By Branislav Hazucha
Čechová & Partners
On April 1, 2008, the level of protection against discrimination was raised up by an amendment to the Antidiscrimination Act. Act No. 85/2008 Coll. is already the second amendment to the Antidiscrimination Act within the last four months. The aim of both amendments is to implement EC directives in this field by clarifying its terminology and solving problems uncovered by enforcement of the Act.
One of the most important clarifications is the express ban on sexual harassment together with its definition which was previously covered implicitly by the definition of harassment. Sexual harassment was thus recently defined as any verbal, non-verbal or physical form of conduct of a sexual nature with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
In addition to clarification of individual forms of discrimination, amendments attempt to narrow down the scope of acceptable differential treatment. Before both recent amendments entered into force, employers were allowed to treat employees differently when such treatment was objectively justified by the characteristics of work and working conditions. Furthermore, the extent and way of acceptable differential treatment had to be appropriate to and necessary for the work and working conditions. The new regulation introduces a more restrictive test. In addition to the requirement of objective justification by the characteristics of work and working conditions, it also requires that the reason of acceptable differential treatment must be an actual and decisive requirement for employment of employee under the condition that its aim is legitimate and the requirement is appropriate.
Further changes relate to court proceedings. The most significant change is that a plaintiff is not required to submit evidence anymore. It is sufficient just to inform the court about events of unequal treatment. The defendant is then required to prove that he or she has not violated the equal treatment principle.