Exceptions

• Author: Karan, Ula?
• Pages: 74-82

74

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Turkey, national legislation provides for an exception for genuine and determining

occupational requirements.

Article 7(1)(a) of the Law on the Human Rights and Equality Institution of Turkey provides

that ‘any differential treatment which is appropriate and proportional to the aim where

inherent professional requirements exist with respect to employment and self-employment’

shall not be deemed discrimination. In 2016, this provision was contested by the main

Opposition, the Republican People’s Party, in the Constitutional Court. Arguing that the

provision violated Article 2 of the Constitution (on the rule of law), the applicant asked the

Constitutional Court to annul Article 7(1)(a) and to issue an injunction prohibiting its

execution.

In a majority ruling issued on 15 November 2017, the Constitutional Court rejected these

requests.288 According to the Constitutional Court, it is not possible for the legislation to

positively identify each and every inherent requirement for each professional activity, and

in implementing the law, such requirements will need to be assessed on an individual basis.

More generally, the Constitutional Court considered ‘special skills, physical qualities,

graduation from certain schools, acquisition of certain documents and information’ as

examples of inherent professional requirements that would justify differential treatment.289

In his dissenting opinion, Judge Engin Yıldırım said that ‘inherent professional

requirements’ and ‘differential treatment which is appropriate and proportional to the aim’

were uncertain and vague and would enable employers to engage in discrimination by

arbitrarily indicating anything as an inherent occupational requirement. The second

dissenting judge (Osman Paksüt) said that the Human Rights and Equality Institution of

Turkey, which is tasked with implementing the anti-discrimination legislation, lacked the

expertise both to implement the Law and to determine what constitutes ‘inherent

professional requirement’ and ‘appropriate and proportional to the aim’. According to

Paksüt, the law granted the Institution an open-ended discretionary power that could be

exercised arbitrarily. The dissenting judges found that Article 7(1)(a) lacks legal certainty

and foreseeability in violation of Article 2 of the Constitution.

In a 2017 ruling, the Constitutional Court did not explicitly state that heterosexuality is an

occupational requirement for teaching. However, its failure to find that there had been

discrimination in the dismissal of an elementary school teacher on the basis of his sexual

orientation could be interpreted as effectively saying just that.290

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In Turkey, national law provides for an exception for employers with an ethos ba sed on

religion or belief.

Article 7(1)(d) of the Law on the Human Rights and Equality Institution of Turkey provides

for an exception for religious institutions that provide services, education or teaching in a

particular religion, allowing exclusive admission to such institutions to members of the

religion concerned.

Although the exemption in the Law seems to be aligned with Article 4(2) of the Employment

Equality Directive (2000/78/EC), there is nothing in the Law that alludes to whether this

exception may not amount to discrimination on another ground, which leads to an

288 Constitutional Court, E. 2016/132, K. 2017/154, 15 November 2017.

289 Constitutional Court, E. 2016/132, K. 2017/154, 15 November 2017, para. 15.

290 Constitutional Court, Z.A., Application No. 2013/2928, 18 October 2017.