The principle of equality prevents persons in comparable situations from being treated differently without an objective and reasonable justification. The prohibition of discrimination, in turn, protects against the unjustified restriction of the enjoyment of rights on grounds such as sex, religion, disability and other protected grounds. Recruitment, pay, education, health, housing and access to public services are areas where these guarantees may arise. However, not every adverse decision or every different application is discrimination by itself. [1] [2]
An effective discrimination application shows how a difference arose in the exercise of a right and which facts support it. The position of the persons compared, the justification for the application, its effect and the redress requested must be explained together. An application to the Human Rights and Equality Institution of Türkiye (TİHEK), a compensation claim before the labour court, an administrative action and an individual application to the Constitutional Court (AYM) are subject to different powers and procedures. This guide addresses these routes together and explains how real decisions inform practice.
Does equality mean treating everyone identically?
Comparable situation and justified difference
Equality does not mean treating all persons identically regardless of their circumstances. Objective reasons such as professional qualifications, the requirements of the job, experience and a concrete need may justify a different application. However, the connection between the reason relied on and the event, and the proportionality of the application, must be explained. Explanations produced afterwards or inconsistent justifications may not be sufficient.
For example, a difference in pay between two employees at the same workplace who have different duties and responsibilities does not by itself show discrimination. By contrast, a claim of a sex-based pay gap between employees doing the same work is assessed differently. The applicant must explain not only that another person earns more, but also why the comparison is appropriate.
Measures that remove factual inequality
In some cases, applying the same rule to everyone may sustain a disadvantage. Making appropriate arrangements so that a disabled person can access a service, or the special protective measures permitted by the Constitution, are not regarded as a breach of the principle of equality. The aim is to make it possible to exercise the right in practice. [1, Art. 10] [2]
Not every different treatment that is requested is mandatory, however. The suitability of an arrangement to the need, the benefit it would provide, its technical feasibility and whether it creates a disproportionate burden are examined. A statement by an institution that "the same rule applies to everyone", made without any concrete assessment, may not be sufficient.
Types of discrimination and protected grounds
Direct and indirect discrimination
Direct discrimination arises where a person in a comparable situation is treated less favourably on a protected ground. In indirect discrimination, a seemingly neutral rule may place a particular group at a specific disadvantage that cannot be objectively justified. In the second case, not only the wording of the rule but also its consequences are considered. [2, Art. 2–4]
In an indirect discrimination claim, the groups affected by the practice, the consequences and, where available, statistical data are important. But not every difference necessarily stems from the same cause. The scope of the data, the sample and the reliability of the comparison must be explained. Clear discriminatory statements may be strong evidence; the absence of such a statement does not automatically rule out discrimination.
Harassment, victimisation and reasonable accommodation
Law No. 6701 also regulates forms of discrimination such as harassment and failure to make reasonable accommodation. It is also particularly important that a person who applies for equal treatment suffers adverse treatment for that reason. A discrimination claim should not be treated as the same as every workplace conflict or every mobbing allegation; the legal category into which the event falls must be specified. [2]
Reasonable accommodation refers to the necessary and appropriate changes that allow a person, in particular a disabled person, to exercise a right. Accessible entrances, an appropriate examination arrangement or an adjustment to how work is carried out may be relevant. The request, the barrier it would remove and the reason it is considered feasible must be stated clearly in the application.
The scope of the Constitution and of the Law on the Institution is not the same
Article 10 of the Constitution refers to "similar grounds" (benzeri sebepler). Article 3 of Law No. 6701 lists sex, race, colour, language, religion, creed, sect, philosophical and political opinion, ethnic origin, wealth, birth, marital status, health condition, disability and age. It must also be determined separately under which provision a claim can be examined. [1] [2]
A connected right must also be identified for Article 14 of the European Convention on Human Rights (ECHR) and for an individual application to the AYM. The constitutional equality review and the conditions relating to the common sphere of protection of an individual application should not be confused. A mere statement that "I was treated unfairly" is not enough to explain a constitutional discrimination complaint.
What do real decisions show?
Tuğba Arslan: different treatment on religious grounds in professional practice
In the decision of the Plenary Assembly of the Constitutional Court (AYM) in Tuğba Arslan, Application No. 2014/256, dated 25 June 2014, the prevention of a lawyer wearing a headscarf from taking part in a hearing was examined. The Court found a violation in terms of freedom of religion and the prohibition of discrimination. There are also dissenting opinions in the decision. [3, especially §§ 151–158 and the operative part]
The decision shows that different treatment cannot be justified by abstract concerns. It also separates the applicant's own right from the right of the person the applicant represents: the decision addressed an admissibility problem ratione personae concerning the lawyer's claims about the client's defence and access to court. It should not be assumed that a lawyer can bring every client's right to an individual application in the lawyer's own name. An assessment by the Constitutional Court on the balance between religious communities appears in our article on the freedom of religious communities to choose their leaders and the neutrality of the state.
Burcu Reis: childcare facility at the workplace and burden of proof
In the decision of the First Section of the Constitutional Court (AYM) in Burcu Reis, Application No. 2016/5824, dated 28 December 2021, the applicant was not allowed to benefit from the childcare facility provided to some female employees. The objective justification for the difference between employees in comparable situations was not explained, and the burden of proof placed on the applicant was also assessed. The Court held that the prohibition of discrimination, linked to the right to respect for family life, had been violated. [4, §§ 45–69]
This decision is not merely a comparison of pay between the sexes; it concerns the treatment of women employees with children at the same workplace. The practical lesson is that the selection criteria in the employer's hands and the economic value of the benefit provided should not be left entirely for the employee to prove without any examination. Nevertheless, not every difference in social benefits automatically produces the same outcome; comparability and justified reasons are examined.
Çam v. Türkiye: reasonable accommodation in education
In the judgment of the Second Section of the European Court of Human Rights (ECtHR) in Çam v. Türkiye, Application No. 51500/08, delivered on 23 February 2016 and final on 23 May 2016, the non-admission of a visually impaired applicant to music education was examined. The Court found that the needs and the possible adjustments had not been sufficiently examined, and held that the prohibition of discrimination linked to the right to education had been violated. [5, §§ 65–69]
The decision shows that, rather than excluding a person because of disability, arrangements that would make access possible must be investigated. The ECtHR did not itself determine the form of every technical adaptation. The institution is expected to assess the individual need and the feasible options concretely. The link between the arrangement requested in the application and the ability to exercise the right must therefore be clearly established.
Who can apply to TİHEK, and how?
Pre-application and the content of the application
Natural and legal persons who claim to have suffered from a violation of the prohibition of discrimination under Law No. 6701 may apply to TİHEK. The application is free of charge. As a rule, a correction request is first made to the party carrying out the practice. If the request is rejected, or no reply is given within thirty days, an application may be made to the Institution. Where there is a risk of damage that is difficult or impossible to repair, the Institution has the power not to require this precondition. [2, Art. 17] [6]
The application should state the date of the event, the addressee, the ground of discrimination, the right or service affected and the evidence available. The pre-application correction request, together with the reply or a record of no reply, should be attached. For application methods and the information required, the Institution's current official application page should be taken as the reference. Instead of an unsigned, unclear text or one that consists only of a general complaint, an account of the event that can be examined should be set out.
The limits of the Institution's powers
TİHEK is not a legal remedy body that can overturn a court decision. Acts relating to the exercise of legislative and judicial powers are assessed separately, within the limits of the Institution's remit set by the Law. In addition, for claims within the scope of Article 5 of Labour Law No. 4857, the special pre-application condition in Article 17(5) of Law No. 6701 must be taken into account. Applying directly to the Institution in every employment dispute is not the correct approach. [2]
The Institution's power to impose administrative sanctions and fines is not the same as the compensation power of the labour court or the annulment power of the administrative court. An administrative fine imposed by TİHEK should not be described as compensation paid to the victim. Whichever result is sought, the appropriate judicial route should be planned separately.
Effect on the time limit for an action
Article 17(3) of Law No. 6701 provides that an application made to the Institution within the time limit for bringing an action will suspend the running of that time limit once it has begun. It therefore cannot be said that a TİHEK application has no effect on time limits. However, it also cannot be concluded that a late application revives an expired period, or that it suspends the AYM time limit in every case. [2]
The date of the application, the remaining time limit for bringing an action and the outcome of the Institution's process should be tracked together. In a dispute subject to special procedures and application requirements, this provision should not be relied on as an automatic guarantee; a timeline for the specific file should be prepared.
Discrimination in the workplace and compensation
Article 5 of Labour Law No. 4857 regulates the principle of equal treatment. Where the conditions of a breach are met, the employee may claim, in addition to appropriate compensation of up to four months' wages, the rights of which they were deprived. The statutory upper limit does not mean that a four-month payment is made automatically in every case. Nor should it be assumed that every difference in pay or management gives rise to this special compensation. [7]
Mediation as a condition for bringing a suit applies to employee receivables and compensation claims, and special, short time limits apply to reinstatement claims. Under Article 20 of Labour Law No. 4857, for reinstatement the employee must apply to a mediator within one month from notification of the termination notice; if no agreement is reached, an action must be brought within two weeks from the final minutes. A discrimination complaint does not replace these time limits. [7] [8]
The employer's defence may rest on reasons such as performance, duties, seniority or operational needs. Whether these reasons were applied consistently is checked. The personal data of the person with whom the employee compares themselves must also be protected; obtaining the necessary records through the court is preferable to unauthorised access to accounts or files.
How is discrimination proven?
Article 21 of Law No. 6701 provides that where the applicant puts forward strong indications of the discrimination claim and facts that give rise to a presumption, the other party must prove that it did not discriminate. Article 5 of the Labour Law also contains a burden-of-proof provision for situations in which the worker strongly shows the likelihood of a breach. A mere allegation does not trigger this shift of the burden in every case. [2] [7]
| Point to show | Record that may help | Limit to observe |
|---|---|---|
| Comparable situation | Job description, application requirements, education or service criteria | The relevant characteristics of the persons compared must be explained |
| Adverse difference | Rejection letter, pay record, access barrier, examples of application | The date and the decision-maker must be identified |
| Cause or effect of discrimination | Correspondence, witnesses, a consistent pattern of practice, reliable data | Must have been obtained lawfully |
| Need for reasonable accommodation | Health or accessibility document, a concrete adjustment request | Unnecessary sensitive data should not be shared |
| Insufficiency of the justification | Contradictory explanations, criteria applied inconsistently | The other party's real justification must be addressed |
| Redress sought | Record of the loss, rights deprived, the claim | Must match the competence of the relevant authority |
Where most of the evidence is in the other party's hands, this should be explained and the necessary documents requested. However, it is also not appropriate to leave the whole investigation to the authority without setting out the basic facts accessible to the applicant. A chronological and comparative account makes the claim easier to examine.
Karan's study discusses the relationship between the concepts of equality and discrimination, and the inequality that the same act may create for persons in different situations. Uçar and Türe, by contrast, argue that when TİHEK assesses the burden of proof, ex officio investigation and the protection of the presumption of innocence in administrative sanctions must be preserved. This second approach is an academic commentary separate from the text of the law. It cannot be said that ease of proof removes the Institution's duty to investigate the facts or the procedural safeguards of the other party. [12] [13]
Other remedies and the AYM
In discrimination arising from a public act, administrative application and administrative jurisdiction may come into play; in a private-law relationship, the relevant private law or labour courts may come into play. The offence of hate and discrimination under Article 122 of the Turkish Penal Code No. 5237 (TCK) is an offence limited to certain grounds and acts. Not every violation of equality is a criminal offence. A criminal complaint does not replace an action for annulment or compensation. [9] [10]
In an individual application to the AYM, the right must be linked to the common sphere of protection, effective ordinary remedies must be exhausted and, as a rule, the thirty-day period counted from learning of the final decision must be observed. Similar persons, different treatment, the relevant ground, the absence of an objective justification and a disproportionate effect should be explained. It is important that the substance of the complaint was raised before the earlier authorities. [11]
An abstract equality review cannot be requested from the AYM on behalf of everyone. A personal and current effect must be shown. The application should not be turned into a text seeking only the annulment of a law; the concrete application and the judicial process should be described. Requests for compensation or retrial should also be framed in a way that matches the nature of the violation.
Submission and the electronic channel
Article 47 of Law No. 6216 provides for applications to the AYM made directly, through courts or through overseas representations. Lawyers have been able to make individual applications electronically through the UYAP Lawyer Portal (UYAP Avukat Portalı) since 1 October 2025. Saving a form is not the same as completing its submission; signatures, attachments, fee (harç) or legal aid requests, and the record of the application should be checked. This facility does not mean that every electronic communication channel is valid. [14]
For more on this subject, you may also see our article on declaration of belief in freedom of religion and conscience and the prohibition of discrimination.
Conclusion
The strength of equality and discrimination applications depends on clearly showing the difference and on a concrete assessment of the other party's justification. Equal treatment sometimes requires the same action, and sometimes an appropriate arrangement that removes the disadvantage. The correct choice of forum, the joint monitoring of time limits and lawfully obtained evidence ensure the effective use of the TİHEK, court and AYM routes.
Frequently Asked Questions
Is every different pay a discrimination?
No. Duties, seniority, performance and other objective reasons are examined. A comparable situation and a legally significant difference must be shown.
Is a TİHEK application free of charge?
Under the Law, no fee is charged for applications. The pre-application correction request and the other procedural conditions must still be observed.
Will TİHEK pay me compensation?
An administrative fine imposed by the Institution is not compensation paid to the victim. For damages and other claims, the appropriate judicial route is assessed separately.
Does applying to TİHEK stop the time limit for an action?
Under Article 17(3) of Law No. 6701, an application made within the time limit for bringing an action suspends the time limit that has begun to run. This is not an unlimited rule that revives an expired period or covers all other time limits.
Can I apply if there is no explicit discriminatory statement?
Yes. The outcome of the practice, comparisons, documents and other indications are also important. The claim must be supported by concrete facts.
Is a different arrangement for a disabled person contrary to equality?
Necessary and appropriate reasonable accommodation that gives access to a right may achieve equality. The scope of the arrangement, and whether it creates a disproportionate burden, is examined concretely.
Sources and legal bases
[3] Constitutional Court (AYM), Tuğba Arslan [Plenary], Application No. 2014/256, 25 June 2014.
[4] Constitutional Court (AYM), Burcu Reis, Application No. 2016/5824, 28 December 2021.
[5] ECtHR, Çam v. Türkiye, Application No. 51500/08, 23 February 2016, final 23 May 2016.
[6] TİHEK, official application information.
[7] Labour Law No. 4857, Articles 5 and 20.
[8] Labour Courts Law No. 7036 (7036 sayılı İş Mahkemeleri Kanunu), Article 3.
[9] Administrative Procedure Law No. 2577 (2577 sayılı İdari Yargılama Usulü Kanunu).
[10] Turkish Penal Code No. 5237 (5237 sayılı Türk Ceza Kanunu), Article 122.