This summary of age discrimination law in Romania has been prepared by Nestor Nestor Diculescu Kingston Petersen, the Ius Laboris affiliate for Romania: www.nndkp.ro.
The Constitution of Romania of 1991 (‘Constitution’) (republished in the Official Gazette no. 767/2003), the Romanian Labour Code (‘Code’) (Law no. 53/2003, republished in the Official Gazette no. 345/2011, as subsequently amended and supplemented) and the Government Ordinance (‘GO’) no. 137/ 31.08.2000 (republished in the Official Gazette no. 166/2014) prohibits age discrimination amongst other forms of discrimination.
The Constitution provides that all the Romanian citizens are equal in regards to their rights and obligations.
The Code regulates the principle of equality of treatment in respect of all employers and employees. It includes both direct and indirect discrimination. When the Code was drafted, all EU legislation applicable in the area of non-discrimination and equality of treatment was taken into account.
The GO regulates discrimination, harassment and victimisation in detail. It provides obligations on both individual persons and legal persons in relation to all economic and social areas. It sets down sanctions which are applicable in cases of breach of such legal provisions. That being said, exceptions apply where the discriminatory act can be justified, has a legitimate purpose and the methods used to reach the purpose are appropriate and necessary.
The GO implements the Directive no. 2000/43/CE, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, as well as the Directive no. 2000/78/CE, establishing a general framework for equal treatment in employment and occupation.
The GO applies not only with respect to the employment relationships, but also in other areas such as political, economic, social and cultural rights. It covers all individual persons independently of their status (e.g. employees, self-employed, agency workers) and independently of their age. It does not provide for any exclusion, but specific exclusions may be provided within specific legislation applicable to certain categories of individuals.
WHAT ENFORCEMENT/REMEDIES EXIST?
Breach of the legal provisions on equal treatment between persons is an administrative offence. The law does not provide for any specific criminal sanctions.
Persons who have carried our discriminatory conduct may be sanctioned by a warning or a fine, the amount of which depends on whether the discrimination concerns an individual or a group/community.
Enforcement and compliance with the non-discrimination principle is carried out by the National Council for Fighting against Discrimination (‘NCFD’). This is an independent public administrative body acting under the Parliament’s control. It has the authority to investigate, acknowledge and apply sanctions in cases of discrimination.
A person who considers himself/herself as being discriminated against is also entitled to claim in front of a Court of law and seek compensation for all damages incurred as a result of the discrimination. He/she must prove the damages claimed (both material and moral damages). The amount of the material damages incurred must be proved and the amount of the moral damages claimed shall be established by the Court. There are no limitations in respect of the amount of the material and moral damages.
Decisions taken by the NCFD may be challenged in front of the contentious administrative courts and claims for civil damages may be submitted to the civil courts.
HOW COMMON ARE CLAIMS?
Claims related to age discrimination are not common in Romania, although that is not to say that discrimination is not often found in practice.
According to report of NCFD in 2017, 31 out of 682 petitions registered related to age discrimination. Out of the 31 cases, 4 were considered by the NCFD.
The most common discrimination claims related to social categories (258 cases), disability (74 cases) and nationality (64 cases).
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
Although age discrimination claims are not frequent, the most common claims are brought by candidates who have allegedly been rejected during the recruitment stage on the grounds of age. There are also several claims relating to dismissal where former employees allege that they have been dismissed on the grounds of age.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
Exceptions apply to the duration of annual leave, duration of working time, performance of overtime and night work which are more favourable for young employees under 18 years of age. Collective labour agreements may also provide for length-of-service-related benefits (duration of annual leave, redundancy payments etc.).
According to the current Romanian legislation (Law no. 263/2010), the standard retirement age is 63 years for women and 65 years for men. These are however subject to a transition period provided for in the legislation. The exact retirement age is, thus, currently established by reference to the gender, and the month and year of the employee’s birthdate.
The equalisation of standard retirement age of men and women is in view, given the country-specific recommendations from the European Commission received in 2017. The 2018 Country Report states that there has been no progress registered in this field. It is however, noted that the bill on retirement age equalisation for men and women is still pending in Parliament.
The Romanian Labour Code expressly provides that an employee's employment contract is terminated automatically by operation of the law on the date he/she reaches the standard retirement age and has the minimum contribution record for receipt of a state retirement pension. The contract also terminates automatically from the date that the relevant authorities award an employee an early-retirement pension of any type or a disability pension for the cases provided by the law.
The Romanian Constitutional Court issued a decision on June 5, 2018, upholding the exception regarding the automatic termination by operation of the law of the employment contract when the standard retirement age and minimum contribution record conditions are met. It was stated that women are entitled to the option to require that the individual labour agreement continues its performance, under the same conditions as for men, namely up to an equal retirement age of 65 years. Otherwise, the termination (by operation of law) of the employment contract at a lower age for women, as compared to men could lead to gender and age discrimination.
In 2016, an individual filed a complaint before NCFD claiming that she had been subject to discrimination when her employment contract was terminated by operation of the law (and her request of continuity was denied), as opposed to that of a male co-worker, who continued to work, even though in both cases the conditions for termination by operation of the law (for standard retirement conditions) were met. The Administrative Board of NCFD held that the reported facts represented differential and discriminatory treatment according to the legislation and that her right to work was breached given the company’s decision to ascertain the termination by operation of the law of her employment relationship solely. The Administrative Board applied a warning as an administrative penalty.