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.

OVERVIEW

Discrimination is extensively regulated in Romania, encompassing constitutional principles (enshrined in the Constitution of Romania of 1991 - ‘Constitution’ - republished in the Official Gazette no. 767/31.10.2003) such as general equality before the law, as well as a comprehensive examination of key concepts within primary and secondary legislation. This includes provisions within the Romanian Labour Code (‘the Labour Code’) (Law no. 53/2003, republished in the Official Gazette Part I no. 345/18.05.2011, as subsequently amended and supplemented) Romanian Criminal Code (‘Criminal Code’) (Law no. 286/2009, published in the Official Gazette, Part I no. 510/24.07.2009, as subsequently amended and supplemented) and the Government Ordinance (‘GO’) no. 137/2000 (republished in the Official Gazette Part I no. 166/07.03.2014 as subsequently amended as supplemented), as well as other pertinent statutes, prohibiting also discrimination on the grounds of age, amongst other forms of discrimination.

Consequently, the Constitution provides that all the Romanian citizens are equal before the law and public authorities, without privileges or discrimination.

The Labor Code regulates the principle of equality of treatment in respect of all employers and employees, covering both direct and indirect discrimination, while the GO regulates discrimination, harassment and victimisation in more detail. Latter enactment provides obligations on both natural and legal persons persons in relation to all economic and social areas and also sets down sanctions for breach of such legal provisions, exceptions being applicable where the discriminatory act can be justified,  has a legitimate purpose and the methods used to reach the purpose are appropriate and necessary.

It is also relevant to be mentioned that the GO transposes 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.

WHO'S COVERED?

The principle of equality between citizens, exclusion of privileges and discrimination are guaranteed not only in labour relations, but also in other areas, including the exercise of political, economic, cultural or other social rights. It covers all natural 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 social and/or professional categories.

WHAT ENFORCEMENT/REMEDIES EXIST?

Breach of anti-discrimination laws is generally considered an administrative offencesanctionable with fines of up to 30,000 lei (approx. EUR 6,000) if the discrimination targets an individual and even up to 100,000 lei (approx. EUR 20,000) if the discrimination targets a group of persons or a community. Moreover, incitement of the public, by any means, to violence, hatred or discrimination against a category or against a person on the grounds that they belong to a particular category defined on the basis of various criteria, including age, considered by the offender as causes of the inferiority of one person in relation to others, constitutes criminal offence.

In what concerns administrative liability, enforcement and compliance with the non-discrimination principle is in principle carried out by the National Council for Combating Discrimination (‘NCCD’), an autonomous state authority under parliamentary control. NCCD has the authority to investigate, acknowledge and apply sanctions in cases of discrimination. While damages cannot be granted by the NCCD, this body can order the application of a fine and the publication of an excerpt of its ruling in mass-media. The cost of psychological counselling can also be obtained from the employer in case moral harassment is ascertained.

Moreover, a person who considers himself/herself as being discriminated against is also entitled to raise a claim in front of a court of law and seek compensation for all damages (both material and moral) incurred as a result of the discrimination, as well as other forms of reparation provided by statute. There are no statutory limitations in respect of the amount of the material and moral damages.which can be obtained and access to court proceedings in this field is not conditioned upon addressing the matter firstly in front of NCCD.

Last but not least, it is not to be omitted that, specifically in the employment field, the legislator has entrusted employers with an active role when it comes to the prevention and sanctioning of discrimination and harassment. Employees considering themselves victims of age-related discrimination at the workplace have the option to address the matter internally, following the specific procedure and steps outlined in the employer’s anti-discrimination policy.

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 the Activity Report of NCCD, in 2022 30 out of 988 petitions registered were related to age discrimination. Out of the 30 cases, 3 were considered by the NCCD in 2022.

The most common discrimination claims in 2022 were related to social categories (302 cases), and disability (110 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.).

RETIREMENT AGES

According to the current Romanian legislation (Law no. 263/2010 on the unitary public pension system, which is planned to be in force until 31.12.2023, repealed by Law no. 127/2019), 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.

Nevertheless, the equalisation of standard retirement age of men and women is in view.

It must be noted that, as a rule, the individual employment contract ends automatically on the date of the cumulative fulfilment of the standard age conditions and the minimum contribution period for retirement.

However, 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 stating that women retain the right to request the continuation of their individual employment contracts under equivalent conditions to men, specifically extending up to the uniform retirement age of 65 years. Failing to provide this option and allowing for the automatic termination (by operation of law) of employment contracts at an earlier age for women, in contrast to men, could potentially result in instances of gender and age-based discrimination.

Consequently, the Labour Code now also provides, by way of exception, for the right of a female employee to opt in writing to continue the individual employment contract within 30 calendar days prior to reaching the standard age and the minimum contribution period for retirement, in which case the employment relationship will continue until the age of 65.

INTERESTING CASES

In 2021, the NCCD issued a ruling deeming a company's refusal to permit a female employee to continue her employment until the age of 65, which is the standard retirement age for men, as discriminatory. This case involved a female employee of a state entity who had successfully secured the position of head of service in her field of activity through a competitive process. Despite expressing her intention to work beyond the retirement age specific to women, she was denied the position.

Initially, it appeared that her promotion would proceed without issues. However, at a later stage, she discovered that her approval for the position she had earned had been revoked. She subsequently requested an extension of her employment, citing instances in which two male employees in different branches of the institution were permitted to continue working after reaching retirement age. The local management rejected her request, contending that the law did not mandate the employer to retain an employee in employment beyond the standard retirement conditions or necessitate the provision of reasons for rejecting such a request.

Upon a comprehensive review of the submitted documents, the NCCD determined that the rejection of the female employee's request to prolong her employment beyond retirement age, coupled with the approval of analogous requests for male employees in different geographic regions, was rooted in considerations of her age and gender, thus constituting acts of discrimination. Furthermore, the NCCD found that the termination of the female employee's employment contract infringed upon her right to work.