Sensitive or controversial issues

• Author: Bojarski, Lukasz
• Pages: 114-116

114

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national level

Although the 2010 ETA seems to fully implement Directives 2000/43/EC and 2000/78/EC

(as described above), it raises some doubts and debate.

A problematic issue highlighted by the Ombud in its first report, published in June 2012,

and repeated since then, is related to the compensation claim introduced by the ETA. The

ETA (Article 13) refers to compensation (odszkodowanie), which seems to cover only

material (but not non-material) damage and therefore limits protection. The provision for

compensation under the Act should be widened to include non-material damages. It is

questionable whether both sanctions based on the ETA, as well as the only special

sanction in the Labour Code, meet the criteria of the Directives (effective, proportionate

and dissuasive). However, it is currently the subject of debate, and written opinions and

court decisions vary in their views.469 See, for instance, the new case in which the Court

awarded compensation under the ETA, arguing that the ETA also covers non-material

damage – in the specified case, damage to the dignity of the party (the ruling has been

appealed and is not final).470

As revealed by the administrative courts in the case regarding refusal of access to

postgraduate studies, there are limits to the protection offered against discrimination in

education.471 The verdict in that case is controversial. The administrative courts declared

that, according to a very formal interpretation of law and legal definitions of particular

legal terms, admission to postgraduate studies may not be controlled under the judicial-

administrative control procedure.

As mentioned in Section 2.6.a above, failure to provide reasonable accommodation

results in discrimination only in a situation where there is a ‘traditional’ labour contract

(covered by the legal regime of the Labour Code). Unfortunately, there is no provision on

this in respect of other forms of employment (for instance, contracts under civil law

covered by the ETA). This limits the protection.

11.2 Other issues of concern

The Law and Justice Party, which formed a Government in October 2015, has never had

equality issues on its agenda.

A new trend has been observed by the Ombud and other actors engaged in LGBTI issues

in the past couple of years following the elections: all court cases relating to the rights of

LGBTI persons that are dealt with by the Ombud’s Office attract attention from the

prosecution services. Prosecutors (exercising their right) then decide to join all such

proceedings, not in order to support the victim of discrimination or the Ombud’s efforts

but as a way to monitor what is happening in court or to represent the opposing party

rather than the alleged victim of discrimination (for example, in the case against a

publishing company described in Section 12.2 below, and in the case of harassment

caused by a teacher taking off a cross from the school wall, described in section 2.4).472

469 See also: ETA commentary 2017, pp. 192-201.

470 Toru District Court, judgment of 6 August 2019, No. I C 469/18; see more information in Section 3.2.8 of

this report.

471 Voivodeship Administrative Court, Bydgoszcz, judgment of 18 October 2017, M.J. (Marek Jopp) v. CSMC

(College), No. II SA/Bd 732/17, available at: http://orzeczenia.nsa.gov.pl/doc/BC5FC53775; Warsaw

Supreme Administrative Court, judgment of 17 April 2018, available at:

http://orzeczenia.nsa.gov.pl/doc/157A08408E.

472 In February 2020, after the cut-off date for this report, a new development took place. The Prosecutor

General/Minister of Justice submitted an extraordinary cassation to the Supreme Court demanding that the

verdict of the Court of Appeal in Wrocław and the Supreme Court be set aside. The Prosecutor General used

the power that he was granted by the amendment to the law on the Supreme Court (April 3 2018).