Exceptions

• Author: Romanita Iordache
• Pages: 54-64

54

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Romania, national legislation provides for an exception for genuine and det ermining

occupational requirements. The 2013 amendments to the Anti-discrimination Law

introduced a new Article 41, which states:

‘The difference in treatment based on a characteristic which is linked to the criteria

provided for in Art. 2(1) does not amount to discrimination when, based on the nature

of the occupational activities or of the context in which they take place, such a

characteristic amounts to a genuine and determining occupational requirement,

under the condition that the objective is legitimate and the requirement is

proportionate.’

As the grounds covered by the Romanian Anti-discrimination Law are broader than the

protected grounds of the two directives, the differences of treatment in cases of

determining occupational requirements apply not only for the five grounds mentioned in

the directives, but for all protected grounds.

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

2000/78)

In Romania, the national Anti-discrimination Law does not provide for an exception for

employers with an ethos based on religion or belief. Lacking relevant jurisprudence

developed either by the courts or by the NCCD in the application of g enuine occupational

requirements as exceptions for ethos- or religion-based associations, it is still too early to

assess the tests used in analysing the conditions under which these exceptions will be

accepted.

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

other rights to non-discrimination

Law 489/2006 on religious freedom and the general status of religious denominations

includes provisions on employment relations within state-recognised religious

denominations (culte).149 Law 489/2006 established a three-tier system with traditional

religious denominations being granted the status of state-recognised religious

denominations (culte) under very strict requirements, religious associations (asociaii

religioase)150 and religious groups (grupuri religioase), which do not meet the strict criteria

established by the law or choose not to register as legal persons.151 According to Articles

23-26 of Law 489/2006, state-recognised religious denominations have the right to select,

appoint, employ and discipline their own employees, a practice already in force in 2000

when the Anti-discrimination Law was adopted. Also, Article 32 of Law 489/2006 provides

for the right of state-recognised religiou s denominations (culte) to app rove an d dismi ss

teachers who teach religion classes in public schools. Issues of internal discipline are

resolved in accordance with bylaws an d internal provisions by the religious courts of each

denomination. Theoretically, the legal regime established in this chapter in relation only to

religious personnel of recognis ed denominations could be extended to religious personnel

of other entities the ethos of which is based on religion or belief (such as registered

religious associations), in accordance with the legal principle that where the reason behind

149 The 2006 Law on religious freedom and the general status of religious denominations recognises the same

18 religions that were recognised prior to its adoption.

150 Law 489/2006 on religious freedom and the general status of religious denominations (Legea nr. 489/2006

privind libertatea religioasa si regimul general al cultelor), 28 December 2007. Art. 40 of Law 489/2006

provides that entities seeking registration as religious associations have to reach a higher threshold than

other types of association (at least 300 members who are Romanian citizens or residents in Romania while

secular not-for-profit associations need at least three members).

151 Law 489/2006 on religious freedom and the general status of religious denominations, 28 December 2007.