The Turkish Law on Human Rights and Equality Institution of Turkey (the “Law”) entered into force on April 20, 2016, replacing its predecessor (the Law on Turkish Human Rights Institution).
The Law established the Human Rights and Equality Institution of Turkey (the “Institution”), the mission of which is to carry out activities to protect and improve human rights in Turkey, ensure the right to equal treatment of all persons, prevent discrimination in enjoying human rights and freedoms recognized by law, and combat torture and ill-treatment. The Institution – which replaced the predecessor Human Rights Institution – was established to function as the national prevention mechanism in these regards. Because the Institution’s executive organ, the Human Rights and Equality Board, has recently been fully appointed, it is timely that we review some of the relevant provisions of the Law for Turkish employers.
At its core, the Law prohibits all sorts of discrimination based on gender, ethnicity, skin color, language, religion, beliefs, philosophical and political views, national origin, wealth, birth status, marital status, medical conditions, disability, and age.
The Law also introduces explicit definitions and denotes new mandates for equality and non-discrimination, including for employers. The Law stipulates that institutions which are responsible for guaranteeing a person’s human rights, equal treatment, and non-discrimination shall be obliged to take necessary measures to end any relevant breach, prevent its repetition, and ensure compliance with the Law through legal and executive means. As such, public institutions and organizations offering services such as education and training, judiciary, law enforcement, health, transportation, communication, social security, social services, social welfare, sports, accommodation, culture and tourism, and the like; professional organizations; and real persons and private legal entities may not discriminate against persons who are benefiting from their services, who have applied to use their services, or are interested in obtaining information about their services.
The Law defines nine types of prohibited discriminatory behavior. The most relevant of these categories for employers are: (1) the prohibition of all sorts of direct and indirect discrimination in hiring practices, and (2) the prohibition of intimidation/harassment in the workplace.
Non-Discrimination by Employers
The Law prohibits employers (as well as persons authorized by employers) from discriminating against any of the following persons on any work-related processes, including the provision of information, application, selection criteria, recruitment requirements, and termination of the work relation: (1) employees or applicants for employment; (2) persons who are in a workplace for practical work experience or who apply for this purpose; and (3) persons who want to learn about the workplace or the relevant business to be employed in any capacity, or to obtain practical work experience.
The prohibition on non-discrimination is wide in its scope and includes job listings, the workplace, work conditions, guidance services at work, on-the-job training, promotions and benefits, among other things. Furthermore, employers cannot reject a job applicant based on pregnancy, motherhood, or childcare needs.
Notwithstanding the foregoing, the Law also specifies that the following cases, among others, cannot be deemed as discrimination prohibited by the Law: (1) different treatment in appropriate manner because of the existence of compulsory occupational requirements in the field of employment; (2) in cases where the employment of a particular gender is compulsory; (3) age limitations due to the obligations of the job, and age-specific treatment in a manner proportionate and necessary for the relevant employment; (4) employment of members of a certain religion by institutions of that religion (but only for the purposes of religious services or religious training); (5) the setting of membership criteria by associations, non-profits, political parties and professional organizations; (6) necessary and proportional different treatment in order to eradicate existing inequalities; and discrimination based on the immigration status of non-citizens.
Intimidation/Harassment in the Workplace
The Law also specifically prohibits intimidation in the workplace, which is defined as the taking of any intentional action based on the non-discrimination bases listed above with the aim of excluding, isolating or alienating an employee. The Law further prohibits harassment in the workplace, which includes any offensive, defamatory, derogatory, or embarrassing behavior (including in a psychological or sexual manner) based on one of the non-discrimination principles of the Law and that has the purpose of, or results in, the infringement of human dignity.
The Institution has the authority to monitor compliance by and levy administrative fines for violations of the requirements of the Law on employers. As such, employers should at all times be mindful of the foregoing obligations, and implement necessary measures and processes to comply with them.
By Noyan Turunc, Founding Partner, and Didem Bengisu, Attorney, Turunc
This Article was originally published in Issue 4.6 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.