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Discrimination > News from discrimination 2013 > Whistle-blowing as a new grounds for discrimination? The Defender is absolutely against this

News from discrimination

Whistle-blowing as a new grounds for discrimination? The Defender is absolutely against this

28. 08. 2013

The Czech government, in terms of its fight against corruption, presented an amendment to the Antidiscrimination Act. The Public Defender of Rights subsequently used his authorization and submitted his comments on the amendment. He also sent his reservations about the wording of the law to Czech Deputies.

The amendment incorporates into the Antidiscrimination Act a “new area” and a new “grounds for discrimination”. It is supposed to provide for the issue of “whistle-blowing,” i.e. special protection for whistle-blowers reporting criminal offences to law enforcement authorities at their place of employment. In terms of his comments, the Defender stated that he considered extending the grounds for discrimination generally undesirable. These new potential grounds moreover go against the sense of the non-discrimination law, which follows from and partially overlaps with the provisions providing for equality and banning discrimination in the area of fundamental rights. It in fact means a concrete expression of the right to equality. The non-discrimination law therefore has to be defined as an area within which an individual may exercise his/her right to equal treatment and protection from discrimination based on suspicious criteria (potential sign of discrimination). The suspicious criteria of discrimination include those which might interfere with human dignity and may prevent the members of certain groups with a given characteristic from full involvement in the life of the society. In the Defender's opinion, it follows from the above that it is always a certain person or a group of persons who are a minority in the society and are vulnerable (and therefore need to be protected).

The Defender further stated in his comments that the ban on discrimination is aimed against actions which differentiate not on the basis of individual characteristics of a person but on the basis of their affiliation with a certain group (i.e. based on generalization, prejudice and stereotypes) where such affiliation to that group is not freely interchangeable (typically it is the race, ethnic group, gender, or disability) or is interchangeable only with reservations, i.e. with more difficulty, only under certain circumstances and for very compelling reasons, not many times during their life (faith, religion). It is thus prohibited to discriminate on grounds of principally “traditional reasons”, such as the gender or race, but also for historically more recent reasons (such as world view) which, however, in a way are still immanently and permanently connected with the personality of a given person as a bearer of such a discrimination characteristic. At the same time, we cannot leave aside the fact that the Antidiscrimination Act contains an enumeration of prohibited grounds which is narrower than that stated in the Charter of Fundamental Rights and Freedoms and is a closed enumeration.

Although the whistle-blowers will probably represent a minority in society (which is the only feature which brings them closer to the Antidiscrimination Act), the Defender pointed to the fact that whistle-blowing is, in some cases, a legal obligation, while in other cases it is more of a moral duty. Therefore it should not be perceived as interference with human dignity (which is the substance of protection under the Antidiscrimination Act). In cases of whistle-blowing, it is then definitely not a characteristic trait of a certain person or a group of persons, much less is it a permanent trait which would deserve protection under the Antidiscrimination Act. This “quasi grounds” thus considerably differs by its nature from the existing “prohibited grounds” and disrupts the entire current concept of the law. The Defender considers the consequences of incorporating a new substantive area and new grounds for discrimination into the new Antidiscrimination Act ill-advised and undesirable.

The Defender reminded Deputies that a similar opinion was also adopted by the Legislative Council of the Government who also consider incorporating the legal provision in question into the Antidiscrimination Act inappropriate. In the Defender's opinion, it would be much more appropriate to prepare an amendment to the Labour Code where the newly proposed institute would be more in place (with regard to the persons affected by this provision).

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