It is observed that countries have abandoned gender-based approaches and developed policies with some instruments based on gender equality. Gender-based policies dating back to ancient times are considered to be an unacceptable approach today. The most significant instrument to ensure gender equality which is also recognized by many societies is affirmative action.
With affirmative action, societies aim to integrate the discriminated parties into society and to make them more visible there. Affirmative action rules may be related to many discriminated parties and subjects, but today we will discuss the affirmative action rules adopted in labour law in order to ensure gender equality, which is the most commonly addressed of these.
AFFIRMATIVE ACTIONS IN TURKISH LABOUR LAW
Equality Between Employees
Turkish Labour Law regulates equality between employees and providing this uses several instruments.
1.Equal pay – equal work
It is stipulated that lower wages cannot be agreed upon for the same or equal value of work on the grounds of gender in Article 55 of the Constitution of the Republic of Turkey and Article 5 of the Turkish Labour Law. Equal pay for equal work is a protected principle under Turkish Labour Law. The opposite of that is considered unacceptable, subjected to an administrative fine, the indemnity requested by employees up to 4 his/her salaries, and unpaid salary difference for the past. Therefore, if there is a difference between the wages, this difference must be based on objective reasons and fair criteria such as the quality of work, the expertise of employees, education, or seniority.
2.Prohibition of discrimination
One of the most significant gains in Turkish Labour Law is the prohibition of discrimination. This principle is regulated as no discrimination based on language, race, colour, sex, disability, political opinion, philosophical belief, religion, sect, and similar reasons in the employment relationship.
Even though this is the case, it is seen that there are still no affirmative actions for LGBTIQ+ individuals and considered that these individuals cannot reach equal rights in the face of gender perception in the face of current legal regulations. For example, whilst legally married partners can adopt a child and both take a leave for that, since LGBTIQ+ partners cannot be legally married, only the adopter can take a leave alone. It should be emphasized that regulations in terms of affirmative action should be made in this regard as soon as possible in order to bring about a major change in gender and hence social perception.
Affirmative Actions For Women
1.Motherhood rights
Maternity leave: Women employees have a total of sixteen weeks of leave, eight weeks before and eight weeks after birth. In case of multiple pregnancies, two weeks are added to the eight weeks before birth. However, if a doctor’s report certifies that her state of health is suitable and she requests, the women employees may work at the workplace up to three weeks before the birth. In this case, the periods worked by the woman employee shall be added to the postnatal periods. Also, in case the women employee gives birth prematurely, the periods that she could not take leave before the birth are added to the postnatal periods. One of the spouses or the adopter employee who adopts a child under the age of three shall be granted eight weeks of maternity leave from the date the child is delivered to the family.
Unpaid leave: From the end of the maternity leave, on the purpose of the care and upbringing of the child and provided that the child is alive, unpaid leave is granted up to half of the weekly working hours for a period of sixty days for the first birth, one hundred and twenty days for the second birth, and one hundred and eighty days for subsequent births. In the case of multiple births, thirty days are added to these periods. If it is documented with a doctor’s report that the child was born with a disability, this period is applied as three hundred and sixty days. Also, the woman employee shall be granted unpaid leave for up to six months from the end of her maternity leave upon her request.
Possibility of part-time work: After all these leaves, the woman employee can request part-time work at any time until the beginning of the month following the date of the child’s compulsory primary education age.
Breastfeeding permission: Women employees are given a total of one and a half hours of breastfeeding leave per day to feed their children under one year of age. This leave is counted as daily working time.
Limitation of daily work time: Pregnant or nursing employees shall not work more than seven and a half hours a day. Normally, the daily limitation for employees is eleven hours.
2. Work at Night
Women employees may not work more than seven and a half hours in night shifts. However, in tourism, private security, and health services and in the work carried out by the sub-employer operating in the workplaces where these works are carried out, night shifts over seven and a half hours may be performed provided that the written consent of the woman employee is obtained.
Night shifts are prohibited for one year for women employees following the birth of a child.
3.Severance Payment Based on Marriage
In the event that a woman terminates her employment agreement based on her free will within one year from the date of her marriage, the employer shall pay the employee severance indemnity in the amount of 30 days’ wage for each full year of the continuation of the employment agreement from starting date of her employment.
This right was granted in the former Turkish Labour Law, which was discussed in the Constitutional Court and was not revoked on the grounds that the primary duty of the woman is the care and services of the home, and that she has to accept the residence chosen by her husband, and therefore a compulsory and unavoidable reason may arise for the termination of her employment agreement.
This right causes controversy in the doctrine and some academicians argue that this right causes discrimination rather than affirmative action. In our opinion, this view highlights the right point. Because this right causes female employees to be subjected to questions such as “Have you been married?” during job interviews. The fact that only women are entitled to severance indemnity due to marriage is a provision that both blocks women’s employment and closes the social role of women to developments.
Special Practices Without Legal Grounds
Companies and/or employers may decide to grant privilege to individuals who are likely to be discriminated against although there are no legal grounds on this issue. In Turkey, giving permission for the menstruation period, adopting workplace practices for increasing women’s employment, and granting rights to LGBTIQ+ individuals such as providing private health insurance for non-legal spouses are more commonly faced up.
Although the number of these employers is quite low today, we will continue to follow the developments, hoping that these numbers will gradually increase.
Att. Sinem İLİKLİ
TARLAN LAW OFFICE
ATT. AYLİN TARLAN
Tarlan Avukatlık Bürosu Bloğu 