New rules to tackle gender discrimination at work
Despite a long-standing prohibition of gender-based discrimination at work in Poland, the evidence indicates that discrimination against women remains widespread, while it has been very difficult for victims of discrimination to seek legal redress. Amendments made to the Labour Code in 2002 seek to tackle these problems, including by making it easier to bring court cases.
Poland recognises the principle of equality of women and men, having, for example, ratified a number of international agreements in which this principle is enshrined. As far as Poland’s domestic laws are concerned, a ban on gender-based discrimination in the context of employment relations arises, first and foremost, from Articles 32.2 and 33 of the Constitution. These provide that: nobody can be discriminated against on any grounds in political, social, or economic life; equal rights in this respect extend to women and to men; and all people enjoy equal rights to education, employment and advancement, and also to equal remuneration for work of equal value.
In practice, however, Polish law has until now often been powerless in many cases of blatant sex discrimination. In the event, for instance, that a woman was refused employment on account of her sex, there was no legal possibility for her to lodge a complaint challenging such discrimination in access to employment and seeking compensation. Any claims to this effect brought in a civil law context were fraught with evidentiary difficulties, and this was coupled with a complete absence of public law remedies. Recourse to the Civil Code in seeking damages for refusal to honour a preliminary contract, or the execution of a contract, was of marginal practical significance. Other common instances of discrimination related to:
- refusal to renew an employment relationship;
- unfavourable shaping of the employment relationship, such as omission in promotions or in the provision of benefits; and
- omission in selection for professional training.
Evidence on discrimination
The prevalence of these forms of discrimination is confirmed by the State Labour Inspection (Państwowa Inspekcja Pracy, PIP) in its monitoring of employers’ observance of the regulations protecting women in employment. Table 1 below summarises the number of employers submitted to control, their total workforce and the number of women employed, and the percentage of employers whose operations were found to involve improprieties in this area, over the period 1997-9. The majority of employers subjected to inspections were from the private sector (82% in 1999, 79% in 1998, and 85% in 1997).
|Number of employers monitored||667||761||683|
|Number of employees||111,159||205,566||114,293|
|Number of women||63,252||77,767||56,582|
|Percentage of employers where improprieties were detected||63%||57%||52%|
Source: State Labour Inspection.
In execution of the Minister of Labour and Social Policy’s directives set out in its action plan for 1999, the State Labour Inspection has carried out inspections examining employers' observance of the regulations prohibiting gender-based discrimination. These inspections primarily addressed the issue of equal remuneration for equal work, but the inspectors also took note of other forms of discrimination, such as sexual harassment or unequal treatment of job applicants. The control work was conducted in line with uniform criteria.
In 1998 and 1999, such inspections were carried out at 37 employers across Poland, with 14,490 employees between them (5,472, or 37.6%, of whom were women) in 1998 and 15,336 employees (including 5,839 women) in 1999. All the enterprises in question had more than 50 employees. The examinations were not conducted in sectors which are traditionally domination by either men and women, such as mining, the steel industry, trade and education. Table 2 below indicates the gender balance and the average remuneration for women and men in each employee group in the employers inspected.
|Category||Employment structure||Average monthly remuneration (PLN)|
|No. of men||No. of women||No. of men||No. of women||Men||Women||Men||Women|
|Managerial – senior||128||42||155||45||5,575||5,427||6,668||5,783|
|Managerial – junior||674||517||733||565||2,249||2,342||2,598||2,834|
Source: State Labour Inspection.
Analysis of the data in table 2 indicates that women are clearly a minority in the more prestigious, and better-paying, employee categories, such as managerial positions or independent/freelance work – positions which, apart from their advantages, also call for greater responsibility and flexibility. The information available precludes determining to what extent this state of affairs may be caused by an unwillingness to employ women, and to what extent by a simple shortage of appropriately qualified candidates; in several cases, however, the employers have confirmed that they prefer to hire men.
The results of the inspections indicate that, on average, women employed in senior management positions earned less than their male counterparts (by 3% in 1998, by 13% in 1999), in terms of monthly remuneration. The same held true for women working in administrative positions (4% less in 1998, 6% less in 1999), in operational/working positions (18% less and 14% less), and in service capacities (17% less and 21% less). However, women holding junior management positions earned 4% more than male colleagues in 1998 and 8% more in 1999, and women employed in independent/freelance positions earned, respectively, 8% more and 7% more. Taking all categories together, women’s earnings were 2% less than those of men in 1998 and 8% less in 1999.
In assessing the relative position of the sexes in terms of remuneration, an assortment of factors should be considered, including the details of pertinent payroll regulations, age, duration of the given individual’s career, the type of position and the exact duties and the promotions system. Not all of these different elements lend themselves to statistical tracking; accordingly, the research focused on four factors - payroll regulations, age, overall duration of vocational activity, and the level of education.
The results yielded by such analysis do not equivocally point to the existence of discrimination as regards setting remuneration for the work of women and men; they do, however, lend substance to the thesis that women do not receive equal treatment at a number of hierarchical levels in organisations. As noted above, overall, women earn less than men in all the categories save freelance positions and junior management jobs. In these latter categories, however, it would not be accurate to speak of discrimination against men in that the structure of such positions is far from homogeneous; women occupy places which are 'higher' in the hierarchy or which require special qualifications, eg those of attorney/legal advisor, and are thus better paid – accordingly, there is little comparability between the posts.
The unequal treatment of female and male employees is most manifest in the case of service jobs. Here women tend to be better educated, and there are more among their number who hold additional qualifications of one kind or another; men, however, have a longer record of employment, and they are also older. These factors, however, do not seem to provide satisfactory justification for the difference in remuneration (in 1999, women in service jobs earned 79% of what was paid to their male counterparts) or the 5% difference in the rate at which that remuneration increases.
The general statistical data does not provide much by way of a detailed picture of the situation prevailing in the case of individual employers. According to estimates formulated by State Labour Inspection staff, discrimination against women in determining remuneration levels occurred at 11 of the employers monitored (ie 29%).
The inspections revealed that, in many cases, the occupational 'utility' of women is judged with reference to criteria different than those applied for men – with employers taking into account pregnancy and the attendant medical leave, maternity leave or child-raising leave (which, in the mind of the average employer, is still reserved for women only – there are documented instances of such leave being refused to men). The differing frequency with which the two genders apply for leave from work in order to attend to a sick child or family member has also been cited in this context.
Recent changes in labour law
Given that gender-based discrimination in the workplace is a fact, steps have recently been taken to address it through legal instruments. It is hoped that the amendment of the Labour Code in 2002 (PL0209107F) will be of importance in this respect. In the area of equality, the revision of the Code had the primary objective of weeding out provisions running contrary to the ban on sex discrimination from the general laws as well as from contractual relations between employers and employees. Thus, under the amended Labour Code:
- provisions of collective agreements and similar, statute-based collective arrangements, as well as of by-laws and bodies of rules describing the details of the employment relationship, which contravene the principle of equal treatment of the sexes are not binding; and
- provisions of contracts of employment and of similar legal instruments which contravene the principle of equal treatment are likewise not binding and, as such, are supplanted by the pertinent provisions of the Labour Code or, where no such provisions exist, by amended provisions which do not have a discriminatory effect.
Other provisions of the amended Labour Code address the issue of employer discrimination against job applicants. Now, a job seeker with regard to whom an employer has breached the ban on sex discrimination, as well as newly hired employees with similar claims, may seek compensation set by statute at no less than the minimum wage and no more than six times that amount.
Until the coming into force of the amended Labour Code, the lack of appropriate procedures and evidence-related rules meant legal impunity for employers guilty of even blatant discrimination. As of 2002 – thanks, among other factors, to adjustment of the legal meaning of 'discrimination' so as to cover its more subtle forms (indirect discrimination), a detailed definition of exceptions from the general rule against gender discrimination, the introduction of penalties for those violating the rules, and the institution of protection against dismissal by employers seeking revenge on employees seeking legal recourse – there now exist real possibilities of enforcing the ban against gender-based discrimination in practice. The victims of discrimination now have a much easier time pursuing their claims before the courts – it is only the courts which are adequately equipped to ascertain whether discrimination did in fact take place.
The extent to which these changes will be successful should become clear in the near future; it can already be said, however, that the recent amendment of the Labour Code goes a considerable way towards addressing the shortcomings of legislation referring to gender-based discrimination. (Rafał Towalski, Institute of Public Affairs (Instytut Spraw Publicznych, ISP) and Warsaw School of Economics, (Szkoła Główna Handlowa, SGH)).