FORMS OF DISCRIMINATION
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FORMS OF DISCRIMINATION

Direct discrimination is given when a person or group of people has been, is, or may be treated less favourably in the same or similar situations compared to another person or group of people because of a specific personal ground.

  • Example: Job advertisement in which only women under 30 years of age are invited to apply for a position involving administrative work, although this work can also be performed by younger or older people of all genders.

Indirect discrimination takes place when a person or group with a certain personal ground was, is or could be in a less favourable position compared to other persons due to an apparently neutral provision, criterion or practice.

Indirect discrimination often occurs with seemingly neutral criteria that are supposed to have the same effect for everyone, but in practice have a discriminatory effect for certain individuals or groups. Infringement of the prohibition of discrimination takes place when disputed criteria is applied which cannot be justified as appropriate, strictly necessary and proportionate to the objective pursued.

  • Example: The municipality sets the criterion of higher education as one of the primary conditions for obtaining non-profit housing. Such a criterion, which is seemingly neutral, disproportionately discriminates against the Roma population which has extremely poor educational structure compared to the rest of the population.

Harassment is one of the forms of discrimination which represents unwanted conduct related to any personal ground, which has the effect or purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for a person and which violates the dignity of that person.

  • Example: Telling a joke about disabled people, whereby a person who takes care of their disabled mother is deeply offended by such a joke, although it does not evoke the same feelings in others.

Harassment can occur in a variety of areas of social life.

One of the most common forms of harassment is workplace harassment. The Employment Relationship Act stipulates the duty of the employer to provide a work environment in which the employee will not be subjected to sexual or other harassment or harassment by the employer, superiors or co-workers. To this end, the employer must take appropriate measures to protect workers.

In practice, it turned out that the understanding of when a particular conduct is harassment, harassment or mobbing or bullying is often confused. The essential difference between harassment on the one hand and mobbing and bullying on the other is that mobbing or bullying are not necessarily related to one or more personal grounds.

Bullying means deliberately causing inconvenience, embarrassment, disadvantaging, etc. We talk about bullying when a person wants to harm another person or when the employer conducts proceedings in relation to the worker’s rights or obligations solely for the purpose of harming the worker.

However, mobbing or harassment is a systematic and continued misconduct that causes social, psychological and health problems for the victim.

Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct or behaviour of a sexual nature that occurs with the effect or purpose of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment is defined as a special form of discrimination that is not related to any personal ground.

  • Example: Urška is employed as a chef’s assistant in a kitchen where mostly men work. The superior makes jokes about her and makes inappropriate comments that do not stop, but the harassment only intensifies. This also includes inappropriate “accidental” touching.

Sexual harassment can be expressed in various forms, namely as verbal behaviour (e.g. suggestive comments and remarks, hints, obscene comments, whistling), non-verbal behaviour (e.g. sexually suggestive gestures, mimics, showing pornographic or sexually suggestive images), and physical behaviour (e.g. inappropriate touching, rubbing against a person’s body, massaging various parts of the body, hugging, kissing, etc.).

Sometimes, depending on the context, it can also have the nature of omissions, for example, deliberate ignoring, silence, unresponsiveness.

When it comes to sexual conduct, it is crucial to understand that it is an intervention in the personal, not necessarily physical integrity of an individual. The peculiarity of sexual harassment lies in the fact that there is no need to look for any comparable situation or another person as a neutral measure of sensitivity, since the basic criterion for the violation of dignity is the self-evaluation of the affected person.

Some of the signs of sexual harassment may also have the elements of sexual offenses (such as violation of sexual integrity through abuse of office, sexual violence, rape).

Instructions to discriminate are one form of discrimination and represent any instruction the result of which is, was or could be discrimination.

Instructions to discriminate also include instructions not to prevent or eliminate discrimination.

The instructions may be in the form of an order, authorization or other instruction to discriminate against a person on the basis of a particular personal ground.

Example: When a gay couple danced on the dance floor of a nightclub, the owner of the bar ordered the security guards to remove the couple from the bar.

Inciting discrimination means any incitement of other persons to carry out actions the result of which is, was or could be discrimination. Prohibited severe conduct particularly includes delivering or disseminating racist, religious, national and sexually discriminatory appeals, inducing, abetting or inciting hatred and discrimination, and broader public haranguing which promotes discrimination. Incitement to discriminate is one form of discrimination.

Prohibited discriminatory conduct includes public justification of abuse and contempt for persons or groups of persons due particular personal grounds, as well as a justification of ideas about the dominance or superiority of a person or group of persons with certain characteristics stemming from the aforementioned personal grounds over those who are not members of that group.

Prohibited severe conduct particularly includes delivering or disseminating racist, religious, national and sexually discriminatory appeals, inducing, abetting or inciting hatred and discrimination, and broader public haranguing which promotes discrimination.

Examples:

  • A Facebook post calling for the killing of all Muslims.
  • Public justifying of white supremacy and humiliating other nationalities, races or ethnic origins.
  • Humiliating women and justifying male domination while stating that women are intellectually less developed than men.

Victimisation is exposing a person subject to discrimination, or a person helping the aforementioned person, to unfavourable consequences due to actions which they take to prevent or eliminate discrimination.

Adverse consequences (e.g. in the form of sanctions, bullying, harassment) to which individuals could be exposed due to their action against discrimination (e.g. filing a complaint, acting as a confidant, witness), or retaliatory measures are prohibited.

  • Example: A teacher constantly teases a student for supporting another student’s complaint regarding discrimination based on ethnic origin.

DISCRIMINATION BY ASSOCIATION

In the case of discrimination by association, the reason for the discriminatory treatment is not a personal ground of the individual but a certain connection to a person (or a group) that has this personal ground.

Examples:

  • In the workplace, Jasna is often exposed to offensive comments, emails, and bullying from colleagues because of her lesbian daughter, a well-known activist for the rights of same-sex people.
  • An individual proved to be the best candidate in selection procedure for a working position. Later on, the employer learned that the candidate had a severely disabled child with complex care arrangements that could lead to long-term absences at the workplace, which led to their job application being rejected.

Unequal treatment based on a personal ground does not necessarily constitute a violation of the prohibition of discrimination. The applicable regulation (Article 13 of the PADA) generally does not exclude differential treatment on the basis of a particular personal ground, if such differential treatment is based on a legitimate objective and the means to achieve that objective are appropriate, necessary and proportionate.

For differentiation based on certain personal grounds (e.g. gender, race, ethnic origin, sexual orientation) and in certain areas of social life (e.g. employment and work), the criterion of examining the justification of unequal treatment is stricter than otherwise.

Exceptions to the prohibition of discrimination

Some exceptions of permissible unequal treatment are specifically defined in the legislation, such as:

  • More favourable treatment intended for special protection of pregnant women (fifth paragraph of Article 13 of the PADA);
  • the condition of a certain personal ground for employment in a workplace may be a justified condition of employment; although some people may be excluded (e.g. employment in a particular religious organisation where an individual is required to belong to that religion, whereby the requirement of belonging must represent a legitimate and justified professional requirement according to the ethics of the organisation);
  • employment of only members of one gender, when the personal ground of gender represents an essential and decisive professional requirement – e.g. employment of a person at the customs administration who will carry out personal checks on female passengers. Since the examination of female passengers can only be performed by women, the employment criterion that provides for a specific gender of candidates (in this case women) is not discriminatory.

Exceptions to the prohibition of discrimination

  • Example: A construction company could insist that all workers on a construction site wear safety helmets. Such a condition could constitute indirect discrimination for members of those religions in which wearing a headdress is mandatory. However, since this condition is based on a legitimate goal – the safety of workers at work and the means to achieve this goal are appropriate and necessary, such a requirement of the construction company is legitimate and does not constitute discrimination.