article by Marta Popa, Senior partner, Voicu Filipescu 

Law no. 151/2020 for the amendment of Law no. 53/2003 – Labor Code was published in the Official Gazette of Romania no. 658/24.07.2020 and is in force starting with 27.07.2020 (“Law 151/2020“).

This new enactment is amending the definitions provided for the concept of “discrimination” (both direct and indirect), by means of amending, inter alia, the criteria established by the Labor Code for assessing which acts/deeds are considered as discrimination.

Moreover, Law 151/2020 introduces the concept of “harassment”, “discrimination by association” and “victimization” and does also establish that any behavior consisting in ordering a person, in writing or orally, to use a form of discrimination based on one of the criteria provided by the Labor Code, against one or more individuals, is considered discrimination.

The new amendments does also include the cases that are not considered discrimination, which are aiming to cover certain professional requirements that are essential and decisive and which could justify exclusions or distinctions as regards a particular job that are linked to the specific nature of that specific activity or the conditions under which that activity is performed, to the extent that the purpose is legitimate and the requirements are proportionate.

In addition, Law 151/2020 amends the interdiction to dismiss employees as established under article 59 letter a) of the Labor Code, by means of aligning the relevant criteria with the criteria established for the interdiction to discriminate.

Finally, the new enactment provides the related contravention for failure to observe said provisions, a fine between LEI 1,000 and LEI 20,000 being newly introduced.

Law no. 167/2020 for the amendment of G.O. 137/2000 as well as for the amendment or article 6 of Law 202/2002 was published in the Official Gazette of Romania no. 713/07.08.2020 and is in force starting with 12.08.2020 (“Law 167/2020“).

Separately from the amendments brought by the legislator to the Labor Code through Law 151/2020, as mentioned above, the provisions of Law 167/2020 are also bringing amendments to the specific legislation regarding discrimination.

Specifically, Law 167/2020 introduces the concept of “moral harassment” within the G.O. 137/2000, establishing, inter alia, what behavior is considered as a moral harassment behavior (e.g. hostile or unwanted behavior, verbal comments, actions and gestures, physical burn-out and stress).

Several specific duties are provided for the employers, in order to prevent and fight against acts of moral harassment at the working place, such as:

1. the obligation to take any measure that are required for the scope of preventing and fighting against acts of moral harassment at the working place (including by means of establishing related disciplinary sanctions under the internal regulations);

2. the interdiction to establish, in any form, of internal rules or measures that oblige, determine, or encourage the employees to exert acts of moral harassment at the working place.

Law 167/2020 provides several specific sanctions that are applicable (i) both to employees exerting acts of moral harassment (which could be sanctioned with fines between LEI 10,000 to LEI 15,000), as well as (ii) for failure to observe the specific obligations established for employers in this context (the level of fines ranging between LEI 30,000 and LEI 200,000).

Moreover, the new enactment establishes the specific measures which could be imposed by a court of law (or, in certain cases, by the National Council for Fighting against Discrimination), to the extent that it is decided that an act of moral harassment at the working place was committed:

1. the obligation of the employer to pay to the employee an amount which is equal with the salary rights which were not granted to him/her;

2. the obligation of the employer to pay to the employee damage compensation and moral damages;

3. the obligation of the employer to modify the disciplinary entries regarding the employee.

With respect to the amendments brought to Law 202/2002, article 6 of said enactment was supplemented by means of introducing the interdiction of moral harassment based on sex, the provisions of G.O. 137/2000 being applicable also for such cases, accordingly.

In this context, a review of various provisions included under the employers’ internal regulations and/or policies addressing the discrimination related issues is deemed necessary, with an aim to align the principles established at internal levels with the applicable legal requirements.

Specifically, it is necessary to clarify and/or provide additional details regarding, inter alia, the cases consisting of discrimination (considering the criteria from the Labor Code), interdictions regarding harassment and moral harassment and interdictions regarding victimization.

Setting up of effective measures for preventing and fighting against acts of moral harassment at the working place as well as the sanctions which are applicable for the potential breaches, by the employees, of the provisions in force, become necessary.

Also, we recommend to employers to adequately inform the employees regarding the related legal requirements, as well as to perform an assessment of the remedies/ procedures that are connected with addressing various issues related to discrimination at the working place in order to ensure an efficient protection of the employees’ rights from such perspective.