Exceptions

• Author: Jakub Tomsej
• Pages: 49-58

49

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Czechia, national legislation provides for an exception for genuine and determining

occupational requirements.

Genuine and determining occupational requirements are defined in Section 6(3) of the

Anti-Discrimination Act, as well as in Section 16(3) of the Labour Code. The Anti-

Discrimination Act prescribes that differential treatment can be justified if there is a factual

reason based on the nature of the work or activity.

According to the Anti-Discrimination Act an exception is possible if it is based on

‘substantive grounds consisting in t he nature of the performed work or activities and the

requirements made are appropriate to that nature’. Differential treatment does not

constitute discrimination where, by reason of the nature of the labour activities or context

in which they are to be carried out, it follows that such a ground constitutes a genuine and

determining occupational requirement, provided that the objective for such exception is

legitimate and the requirement is proportionate. No case law is available in this regard.

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

2000/78)

In Czechia, national law provides for an exception for employers with an ethos based on

religion or belief.

Section 6(4) of the Anti-Discrimination Act contains an exception applicable to ‘dependent

work in churches or religious organisations, where from the character of such work or the

circumstances in which it is carried out, it follows that a person’s religion, belief or opinions

constitutes a genuine and determining, justified and legitimate occupational requirement

with respect to the ethos of the church or religious organisation’. Judicial clarification is

needed as to whether this exception could also cover other grounds (e.g. sexual

orientation); the likelihood that a court would confirm any unequal treatment not based on

religion, belief or opinions as not discriminatory seems low.

4.3 Armed forces and other specific occupations ( Article 3(4) and Re cital 18

Directive 2000/78)

In Czechia, national legislation provides for an exception for the armed forces in relation

to age and disability discrimination (Article 3(4), Directive 2000/78/EC).

Section 77(2) of Act No. 361/2003 on se rvice by members of the security forces does not

provide for disability as a protected ground.153 Age is provided as a ground for

discrimination in this legislation. Section 2(3) of Act No. 221/1999 on service by members

of the armed forces, governing service by members of the armed forces and security forces

(fire fighters, customs officers, prison officers, the Security Information Service, officials

of the Office for International Contacts and Information, police officers and soldiers) does

not provide for age and disability as protected grounds.154

153 Protected grounds are sexual orientation, gender, language, belief or religion, political or other opinions,

membership in trade unions and other associations, property, origin, race, skin colour, nationality, ethnic or

social origin, age, pregnancy and maternity, marital and family status, obligations towards the family.

154 Protected grounds are race, skin colour, gender, sexual orientation, belief and religion, nationality, ethnic or

social origin, property, origin, marital and family status, obligations towards family, maternity, pregnancy or

breastfeeding.