Authors: Özlem Bulut Penezoğlu, Yağmur Namazcı Şener and Ayşe Burçak Çoğ, Penezoğlu Law Firm

In international conventions, the prohibition of discrimination aims to protect the individuals or group of individuals against an irrelevant and ineffective element being used as a significant element in terms of the treatment they face. Most of the international conventions that contain the prohibition of discrimination do not define the discrimination or which actions constitute discrimination in detail. The European Court of Human Rights bases its decisions regarding the actions constituting discrimination on the fundamental criteria used by the Human Rights Committee which comprises independent experts who monitor the implementation of the International Convention on Civil and Political Rights by signatory countries.

Under Turkish Law the positive baseline of the prohibition of discrimination is set out in article 10 of the Constitution entitled "equality before the law" and article 5 of the Labor Law No. 4857 ("Labor Law") entitled "principle of equal treatment" and article 3 of the Turkish Human Rights and Equality Institution Law No. 6701 ("THREIL") entitled “principle of equality and prohibition of discrimination”. Additionally, article 122 of the Turkish Criminal Code No. 5237 ("TCC") explicitly stipulates that the employer must not discriminate during the recruitment process or criminal sanctions would be applicable in case the employer fails to do so.

The Labor Law prefers exampling the topics that shall not be discriminated against when regulating the acts of the employer that will constitute discrimination. Paragraph 1 of article 5 of the Labor Law regulates that the discrimination of the employees based on language, race, color, gender, disability, political thought, philosophical belief, religion or sect will constitute breach of the prohibition of discrimination. In the subsequent sections of the mentioned provision, it has been stipulated that the topics that shall constitute discrimination by the employer can be extended within the framework of a concrete case, except those listed in the Labor Law, by using the phrase "similar reasons".

On the other hand, article 25 of the Unions and Collective Bargaining Agreement Law No. 6356 entitled "Guarantee of Union freedom" regulates the prohibition of discrimination for union reasons. As stated in the relevant article’s preamble, the union rights have legally guaranteed that the employees shall not be subject to a different procedure on grounds that they are the members of the union, they participate in the activities of the employees' associations during or outside the working hours with the employer's permission, or engage in union activities. Furthermore, paragraph 7 of the aforementioned article stipulates that "Except for termination, the burden of proof shall be on the employee in the event of a claim that the employer discriminates because of the union membership. However, if an employee demonstrates that a situation exists that strongly suggests discrimination based on union affiliation, the employer must prove the reasons for his conduct" and if there are forceful facts of union discrimination, the employer must prove that the termination is not based on the union and has a valid reason. In addition, Article 11 of the International Labor Organization's Convention on Freedom of Association and Protection of the Right to Organize No. 87 has a similar provision stipulating that the right of association has been protected.

As a matter of fact, it has been resolved in the Supreme Court Decision dated September 11, 1967 and numbered 8479/7519 that, “to exclude some of the employees with the same qualifications from the protective provisions does not comply with both the equality principle of the Constitution and the basic provisions of the Labor Law.” and this will provide guidance in the resolution of potential disputes. In this scope, the employer is obliged to treat equally and apply equal working conditions at the workplace. The employer may not make any discrimination among the employees at the workplace in terms of working conditions, unless valid grounds exist. Nevertheless, the equal treatment obligation and the prohibition of discrimination does not mean that the employer shall treat all the employees equally.  The equal treatment obligation and the prohibition of discrimination is applicable to the employees with the same qualifications. The principle of equality does not apply to the employees who are subject to different working conditions. In this case, equal treatment should be made based upon the nature of the work conducted and objective criteria against the employees. In other words, it has been resolved in the Supreme Court Decision dated October 9, 2018 with merits number 2015/23051 and decision number 2018/17844 that "The obligation to act equally does not necessarily require that all the employees be placed in the same situation with no differences. The mentioned principle is aimed at preventing the employees that are in equal status from being subject to different treatment.” Therefore, instead of the employer's need to treat all employees equally, the freedom to act differently within the limits of the right of management shall be mentioned.

On the other hand, it has been resolved in the Supreme Court Decision dated March 25, 2014 with merits number 2013/13993 and decision number 2014/10049 that the "Employees shall utilize full protection against any discriminatory actions that may prejudice the union rights” and thus, legal foresight has been provided that an employee may not be subject to any discrimination before the employer due to the exercise of its union rights, which are protected within the constitutional and legal framework.

ASSESSMENT OF THE PROHIBITION OF DISCRIMINATION DURING RECRUITMENT PROCESS

Paragraph 3 of article 5 of the Labor Law stipulates that “Except for biological reasons or reasons related to the nature of the job, the employer must not make any discrimination, either directly or indirectly, against an employee in the conclusion, conditions, execution and termination of his (her) employment contract due to the employee’s sex or maternity.”. Thus, no different actions can be taken directly or indirectly due to gender or pregnancy unless biological or nature-related reasons oblige in the process of concluding an employment contract, which is the first of these regulations under the Turkish Law. The legislator has aimed to replace the "protective" understanding that advocates granting of certain privileges to women with the "equalitarian" understanding that perceives such protections as gender discrimination via the abovementioned regulation. Therefore, contrary to the regulations of article 5 of the Labor Law regarding non-discrimination in the employment relation, it has been regulated in paragraph 3 of article 5 of the Labor Law that no discrimination can be made due to gender or pregnancy unless there are mandatory biological or work-related reasons in the recruitment process. Thus, it has been protected by the Labor Law that an employer cannot avoid concluding an employment contract with an employee just because of pregnancy, without a reasonable ground, before the beginning of the employment relationship.

Another article that may be relevant to the establishment stage of an employment relationship is Article 122 of the Turkish Criminal Code entitled “hate and discrimination”. The legislator has regulated in the relevant article that “Any person who… prevents a person from being recruited for a job … on the ground of hatred based on differences of language, race, nationality, color, gender, disability, political view, philosophical belief, religion or sect shall be sentenced to a penalty of imprisonment for a term of one year to three years.” Thus, it has clearly stated that the employer is under the obligation not to discriminate in the recruitment process, and has stipulated criminal sanction for the employer in case any discrimination is made. In this context, it has been concluded that criminal sanctions will be imposed on the employer who prevents an employee from being recruited by taking actions that will constitute discrimination due to hatred arising from the reasons listed in the relevant article of the Turkish Criminal Code, such as race, gender, disability or political opinion of the employee candidate during the recruitment process.

The heavily advocated view regarding this issue in the doctrine is that the employer’s obligation to treat the employees equally does not begin until the establishment of the employment agreement. The main reason for this advocated view is that at the stage of establishing an employment contract, this process is considered within the scope of the freedom of contract guaranteed by the Constitution and in this direction, the employer has the right to determine which employee can perform the work most efficiently and harmoniously in terms of the nature of the work. On the other hand, when an employment relationship is established, it is possible to say that the employer owes equal treatment among its employees from this point on. Although Article 5 of the Labor Law’s preamble states that the employer must treat the employees equally in terms of all working conditions “beginning with the employment”, it has been regulated that there can be no discrimination “in the employment relationship” under the Labor Law. In paragraph 6 of the mentioned article, it has been regulated that the prescribed sanction is a sanction that must be applied after the creation of an employment relationship by stating “in an employment relationship or at the termination of an employment relationship”.

In any case; it has been regulated in article 3 of THREIL entitled “equality and of discrimination” that “… everyone is equal in the enjoyment of legally recognized rights and freedoms. Discrimination based on gender, race, color, language, religion, belief, sect, philosophical and political opinion, ethnicity, wealth, birth, marital status, health status, disability and age are prohibited under this Law. In case of violation of the prohibition on discrimination, public organizations and public institutions and professional organizations who have related duties and responsibilities are obliged to take the necessary measures in order to ensure termination of the infringement, elimination of the consequences, prevention of recurrence and judicial and administrative follow-up. Natural persons and private legal entities that are responsible for the prohibition of discrimination are obliged to take the necessary measures to detect and eliminate discrimination and ensure equality in terms of the issues within their territory.” and discrimination based on gender, race, color, language, religion, belief, sect, philosophical and political opinion, ethnicity, wealth, birth, marital status, health status, disability and age are prohibited, and the Human Rights and Equality Institution of Turkey (“Institution”) has been appointed to examine the discrimination. Thus, the individuals who allege that they have been subject to discrimination are granted the right to complain to the Institution. Article 17 entitled "applications" and Article 18 entitled "violation investigations" of the THREIL explain how the application should be presented to the Institution and the examination procedure of the Institution regarding the complaint. In this scope, it has been regulated in the relevant provisions that the application should be made by the individual who claims being subject to discrimination and the application will be free of charge. It has been determined that the Institution will decide within three months after the application date and it is also envisioned that various negotiations can be held for settlement of the parties in line with the assessments made during the review process. On the other hand, if there is no mediation process or mediation decision and the Institution accepts the discrimination claim, it has been regulated that the sanction shall be imposed. The sanctions regarding THREIL and the mentioned legislation shall be examined in detail below.

SANCTIONS ON THE PROHIBITION OF DISCRIMINATION IN THE RECRUITMENT PROCESS

It has been regulated that, if prohibition of discrimination is violated during or at the termination of an employment relationship, the employee may claim “compensation for discrimination” and the “rights that they were deprived of” in paragraph 6 of Article 5 of the Labor Law entitled, “principle of equal treatment”, which stipulates that “if the employer violates the above provisions in the execution or termination of the employment relationship, the employee may demand compensation up to four months’ wages plus other claims of which he (she) has been deprived”. However, the claim for compensation of four months' wages and the deprived rights stipulated in the relevant article shall be applied only after the establishment or termination of the employment relationship. Therefore, paragraph 3 of the relevant article of the Labor Law has clearly regulated that no different actions can be taken directly or indirectly due to gender or pregnancy, unless mandatory biological or work-related reasons, in the conclusion, creation, implementation and termination of an employment contract. Therefore, although no sanctions have been issued for direct or indirect discrimination due to gender or pregnancy during the recruitment process, in this case, violation of the prohibition of discrimination will constitute a violation of the Labor Law.

Also, in case of violation of the prohibition of discrimination in the recruitment process, the compensation shall be determined according to the general provisions, regarding “defect in contract negotiations/culpa in contrahendo”[1] based on the good faith under the Turkish Civil Code No. 4721.

Additionally, if discrimination has occurred during the recruitment process, it has been regulated in Article 122 of the Turkish Criminal Code, which includes the issue of discrimination in the recruitment process, that any person who prevents recruitment of another on grounds of hatred based on differences of language, race, color, gender, disability, political view, philosophical belief, religion or sect shall be sentenced to a penalty of imprisonment for a term of one year to three years.

It has been explained above that the individuals who have been discriminated against may make an application within the scope of THREIL, if there is a discrimination action that occurred both before the establishment of an employment relationship and when the employment relationship is established and/or ended. In line with this explanation, in case of no settlement between the parties during the mediation negotiations, which are conducted if the THREIL application has been accepted, it has been regulated in article 25 of the THREIL entitled “administrative sanctions” that administrative fine can be enforced on public institutions and organizations, professional organizations that are public institutions,  real persons and private legal entities and that the Institution  can convert this penalty into a one-time warning fine in accordance with the provision on “effects and consequences of this violation, the economic situation of the perpetrator and the aggravating effect of multiple discrimination”.

In conclusion, the discrimination prohibition is a special version of the employer's equal treatment obligation and it is a notion that is sometimes used side by side with the principle of equality and sometimes to express the same thing. Under the principle of equality in Labor Law, the employer is obliged to provide equal treatment to the employees who are in a similar situation in an employment relationship, unless there is a justified and reasonable reason. In this sense, discriminatory attitudes that an employee may be exposed to are prohibited. Although the prohibition of discrimination is regulated under the Labor Law, as explained above, even if an employment relationship has not yet been established between the parties, it is necessary to accept that the employer is required to act equally. In this scope, as mentioned above, since the prohibition of discrimination is accepted as a fundamental legal norm at the top of International Law, it is obvious that if it is violated, various legal and criminal sanctions shall be imposed, even if an employment relationship has not yet been established, when the conditions are fulfilled either according to article 25 of the THREIL entitled “administrative sanctions” or defect in contract negotiations/culpa in contrahendo” principle based on good faith under the Turkish Civil Code or article 122 of the Turkish Criminal Code.

REFERENCES

[1] Onaran Yuksel, (2000); p.334; Dogan Yenisey, (2002); p. 69; Erturk, (2002); pp. 80-81; Ulucan (Ulucan-Taşkent-Eyrenci) (2005); p. 136; Demir, (2005); p. 122; Suzek, (2005); p. 363.