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.
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.
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.