Discrimination by perception and by association: what the new rules change

What changed in the Labour Code on 5 November 2026

The amendment to the Labour Code of 19 June 2026, published in the Journal of Laws (Dz.U.) under item 1046, came into force on 5 November 2026. Article 18³a now explicitly identifies two situations: discrimination by perception and discrimination by association. This does not mean that there was no protection against unequal treatment before. European case law had already developed similar concepts, but setting them out explicitly in the Polish code makes the rules of protection easier to understand for both employees and employers.

This does not mean that every difference in treatment is prohibited. The law allows for differential treatment that is objectively justified, and assessing a particular case requires taking into account a comparable situation and a legally protected ground. So a manager should neither dismiss a complaint nor decide straight away who is right. They need to know what was said, what decision was taken, who took it and what the real criteria were. Only on that basis can a fair assessment be made.

Discrimination by perception: an assumption alone can lead to a harmful decision

A manager says: “Let’s not put this candidate in front of clients – I think he follows a particular religion.” Even if this assumption turns out to be completely wrong, the candidate may still have been treated unfavourably on a ground that was wrongly associated with him. The heart of the problem is not whether the rumour is true, but that a work decision was based on a presumed characteristic rather than on the requirements of the role and objective criteria.

Passing someone over to lead a project because somebody “heard” they are too old for new technology, or that they will soon be going on parental leave, can look similar. Not every remark of this kind will automatically be evidence of discrimination, but it should prompt the question: “What job requirement justifies this decision?” If the answer comes down to a stereotype, the process must be stopped and reassessed. A manager should base decisions on documented competence, tasks and actual working conditions.

Discrimination by association: when someone else’s characteristic decides

An employee applies for promotion. Her results are strong, but she is told the new role “will probably be too much for her” because she cares for a child with a disability. Her manager claims he is trying to help her. Yet being passed over for promotion may stem not from an assessment of her competence but from her connection with a person who has a legally protected characteristic. This is exactly the kind of mechanism that illustrates discrimination by association.

Rulings of the Court of Justice of the EU are also relevant – among them the Coleman case, concerning the less favourable treatment of an employee because of her child’s disability. This does not mean that a carer must always be given every post, or that you cannot discuss the real demands of a job. But you need to ask the person concerned whether they are able and willing to take on particular duties, rather than deciding for them. A family member’s characteristics cannot replace an individual assessment of the employee.

Why a stereotype can hide behind the words “for their own good”

Unfavourable decisions rarely need to be stated openly. Someone might say: “Let’s not send her on the business trip – she won’t want to leave her mum”; “Let’s not give him this client, because he comes from that country”; “Let’s not offer her the post – it will be too stressful for her.” Some of these statements may come from genuine concern. That does not change the fact that other people’s assumptions can deprive people of career opportunities. Above all, you need to check what the real constraints are and what the person concerned thinks of the proposal.

A simple test helps: “Would we make exactly the same decision about another employee with the same skills and availability?” If we can’t answer that, we need to go back to the criteria. Judging on the basis of facts also improves the quality of management: instead of relying on rumour, the manager finds out whether the person actually wants to lead the project. A conversation like this does not require them to disclose anything about their religion, health or family life.

What a manager should do on hearing a harmful suggestion

In a meeting, someone suggests passing over an employee for promotion, citing a presumed personal characteristic. The manager can respond: “We don’t make decisions based on assumptions about this person. Let’s get back to the required competencies and results.” It is worth writing down the criteria that apply and checking whether they have been used consistently. If a decision has already been made, you need to establish whether it was justified and, if necessary, correct it.

When an employee reports unequal treatment, you should not expect them to prove the whole case immediately. The rules on pursuing claims provide for a particular allocation of the burden of proof; in practice, it is worth keeping a record of the complaint, gathering explanations, securing documents and starting the appropriate procedure. You also need to protect the employee from retaliation. A complaint should not become a pretext for removing the employee from their work or making their situation worse. This calls for both legal knowledge and responsible communication.

How to build work decisions that withstand unwarranted assumptions

Preventing discrimination takes more than a one-off talk about tolerance. It lies in clear rules for allocating tasks, promotions and appraisals. If the criteria are written down before a decision is made, it is harder to justify the choice afterwards by personal intuition. It is also worth agreeing who can challenge such a decision and how. You don’t need a separate procedure for every possible bias, but you do need a way for concerns to be raised without fear of retaliation.

The new provisions reinforce the expectation that employers will actively prevent unequal treatment and violations of dignity. A manager should distinguish between a clarifying conversation and a formal review of the situation when there are legal grounds to suspect a violation. They cannot settle every difficult case on their own by intuition. They can, however, make sure that decisions have a work-related justification, that the person concerned has the chance to present their side, and that any suspicion of discrimination is properly investigated.

The new provisions are a reminder that a person can also be treated less favourably because of other people’s assumptions or their connection with someone else. Good management practice means documenting criteria, checking real competence and stopping decisions based on stereotypes. In disputed situations, a proper investigation procedure is essential – not just a conversation about intentions.

How Empatyzer helps you talk without bias or hasty assumptions

A manager can turn to Em before a conversation about promotion when suggestions have surfaced in the team about an employee’s family life, origin or presumed characteristics. Em will help them structure questions about the real requirements of the role, practise responding to an inappropriate comment and prepare a way of explaining the decision that does not rest on a stereotype. When preparing a conversation with a specific person, the user can draw on the communication tips available, but does not get access to that person’s private diagnosis or to data about their health or beliefs. Empatyzer also helps you recognise that people differ in how they think, what motivates them and how they prefer to work together – none of which can be read from a group label. Em can suggest neutral wording for a clarifying conversation and questions to check whether a decision was based on real criteria. It does not replace a legal assessment or the employer’s procedure. The value lies in preparing a conversation in which, instead of making decisions for others, we ask about the facts and treat employees fairly.