Exceptions

• Author: Irma Baraku
• Pages: 48-54

48

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Albania, national legislation provides for an ex ception for genuine and determining

occupational requirements.

Article 6(2) of the LPD on ‘Justified different treatment’ establishes th at:

‘Different treatment that is based on a characteristic related to the causes

mentioned in article 1 of this law does not constitute discrimination when because

of the natu re of the professional acti vities or th e conditions in which the profession

or activity is conducted, those characteristics constitute an essential real and

professional requirement, provided that the purpose of th e different treatment shall

be justified and the requirement shall not exceed that which is essential to realise

it.’

The Labour Code, under Article 9(4) provides that:

‘Differences, restrictions, exclusions or preferences based on a characteristic related

to the grounds referred to in paragraph 2 of this Article do not constitute

discrimination when, because of the nature of the professional activities or the

conditions in which the profession or activity is exercised, these characteristics

constitute an indispensable, genuine and professional requirement, provided that

the purpose of t he different treatment is justified and the requireme nt does not

overcome what is necessary for its realisation.’

The exception for genuin e and determining occup ational requirements is related to all

grounds p rotected by the LPD and the Labour Code, including the grounds provided by

the directives.

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In Al bania, national law does not provide for an exception for employers with an ethos

based on religion or beli ef. According to Article 10(2) of the LPD, an exception regarding

conscience and religion may be permitted only if a reasonable and objective justification

exists. In this case the exception should be proportionate to the situation that has

dictated the need for discrimination and may be imposed only by law, for a public

interest or for the protection o f the rights of others. It cannot vi olate the core of the

rights and freedoms and in no case may it exceed the restrictions provided in the

European Convention for Human Rights.

A study on the legislative framework on anti-discrimination in Albania, conducted in

2016, found that there was no possibility for organisations with an ethos based on

religion or belief, ‘to establish specific requirements in line with their ethos for their

employees’.119

In Albania, there is no specific case law relating to conflicts between the rights of

organisations with an ethos based on religion or belief an d other rights to non -

discrimination in the context of employment.

119 Vorpsi, A. and Wladasch, K., (2016) ‘The legislative framework on anti-discrimination in Albania’, December

2016, part of the joint EU/CoE Project entitled ‘Enhancing the effectiveness of the Albanian system of

human rights protection and anti-discrimination’.