Exceptions to Discrimination

As you know, the Labor Code introduces a prohibition of discrimination. In the past, he distinguished between unequal treatment and discrimination, which was its qualified form. The general prohibition of discrimination results from Art. 113 of the Code. It was changed in 2019 – since then, any manifestation of unequal treatment at work has been discriminatory. Further on in the Code (Article 183a) we find the requirement of equal treatment of employees, which correlates with the principle of non-discrimination. Both of these provisions also contain an open catalog of grounds for which discrimination is prohibited.

Not every departure from equal treatment of workers will constitute discrimination. Article 183b of the Labor Code, and more precisely its second, third and fourth paragraphs, introduce a catalog of circumstances that do not constitute a breach of equal treatment. These are:

1. failure to hire an employee for one or more reasons specified in art. 183a § 1, if the type of work or the conditions of its performance make the cause or reasons mentioned in this provision a real and decisive professional requirement for an employee – an example of such a situation may be the refusal to employ a 90-year-old woman with chronic obstructive pulmonary disease in a coal mine;
2. termination of the terms and conditions of employment for an employee in the scope of working time, if this is justified by reasons not related to employees without referring to another reason or other reasons listed in art. 183a § 1 – this applies to situations where, due to the employer’s situation, it is necessary to extend or shorten the working time by termination of the terms of employment – so such a situation in the absence of this provision would constitute discrimination on the basis of working time
3. applying measures that differentiate the legal situation of an employee due to the protection of parentage or disability – this allows one employee to be privileged over others due to the fact that, for example, it takes care of a child and privileges disabled employees;
4. applying the seniority criterion when determining the terms of employment and dismissal of employees, the principles of remuneration and promotion, and access to training in order to improve professional qualifications, which justifies different treatment of employees due to their age – this allows for offering higher pay to employees with longer work experience or first dismissal of employees with the shortest seniority;
5. applying actions aimed at equalizing the opportunities of all or a significant number of employees distinguished for one or more reasons specified in art. 183a § 1, by reducing the actual inequalities for the benefit of such employees – for example, it may be the application of gender parities;
6. restricting access to employment by churches and other religious associations, as well as organizations whose ethics is based on religion, belief or worldview, due to religion, denomination or belief, if the type or nature of activities performed by churches and other religious associations, and organizations make religion, belief or belief a real and decisive professional requirement for an employee, proportionate to the achievement of the lawful goal of diversifying the person’s situation – for example, the refusal to hire a Satanist in a Catholic seminary.