The definition of discrimination

• Author: Bojarski, Lukasz
• Pages: 16-32

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2THE DEFINITION OF DISCRIMINATION

2.1Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibited in the main legislation

(listed in the Introduction) transposing and implementing the two EU anti-discrimination

directives:

ETA, Article 1: gender, race, ethnic origin, nationality, citizenship (see the scope below),

religion, belief, political opinion, disability, age and sexual orientation.

The Labour Code, Article 18(3a)(1): gender, age, disability, race, religion, nationality,

political opinion, membership of a trade union, ethnic origin, belief, sexual orientation,

employment for a definite or indefinite period of time, part-time or full-time employment.

The grounds are listed as examples only, the list remaining open because of the Article’s

wordingŚ ‘any discrimination […] in particular on the grounds of …’. This means that other

grounds of discrimination could equally be taken into consideration by the courts when

applying this provision.

2.1.1Definition of the grounds of unlawful discrimination within the directives

a)Racial or ethnic origin

There is no law on discrimination, taking into account the 2010 Equal Treatment Act,

which defines grounds of racial or ethnic origin.

Racial origin

The 2008 amendment to the Act on GrantingProtection to Aliens on the Territory of the

Republic of Poland,31 which transposed the Qualification Directive32 and the Asylum

Procedures Directive,33is not part of anti-discrimination legislation (and was not applied

in a context of counteracting discrimination), but it introduced a definition of ‘race’.

Article 14 includes some definitions that are useful in ‘assessing the grounds of

persecution’ for people who apply for refugee status:

‘The concept of raceincludes in particular colour of skin, descent, or membership

of a particular ethnic group’ and ‘the concept of nationality is not limited to a

citizenshipor its absence, but shall in particular include membership of a group

defined by: a) cultural, ethnic or linguistic identity or b) common geographical or

political origin or c) linkage with the population of another country [...].’

Ethnic origin

Definitions of ‘ethnic minority’ and ‘national minority’ that could be used in disputes

underanti-discrimination law are included in the Act on National and Ethnic Minorities

and Regional Languages:

‘A national minorityis a group of Polish citizens which fulfils all the following

conditions:

1)is less numerous than the rest of the Polish population;

31 Act on the amendment of the Act of 13 June 2003 on Granting Protection to Aliens on the Territory of

Poland (Ustawa z dnia 13 czerwca 2003 r. o udzielaniu cudzoziemcom ochrony na terytorium

Rzeczypospolitej Polskiej), 18 March 2008.

32 Council Directive 2004/83/EC on minimum standards for the qualification and status of third country

nationals or stateless persons as refugees or as persons who otherwise need international protection and

the content of the protection granted.

33 Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and

withdrawing refugee status.

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2)differs in a significant manner from other citizens by way of language, culture

or tradition;

3)aspires to preserve its own language, culture or tradition;

4)has awareness of its historic national community and is focused on its

expression and protection;

5)has inhabited the territory of the Republic of Poland foratleast 100 years;

and

6)identifies itself with a nation organised in its own state.’34

The Act goes on to enumerate the recognised national minorities: Armenian, Belarusian,

Czech, German, Jewish, Lithuanian, Russian, Slovak and Ukrainian.35

‘An ethnic minority is a group of Polish citizens which fulfils all the following

conditions:

1)is less numerous than the rest of the Polish population;

2)differs in a significant manner from other citizens by way of language, culture

or tradition;

3)aspires to preserve its own language, culture or tradition;

4)has awareness of its historic ethnic community and is focused on its

expression and protection;

5)has inhabited the territory of the Republic of Poland for at least 100 years;

6)does not identify itself with a nation organised in its own state.’36

As above, the Act goes on to enumerate the recognised ethnic minorities: Karaimi, Lemk,

Roma and Tatar.37

The above definitions have been criticised, fortwo reasons. First,they exclude some

significant national or ethnic groups in Poland (e.g. ‘new immigrants’ such as the

Vietnamese). Furthermore, the definitions are restricted to Polish citizens and therefore

do not refer, for example, to migrant workers originating from neighbouring countries

(e.g. Ukrainians).

The aim of the Act on National and Ethnic Minorities and Regional Languages is, however,

to provide certain rights –mostly linguistic and cultural rights – to national and ethnic

minorities, as well as to protect them through state action (in 2014, social integration

was added as a goal). Article 6 of the Act on National and Ethnic Minorities and Regional

Languages prohibits discrimination based on membership of a minority. This provision

clearly refers only to the national and ethnic minorities provided for in the Law.

b)Religion and belief

There is no law on discrimination, taking into account the 2010 Equal Treatment Act,

which defines grounds of religion and belief.

The 2008 amendment to the Act on Granting Protection to Aliens on the Territory of the

Republic of Poland,38 which transposed the Qualification Directive39 and the Asylum

34 Act on National and Ethnic Minorities and Regional Languages, 6 January 2005, Article 2(1).

35 Act on National and Ethnic Minorities and Regional Languages, 6 January 2005, Article 2(2).

36 Act on National and Ethnic Minorities and Regional Languages, 6 January 2005, Article 2(3).

37 Act on National and Ethnic Minorities and Regional Languages, 6 January 2005, Article 2(4).

38 Act on the amendment of the Act of 13 June 2003 on Granting Protection to Aliens on the Territory of

Poland, 18 March 2008.

39 Council Directive 2004/83/EC on minimum standards for the qualification and status of third country

nationals or stateless persons as refugees or as persons who otherwise need international protection and

the content of the protection granted.