Discrimination Compensation

Article 5 of Labor Law No. 4857 provides that no discrimination based on language, race, color, sex, disability, political opinion, philosophical belief, religion, sect, or similar grounds may be made within an employment relationship. The same article also prohibits an employer from directly or indirectly treating an employee differently on grounds of sex or pregnancy in the formation, terms, performance, or termination of an employment contract, unless biological reasons or reasons related to the nature of the work require otherwise.

The obligation of equal treatment does not mean that every employee at a workplace must be subject to identical conditions. Different treatment based on objective and justified reasons, among employees with different qualifications, seniority, or duties, does not constitute a violation of the principle. What matters is differential treatment, without a justified reason, among employees in the same or an equivalent position.

The statutory text does not limit the prohibition of discrimination to the period of active employment; it covers the formation of the employment contract, the setting of its terms, its performance, and its termination. As a result, discrimination during recruitment, during employment, or at the time of termination can all fall within the scope of the same principle.

Common examples in practice include a pay gap based on sex between employees performing the same or equivalent work, incomplete reporting of social security premiums for certain employees, or certain employees being denied entitlements such as weekly rest days without a justified reason.

Under Article 5 of the Labor Law, where the equal treatment principle is violated, the employee may claim appropriate compensation of up to four months' wages, in addition to any other rights of which they were deprived as a result of the discrimination. For example, an employee paid less because of their sex may claim, together with discrimination compensation, payment of the resulting wage difference.

The amount of compensation is determined by the court based on the employee's last gross wage, taking into account the nature, severity, and duration of the discrimination, as well as the employee's seniority. The existence of concrete damage is not a requirement for claiming this compensation; it may be claimed even where no damage has occurred.

As a general rule, the burden of proving that an employer has acted contrary to the equal treatment principle rests with the employee. The law, however, provides an important exception to this rule: where the employee presents a concrete situation that strongly indicates the likelihood of a violation, the burden of proof shifts to the employer, who must then prove that no such violation occurred.

Under this rule, the employee is not expected to conclusively prove discrimination, but only to present strong indications that a violation may have occurred — for example, a dismissal shortly after the employer learns of an employee's pregnancy may be treated as such an indication. Whether an indication is strong enough to shift the burden of proof to the employer is assessed by the court based on the specific facts of the file.

In workplaces covered by job security provisions, a valid termination requires the employer to show a reason related to the employee's competence, conduct, or the operational requirements of the business. The second paragraph of Article 18 of the Labor Law separately lists grounds that cannot, on their own, constitute a valid reason for termination, including union membership or participation in union activity, race, color, sex, marital status, family responsibilities, pregnancy, childbirth, religion, and political opinion.

Under this provision, if discrimination is concealed behind a reason that is presented as the actual ground for termination, the termination may be held invalid, and the employee may seek reinstatement. Even in workplaces outside the scope of job security provisions, demonstrating that the real reason for termination was one of the grounds listed above can form the basis for a discrimination compensation claim.

Discrimination compensation can generally be claimed together with other employment entitlements, such as severance pay, notice pay, and bad-faith compensation. By explicit statutory provision, the one exception that cannot be claimed together with discrimination compensation is union discrimination compensation, which applies to terminations carried out for union-related reasons.

Where the same act could give rise to more than one type of compensation at the same time, the principle against double recovery for the same underlying fact is applied; for this reason, the relationship between discrimination compensation and bad-faith compensation, or between discrimination compensation and re-employment compensation, needs to be assessed based on which claim is genuinely supported by the facts of the case.

As with other employment claims arising under the Labor Law, the statute of limitations for a discrimination compensation claim is generally five years, absent a specific statutory provision to the contrary. This period begins to run from the date the discriminatory act occurred, or from the date the employee became aware of the facts underlying the claim.

As with most other employment claims, applying to mediation before filing a lawsuit is a statutory precondition for discrimination-based claims as well. Employees facing a dispute related to the equal treatment principle are advised to address the matter without delay to avoid a loss of rights. For questions on this subject, you may reach us through our contact page.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy