Public Defender Establishes Direct Discrimination on Grounds of Pregnancy
On August 31, 2016, the Public Defender addressed Ltd. New Vision with a recommendation in which he established a fact of direct discrimination on grounds of pregnancy.
According to an applicant, her labour contract was not extended on grounds of pregnancy after having worked in the New Vision clinic for a year. The applicant also noted that she made a mistake while performing her official duties a few months ago and the loss caused by the mistake was reimbursed from her salary.
According to the information provided by the New Vision, on June 1, 2016, labor contracts expired for all employees of the clinic, including the applicant. They indicated that the labour contract with the applicant was terminated due to improper performance of her duties and expiration of the contract.
In order to better learn the general situation, the Public Defender appealed to the New Vision to provide personal files of other employees, including labor contracts and decisions on disciplinary penalties, however, the clinic did not provide the information.
In the recommendation the Public Defender also discusses the standard of distribution of the burden of proof in discrimination cases. The Public Defender notes that the facts presented by the applicant raised suspicions concerning alleged discriminatory action, after which, to burden to prove that no discrimination had taken place was to be borne by the accused party. "The alleged discriminatory action" means that the facts presented by the applicant provides grounds to presume that she was subjected to unequal treatment on one of the prohibited grounds, while the burden of proof of the accused party means that they should present the kind of legitimate goal to the Public Defender, which would objectively and reasonably justify the different treatment.
The Public Defender noted that the argument presented by the New Vision concerning the expiration of labor relations with the applicant and the improper performance of official duties by her was indicated in the applicant’s application as well, which led to the presumption that there might be alleged discriminatory action. Therefore, this argument could not diffuse suspicions concerning the alleged discriminatory action.
The Public Defender underlined the practices of international and local institutions, according to which, given that in labor relations an employee is a subordinate, there is high risk of using short-term contracts by dishonest employers as an instrument to disguise discrimination.
Based on the above, the Public Defender held that there had been direct discrimination on grounds of pregnancy and appealed to the New Vision to eliminate the result of discriminatory treatment against the applicant and to restore her in her position; also, to refrain in the future from discriminatory treatment on grounds of pregnancy in labor relations and to conduct its activities on the basis of equality principle.