What is discrimination?

What is discrimination? 2018-07-17T08:29:12+00:00

Diskriminacija je neenako obravnavanje, ki nima upravičenega razloga: ljudje so obravnavani slabše od drugih le zaradi določene osebne okoliščine (npr. spol, starost, rasa, etnično poreklo, invalidnost, spolna usmerjenost, versko prepričanje…). Sporno ravnanje jih ovira ali prikrajšuje za različne pravice ter vsakodnevne priložnosti. Ima lahko tako naravo dejanj (odločitev ipd.) kot tudi opustitev (neukrepanje, spregleda se nekoga glede ugodnosti…).

Varstvo pred diskriminacijo velja tudi za pravne osebe, ki jih opredeljuje pravni red Republike Slovenije, če se okoliščine, ki bi lahko bile podlaga za diskriminacijo, po vsebini lahko nanašajo na te osebe.

Varstvo pred diskriminacijo je zagotovljeno na različnih področjih družbenega življenja, pri uresničevanju človekovih pravic in temeljnih svoboščin, pri uveljavljanju pravic in obveznosti ter v drugih pravnih razmerjih na političnem, gospodarskem, socialnem, kulturnem, civilnem ali drugem področju, ne pa tudi v zasebnih razmerjih med različnimi posamezniki.

Diskriminacijo definira 4. člen Zakona o varstvu pred diskriminacijo kot »vsako neupravičeno dejansko ali pravno neenako obravnavanje, razlikovanje, izključevanje ali omejevanje ali opustitev ravnanja zaradi osebnih okoliščin, ki ima za cilj ali posledico oviranje, zmanjšanje ali izničevanje enakopravnega priznavanja, uživanja ali uresničevanja človekovih pravic in temeljnih svoboščin, drugih pravic, pravnih interesov in ugodnosti.« V Sloveniji je diskriminacija zaradi katere koli osebne okoliščine prepovedana.

Enako obravnavanje pomeni odsotnost diskriminacije zaradi katere koli osebne okoliščine, kakor tudi odsotnost katerega koli drugega ravnanja, ki v skladu s tem zakonom pomeni diskriminacijo. Enako obravnavanje v skladu s tem zakonom je zagotovljeno tudi osebi, ki je dejansko ali pravno povezana z osebo z določeno osebno okoliščino in osebi, ki je diskriminirana zaradi napačnega sklepanja o obstoju določene osebne okoliščine.

Oblike diskriminacije

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.

Examples:

  • 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.

Examples:

  • 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.

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.

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.

Hujše oblike diskriminacije

Multiple discrimination means that a person is discriminated against due to multiple personal circumstances at a time, e.g.: gender, nationality, race or ethnic origin, language, religion, disability, age, sexual orientation, gender identity, financial status, education, etc.

  • Example: A member of the Roma community who is also disabled may be a victim of discrimination on the basis of several personal circumstances (based on
    a personal circumstance of ethnicity and disability).

Mass discrimination is given when following a controversial conduct several persons are discriminated against, especially if it is motivated by hatred or contempt to persons with a certain personal circumstance.

The term mass discrimination is used as a neutral term for all cases of discrimination based on a larger number of discriminated persons.

  • Example: Erasure of a certain group of citizens from all official records (e.g. the erased).

Prolonged or repeated discrimination is considered a serious form of discrimination and means exposure of a person to discrimination which lasts longer or is recurring.

  • Example: Failure to regulate access to drinking water in Roma settlements.

Področja diskriminacije

The Law on Protection against Discrimination obliges public and private sector entities and natural persons to ensure protection against discrimination or equal treatment of all persons in their operation or handling in relation to third parties, also in relation to

conditions for access to employment, self-employment and occupation, including selection criteria and conditions of employment, irrespective of the type of activity and at all levels of professional hierarchy, including promotion.

  • Example: Single mother does not get an opportunity for a promotion with an explanation that the new position would require from her 100 per cent presence in the workplace, and she would not be able to implement this due to repeated absences for the care of the child.

The Law on Protection against Discrimination obliges public and private sector entities and natural persons to ensure protection against discrimination or equal treatment of all persons in their operation or handling in relation to third parties, also in relation to

access to all forms and to all levels of career orientation and consultation, vocational and professional education and training, further vocational training and retraining, including internships.

  • Example: Due to disability, an employee is not posted to professional training, which is performed in a building which has no regulated access for the disabled, because the employer believes that the necessary adjustments for the employee to be able to attend the training would represent an excessive burden on the employer.

The Law on Protection against Discrimination obliges public and private sector entities and natural persons to ensure protection against discrimination or equal treatment of all persons in their operation or handling in relation to third parties, also in relation to

terms and conditions of employment and work, including termination of the employment contract and salaries.

  • Example: A private company has such a policy that men receive higher salary for the same work than women.

The Law on Protection against Discrimination obliges public and private sector entities and natural persons to ensure protection against discrimination or equal treatment of all persons in their operation or handling in relation to third parties, also in relation to

Membership/integration in the organisation of workers or employers or in any organisation whose members perform a particular profession, including benefits provided by such organisations.

  • Example: arrangement in a collective agreement that an extra day only belongs to union members.

The Law on Protection against Discrimination obliges public and private sector entities and natural persons to ensure protection against discrimination or equal treatment of all persons in their operation or handling in relation to third parties, also in relation to

social protection, including social security and health care.

  • Example: refusal of dental services to a patient who is infected with HIV.

The Law on Protection against Discrimination obliges public and private sector entities and natural persons to ensure protection against discrimination or equal treatment of all persons in their operation or handling in relation to third parties, also in relation to

social benefits.

  • Example: regarding tender for non-profit housing, a municipality forms such criteria that young families can not apply to a tender.

The Law on Protection against Discrimination obliges public and private sector entities and natural persons to ensure protection against discrimination or equal treatment of all persons in their operation or handling in relation to third parties, also in relation to

upbringing and education.

  • Example: teaching Roma children separately from other children.

The Law on Protection against Discrimination obliges public and private sector entities and natural persons to ensure protection against discrimination or equal treatment of all persons in their operation or handling in relation to third parties, also in relation to

access to goods and services, which are available to the public, including housing, and their supply.

  • Example: A cable provider does not wish to conclude a contractual relationship with a member of the Roma community, because it estimates that they will not be able to provide regular payments.

 Osebne okoliščine diskriminacije

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers gender under personal circumstances.

  • Example: Katarina has not been appointed to a position although she reached a higher score at the interview than the selected male candidate. The employer based his decision on stereotypical assumptions of women’s ability to perform work.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers gender under personal circumstances.

  • Example: Katarina has not been appointed to a position although she reached a higher score at the interview than the selected male candidate. The employer based his decision on stereotypical assumptions of women’s ability to perform work.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers race or ethnic origin under personal circumstances.

  • Example: a waiter does not want to serve an African-American guest due to their skin colour.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers language under personal circumstances.

  • Example: a company opens a new job position with higher pay and better working times. A worker decides to apply for the position. Although the person speaks Slovene, the superior informs him that he will not be invited to an interview because he speaks with a Bosnian accent. Another official, who speaks Slovenian better, is invited to an interview.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers religion or belief under personal circumstances.

  • Example: candidates for a new job position in a manufacturing company are asked questions regarding their religious affiliation. Atheists or individuals who are not affiliated to the same religion as the owner of the company are excluded as unsuitable candidates, i.e. based on employer’s conclusion that they lack certain values.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers disability under personal circumstances.

  • Example: an individual in a wheelchair is denied entry in a store due to physical barriers (steps).

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers age under personal circumstances.

  • Example: although a 50-year old job seeker is the best candidate for employment, he is not selected at a tender because the employer believes that he is too old and would therefore not fit well into the company of other workers who are younger.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers gender identity under personal circumstances.

  • Example: workers are constantly making offensive comments about a colleague due to his sexual identity. Because he is a person who does not identify himself with any sexual identity or feels a complete absence of his own sexual identity, he is often a target of colleagues and mocked. Despite his complaints, the employer has not taken any measures that would prevent harassment.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers gender expression under personal circumstances.

  • Example: at a job interview, a candidate who attained the highest number of points and was evaluated as best was not selected because he came to an interview with makeup and fingernail polish.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers social status under personal circumstances.

  • Example: a homeless person goes to a restaurant for dinner. Before he orders, restaurant owner approaches him and requires that he immediately leaves the restaurant as such persons are not welcome in his restaurant.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers financial status under personal circumstances.

  • Example: an elderly retired couple is denied access to a luxury vehicle showroom because the seller estimated that the couple would not have been able to afford a new vehicle with a modest pension.

It is essential in dealing with discrimination that unequal, less favourable treatment is based on an individual personal circumstance. These are congenital or acquired personal characteristics, features or statuses which are usually permanently and inseparably associated with a certain individual and their personality, especially identity, or an individual does not change them easily. The Law also considers education under personal circumstances.

  • Example: although an employee has the same level of education as others in the company, he is often ridiculed by the collective because he finished a higher education at a faculty which belongs among the “easier” faculties in the view of his colleagues. Despite the same level of education and performing the same type of work, his salary is lower than that of their co-workers.

A set of personal circumstances which can lead to discrimination is not limited as the Law defines that discrimination can also occur due to any other personal circumstance. It is an open legal concept which will be supplemented by practice.

If you are being treated unequally without any legitimate reason, just because of a certain personal circumstance, and controversial conduct hinders or deprives you of different rights and daily opportunities, you can submit a request to address discrimination (link na obrazec).

You can also ask us for advice either by mail (e-mail) or call us on the phone number +386 (0)1 473 55 31 during office hours.