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Discrimination and harassment - how can employers protect themselves against a lawsuit?
For some time in Western Europe, it has been necessary for employers to guard against a potential lawsuit from an employee regarding discrimination or sexual harassment in the workplace. The last few years have seen a considerable development of such cases in the employment tribunals and employment lawyers have been kept busy in this regard.
Eastern Europe, and in particular Romania, are behind in their approach to these issues and there have not been any major lawsuits regarding discrimination or harassment, although in the writer’s opinion as a Romanian employment lawyer this is only a matter of time.
Romanian employees are now learning from globalization about their British or American counterparts successfully suing their employers for discrimination, sexual or otherwise, or harassment, and have therefore become more likely to file a lawsuit and even, in some cases, press criminal charges against an employer or a member of the management of the company on grounds of discrimination or harassment.
Although there have not been many cases to date Romania does have in place legislation covering discrimination and harassment by reason of race, religion and sexual orientation as well as age. The Labour Code, Government Ordinance no. 137/2000 regarding the prevention and punishment of all forms of discrimination as well as Law no. 202/2002 regarding equal opportunities and equal treatment between men and women effectively cover these issues. In addition, Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation and Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services have been transposed into Romanian law.
Romanian law covers both direct and indirect workplace discrimination. These apply in respect of:
- Direct discrimination, which means that an employer treats an employee comparably worse than other employees based on for discriminatory reasons. An example of direct discrimination would be when a pregnant employee is terminated for being pregnant or when a candidate is not hired solely for their sexual orientation or their ethnicity.
- Indirect discrimination is the result of company policy or practices that whilst not obviously discriminatory create a disadvantage for certain categories of people. An example of indirect discrimination would be asking a female candidate during a job interview about her marital status or about pregnancy plans. The only situation where such policies or practices are permitted by the law is when there is a legitimate purpose and the means for achieving this purpose are necessary proportional and adequate.
Romanian legislation forbids both direct and indirect discrimination for race, ethnicity, citizenship, religion, language, sex, gender, sexual orientation, social origins, genetic traits, age, disability, political inclination, familial situation, belonging to or being active within a syndicate, belonging to a marginalized minority, or being infected with HIV. Additionally, the legislation has provisions to protect employees from physical harassment, sexual harassment, victimization, and discrimination by association.
As a result of this employers in Romania are becoming increasingly more concerned with the internal procedures that they should have in place to prevent such situations from escalating and leading to a lawsuit and/or damaging the reputation of the company.
The first thing that any employer in Romania needs to know are what are the basic obligations that the Romanian Labour Code has established for employers in this regard.
The obligations are:
- To ensure equal opportunities and equal treatment for employees, whether they are men or women, in all employment relationships, especially by adding provisions against gender or sex discrimination in the internal regulations of the company,
- To add provisions in the internal regulations regarding the sanctions applicable to employees for violating the dignity of their co-workers
- To inform employees about their rights regarding equal opportunities and equal treatment between men and women in the workplace. One of the methods for doing this is by posting notices around the workplace, and
- To contact the authorities in charge of applying the legislation on equal opportunities and treatment between men and women in the workplace and inform them of any complaints of discrimination in the workplace.
It is important that the employer should ensure that they are covered in case of a lawsuit by adopting preventative measures against harassment and discrimination. The most basic measure being to include provisions regarding the sanctions applicable to employees for harassing and/or discriminating against their co-workers and ensuring that the Company has effective rules governing harassment and discrimination.
In cases of discrimination employers sometimes seek to prevent a lawsuit for discrimination or harassment by having employees sign a non-disclosure agreement where discrimination is dealt with as a private matter. Romanian law includes provisions designed to protect employees, therefore there are more restrictions as to what actions such an agreement can cover.
The Romanian labour code has recently been updated to allow the possibility for the employer to include in an employment contract a provision for solving any potential labour disputes including discrimination through mediation. This means, that if such a clause is included in the employment contract, the parties should try to solve the dispute through this special procedure, and only if they do not reach an agreement can the employee go to court. If they do reach an agreement, they can include in any written agreement clauses relating to compensating for the employee and therefore prevent a future lawsuit using such an agreement. It is important to ensure that the clauses meant to protect the employer from a lawsuit are not too restrictive of the rights of the employee and that they are negotiated with the employee, to avoid having a court subsequently declaring these clauses as abusive.
Such an agreement can only cover the right of the employee not to file a lawsuit against the employer and not against another employee. It cannot restrict the employee from bringing criminal charges if the alleged act is considered a crime under Romanian law.
As a law firm in Romania dealing with employment issues, we are seeing more and more clients who have questions regarding these matters. The answers must be addressed on an individual basis as to how they will impact employers under Romanian law. The most important thing for employers is to get the correct Romanian legal advice early on before the problems become a real issue both for the employer and the employee.
Hammond and Associates trading as Hammond Partnership is a Romanian law Firm based in Bucharest. The Firm Hammond and Associates has been in existence since 2004 and is registered with the Bucharest Bar. The lawyer of Hammond and Associates are all registered with the Romanian bar and are authorised to practise in Romania. The managing partner of the Firm is a solicitor registered with the Law Society of England and Wales and the Bucharest Bar.
The Firms client base is both Foreign and Romanian. Its clients consist of SME’s as well as major companies who have invested in Romania. In addition, it advises individuals both Romanian and Foreign on all aspects of Romanian law as well as providing English law advice when required.
The Firm’s clients come from many fields and countries. Our clients ranging from international banks and companies. It advises clients in the fields of aviation finance, employment, building and real estate, manufacturing, service industries, renewables, IT and computing, agriculture, and shipping .
The Firm advises on M&A and associated transactions including employment matters from the perspective of employees and employers. The Firm deals with comm as well as commercial matters ranging from formation of companies to distributorship and commercial agreements.
Mihaela Lupu (Author of this article - in the opening picture)
Mihaela Lupu is a Romanian lawyer with experience in both civil litigation and consultancy in various areas of law. She has advised a variety of international and domestic clients on corporate commercial and employment matters related to their activities and investments in Romania. She speaks Romanian, English and Spanish and has a knowledge of French.
Native content supported by Hammond Partnership.