Coalition for Equal Opportunities about draft amendment to Equality Act

In 2010 the Equality Act was adopted to implement certain EU laws in the area of equal treatment. From the beginning, the new legislation was met with reservations by non-governmental organisations. This week the Sejm will debate on the draft amendment to the act proposed by deputies. The Coalition for Equal Opportunities, including the Helsinki Foundation for Human Rights, presented its position on the issue.

“A major shortcoming of the current law is the fact that it offers different protection measures depending on the characteristic which constitutes the basis of inequality”, explains Dr. Dorota Pudzianowska, HFHR’s lawyer. “For instance, protection against discrimination in the area of health care is addressed solely to persons of specific racial, ethnic or national origins, and is not available to disabled or homosexual persons. There are no reasonable grounds for such a differentiation and its compliance with the Polish constitution is dubious”, adds Dr.Pudzianowska.

The proposed amendment introduces equal protection against all forms of discrimination, regardless of its grounds. Further, the draft law recommends to develop more detailed definitions of various forms of discrimination and recognise the types of discrimination which have been already established in the case law of the European Court of Justice.

One of the main objectives of the amendment is also to introduce an open catalogue of legally protected characteristics, and thereby expand their number which is currently quite low. “This will improve the enforcement of article 32 of the Constitution which states that no one shall be discriminated against in political, social or economic life for any reason whatsoever”, says Karolina Kędziora, Deputy President of the Polish Society of Anti-Discrimination Law.

Under the amended law, the protection against discrimination would be extended to the area of broadly understood education, not only “schools and higher education institutions”. It would also cover content communicated by mass media as well as advertisements on access to and the supply of goods and services. An important change included in the proposed bill would be obliging state administration and local government bodies to develop and implement equality programmes.

In accordance with the current law, the only form of redress available to a victim of inequality treatment is to pursue damages. The act does not allow for the court to award compensation for moral injury related to inequality suffered by the claimant. “The draft amendment handles this issue too. Besides a regular claim for damages, a victim of inequality will also have the right to seek compensation for moral injury”, says Zofia Jabłońska, a lawyer with the Campaign Against Homophobia.

The act in its current wording falls short of its objectives. Its low effectiveness is reflected in a tiny number of lawsuits brought under the act. As shown in official statistics of the Ministry of Justice, in 2011 only 30 such actions were brought to Polish courts. In 2012, the figure was even lower: only six cases were heard. However, the thorough review of the lawsuits made by the Polish Society of Anti-Discrimination Law revealed that hardly any of them was based on the provisions of the Equality Act.