Direct discrimination exists if a person or a group of persons was, is or may be treated less favourably than another person or a group of persons is, was or would be treated due to a certain personal circumstance in the same or similar situations.
- Example: job advertisement where only women under 30 years of age are sought for administrative work.
Indirect discrimination exists when a person or a group of persons with a personal circumstance was, is or may be in a less advantageous position than others due to a seemingly neutral provision, criterion or practice.
Indirect discrimination often occurs upon seemingly neutral criteria or criteria which are the same for all, but in practice it is shown that these criteria have a discriminatory effect on certain individuals or groups of individuals. Violation is given if the use of disputed provision cannot be justified as appropriate, necessary and proportional with the objective which it wants to achieve.
- Example: as one of priority criteria for the allocation of a nonprofit housing, the municipality defines a criterion of a higher level of education. Such a criterion, that is seemingly neutral, disproportionately disadvantages the Roma population, in which the educational structure is extremely low compared with the rest of the population.
Harassment is considered one of the forms of discrimination and represents an undesirable behaviour associated with any personal circumstance with the purpose or effect of creating an intimidating, hostile, degrading, shaming or insulting environment for the person and insulting their dignity.
- Example: Telling a joke on account of disabled people in company, whereby a person who is responsible for their disabled mother is deeply offended by such a joke, while this joke does not trigger the same feelings in others.
Harassment can occur in different areas of social life.
One of the most common forms of harassment is workplace harassment. The Employment Relationship Act defines the obligation of an employer to ensure such working environment in which no worker is exposed to any sexual or other harassment or maltreatment by an employer, superiors or coworkers. For this purpose, the employer must take appropriate measures to protect workers.
In practice, it turned out that prohibited forms of conduct, such as harassment, chicanery, mobbing or maltreatment, are often confused with discrimination, whereby in case of maltreatment and chicanery, unlike discrimination, unlawful conduct is not necessarily associated with one or more personal circumstances.
Chicanery means intentionally incurring inconvenience, discomfort, disadvantage, etc. We talk about chicanery when the holder exercises their right exclusively with the aim to harm or when an employer leads a process in connection with worker’s rights or obligations exclusively with the purpose to harm the employee.
And mobbing or maltreatment means longer lasting and systematic bad conduct, which causes social, psychological and medical problems to the victim.
Sexual harassment includes any form of undesired verbal, non-verbal or physical action or sexual behaviour with the effect or intention to affect the dignity of a certain person, especially by attempting to create an intimidating, hostile, degrading, shaming or insulting environment. Sexual harassment is defined as a special form of discrimination, which is not tied to any personal circumstance.
- Example: Urška is employed as assistant chef in a kitchen where mostly men work. Initially, she is faced with comments and jokes from the superior, but these do not cease, and harassment only intensifies. This includes “random” inappropriate touching and inappropriate comments.
Sexual harassment can be expressed in different forms, i.e. as verbal conduct (e.g. suggestive comments and remarks, allusion, obscene comments, whistling, etc.), non-verbal conduct (sexually suggestive gesticulation, mimicry, displaying pornographic or sexually suggestive images, etc.) and physical actions (inappropriate touching, rubbing against a person, massage of various parts of the body, hugging, kissing, etc.).
Sometimes, based on context, it can also take the form of omission, e.g. deliberate ignoring, silence, unresponsiveness, etc. In case of sexual behaviour, it is about intervention in personal, not necessarily physical integrity of an individual. A special feature of sexual harassment is mainly in the fact that it is not necessary to seek a comparable position or another person who would have been a neutral criterion of sensitivity, as the basic criterion for the breach of dignity is own assessment of the affected person.
Some of the signs of sexual harassment can already meet the signs of sex crimes against sexual integrity (such as breach of sexual integrity through abuse of situation, sexual violence, rape, etc.).
Instructions for discrimination are one form of discrimination and represent any instructions whose result was, is or may be discrimination. Instructions for discrimination also include an instruction not to prevent or eliminate discrimination. Instructions include an order, command or another instruction that a person should be discriminated against because of a certain personal circumstance.
- Example: When a gay couple danced on the floor of a night club, the club owner ordered their security officers to remove the couple from the club.
Calling for discrimination means any encouragement of other persons to actions whose result was, is or may be discrimination. Severe prohibited conduct especially includes passing or spreading racist, religious, ethnic and sexually explicit calls, inducement, instigation, incitement to hatred and discrimination as well as broader public calling which encourages discrimination. Calling for discrimination is one of the forms of discrimination.
As discrimination, it is also prohibited to publicly condone negligence or contempt of a person or a group of persons due to a certain personal circumstance as well as to condone ideas about domination or superiority of a person or a group of persons with certain characteristics arising from the above-mentioned personal circumstances above those who are not members of this group.
Severe prohibited conduct especially includes passing or spreading racist, religious, ethnic and sexually explicit calls, inducement, instigation, incitement to hatred and discrimination as well as broader public calling which encourages discrimination.
- Post on Facebook which calls for massacre of all Muslims.
- Public condoning of domination of the white race and humiliation of other nationalities, races or ethnic origin.
- Humiliation of women and condoning male domination with a justification that women are less intellectually developed than men.
Victimisation is exposing a discriminated person or a person helping the latter to unfavorable consequences due to their action, whose purpose is to prevent or eliminate discrimination.
Adverse consequences (e.g. in the form of sanctions, chicanery, harassment), which individuals could have been exposed to due to their actions against discrimination (e.g. filing of a complaint, acting as a confidant, witness), or reprisals are prohibited.
- Example: A teacher is constantly teasing a pupil because he supported a complaint of another pupil due to discrimination based on ethnic origin.
In case of discrimination through connection, the reason for a discriminatory treatment is a personal circumstance not inherent to an individual, but the latter is in a way connected to the person (or group) who has this personal circumstance.
- At the workplace, Jasna is often subjected to offensive comments, e-mails and taunts by her colleagues about her daughter who is gay and a well-known activist for the rights of homosexuals.
- An individual proved to be the best candidate for a job position during the selection procedure. Subsequently, the employer found out that the applicant has a severely disabled child with complicated care arrangements that could cause prolonged absence from the workplace, due to which his application for employment was rejected.
Each unequal treatment based on a personal circumstance does not necessarily mean a violation of the prohibition of discrimination. Valid regulation (Article 13 of the ZVarD) generally does not exclude different treatment based on a certain personal circumstance if such different treatment is based on legitimate goal and the means for achieving this goal are relevant, necessary and proportionate.
For differentiation based on certain personal circumstances (e.g. gender, race, ethnic origin, sexual orientation) and certain areas of social life (e.g. employment and work), the criterion of assessment of justified unequal treatment is stricter than elsewhere.
1. Exceptions from prohibition of direct discrimination
Some exceptions of justified unequal treatment are specifically defined in legislation, such as:
• Example: preferential treatment for special protection of pregnant women (fifth paragraph of Article 13 of the ZVarD);
• Example: meeting a certain personal circumstance for employment at a workplace can be a justified condition for employment, although it excludes those who do not meet it (e.g. employment in a certain religious organisation where an individual is required to be affiliated with this religion, whereby the request of affiliation must represent a legitimate and justified professional requirement depending on the ethics of the organisation);
• Example: employment of only one gender when a personal circumstance of gender represents a significant and decisive professional requirement – employment of a person at a customs office who will implement personal checks of female passengers. Because checks of female passengers can only be performed by women, an employment criterion expecting a specific gender of candidates (women in this case) is not discriminatory.
2. Exceptions from prohibition of indirect discrimination
• Example: a construction company requires that all workers on site wear protective helmets. Such condition could represent indirect discrimination for members of those religions in which it is mandatory to wear head cover. But since this condition is based on a legitimate goal – workers’ safety at work and the means of achieving this objective are appropriate and necessary, such request by a construction company is legitimate and does not represent discrimination.