Answer ... The Labour Code prohibits employers from discriminating in the employment relationship on grounds of sex, race, colour, disability, language, political opinion, philosophical belief, religion or similar reasons (these are not defined, but may include grounds such as age).
Additionally, discrimination based on gender, race, colour, language, religion, belief, sect, philosophical or political view, ethnic origin, wealth, birth, marital status, health condition, disability or age is prohibited by the Law on the Human Rights and Equality Institution of Turkey.
The Law on the Human Rights and Equality Institution of Turkey contains certain statutory exceptions to the statutory prohibition of discrimination in the employment relationship. For example, sex discrimination may be permissible for biological reasons or reasons relating to the nature of the job. Further, women must not be employed for underground or underwater work, such as mining, cable-laying or the construction of sewers and tunnels. A similar restriction applies to the employment of people with disabilities.
Answer ... The Law on People with Disabilities prohibits discrimination on grounds of disability, including in relation to recruitment and selection. Employers must take the necessary measures to eliminate or mitigate barriers to employment faced by disabled employees and job applicants, and make physical adjustments and provide technical support to help people with disabilities to work.
Answer ... The prohibition of discrimination on the above grounds applies to all aspects of the employment relationship, including pay, employment conditions, promotion, access to training and termination of employment. However, the Labour Code does not apply to discrimination against job applicants in the recruitment and selection process.
The Labour Code does not elaborate on the general prohibition of discrimination on the above grounds, except in relation to pay discrimination and discrimination on grounds of sex. It provides that, except for biological reasons or reasons relating to the nature of the job, an employer must not discriminate, either directly or indirectly, against an employee in the conclusion, conditions, execution or termination of the employment contract, on grounds of the employee’s sex or maternity status.
With regard to other grounds of discrimination, the Labour Code provides that unless there are essential reasons for differential treatment, an employer must not discriminate between full-time and part-time employees, or between employees on fixed-term employment contracts and those on indefinite-term employment contracts.
The Penal Code makes it a criminal offence to discriminate by making a person’s employment or non-employment dependent on his or her race, language, nationality, colour, sex, disability, political ideas, philosophical beliefs, religion or sect.
Answer ... If an employer violates the Labour Code’s equality and non-discrimination provisions in the execution or termination of the employment relationship, the employee may file suit seeking compensation from the employer of up to four months’ wages plus compensation for any actual damages suffered. An employer that fails to observe these provisions is also liable to an administrative fine per employee affected. The relevant provisions are the statutory prohibitions of:
- discrimination in the employment relationship on grounds of sex, race, colour, disability, language, political opinion, philosophical belief, religion or similar reasons;
- discrimination between full-time and part-time employees, or between employees employed on fixed-term employment contracts and those on indefinite-term employment contracts; and
- the provision of different remuneration for employees performing the same or similar jobs, or work of equal value.
Where an employee claims that the employer has violated these provisions, the burden of proof rests on the employee. However, if the employee can show a strong likelihood of such violation, the burden of proof that the alleged violation has not occurred rests on the employer.
The above remedies are available only to employees, and not to job applicants who believe that a prospective employer has discriminated in the recruitment and selection process.
With regard to sexual harassment, an employee is entitled to terminate the employment contract for just reason if:
- the employer sexually harasses the employee; or
- the employee is sexually harassed by another employee or by a third party in the workplace, and the employer does not take adequate measures to prevent the harassment despite being informed of such conduct.
Answer ... An employee who believes that he or she has been dismissed on prohibited discriminatory grounds may seek compensation of up to four months’ wages plus compensation for any actual damages suffered. The employee may also seek an additional remedy if he or she is covered by job security protection.
If an employee who is employed on an indefinite-term employment contract and is not covered by job security protection believes that he or she has been dismissed on the invalid discriminatory grounds set out above, he or she may bring a case seeking bad-faith dismissal compensation that is equal to three times the salary payable for the applicable notice period.
Answer ... If an employee terminates the employment contract due to sexual harassment, he or she is entitled to a statutory severance payment from the employer (if the employee has completed at least one year’s service with the employer) and may file suit seeking compensation from the employer for mental or physical damages suffered. Irrespective of whether he or she has terminated the employment contract, an employee who suffers sexual harassment at work may file suit against the employer or the harasser seeking compensation for damages suffered. The employer is liable for the actions of an employee who commits harassment if it took no action to prevent the harassment on becoming aware of it.
The criminal offence of sexual harassment is punishable by imprisonment for between three months and two years. If the offender has abused his or her hierarchical position, or his or her position at the same workplace as the victim, to commit the harassment, the punishment is increased by 50%. It the victim is forced to leave his or her job as a result of the harassment, the offender must be sentenced to imprisonment for at least one year.
Additionally, administrative fines may be applicable under the Law on the Human Rights and Equality Institution of Turkey.
Employees who file suit against their employer for unlawful discrimination, make a discrimination complaint or witness or report discrimination enjoy no specific statutory protection against dismissal or other disadvantage by the employer. However, an employer cannot validly terminate employees who are covered by job security protection for filing a complaint or participating in proceedings against the employer involving alleged violations of any laws or regulations, or having recourse to competent administrative or judicial authorities.