Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

AuthorKaran, Ula?
5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)
a) Scope for positive action measures
In Turkey, positive action is permitted in national law in respect of racial or ethnic origin,
religion or belief, disability or age. Positive action in respect of sexual orientation is not
explicitly provided for in law.
While not explicitly stating it as such, Article 10 of the Constitution entails the principle of
positive action. It stipulates that measures to be adopted to ensure equality between men
and women, as well as measures to be adopted for children, elderly persons, persons with
disabilities, widows and orphans of martyrs, ex-soldiers disabled in the war, and veterans,
shall not be considered as a violation of the principle of equality. As stated above (Section
2.1), Article 10 of the Constitution has an open-ended character with respect to protected
grounds, thus an obligation for positive action can be derived from Article 5, which
encompasses positive obligations of the state along with the non-discrimination principle.
Article 7(1)(f) of the Law on the Human Rights and Equality Institution of Turkey provides
an exception to the prohibition of discrimination for ‘treatment which is necessary,
appropriate and proportional towards eliminating inequalities’. The Law prohibits
discrimination on grounds of racial or ethnic origin, religion or belief, disability or age.
Although they are not designated as positive action, there are a number of laws and
regulations that stipulate positive measures in education, employment and a number of
services (social insurance, transportation etc.), including employment quotas, for persons
with disabilities. The special situation of non-Muslim groups under the Treaty of Lausanne
does not confer on them a right to special measures based on religion. On the contrary,
the state in Turkey continues to limit state funding for religious services to the Sunni
Muslim majority by paying the salaries of Sunni preachers (imams).
Discussions regarding discrimination in Turkey are still very new. Legal and political
discussions focus more on the existence of discrimination and inequalities in Turkey. In
other words, at this point the state and the general public are still not convinced that
discrimination and inequalities exist in Turkey and t hat some groups are more
disadvantaged than others. In the past, demands by women’s organisations for quotas for
women in political participation have been dismissed by the Prime Minister as being against
international practice.
b) Quotas in employment for people with disabilities
In Turkey, national law provides for quotas for the employment of people with disabilities.
There is a quota system in both private sector and public sector employment. Article 53(1)
of the Law on Civil Servants requires a 3 % quota for civil servants with disabilities working
in public institutions, for individuals who are officially recognised as having a disability.
Under Article 30(1) of the Labour Law, the percentage of employees with disabilities of the
total number of employees must be 3 % in private sector establishments and 4 % in public
enterprises. However, this quota obligation applies only to workplaces where 50 or more
persons are employed. If an employer has employed persons with disabilities within the
quota obligation or has employed more persons wi th disabilities than the quota requires;
if an employer who is not under an obligation to do so has employed persons with
disabilities; all of the insurance premiums that normally have to be paid by the employer
for the employees with disabilities shall be paid by the Treasury. According to Article 101
of the Labour Law, if employers do not employ the number of persons with disabilities
necessary to fulfil their quotas, they are penalised with a fine of TRY 3 250 (EUR 430) per
month for every person with disability not employed. The same Article explicitly prescribes
that public employers cannot be exempt from this fine.

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