The Public Defender of Rights - What is discrimination
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What is discrimination?

Discrimination generally means a difference of treatment in comparable situations without reasonable justification. However, it is not enough only to feel discriminated against – the discrimination must actually exist as conduct described and prohibited by law.

The Antidiscrimination Act stipulates inadmissible grounds for discrimination between people (e.g. sex, age, nationality, etc., see below).

Direct or indirect discrimination may exist.

  • Direct discrimination is an act where one person is treated less favourably than another in a comparable situation on grounds prohibited by law.

Examples: a waiter in a restaurant refuses to serve a guest on grounds of his/her membership of an ethnic group; an employer in a warehouse refuses to hire a woman with the required qualification for work with the forklift truck on the grounds that they do not hire women for this work.

  • Indirect discrimination is an act where someone is treated less favourably on grounds of a criterion that is seemingly neutral.

Examples: a restaurant prohibits entry for dogs without exceptions, whereby it prohibits entry for people with a disability who use guide dogs or assistance dogs; knowledge of the Ukrainian language is required from applicants in an advertisement for the position of general labourer in the building industry; an advertisement states: “Recruiting to join a young and dynamic team, etc.” – this a priori excludes older applicants.

In certain cases, indirect discrimination may be justified by a reasonable aim, but the means of achieving that aim must be appropriate and necessary.

Harassment (including sexual harassment), victimisation, instruction to discriminate and inciting discrimination are also considered to be discrimination.

  • Harassment is conduct taking place with the purpose or effect of diminishing the dignity of another person and creating an intimidating, hostile, degrading, humiliating or offensive environment. Conduct which can be perceived as a precondition for a certain decision is also harassment. Where the conduct has sexual nature, then it is sexual harassment. (Examples: placement of jokes about Roma on a notice board may harass Romani employees; a manager makes the decision on the promotion of a female employee subject to the condition that she accompanies him to dinner (sexual harassment may be concerned).
  • Victimisation is adverse treatment, penalisation or disadvantage as a response to the fact that a person has exercised his/her rights under the Antidiscrimination Act. (Example: an employer penalises an employee for lodging an action for discrimination.)
  • Instruction to discriminate is the misuse of a subordinate to discriminate against a third party. (Example: a director gives a binding order to the head of the personnel department not to recruit Romani people).
  • Inciting discrimination is committed by a person who persuades or encourages another to discriminate against a third party.  However, persuading a person not to shop at Vietnamese stall-keepers for example, persuading offspring not to marry a person with dark skin or parents’ warning that their children should not play with Romani children, however morally deplorable this conduct may be, is not inciting discrimination in the legal sense.

On which grounds must discrimination not take place?

The grounds that can be considered to be discriminatory are not arbitrary. The Antidiscrimination Act refers to race, ethnic origin, nationality, sex, sexual orientation, age, disability, religion, belief and opinions. Other laws also include other grounds such as property, membership of trade unions or political parties and movements, family status, etc. 

In what areas must discrimination not take place?

The prohibition of discriminatory conduct pursuant to the Antidiscrimination Act applies in employment, business, education, social area, healthcare, the provision of goods and services, including housing, to the extent that they are offered to the public, and in public administration.  

However, discrimination is also prohibited by other laws: in education, discrimination is prohibited by the Schools Act, prohibition of discrimination in employment is stipulated, for example, in the Employment Act, the Labour Code and the Service Act, discrimination in business is penalised by the Public Procurement Act, and prohibition of discrimination in the provision of goods and services is part of the Consumer Protection Act. A general and broadest prohibition of discrimination is included in the Charter of Fundamental Rights and Freedoms.

What is not discrimination?

Not every injustice, disturbing situation or difference of conduct is discrimination in the sense of the Antidiscrimination Act. 

For example, the following do not represent discrimination:

  • requirement for a minimum age, professional experience or period of employment if these are essential for the exercise of the occupation,
  • difference of treatment for the purpose of protection of women on grounds of pregnancy and maternity, of persons with a disability and persons under the age of 18.

Furthermore, discrimination is not concerned, for example

  • when a person looks for a partner only among persons with a certain colour of skin,
  • when a woman declines a marriage proposal from a considerably younger man with the justification that he is too young,
  • when a physically disabled applicant is not selected in the acceptance procedure for a secondary sports school with extended mandatory physical education,
  • when a person makes friends only among persons of the same nationality, etc.

The admissible forms of difference of treatment are also contained in other laws.  The state may regulate its internal affairs provided that in doing so it does not violate human rights and freedoms or the obligations ensuing from international agreements.

For discrimination under the Antidiscrimination Act to exist, interference in human dignity must be concerned. Thus, for example, a municipality or a company cannot be discriminated against. 

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