Discrimination refers to unequal treatment, unjustified by any legitimate reasons. Each discriminatory act is a violation of the principle of equality as well as fundamental rights and freedoms of a person.
Direct discrimination arises if a person has been, is or would be treated less favourably than other persons in a comparable situation on grounds of a prohibited motive (racial or ethnic origin, religion, sex, disability, age or sexual orientation). For example, in a job announcement the employer clearly states that persons of non-Polish nationality will not be employed.
In practice, such an explicit form of discrimination rarely occurs. The implicit forms of unequal treatment arise more often.
Indirect discrimination arises if an apparently neutral provision, criterion or practice puts a person or a group of persons at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. For instance, at a job interview a candidate is asked questions that have nothing to do with the character of the job in question and concern the Polish history and tradition. For a foreigner they may be particularly difficult to answer with regard to his/ her unfamiliarity with the Polish culture.
Positive discrimination occurs when the state applies temporary solutions, introduces a practice or implements a specific legal means in order to equalize opportunities of persons belonging to particular minority groups, e.g. foreigners, in order to diminish factual instances of unequal treatment they receive. Such form of discrimination is legitimate, yet it may be applied but in a particular time and context because it may turn into discrimination of persons from majority groups that used to be privileged before.
Examples of discrimination
- Refusal to employ a person of non-Polish origin, though of the same or higher qualifications in comparison to other candidates
- Refusal to rent a flat to a person because of his/ her foreign nationality
- Humiliating, degrading treatment of a person of a different colour by abusing, scorning, accosting or infringing on his/ her physical inviolability
- Refusal to let a person of a different ethnic origin in a club, restaurant or a shop
Exceptions from the rule of equal treatment
There are exceptions from the rule of equal treatment – in cases concerning employment. If there are specific criteria for a post to be met by a candidate, i.e. to be of a particular race, speak a particular language, belong to a particular religious group – differential treatment is not seen as discrimination. For instance, for a particular role an Asian actor with a very good command of Vietnamese is needed or in a restaurant serving food typical of a particular region or culture a waiter with a particular appearance, emphasizing the place’s authenticity is looked for.