Workplace Discrimination and the Principle of Equal Treatment

Legal Basis of the Principle of Equal Treatment in Employment Law

The principle of equal treatment in the workplace is one of the fundamental protective principles of employment law. It limits an employer’s ability to treat employees differently without an objective and legally justifiable reason.

Under Turkish law, the principle of equal treatment is not regulated solely by Law No. 4857 on Labour. It is also supported by the broader legal framework established by the Constitution and Law No. 6701 on the Human Rights and Equality Institution of Türkiye.

Article 10 of the Constitution establishes the principle of equality before the law, while Article 5 of the Labour Law specifically addresses the prohibition of discrimination and the principle of equal treatment in employment relationships.

Not every difference in treatment between employees is unlawful. Differences based on objective and reasonable factors such as the nature of the work, seniority, performance, education, professional experience, duties, and level of responsibility may be legally justified.

A legal violation primarily arises where employees are treated differently without a legitimate and objective reason.

Prohibition of Discrimination and the Employer’s Duty of Equal Treatment

The employer’s duty of equal treatment does not mean that every employee must receive exactly the same treatment under all circumstances.

An employer may treat employees differently where their circumstances are materially different. However, such differences should generally be based on objective, reasonable, and legally acceptable grounds.

For example, if two employees have significantly different duties, responsibilities, or professional experience, a difference in salary or benefits does not necessarily constitute discrimination.

By contrast, treating an employee less favourably solely because of a protected personal characteristic may constitute unlawful discrimination.

Accordingly, a discrimination assessment should consider different treatment, the basis of the difference, the legal justification, and the specific circumstances of the case together.

Main Areas Protected by the Prohibition of Discrimination

Article 5 of Law No. 4857 prohibits employers from discriminating against employees in employment relationships on certain grounds.

In particular, discrimination based on:

• language,
• race,
• sex,
• political opinion,
• philosophical belief,
• religion or denomination, and
• similar grounds

is prohibited.

Different treatment based on sex or pregnancy is also subject to legal restrictions.

The purpose of these provisions is to prevent employees from facing lower wages, less favourable working conditions, or reduced career opportunities because of their personal characteristics.

Equal Treatment in Terms of Wages

One of the most significant manifestations of workplace discrimination concerns differences in remuneration.

A difference in pay between employees performing the same or work of equal value does not automatically constitute unlawful discrimination. However, where the difference has no objective and reasonable justification, a discrimination claim may arise.

For example, if two employees perform substantially the same work with comparable experience and responsibilities, but one receives a lower salary solely because of their sex, language, nationality, or another protected characteristic, the difference may create a legal issue.

When assessing pay equality, factors such as:

• the nature of the work,
• duties and responsibilities,
• seniority,
• professional experience,
• performance,
• education,
• working conditions,
• bonus systems, and
• additional benefits

should be evaluated together.

Equal Pay for Work of Equal Value

An important principle of employment law is the prevention of discriminatory differences in pay between employees performing equal or work of equal value.

The employee’s job title alone is not sufficient to determine whether two positions are comparable.

Even where two employees have different titles, their work may be similar in terms of responsibility, qualifications, expertise, and working conditions. In such circumstances, the justification for a difference in remuneration may require further examination.

Similarly, employees with the same job title may have substantially different duties and responsibilities, in which case a difference in pay may have an objective justification.

Therefore, pay equality should be assessed primarily by examining the actual nature and value of the work performed.

Discrimination Based on Sex

Unlawful differences in working conditions based on whether an employee is male or female may fall within the scope of the prohibition of discrimination.

Discriminatory treatment based on sex may arise in connection with:

• lower wages,
• promotion opportunities,
• recruitment,
• changes in duties,
• worsening working conditions, or
• reduced career opportunities.

The exercise of statutory rights relating to pregnancy and childbirth cannot, by itself, constitute a legitimate basis for discriminatory treatment.

Discrimination During Recruitment

The prohibition of discrimination is relevant not only to existing employees but also to the recruitment process.

An employer may face legal issues if an applicant is rejected solely because of a legally protected personal characteristic.

For example, systematically excluding candidates of a particular nationality during recruitment or interviews may give rise to a discrimination claim where there is no objective justification connected to the actual requirements of the position.

Employers should therefore establish recruitment criteria in advance and ensure that those criteria are genuinely connected to the requirements of the relevant position.

Discrimination in Promotion and Career Opportunities

Workplace discrimination is not limited to salary.

Failure to promote an employee, excluding an employee from professional training, or denying access to important projects may also give rise to a discrimination claim.

Where an employer provides substantially different career opportunities to employees with comparable qualifications and there is no objective justification for the difference, the employer may face legal consequences.

For this reason, performance evaluation systems should preferably be based on objective and measurable criteria.

Relationship Between Workplace Mobbing and Discrimination

Mobbing is generally used to describe systematic and persistent psychological harassment in the workplace.

Not every workplace disagreement or conflict constitutes mobbing.

However, where an employee is systematically excluded, humiliated, or targeted because of a particular personal characteristic, discrimination and psychological harassment may arise simultaneously.

Employers should therefore pay attention not only to physical working conditions but also to communication practices and interpersonal conduct within the workplace.

Employee Rights in Cases of Discrimination

Where an employer violates the prohibition of discrimination, various legal rights may become available to the employee.

Article 5 of Law No. 4857 provides that, where an employer violates the relevant provisions, the employee may be entitled to appropriate compensation of up to four months’ wages, in addition to other rights from which the employee has been deprived.

Depending on the circumstances of the case, claims for material or non-pecuniary damages may also become relevant.

Documents and other evidence supporting the employee’s allegations may be particularly important in establishing discrimination.

Burden of Proof in Discrimination Claims

The issue of proof is particularly important in discrimination disputes.

Where an employee presents strong evidence or indications supporting an allegation of discriminatory treatment, the employer may be required to demonstrate that the alleged unequal treatment did not violate the duty of equal treatment.

For this reason, employers should maintain accurate records concerning wages, promotions, allocation of duties, performance evaluations, and disciplinary measures.

For employees, documents such as emails, messages, written instructions, payroll records, and performance evaluations may be important when assessing a discrimination claim.

Prohibition of Discrimination Against Foreign Employees

Discrimination Based on the Nationality of a Foreign Employee

The prohibition of discrimination is particularly significant for foreign employees working in Türkiye.

An employer may face legal consequences if a foreign employee is systematically paid less, subjected to less favourable working conditions, or excluded from career opportunities solely because the employee is a foreign national.

The fact that an employee is not a Turkish citizen does not eliminate the employer’s fundamental obligations under Turkish employment law.

For example, where two employees perform the same or work of equal value, paying one employee less solely because that employee is a foreign national may require assessment under the prohibition of discrimination.

Paying a Foreign Employee a Lower Salary

The fact that a foreign employee performs the same work as a Turkish employee does not necessarily mean that the two employees must receive exactly the same salary in every circumstance.

Differences in seniority, experience, education, performance, responsibilities, and other objective criteria may justify differences in remuneration.

However, if the sole reason for the wage difference is that one employee is a foreign national, a significant legal risk may arise.

Therefore, employers should base salary policies for foreign employees on objective and documentable criteria.

Language Differences Among Foreign Employees

Foreign employees may have different levels of proficiency in Turkish, and this may require certain workplace arrangements.

Where the nature of the work requires it, employers should establish a communication system that enables employees to understand occupational health and safety instructions.

However, language differences cannot generally be used as a blanket justification for depriving an employee of other employment rights.

For example, providing additional or different occupational safety training may be reasonable where necessary. By contrast, unlawfully reducing an employee’s salary or excluding the employee from contractual benefits solely because the employee is a foreign national requires separate legal assessment.

Foreign Employers and the Principle of Equal Treatment

Foreign companies operating in Türkiye must also comply with the applicable Turkish rules concerning equal treatment and the prohibition of discrimination in the workplace.

The fact that a company’s headquarters are located abroad does not eliminate the application of relevant local employment law to employees working in Türkiye.

Global human resources policies implemented by multinational companies must be compatible with the mandatory provisions of Turkish law.

In particular, when global salary and promotion systems are applied to employees in Türkiye, the company should separately assess their compatibility with Turkish employment legislation.

Discrimination Against Foreign Female Employees

Foreign female employees may potentially face discrimination based on more than one characteristic, particularly where nationality and sex intersect.

For example, if a foreign female employee receives a lower salary, is excluded from promotion opportunities, or is subjected to less favourable working conditions solely because of her nationality or sex, the circumstances may require assessment from multiple legal perspectives.

For this reason, human resources policies in international workplaces should be designed to prevent discrimination based on both sex and nationality.

Legal Remedies Available to Foreign Employees

The fact that a foreign national is working in Türkiye does not prevent that employee from exercising legal rights.

A foreign employee who believes they have been subjected to discrimination may, depending on the circumstances:

• communicate with the employer in writing,
• apply to the relevant administrative authorities,
• submit an application to the Human Rights and Equality Institution of Türkiye,
• participate in mandatory mediation proceedings, and
• where the legal requirements are satisfied, assert their rights before the competent labour court.

The employee’s work permit, employment contract, social security status, and other relevant circumstances may also need to be examined separately.

Anti-Discrimination Policies for Employers

Employers should establish written and objective human resources policies to reduce the risk of discriminatory practices.

In particular, the following areas should, as far as possible, be based on objective criteria:

• recruitment,
• salary policies,
• performance evaluations,
• promotion,
• disciplinary procedures,
• leave policies,
• training opportunities, and
• allocation of duties.

Employment decisions should be based on the nature of the work and the employee’s professional qualifications rather than personal characteristics.

This approach not only reduces legal risks but also contributes to a more transparent and sustainable working environment.

Conclusion

The principle of equal treatment is a fundamental principle of Turkish employment law that prevents employers from discriminating against employees without a legitimate and objective reason.

Not every difference in salary or working conditions constitutes discrimination. Differences based on objective factors such as seniority, professional experience, education, performance, duties, and responsibilities may be legally justified. However, where the difference is based solely on a protected personal characteristic, the prohibition of discrimination may become applicable.

Discrimination based on sex, language, race, religion, denomination, political opinion, and similar grounds is an important area of protection under Turkish employment law. The principle of equal treatment should be considered throughout the employment relationship, including recruitment, remuneration, promotion, allocation of duties, training, employee benefits, and termination.

For foreign employees, discrimination based on nationality is particularly important. The fact that an employee is a foreign national does not, by itself, provide a lawful basis for paying that employee a lower salary, restricting career opportunities, or depriving the employee of statutory employment rights.

At the same time, not every difference between a foreign employee and a Turkish employee should automatically be classified as discrimination. The circumstances must be assessed to determine whether the difference is based on objective and reasonable factors such as seniority, experience, education, performance, or the nature of the work.

Foreign employers and multinational companies operating in Türkiye must also comply with the Turkish rules concerning equal treatment and the prohibition of discrimination. Global human resources policies should be implemented in a manner consistent with the mandatory provisions of Turkish law.

Ultimately, workplace equality does not simply mean paying employees the same salary. Objective, transparent, and legally compliant criteria should be applied throughout the employment relationship, from recruitment and remuneration to promotion, working conditions, training opportunities, and termination.