Discrimination - Discrimination Compensation

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The principle of equal treatment is one of the reflections of the principle of equality enshrined in our Constitution, as applied to the Labor Law. An employer cannot treat employees differently or engage in arbitrary practices in the workplace without a just and objective reason. Behaviors that violate this obligation give rise to the employer's liability. It may be the case that some employees' insurance premiums are paid in full by the employer while others are paid deficiently. This situation can also be the subject of an action for determination of employment status. To avoid loss of rights, you can read our article on this topic.

One important point to note is that the employer's obligation of equal treatment does not mean bringing every employee in the workplace to the same position, but rather ensuring that employees performing the same or equivalent work are not treated differently. If the qualifications of the employees or the work they perform are not the same, the employer cannot be expected to treat them absolutely equally.

Similarly, if an employer applies a different practice to an employee due to their diligence or talent, this does not indicate that the employer has acted contrary to the principle of equal treatment. Furthermore, unjust behaviors by the employer that reach the level of psychological harassment may also be evaluated within the scope of mobbing. Do not forget to check out our article on this topic as well.

The Labor Law imposes two types of obligations on the employer: the obligation of equal treatment and the obligation of non-discrimination.

Conditions for Discrimination Compensation

For the employer to be subject to the obligation of equal treatment, certain conditions must first be met.

• One of the most important conditions for an allegation of violation of the obligation of equal treatment is the unity in time. It cannot be claimed that the employer has acted contrary to the obligation of equal treatment due to practices carried out at different times. For the comparison of behaviors applied to employees in the workplace with an allegation of violation of the obligation of equal treatment, these behaviors must have occurred within the same time frame.
• The employer's obligation of equal treatment applies to collective practices. Collective practices refer to general and objective applications made in the workplace. For example, if all employees in the workplace receive a raise, but one or more employees are excluded from the raise application without any just cause, this situation will constitute a violation of the employer's obligation of equal treatment.
• The allegation of violation of the obligation of equal treatment must arise from practices that occurred among employees working in the same workplace. Indeed, it is quite natural for there to be no common practices in different workplaces belonging to the same employer.
• There must be more than one employee in the workplace. It cannot be said that the obligation of equal treatment has been violated in workplaces where only one employee works. However, there is an important point: the employer's obligation of non-discrimination continues even in this situation. For example, if an employer dismisses the sole employee in the workplace due to her pregnancy, they may be required to pay discrimination compensation.

What is Discrimination Compensation?

Behaviors of the employer that violate the principle of equal treatment entitle the employee to discrimination compensation. The scope of discrimination compensation includes an appropriate compensation up to 4 months' wages and the right to claim the rights of which they were deprived due to the discrimination. For example, if a female employee is paid less than male employees for the same or equivalent work due to her gender, the female employee can claim, in addition to discrimination compensation, the wage difference for every period she received less pay.

Or, an employee who is granted fewer weekly rest days compared to other employees will be able to claim, in addition to discrimination compensation, the weekly rest day wage for every weekly rest day they worked. The claim underlying discrimination compensation arises from situations occurring during the employment relationship or upon its termination. This means that discrimination compensation cannot be claimed before an employment relationship is established.

The right to claim discrimination compensation will arise at the time of termination of the employment relationship, for example, if a female employee is dismissed due to her pregnancy.

Dismissal During Pregnancy

Dismissing an employee due to pregnancy constitutes a violation of the employer's prohibition of discrimination. Dismissal during pregnancy entitles the employee to discrimination compensation. Indeed, this situation is explicitly regulated in the Law and supported by Supreme Court decisions.

Calculation of Discrimination Compensation

Discrimination compensation is calculated based on the employee's last gross wage, and compensation up to a maximum of 4 months' wages is awarded. Discrimination compensation is calculated by the court taking into account factors such as the significance, severity, duration of the discrimination suffered, the employee's seniority, and wage. Whether damage has occurred or not due to the discrimination is irrelevant for the award of discrimination compensation. Even if the employee has not suffered damage due to the discrimination, they will be able to claim discrimination compensation. Do not forget to visit our compensation calculation page for other employee receivables.

Burden of Proof for Discrimination Compensation

According to the Labor Law, it is incumbent upon the employee to prove that the employer has acted contrary to the principle of equal treatment. However, there is an important exception in this regard. According to the Labor Law: "(...) when the employee presents a situation that strongly indicates the probability of a violation, the employer becomes obliged to prove that such a violation does not exist."

Shifting the Burden of Proof to the Employer

In such a situation, an employer who fails to prove that they did not discriminate will be ordered to pay discrimination compensation. Indeed, the 9th Civil Chamber of the Court of Cassation, in its decision dated 15.05.2019, accepted the situation where an employee, whose pregnancy was learned by the workplace, was dismissed shortly thereafter, as one that strongly indicates the probability of a violation, and stated that the burden of proof rested with the employer.

Statute of Limitations for Discrimination Compensation

According to the Labor Law, the statute of limitations period for discrimination compensation is 5 years. The statute of limitations period for receivables arising from the Labor Law is 5 years, except for exceptions. If you have recently resigned from your job, do not forget to visit the articles section on our website to get information about the rights of a resigning employee and to avoid loss of rights.

What is the Upper Limit of Discrimination Compensation in Terms of Employee's Monthly Wage?

According to the Labor Law, the maximum amount an employee subjected to discrimination can receive as compensation is 4 months' wages. The minimum amount they can receive is 1 month's wages. While calculating severance pay, the employee's 'dressed wage' (i.e., the gross wage including benefits such as travel, food, and bonuses) is taken as the basis, for the calculation of discrimination compensation, the employee's basic gross wage is taken as the basis.

Relationship of Discrimination Compensation with Other Employee Compensations

The only type of compensation that cannot be claimed together with discrimination compensation, by explicit provision of the law, is union discrimination compensation. Apart from this, severance pay, notice pay, re-employment compensation, and bad faith compensation can be claimed together with discrimination compensation. If you have been dismissed, do not forget to read our article titled "Rights of a Dismissed Employee" to avoid loss of rights. Furthermore, you can find all questions regarding the mediation stage introduced for labor lawsuits in our article on the subject.

However, there is a point that needs attention. A person should not be penalized twice for the same act, and this also applies to the employer. Therefore, if the same ground for termination gives rise to multiple compensations, only one can be awarded. This situation is particularly important in the relationship between discrimination compensation – bad faith compensation and discrimination compensation – re-employment compensation.

Discrimination Compensation and Bad Faith Compensation

An employee dismissed both in violation of the principle of equal treatment and in bad faith due to her pregnancy will only be able to claim one of the bad faith and discrimination compensations. Indeed, Supreme Court decisions are in this direction.

Discrimination Compensation and Re-employment Compensation

This issue is also important for job security compensation, in addition to bad faith compensation. In a workplace covered by job security, an employee dismissed due to a termination that is contrary to the principle of equal treatment and invalid will be entitled to discrimination compensation. If the re-employment lawsuit concludes in favor of the employee, and despite being requested, the employee is not reinstated, then the employee will be entitled to re-employment compensation. In this case, the employee will not be able to claim discrimination compensation together with re-employment compensation.

Discrimination compensation, contrary to popular belief, is not a simple type of compensation; it contains many details. To speak with an expert labor law attorney working within our Law Firm regarding discrimination compensation, to get more information, and to avoid loss of rights, do not forget to visit the contact section on our website.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy