November 2025
Indirect discrimination in the case of benefits, promotions and bonus packages. Between abstract definitions and profound impact on the employee
by Adela Nuță
The principle of equal treatment in employment requires that all employees be treated without unjustified differences. Legislation prohibits both direct discrimination, where a person is treated less favorably explicitly based on a protected characteristic (such as sex, age, religion, etc.), and indirect discrimination. Indirect discrimination arises where an apparently neutral measure (a rule or practice applied to all) in fact produces a particular disadvantage for persons belonging to a certain protected category, as compared to others. In other words, indirect discrimination is not evident at the level of intention or wording of the measure but rather emerges through its practical effects.
Both European Union law and Romanian labor legislation define indirect discrimination in almost identical terms and allow the maintenance of such a measure only where it is justified by a legitimate aim and pursued through proportionate means, with the burden of proof resting upon the employer. This exception is interpreted strictly, so that employers must rigorously demonstrate that the differentiation is not arbitrary but responds to a genuine organisational need.
Beyond these abstract definitions, the issue becomes truly apparent when examining the concrete impact of human resources policies. In practice, indirect discrimination may arise in three essential areas of employees’ professional life: extra-salary benefits, promotion procedures, and bonus schemes. The analysis of recent cases decided by courts both in Romania and at European level, together with recent legislative developments, illustrates how apparently neutral rules may generate discriminatory consequences and what obligations companies bear to prevent such situations.
A first relevant example concerns the granting of extra-salary benefits. Whether referring to additional leave days, medical insurance, private pensions or other advantages, these are generally designed to reward and retain employees. However, when distributed selectively, they may raise equality concerns. A rule that appears neutral at first sight, such as granting a benefit only to those with a certain level of education or only to employees working full-time, may in reality lead to the systematic exclusion of a protected category, thereby amounting to indirect discrimination in legal terms.
An example from Romanian case law concerned the differentiated granting of meal vouchers or certain bonuses only to specific categories of staff, without any objective justification. Even though, at first glance, the chosen criterion (for instance, the type of position or the working time arrangement) may not appear to be linked to a protected attribute, in practice it may disproportionately disadvantage women, younger employees, or those with atypical contracts. At European level, the Court of Justice has likewise held that bonus or benefit schemes based strictly on continuous presence at work, without taking into account maternity leave or childcare leave, constitute indirect discrimination. Thus, the calculation of the annual bonus solely on the basis of days actually worked disadvantaged women, who make use of parental leave far more frequently. In such cases, courts have required employers to recalculate the benefits, including these periods of absence.
Furthermore, stratified benefit systems, where only certain hierarchical levels receive advantages such as company cars, premium insurance or loyalty allowances, may also raise concerns when access to these positions depends on biased criteria (such as availability for extended working hours or absolute continuity of service). Even if the employer’s intention is to stimulate performance or to reduce absenteeism, the practical effect may be the systematic exclusion of certain protected groups.
In order to avoid such situations, benefit policies must be designed in an equitable manner and assessed in terms of their actual impact. Distinctions based on factors such as seniority, role, or performance may be acceptable only where they serve a legitimate purpose (for example, rewarding experience or stimulating productivity) and do not overlap almost entirely with differences of gender, age, or other protected characteristics. In the absence of a well-founded justification, the company risks liability for discrimination, even where no unequal treatment was intentionally pursued.
Promotions may likewise become problematic when rules that appear to be general in nature disadvantage certain categories of employees. For instance, requiring constant availability for frequent travel may affect employees with family responsibilities, such as raising young children, caring for an elderly person, or supporting a family member with disabilities. In such cases, even if the rule applies to all employees, the practical effect is the limitation of access for a specific group, thereby raising the risk that the situation will be qualified as indirect discrimination.
Another type of situation concerns contractual status. Where promotions are reserved exclusively for full-time employees, those working part-time (a category that frequently includes women or individuals in special circumstances) end up being systematically excluded, even though they perform the same tasks and possess the same qualifications. Such practices demonstrate that promotion rules must be carefully designed in order to avoid the disproportionate exclusion of protected groups, and must be objectively justified by the nature of the position and the genuine needs of the organization.
Accordingly, preventing indirect discrimination in the field of benefits, promotions, or bonus schemes requires clear policies, applied consistently and periodically evaluated in light of their real impact on different categories of employees. Defining transparent performance criteria, coupled with monitoring pay gaps and the distribution of bonuses, enables the early identification of imbalances and their correction. At the same time, flexibility in work organization and the adaptation of benefits for employees with family responsibilities or special needs represent practical measures to ensure effective and equal access to professional opportunities.
These directions are reinforced by legislative developments at the European level. Directive (EU) 2023/970 on pay transparency requires companies to disclose salary levels already at the recruitment stage, to provide access to information on remuneration for comparable positions, and to report pay differences between men and women. Where unjustified disparities arise, employers will be obliged to adopt corrective measures, while employees will benefit from stronger procedural protection.
In conclusion, indirect discrimination is not merely a matter of legal theory, but a reality that can profoundly affect the professional trajectory of employees. Benefits, promotions, and bonus schemes, if not carefully designed and implemented, may transform seemingly neutral rules into barriers that are difficult to overcome for certain categories of individuals. From this perspective, the employer’s duty to objectively justify differential treatment and to continuously assess the impact of its policies is not a mere formality, but an essential condition for maintaining a fair working environment in which every employee has a genuine opportunity to advance and to be rewarded according to his or her merits.
The article was prepared for and first published by HR Manager magazine, part of the Revista Cariere platform, and is available in Romanian HERE.
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