Compensation for a breach of equal treatment
The Supreme Court has dismissed an extraordinary appeal of the Prosecutor General against a judgment that had awarded compensation to an employee for a breach of equal treatment on the grounds of sex and gender identity. The matter concerned a refusal to issue women’s work clothing to the employee.
The case involved a transgender person who had applied to be employed as a receptionist. The claimant was undergoing gender reassignment and had been perceived as a woman during the recruitment. However, she presented an earlier-issued personal identity card stating that she was male. As a result, the claimant was not issued with women’s work clothing, and it was pointed out to her that she was entitled to men’s attire, in accordance with the details of her personal identity card.
Because the claimant insisted on being issued with a woman’s uniform, the defendant eventually refused to employ her. The claimant then brought a claim for compensation under Article 13 of the Anti-Discrimination Act, namely the Act on the Implementation of Certain Provisions of the European Union on Equal Treatment, of 3 December 2010.
The district court dismissed the claim. However, as a result of the claimant’s appeal, the regional court overturned the judgment of the court of first instance and ordered the defendant to pay to the claimant the amount of the claim, which was PLN 1,480. It also ruled, referring in this respect to the case law of the Court of Justice of the European Union, that direct discrimination had occurred by the refusal to issue the claimant with women’s work clothing.
The regional court compared the respondent employer's conduct towards the claimant to that towards a person who would not carry a transgender characteristic (i.e. a person with a female appearance and registered female gender) and showed that the claimant was treated less favourably. A person with a female appearance and registered female gender would have received female attire, whereas the claimant was treated less favourably solely because of her gender identity – the fact that she remained registered as male but looked, acted, felt and was perceived as female. The motive for the less favourable treatment of the claimant was her gender identity – a characteristic protected by the legislator.
The Prosecutor General submitted an extraordinary appeal against the judgment of the second instance court, but it was dismissed by the Supreme Court.
Supreme Court Judgment I NSNc 575/21, of 8 December 2022