Prohibition of discrimination in employment

The prohibition of discrimination, due to its great importance, is a constitutional category, and to prevent its occurrence in employment relations, the Labor Law devotes significant attention to this matter.
Despite that, discrimination at work remains among the main causes of complaints filed with the Commissioner for the Protection of Equality, as well as a frequent subject of court proceedings.
Properly established policies, procedures, and evidentiary practices within an employer’s organization significantly reduce the risk of litigation and reputational damage.

Legal Framework: Constitution and Special Laws

The Constitution of the Republic of Serbia prohibits all direct and indirect discrimination and guarantees equality before the law and equal legal protection.
This constitutional principle is further reflected in employment relations through special laws.

The Labor Law stipulates:

“Direct and indirect discrimination against persons seeking employment, as well as employees, on the grounds of sex, birth, language, race, color, age, pregnancy, health condition or disability, nationality, religion, marital status, family responsibilities, sexual orientation, political or other beliefs, social origin, property status, membership in political organizations or trade unions, or any other personal characteristic, is prohibited.”

Thus, the Law explicitly prohibits both direct and indirect discrimination in all stages of employment – from job advertising and recruitment, through conditions of work, training, and promotion, to termination of employment.
Typical grounds of discrimination include sex, age, nationality, language, marital and family status, pregnancy, disability, political affiliation, and others.
Any provisions of an employment contract that introduce discrimination are null and void.

The Law on the Prohibition of Discrimination (LPD) provides definitions, forms, and procedures for protection in employment relations:

Discrimination in the Field of Labor – Article 16

Discrimination in the field of labor, i.e. the violation of equal opportunities for establishing an employment relationship or for the equal enjoyment of all labor rights, is prohibited.
These rights include the right to work, free choice of employment, promotion, professional training and rehabilitation, equal pay for work of equal value, fair and satisfactory working conditions, rest, education, trade union membership, and protection from unemployment.

Protection against discrimination under this article applies to employees, persons performing temporary or occasional work or work under service or other contracts, part-time workers, public officials, members of the armed forces, job seekers, students and pupils on internship, persons undergoing professional training without employment, volunteers, and all other persons participating in work on any basis.

It shall not be considered discrimination to make distinctions, exclusions, or preferences based on the specific nature of a particular job where a personal characteristic constitutes a genuine and determining occupational requirement, provided that the aim is legitimate, as well as the adoption of protective measures for certain categories of persons (women, pregnant women, parents, minors, persons with disabilities, etc.).

In the area of gender and parenthood, the Law on Gender Equality introduces obligations for employers, recognizes gender-based and sexual harassment, and prohibits unfavorable treatment due to pregnancy, maternity leave, or leave for child care — which is useful in assessing broader standards of “less favorable treatment” in practice.

How Discrimination Occurs in the Workplace

Although most employers genuinely believe that discrimination does not exist in their organizations—since they have no intention of engaging in it—it most often occurs due to a lack of understanding of what constitutes discrimination, subjective interpretation by employees, and insufficient education or internal regulation.

Common forms of discrimination include:

1. Unequal criteria in recruitment and/or promotion (e.g., criteria that in effect eliminate an individual or group);
2. Undocumented decisions (absence of objective justification or written record for different treatment);
3. “Neutral” practices with indirect effects (a policy formally applying to all, but disproportionately affecting one group or person);
4. Pregnancy/parenthood-related discrimination, such as returning from maternity leave accompanied by job degradation or salary “freezes” without objective justification, applied only to that employee.

 

Proving Discrimination Before the Court

In the practice of the Supreme Court, three principles are consistently observed:

1. The court requires a comparative situation – the employee claiming discrimination must show a causal link between a protected ground and an unfavorable outcome;
2. There must be proof of a less favorable position based on a protected characteristic (e.g., sex, age, nationality, political opinion, etc.);
3. The employer must demonstrate a legitimate aim and proportionality of any measure if claiming that the difference in treatment is objectively justified.

 

Findings of the Commissioner for the Protection of Equality

The Commissioner notes recurring patterns of employer behavior in cases of workplace discrimination, such as:

• reassignment to a lower position after returning from maternity leave;
• denial of promotion due to age;
• denial of training based on marital and/or family status;
• prevention of promotion due to political beliefs.

 

Protection Procedure: Commissioner vs. Court

The Commissioner for the Protection of Equality provides a faster and more informal mechanism of protection.
A complaint may be filed with the Commissioner, who issues an opinion and recommendation.
Although the Commissioner cannot impose sanctions, a public recommendation often suffices for quick correction.

Court proceedings involve a lawsuit seeking a declaration of discrimination, prohibition of further discrimination, removal of consequences, and compensation for material and non-material damage.
The law is designed to ease the burden of proof for the plaintiff: once the employee makes discrimination plausible, the employer must prove that discrimination did not occur.

Preventing Discrimination in the Workplace

Employers can prevent discrimination through employee training and by fostering a culture of respect.
An effective anti-discrimination policy should include clear definitions, relevant examples of direct and indirect discrimination, and prohibitions of harassment and retaliation.

Standardized criteria for recruitment, performance evaluation, promotion, and remuneration also prevent discrimination.
For every measure that differentiates between employees, a written record should be prepared, stating the legitimate aim, necessity, and proportionality of the measure.

If internal acts are not aligned with the Law on Gender Equality, they must be amended to prevent unfavorable treatment based on pregnancy or parenthood, and include procedures for reporting harassment and plans for preventing discrimination.

Examples of Indirect Discrimination

Indirect discrimination occurs when a seemingly neutral provision, criterion, or practice places or would place a person or group in a less favorable position compared to others, due to a particular characteristic, status, orientation, or belief.

Examples:

1. A policy stating that “only employees who have worked continuously for X years” are eligible for promotion—without clarifying that maternity or pregnancy-related leave does not interrupt service—may indirectly exclude women who have taken maternity leave;
2. Rewarding physical presence in shifts may indirectly exclude employees who work remotely or in hybrid arrangements.

To avoid indirect discrimination, it is essential to analyze actual effects rather than intentions, and to apply the proportionality test.
Courts expect the employer to prove the legitimate aim of a measure and that the least restrictive means was chosen.

Harassment and Sexual Harassment

Harassment is any unwanted behavior with the purpose or effect of violating a person’s dignity, creating an intimidating, hostile, or humiliating environment.
Sexual harassment is any unwanted verbal, non-verbal, or physical conduct of a sexual nature.
Both are forms of discrimination.
Employers have a positive obligation to establish preventive and responsive mechanisms to ensure that such occurrences are prevented altogether.

What Is Not Discrimination

It is not considered discrimination to make distinctions, exclusions, or preferences regarding a specific job where the nature of the work or its conditions make certain characteristics a genuine and determining occupational requirement, provided the aim pursued is legitimate and proportionate.

Most Common Types of Discrimination in Practice

1. Return from Maternity Leave – reassignments, the “empty desk” syndrome (where the returning employee is gradually excluded from tasks), or similar conduct may indicate discrimination, though a broader analysis of the employee’s position before and after return is necessary;
2. Age – despite growing awareness, job advertisements sometimes still include age limits, which are rarely justifiable;
3. Disability – the employer must demonstrate that reasonable accommodation was considered before adopting any measure that adversely affects employees with disabilities.

 

Conclusion

Although laws clearly and strictly prohibit all forms of discrimination, practice shows that it still occurs—often due to lack of knowledge, absence of procedures, or undocumented decisions.
For employers, prevention must be a priority: clear internal policies, staff training, and consistent application of objective criteria are essential to reduce risks.
This not only avoids litigation and reputational harm but also builds a work environment where all employees have equal opportunities.

Conversely, employees sometimes feel discriminated against even when an objective assessment of circumstances shows no discrimination.

Whether you are an employer or an employee, discrimination is a sensitive issue that requires a neutral and informed evaluation of the situation.

Law Firm Petrović Mojsić & Partners