Exceptions

• Author: Maja Kostić-Mandić
• Pages: 55-64

55

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements ( Article 4)

In Montenegro, national legislation provides a n exception for genuine an d determining

occupational requirements. Under the title ‘Special measures’, Article 15 of the Labour Law

provides an e xception for genuine and determining occupational requirements. Namely,

pursuant to Article 15(1) of the LL, difference, exclusion or giving priority with regard to a

specific job is not considered discrimination where, by reason of the nature of the particular

occupational activities concerned or of the context in which they are carried out,

characteristics related to grounds such as sex, birth, language, race, religion, skin colou r,

age, pregnancy, health status, disability, national origin, marital status, family duties,

sexual orientation, political or other affiliation, social background, material status and

membership of p olitical and t rade union organisation s constitute a genuine and

determining occupational requirement, provided that ‘the purpose to be achieved is

justified’.

Although the legislation does not use wording ‘provided that the objective is legitimate,

and the requirement is proportionate’, it may be construed that the legislator had in mind

the proportionality principle. Th erefore, the provisions in Article 15 of the Labour Law are

drawn up in line with Article 4 of Directive 2000/43/EC and Article 4(1) of Directive

2000/78/EC.

In addition to the general prohibition of discrimination in the field of labour, the Law on the

Prohibition of the Discrimination in Article 16(2) contains an exception for genuine and

determining occupational requirements by prescribing that it is not considered to be

discrimination to differentiate, exclude or give priority due to the characteristics of a

particular job in which an individual’s personal characteristics represent a real and decisive

condition for performing a job.

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

2000/78)

In Montenegro, national law provides for an exc eption for employers with an ethos based

on religion or belief. The Law on the Prohibition of Discrimination in Article 2a(1)(2)

provides that it is not considered as discrimination to differentiate when performing

professional activities, i.e. employment, membership of religiou s communities and other

organisations or activities of persons who are in accordance with religious education, rituals

and activities of the religious community, as well as other public or private organisations

whose value s ystem is ba sed on religious learning or belief, and which act in accor dance

with the Constitution and the law, if so required by religious learning or belief, and due to

the nature of t hose activities or the circumstances in which they are performed, religious

learning or belief is a true, lawful and justifiable condition for the conduct of a job. This

exception could be covered by Article 15 of the Labour Law which provid es an e xception

for genuine and determining occupational requirements, as described above under Section

4.1.

− Conflicts between rights of organisations with an ethos based on religion or belief and

other rights to non-discrimination

In Montenegro, there are no specific provisions and/or case law relating to conflicts

between t he rights of organisations with an ethos based on religion or belief and other

rights to n on-discrimination in the context of employment. The 20 19 Law on Freedom of

Religion o r B elief and the Legal Status of Religious Communities103 (LRRC) stipulates in

103 Law on Freedom of Religion or Belief and the Legal Status of Religious Communities (Zakon o slobodi

vjeroispovijesti ili uvjerenja i pravnom položaju vjerskih zajednica), Official Gazette of Montenegro,

No. 74/19.