • protected characteristics, direct vs. indirect (disparate treatment/direct discrimination vs. disparate impact/indirect discrimination), protection against retaliation/victimisation, affirmative action requirements

In accordance Article 5 of the Employment Law, employers cannot discriminate employees based on their language, race, colour, gender, disability, political opinion, belief, religion, or any other reason. Employers equally treat employees performing substantially similar work, of equal skill and seniority. If not, the employee will the right to terminate his/her employment agreement, claim compensation for discrimination and the rights he/she has been deprived of.

A. Gender-Based Discrimination

Female employees are protected in order to provide an equality between genders.  Maternity rights are determined under the Article 74 of the Employment Law. Accordingly, pregnant employees can take fully paid leave for eight weeks before and eight weeks after birth. Employment agreements cannot be terminated due to pregnancy, childbirth, or maternity.

B. Mobbing

As it is known, mobbing is the name given to a kind of psychological terror that includes all kinds of ill-treatment, threats, violence, and humiliation, which are systematically applied to employees by their superiors, subordinates, or other employees of equal level. The proof of mobbing in business life is a situation that varies according to the conditions of the event and the nature of the job. The employee exposed to mobbing may have deteriorated health due to humiliating behavior and ill-treatment and may have received psychological treatment. At this point, the employee may terminate the employment contract with just cause and claim compensation from the employer.

With the current Constitutional Court Decision dated 14.09.2022 and numbered 2018/27032 published in the Official Gazette dated 11.10.2022 and numbered 31980, having received psychological treatment was considered an important presumption against mobbing. Therefore, if the worker whose health deteriorates due to the treatment in the workplace and who receives psychological treatment proves this with his/her health reports and treatment costs, it can be said that he has been subjected to mobbing.

C. Age

Although the prohibition of discrimination based on age is not directly mentioned in the Employment Law, it is generally evaluated under the title of “similar reasons” in the text of the article and is seen as an absolute prohibition of discrimination. The basis of the ban in question is the issue of discrimination against workers who are older or younger than themselves.

D. Union Activities

Within the scope of the Trade Unions and Collective Bargaining Law Act No. 6356, employers are prohibited from discriminating against unionized workers. Article 25 of the Trade Unions and Collective Bargaining Lawclearly states  that starting from the employer’s employment process, in the continuation of the employment contract, and in the termination of the contract, the workers cannot be discriminated against for any union-related reasons. Any violation of this situation would also violate the principle of equal treatment.

Protections Against Harassment

In accordance with Article 25/II-c of theEmployment Law, if the employee sexually harasses another employee of the employer, the employer may terminate the employment contract based on a just cause without waiting for the notification period, regardless of its duration. Likewise, if the employee is sexually harassed at the workplace by another worker or a third party and the necessary measures are not taken despite informing the employer of this situation, the employee may terminate the employment contract with just cause.

In addition, the case of sexual assault and sexual assault crimes by taking advantage of the convenience provided by the service relationship is counted as an aggravating factor in the Turkish Criminal Code Act No 5237.

Furthermore, the employer is also required to protect its employees from any kind of discrimination or harassment which may be performed by other employees.

Employer’s Obligation to Provide Reasonable Accommodations

As per Article 30 of the Employment Law, in establishments employing 50 or more employees, employers are obliged to employ disabled personnel at a ratio of 3% of the total personnel and ex-convicts at a ratio of %2.

As per Article 101 of the Employment Law, employers who fail to fulfill this obligation shall pay to the Turkish Labor Institution a monthly penalty for each unemployed disabled or ex-convict employee.

Remedies

a) Discrimination Compensation: Discrimination compensation is the compensation that can be given to the employee in the number of up to four months’ wages in case of violation of the employer’s obligation of equal treatment. The employee may also claim other rights that he/she is deprived of, apart from compensation for discrimination. Examples of these are social benefits, bonuses, and raises applied regularly.

b) Compensation for Bad Faith Damages: In cases where the employment contract of employees outside the scope of application of Articles 18, 19, 20, and 21 of the Employment Law is terminated by misuse of the right of termination, compensation is paid to the employee in the triple amount of notification period.

c) Union Compensation: Within the scope of job security, the employee can only request job security compensation in case of union discrimination; but the amount of this compensation cannot be less than one year’s wage. If the employee is not an employee within the scope of job security and the employment contract is terminated for union reasons, then the employee will only be able to request union compensation. It is not possible to claim discrimination compensation and union compensation together. Since the sanction envisaged due to trade union discrimination is union compensation, they cannot also demand discrimination compensation.

Other Requirements

Turkey has signed ILO conventions 100, 111, 122 and 142, which ensure equality between men and women and promote women’s employment. In this framework, in the light of the general policy of the ILO on the development of women’s employment and the fact of the low rate of women’s employment in Turkey, ILO Ankara Office in cooperation with the Turkish Employment Agency (=İŞKUR) in 2009, in order to improve women’s employment in Turkey. Launched the Active Labor Market Policies Pilot Project for Realizing Gender Equality through the Provision of Decent Work Opportunities.

On 16.11.2022, a law proposal was submitted to allow women workers and civil servants to be on leave for one working day per month from the start of their menstrual period. If this regulation is enacted, menstrual leave practice for female employees in Turkey may begin, and violations of this regulation may also raise discrimination allegations.