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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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The Labour Code, dated 26 June1974 as amended (consolidated text: Dziennik Ustaw Journal of Laws, hereafter: Dz.U. 1998, No. 21, item 92, as amended). As a result of two amendments, Section IIa of the Labour Code, currently called ‘Equal treatment in employment’ was modified, thereby enabling the application of provisions contained therein also to instances of discrimination based on reasons other than gender. Article 18(3a)(1) of the Labour Code reads as follows: ‘Employees should be treated equally within the scope of initiating and terminating an employment relationship, conditions of employment, promotion as well as access to training for the purpose of improving job qualifications, in particular regardless of sex, age, disability, racial or ethnic origin, religion, faith and sexual orientation, as well as regardless of whether they are employed for a definite or an indefinite period of time, or have a full-time or part-time job.’ Under Article 18(3a)(5) of the Labour Code, discrimination also includes: ‘(…) (2) certain behaviour, the purpose or consequence of which is the violation of the dignity or the humiliation or abasement of the employee (harassment) (...)’ Multiple Discrimination in EU Law 103 attractive appearance were the basis for this harassment. The Court, at the same time, stipulated that, although ‘appearance’ is not included in the list of grounds of discrimination provided for in Article 18(3a) (1) of Labour Code, it may be identified, since the catalogue of the grounds of discrimination, provided for in this Code, is not exhaustive. In the reasoning of the Supreme Court, the gender aspects were not explicitly mentioned, but the reasoning of lower courts proved that they had been identified. There was no information on whether the lower courts, while deciding about the compensation of damages, had taken into consideration the multiple character of discrimination.

Another interesting Supreme Court decision was linked to a legal question posed by the Commissioner for the Protection of Citizens’ Rights. The Commissioner, having in mind divergent verdicts of the Supreme Court on the issue of retirement, asked for a binding opinion on whether the dismissal from work based exclusively on the fact that the employee has reached the statutory retirement age may be considered as discrimination based on age and sex (Article 11³ Labour Code). 112 It should be added that the Supreme Court in its former rulings, while answering this question positively, had always overlooked the possible intersectional character of discrimination, because all those cases concerned female employees entitled to earlier retirement than men, where thus a gender aspect of discrimination was predominant.113 In its decision of 21 January 2009 (II PZP 13/08), the Supreme Court confirmed that if an employee reaches the statutory retirement age, this shall not be sufficient reason for the dissolution of his work contract by the employer (Article 45 Paragraph 1 Labour Code).114 The recognition by the Supreme Court, that compulsory, automatic dismissal from work after reaching the statutory retirement age may be considered as discrimination on the ground of age, makes this ruling also applicable to male employees (however, only for women will such discrimination have an intersectional character).

At the same time, the Commissioner posed the legal question to the Constitutional Tribunal whether different retirement ages for women and men are compatible with the constitutional principle of equality; http://www.rpo.gov.pl/pliki/, accessed 20 February 2009.

For example, in its decision of 19 March 2008 (I PK 219/07), the Supreme Court (the Labour and Social Security Chamber), considered as ill-founded the cassation claim, brought by an employer (Polish State Railways) against a female employee who demanded compensation for illegal dismissal from work, when she reached the statutory retirement age. The Court of First Instance acknowledged this claim, recognising that the release had a discriminatory character based on sex and decided that the claimant should be awarded compensation amounting to circa PLN 22 500 (approximately EUR 6 600). This verdict was upheld by the Appellate Court. The Supreme Court, while dismissing the cassation claim, shared the opinions of the above courts, that the dismissal, based exclusively on the fact that the employee reached the statutory retirement age, was not justified in the light of Article 45 of the Labour Code, due to the fact that this explanation does not remain in relation with work performed by the claimant. In addition, taking into consideration the statutory difference in retirement ages between women and men, such dismissal should be considered as directly violating the prohibition of sex discrimination provided for in Article 113 of the Labour Code, as well as the equality clause, subject to Article 183a of the Labour Code. The Supreme Court explained that the possibility of earlier retirement created for women should be understood as their right, not an obligation. This means that the woman concerned may, but should never be obliged to, use this opportunity. http://www.sn.pl/orzecznictwo/index.html, accessed 20 February 2009.

The reasoning of this decision has not been published yet; http://www.sn.pl/orzecznictwo/ index.html, accessed 20 February 2009.

104 Multiple Discrimination in EU Law

3. Any cases where gender-related discrimination is overlooked?

I was able to find one case in which, in my opinion, gender-related discrimination was overlooked. The case I am referring to115 belongs to a series of court cases filed in 2007 before different courts against the Polish Radio S.A.( joint stock) in relation to the group dismissal of more than 290 employees of this enterprise. The suspicion that the persons dismissed are victims of discrimination on one or more grounds such as sex, age, political beliefs or trade union activities was caused, among other things, by remarks made in public by the new Director of Polish Radio who used to say: ‘I only see old women around me’ or ‘The average age of employees in Polish Radio is close to that in a cemetery’, and who himself was 54 years old at that moment. One of the dismissed female journalists of around 50 alleged that her dismissal was discrimination-based on the ground of age, sex and trade union activities. The regional court in Warsaw found discrimination in employment on the ground of age and trade union activities since the employer failed to prove that other reasons justifying the claimant’s dismissal existed. She was awarded punitive damage in the amount of PZL 1 126 (approximately EUR 300, equalling the minimum wage) for the violation of the principle of equal treatment in employment. The court, however, did not recognise discrimination on the ground of sex since, as it explained in its reasoning ‘the claimant never personally met the Director of Polish Radio and the words cited above were not addressed personally at her (...). Therefore, those words should be considered as an establishment of facts about the age and sex of employees at Polish Radio rather than a negative statement violating somebody’s personal character’. However, the court did not even ask for information about the number of women among the persons on the list for lay-off. At the same time, the court asked for and was presented such information in relation to the age of dismissed persons which led them to the conclusion that this group dismissal may be considered as an instance of indirect discrimination on the ground of age, since not more than 20 persons on this list were under 40.

It should be stressed that I only found this case ‘by accident’, since in Poland any research about specific grounds of discrimination is extremely difficult. For example, in order to find out whether gender-related discrimination has been overlooked in an individual case decided by lower courts (whose judgments are not published) one should screen court files of every individual case, which is not feasible in the framework of this project. Such research is difficult in general, due to the fact that official Polish court statistics concerning discrimination cases do not reflect ground/s of discrimination or sex of the victim. In order to monitor regularly the case law in discrimination cases, the manner of collecting statistical data should be changed.

4. Proof and procedural problems In the cases described, there were no proof or procedural problems.

5. Description of a specific case In cases of violence against women (in particular domestic violence), the police is reluctant to intervene and to register the alleged crime. Such behaviour is considered to be an act of sex discrimination, since there are no justified reasons to treat those crimes differently that other violent crimes. Such reluctance is even more serious when the police intervention concerns a female victim of another ethnicity (e.g. Roma Case of Regional Court for the City of Warsaw, Małgorzata D. v Polish Radio SA, Judgment of 21 May 2008, VIII P 937/07, unpublished.

Multiple Discrimination in EU Law 105 women or asylum seekers from Chechnya living in shelter). When the alleged crime is committed among Roma or Chechen people, as a rule the police refuses to interfere, regarding it is as an internal community problem. Sometimes this attitude results from informal agreements concluded by local authorities or the police with decision makers within certain ethnic communities.116 Such refusal should be considered as discrimination on the ground of ethnicity and especially condemned, taking into consideration that by crying for help, a Romani woman violates the internal ethnical code (Romani pen), prohibiting Roma people to contact bodies of justice. Her decision proves that she must be desperate and the police should be aware of this fact.

Therefore, the refusal to provide assistance in such cases should be considered as aggravated discrimination. The concept of multiple discrimination increase awareness of this problem.

6. Effects of legislation and case law in practice There is no special legislation in Poland.

7. Role of equality bodies The existing body responsible for the monitoring of equality policy and counteracting discrimination has not taken any position in the matter of multiple discrimination.

The conferment of the duties of an equality body to a single independent body, namely the Commissioner of the Protection of Citizens’ Rights, foreseen in the draft law of 21 December 2009, may improve the recognition and perception of multiple discrimination. However, in the present Polish situation, in which the person who heads the post of Commissioner does not show any interest or awareness concerning the issue of equality of women, the risk exists that gender-based discrimination are overlooked in the monitored cases.

8. Reinforcement of legal approach at EU level necessary?

It would be useful to include into EU gender directives the recommendation that multiple (intersectional) discrimination ought to be considered as an aggravated form of discrimination and that awards and remedies for victims should reflect this assumption.

9. Community-law definition of multiple discrimination necessary?

The elaboration of a community-law definition of multiple discrimination should be preceded by a comprehensive study on all its pros and cons in litigation procedures.

Such a definition, however, might still be useful for policy purposes. Its elaboration might facilitate the identification of all possible grounds and constellations of institutional (structural) discrimination and thereby provide more effective protection for these individuals and groups, which are especially vulnerable to multiple discrimination.

According to the information received from the Association of Crisis Intervention in Krakow, in some asylum shelters, the Polish administration, overloaded by work, confers some of its competence to the national council of inhabitants. In the Chechen Community, it happens that the members of such a council compulsory apply Sharia law towards other nationals (allowing forced religious marriages or the kidnapping of future wives), which negatively affects women in particular. However, due to these informal arrangements women feel helpless.

106 Multiple Discrimination in EU Law

10. Available literature or research?

Recently, a very interesting Polish-language sociological publication appeared, which discusses the problem of multiple discrimination and the migration of women from a multi-dimension perspective.117 In 2002, the European Monitoring Centre on Racism and Xenophobia (EUMC), in cooperation with the Office of the High Commissioner on National Minorities of the Organisation for Security and Cooperation in Europe (HCNM-OSCE) and the Migration Roma/Gypsies Division of the Council of Europe, conducted a project on Romani women from Central and Eastern Europe and their access to healthcare. The Polish report, prepared by Anna Pomykała118 and underlining the multiple character of their discrimination, became part of the general report, entitled ‘Breaking the barriers - Romani Women and Access to Public Healthcare’.119 In some other reports on the situation of Roma in Poland,120 as well as in the description of the problems presented by customers of legal adviser offices,121 one can find dispersed information, proving that quite often the discrimination is experienced at multiple levels (sex, ethnicity, disability, belief, sexual, orientation etc.).

In the years 2007-2008, some NGOs,122 with financial support of the Department for Women, Family and Counteracting of the Discrimination of the Ministry of Labour and Social Policy, carried out the project ‘Silence is not golden’, aimed at combating discrimination and violence on the grounds of gender and sexual orientation. The goal of this project also was to raise public awareness of multiple (intersectional, cross) discrimination, in general. One of the means to achieve this, was translating into Polish, from different foreign publications, the definitions and the mechanism of multiple discrimination and giving information about the typical examples of such discrimination and dimensions of this phenomenon in other EU countries.123 This project also included a public information campaign and training for Krystyna Slany (ed.) Migracje kobiet. Perspektywa wielowymiarowa, Wydawnictwo Uniwersytetu Jagiellońskiego, Kraków 2008.

Entitled ‘Romani Women from Central and Eastern Europe. A Fourth World or Experience of Multiple Discrimination: Poland’. Ms Anna Pomykała also prepared the general report.

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