Age Discrimination Law in a Country with a Communist History: The Example of Poland

• DOI: http://doi.org/10.1111/j.1468-0386.2006.00322.x
• Date: 01 May 2006
• Author: Małgorzata Zysk
• Published date: 01 May 2006

Age Discrimination Law in a

Country with a Communist History:

The Example of Poland

Ma gorzata Zysk*

Abstract: This article offers an overview of the legal responses to age discrimination in

Poland. It explores the system of legal protection before the accession of Poland to the

European Union, and looks too at the situation after the implementation of Council Direc-

tive 2000/78/EC. It argues that Community law has enhanced protection against age

discrimination significantly, but that legislation remains far from perfect, and that the

effective eradication of this form of discrimination in Poland is impeded by a range of dif-

ficulties typically found in countries with a Communist past.

IEquality Law in the Past

all animals are equal but some animals are more equal than others.

George Orwell, Animal Farm1

During the Communist era, all Polish constitutions reverently proclaimed the princi-

ple of equality between all people in all aspects of life. The so-called Small Constitu-

tion of 1947, the first legal act of a constitutional character issued after the end of

Wor ld War II,2comprised the Declaration on citizens’ rights and freedoms. In the first

recital of the Preamble it declared that ‘the Legislative Body in all its activities will

apply fundamental rights and freedoms of citizens, particularly equality before the law

irrespective of nationality, race, religion, sex, origin, position or education’.3Similarly,

the Constitution of 19524envisaged equality of all Polish citizens. Article 66 introduced

the guarantee that women had equal rights to men in all aspects of life, and Article 69

read that ‘all citizens of People’s Republic of Poland—irrespective of their nationality,

race or belief—shall have equal rights in all aspects of national, political, economic,

societal and cultural life. Any breach of this principle through direct or indirect privi-

l

European Law Journal, Vol.12, No. 3, May 2006, pp. 371–402.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*The author is a PhD researcher at the European University Institute in Florence, Italy.

1G. Orwell, Animal Farm (The Folio Society, 1984), p. 99.

2Of 22 February 1947. This document temporarily substituted the proper Constitution, which was adopted

in 1952.

3Deklaracja Sejmu Ustawodawczego w przedmiocie realizacji praw i wolno ci obywatelskich, uchwalona

dnia 22 lutego 1947.

4Official Journal of 1952, No 33, Item 232 [Dziennik Ustaw z 1952, Nr 33, Pozycja 232].

s

′

leging or limiting one’s rights on the grounds of nationality, race or belief [was] subject

to penalty’. On top of these provisions, in 1976 another provision was added, partly

overlapping with those already mentioned, that ‘citizens of People’s Republic of Poland

shall have equal rights irrespective of sex, birth, education, occupation, nationality,

race, belief or social origin or status’.5

The reading of all these provisions gives the impression that the guarantee of equal-

ity and protection against any form of discrimination was well advanced in Poland in

Communist times. Indeed, as compared with EU developments in this sphere, the con-

stitutional provisos comprised a form of differentiation between direct and indirect

discrimination—a classification introduced in the EU only much later. Additionally,

the selection of grounds protected against discrimination was to a certain extent similar

to those currently protected in the EU (e.g. nationality, sex, or belief), and, lastly, the

protection was spread to all areas of life—national, political, economic, societal, and

cultural.

Nevertheless, despite this seemingly broad protection against discrimination, its

actual implications were extremely narrow. First and foremost, the constitutional pro-

visions on citizens’ rights were seldom directly applied6and hardly any specific imple-

menting measures were introduced. Thus, though the rights existed on paper, in reality

they had little impact. Even on the rare occasions when the constitutional equality pro-

visions were directly applied, they had to be executed in conformity with the doctrine

of the prevailing role of the working class.7In other words, the only situation in which

the constitutional equality provisions could actually be applied was when they con-

veyed the interests of the class of workers (Communist ideology). This is clearly visible

in the constitutional obligation to treat people consistently, irrespective of their level

of education or their profession. This generated the situation in which some citizens—

belonging to the Communist Party—were more privileged than others because of the

special role ascribed to them by the Communist ideology.

In this context, the divisions between alike and different became blurred. The tradi-

tional distinctions were secondary to the more important division between those who

were Communists and those who were not. Thus, the equality rights were exercised

depending on the political import of the case. For example, if the state was guilty of

religious discrimination (members of the Communist Party had to be atheists, and

membership was indispensable for participation in public life) the protection would be

denied; but if an individual’s freedom to become an atheist was infringed, the protec-

tion would be enforced.

All in all, the guarantee of equality was not underpinned by the idea of the protec-

tion of human rights, but rather by the ideological belief that all people, irrespective

of any characteristics such as gender, nationality, or race, should contribute to the

success of Communism, and specifically to the elimination of the class divisions of the

society.8

European Law Journal Volume 12

372 © 2006 The Author

Journal compilation © Blackwell Publishing Ltd. 2006

5Article 67(2); Official Journal of 1976, No 5, Issue 29 and No 7, Issue 36 [Dziennik Ustaw z 1976, Nr 5,

Pozycja 29 i Nr 7, Pozycja 36].

6W. Skrzyd o, ed., Polskie Prawo Konstytucyjne (Lublin, 1997), p. 179.

7Article 1(2) of the Constitution of the People’s Republic of Poland of 22 July 1952 as amended in 1976.

See also: F. Siemie ski, Podstwawowe wolno ci, prawa i obowi

azki obywateli PRL (Warszawa, 1979)

pp. 56 ff.

8Siemie ski, op. cit. note 7 supra,pp. 71ff at 76; L. Wi niewski. Gwarancje podstawowych praw i

wolno ci obywateli PRL (Wroc aw, 1981) pp. 76ff.

l

s

′

s

′

n

′

s

′

n

′

l

It can thus be concluded that a modern approach to the problem of discrimination

is a novelty in the Polish legal system. Equality has long but rather fatal tradition in

the Polish legal system. The fact that the right of non-discrimination was fully respected

on paper but in reality applied rather randomly and arbitrarily—only when it complied

with the ideology of the state—resulted in uncertainty as to citizens’ rights, disbelief in

the rational functioning of the law, and confusion as regards justified and unjustified

differentiation among people. Age was not enumerated among the grounds to be

protected against discrimination, most probably because it was of no relevance to the

ideology of Communism.

II Current Regulation

In the Polish legal system there is no single legal act on equality and non-discrimina-

tion. Relevant provisions are spread in various instruments such as the constitution and

the statutes governing employment relations. They will be discussed in turn.

AConstitutional Protection Against Discrimination

a) Content

The Constitution9provides for the most general, and arguably most generous, protec-

tion against discrimination. In Article 32 it says that,

1. All persons shall be equal before the law. All have the right to equal treatment by

the public authorities.

2. Nobody can be discriminated against for any reason in political, societal and eco-

nomic life.

This provision is shaped as a basic principle, which constitutes an underlying value of

all actions of the state in front of citiz ens and inhabitants of Poland. The positioning

of Article 32 at the start of Chapter II on ‘Freedoms, rights and duties of man and

citizen’, together with such values as human dignity (Article 30) or liberty (Article 31),

implies that equality between people has been granted identical overriding importance.

The meaning of this principle has been explained on various occasions by the Con-

stitutional Court. According to its well-established case law,10 the principle of equality

as enshrined in Article 32 of the Constitution obliges public authorities to treat legal

subjects belonging to a single category equally. In other words, all subjects having

certain (relevant) features shall be treated consistently, without discriminating or priv-

ileging differentiation. In turn, dissimilar subjects shall be treated differently. The major

task is to assess whether certain age constitutes a relevant criterion for classification of

people into different categories.

If age is not accepted to be relevant criterion for differentiation among people, then

a legal provision that conditions certain legal effects upon age infringes the principle

of equality. Nevertheless, not always differentiation between people belonging to the

same category is discriminatory. Unequal treatment is still admissible if the use of

May 2006 Age Discrimination Law in Poland

© 2006 The Author 373

Journal compilation © Blackwell Publishing Ltd. 2006

9Konstytucja Rzeczpospolitej Polskiej z dnia 2 kwietnia 1997, Dziennik Ustaw 1997, Numer 78, Pozycja

483 [Constitution of the Republic of Poland of 2 April 1997, Official Journal 1997, No 78, Item 483].

10 See recapitulation of the well-established case law in J. Oniszczuk, Konstytucja Rzeczypospolitej Polskiej

w orzecznictwie Trybuna u Konstytucyjnego na pocz

atku XXI wieku (Zakamycze, 2004), pp. 570–662.

l