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Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Türkiye (RATIFICATION: 1967)

The Committee notes the observations from the Confederation of Public Employees Trade Unions (KESK), received on 1 September 2021 and the Government’s reply thereto received on 19 November 2021. The Committee also notes the observations of the Turkish Confederation of Employer Associations (TİSK) received on 7 September 2021. Furthermore, the Committee notes that the observations of the Confederation of Turkish Trade Unions (TÜRK-IS) transmitted by the Government with its report are identical to the previous observations transmitted on 3 November 2020 and were dealt with in the Committee’s previous comments.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes the detailed information provided by the Government in its report on the legal framework addressing discrimination, in particular the Law on the Human Rights and Equality Institution of Türkiye (Law No. 6701). Regarding specifically the issue of “sexual harassment”, the Committee notes that the Government recalls that the definition of “harassment” is included in Article 2(j) of Law No. 6701, according to which “based on one of the grounds listed in this Law, including psychological and sexual harassment, harassment refers to any act of intimidating, humiliating, degrading or embarrassing that has the purpose or result of violating human dignity”. In this regard, the Committee recalls that “harassment” (including sexual harassment) is a form of discrimination under Law No. 6701. The Government reiterates that sexual harassment is not separately defined in law and indicates that, up until 2021, no application alleging sexual harassment was submitted to the Human Rights and Equality Institution (TİHEK) and no examination was carried out on its merits. The Government also refers once again to section 417 of the Code of Obligations No. 6098 (responsibility of employer to take preventive and corrective measures) and to article 105 of the Penal Code according to which sexual harassment when committed “at the workplace” is an aggravated crime. While noting this information, the Committee observes that there is still no definition of “sexual harassment” as such in the legislation, whether in employment and occupation or in any other circumstances. In addition, it notes that, pursuant to section 24 (II)(b) and (d) of the Labour Law, an employee is entitled to terminate its contract in case of sexual harassment by the employer, or in case of sexual harassment by another employee or third parties in the establishment if adequate measures were not taken although the employer was informed of such conduct. In this regard, the Committee recalls that it “considers that legislation under which the sole redress available to victims of sexual harassment […] is termination of the employment relationship does not afford sufficient protection for victims of sexual harassment, since it in fact punishes them and could dissuade victims from seeking redress” (2012 General Survey on the fundamental Conventions, para. 792). Finally, the Committee also notes that section 25(II)(c) of the Labour Law entitles the employer to terminate the employment contract of an employee who sexually harasses another employee. In order to ensure an effective protection against sexual harassment, the Committee asks once again the Government to consider including in the Labour Law and the Public Servants Law (Law No. 657) clear and precise legal provisions:

• (i)covering all men and women workers, including men and women domestic workers, whether national or migrant workers;
• (ii)explicitly defining and prohibiting both quid pro quo and hostile environment sexual harassment in employment and occupation;
• (iii)providing for protection against victimization; and
• (iv)establishing effective mechanisms for redress and remedies as well as appropriate sanctions.

The Committee asks once again the Government to provide detailed information on:

• (i)the practical measures taken at the national and local levels - such as awareness-raising campaigns, support units for victims, helplines and specific training for labour inspectors - by employers, workers and their organizations to prevent and address sexual harassment at all stages of employment and vocational education and training; and
• (ii)the number of complaints of sexual harassment referred to the competent authorities (labour inspectorate, the Human Rights and Equality Institution, courts, etc.), including criminal cases, and their outcome (remedies granted and sanctions imposed).

Article 1(2). Inherent requirements of the job.Noting that the Government does not communicate any information regarding the practical application of article 7(1)(a) and (b) of Law No. 6701 of 2016 on the Human Rights and Equality Institution, which provides that “different treatment which is in line with the purpose and proportionate in the case of professional exigencies, during employment and self-employment” and “cases where only persons from a single gender should be employed” shall not be deemed discrimination, the Committee reiterates its request to provide:

• (i)examples of jobs that may be concerned by these provisions, in particular with respect to gender; and
• (ii)information on any judicial decisions by the courts in relation to article 7(1)(a) and (b) of Law No. 6701.

Article 2. Equality of opportunity and treatment in employment and occupation irrespective of race, colour and national extraction. Regarding the socioeconomic situation of minorities and their inclusion in the labour market, the Committee notes the Government’s indication that only non-Muslims (Greek, Armenian and Jewish) have minority status in Türkiye, while people or groups of other ethnic origins do not have such minority status. The Government adds that Kurdish and Roma citizens are not considered as belonging to minorities and that, whether belonging to a religious minority or not, all citizens in Türkiye enjoy the same rights and freedoms regarding employment and occupation, and equality before the law. The Committee also notes that the Government refers to the National Employment Strategy (2014-2023), which mainly focuses on strengthening links between education and employment as well as on increasing the employment of all groups requiring special policies, especially women, youth, disabled and long-term unemployed.

With respect to Roma, the Committee notes the Government’s indications that it has adopted a Strategy Document for Roma citizens covering the years 2016-2021, as well as two medium-term action plans, covering the periods 2016-2018 and 2019-2021, with the strategic objectives of facilitating the entry of Roma citizens on the labour market and increasing their employment level as well as ensuring that all Roma children have equal opportunities in education and education of high quality, to make it possible for them to complete their compulsory education successfully at the very least. The Committee notes the information provided by the Government on the implementation of these measures. It also notes that (1) the “Project for Establishing an Effective Monitoring, Evaluation and Coordination Mechanism for the Roma Strategy Document” (ROMSID) has been initiated and (2), from 2016 to March 2021, 938.980 people benefitted from on-the-job training Programs, 246.803 people from vocational training courses, and 164.539 people from entrepreneurship training programs in 22 provinces densely populated by Roma people. The Committee notes from the Türkiye 2021 Report prepared by the European Commission (SWD(2021) 290 final/2, 19 October 2021) the following information: (1) the implementation of the National Roma Strategy remained limited; (2) Roma people remained largely excluded from formal jobs in the absence of targeted policy measures and their employment and living conditions severely deteriorated as most of them did not have fixed incomes; and (3) Roma citizens have been affected disproportionately in terms of job and income loss in the COVID-19 crisis. The report also underlines that the Government needs to develop intersectoral campaigns on rights of Roma women, as a gender sensitive approach is missing in the National Roma Strategy. The Committee asks the Government to provide information on the steps taken:

• (i)to address the difficult socioeconomic situation of Roma people and other vulnerable groups, including any measures to fight against prejudices and negative stereotypes; and
• (ii)to ensure that, in the context of the post-COVID 19 recovery, they have effective access to quality vocational education and training and formal employment opportunities.

Noting the Government’s indication that various studies were carried out by the İŞKUR in order to improve the professional qualifications and skills of Roma citizens and facilitate their entry into the labour market, the Committee asks the Government to provide information on:

• (i)the findings of such studies;
• (ii)the results achieved through the implementation of the National Strategy and its action plans, including with respect to Roma women; and
• (iii)the employment and unemployment rates of Roma people.

Recalling its previous comment on the concern expressed by the CEDAW regarding the persistent disadvantaged situation of Kurdish women, the Committee asks the Government to indicate the specific measures taken to improve their situation, in particular with respect to access to education, vocational training and formal employment, and to ensure that they benefit from equal opportunities and treatment in this regard.

Article 5. Protection measures. Employment restrictions for women. The Committee takes due note of the Government’s indication that section 85 of the Labour Law (on the issuance of regulations specifying the categories of arduous or dangerous work in which women may be employed) was repealed, pursuant to the entry into force in 2014 of the Law No. 6331 on occupational health and safety. The Government adds that, further to the adoption of the Regulation Amending the Regulation on Heavy and Dangerous Occupations, dated 8 February 2013, many occupations were excluded from the category of “heavy and dangerous occupation”, and thus the limitations on women employment were abolished. Noting this information, the Committee asks the Government to provide specific information on the jobs and occupations in which women may not be employed, indicating a reference to the legal provisions applicable.

Information, awareness-raising and enforcement. The Committee notes the information provided by the TISK on the applications made to and the decisions of the Human Rights and Equality Institution in 2019-2021 with respect to discrimination but it notes that they do not distinguish between discrimination in employment and occupation and discrimination in other fields. It also notes the detailed information provided by the Government regarding: (1) applications concerning discrimination in business and professional life by the Institution (15 were examined in 2019, 20 in 2020 and 7 by mid-2021); (2) applications made to the Ombudsman Institution (in 2019 and 2020, 137 applications were made against negative decisions taken during recruitment process in the public sector); and (3) inspections carried out by the inspections carried out by the Presidency of Guidance and Inspection between June 2017 and May 2021, that have resulted in administrative fines amounting to a total of 130.273,00 TL for 51 employers for violation of “the equal treatment principle” in the Labour Law (section 5). The Committee asks the Government:

• (i)to provide information on any awareness-raising and training activities organized among enforcement officials on non-discrimination and equality; and
• (ii)to continue to provide specific information on the number and nature of complaints of discrimination in relation to employment and occupation received and dealt with by the Human Rights and Equality Institution and the Ombudsman Institution, indicating the grounds of discrimination concerned, as well as information on enforcement activities by the Labour Inspectorate, indicating the grounds on which they are based and the outcome of such complaints.

The Committee reiterates its request for information on the number and nature of discrimination cases in employment and occupation brought before the judicial authorities and their outcome (remedies granted and sanctions imposed), indicating the legal basis for such cases.