Exceptions

• Author: Sabatauskait?, Birut?
• Pages: 65-80

65

4EXCEPTIONS

According toArticle 2 of the Lawon Equal Treatment, the following are not considered

direct discrimination:

1)‘restrictions on the grounds ofage as establishedby law whereit is justifiedby a

legitimate aim and the means of achieving that aim are appropriate and necessary;

2)requirementto know the state language,as established by law;

3)prohibition of participation in political activities in cases specifiedby law;

4)different rights applied on the basis ofcitizenship, as established by law;

5)special measures in the fieldof healthcare, safety at work, employmentand the

labour market as established by law with the view of creating and applying

conditions andopportunities guaranteeing and promoting integrationinto the

working environment;

6)special temporary measures, established by law, which are taken to ensure equality

and prevent violationof equal treatment on the grounds of gender, race,

‘nationality’, citizenship, language, origin, social status, belief,convictions or views,

age, sexual orientation,disability,ethnic origin or religion;192

7)where, byreason of the nature of the particularoccupational activities concerned or

of the context in which they are carried out, a particular humancharacteristic

constitutes an essential [genuine– author]and determining occupational

requirement, provided that the aimislegitimate, and the requirement is

proportionate;

8)where the legal regulation of restrictions, special requirements or conditions with

regardto a person’s social status are justified bya legitimate aim andthemeans of

achieving that aimare appropriate and necessary;

[According toArticle 2(8), ‘social status’ is defined as the status of a personbased

on his/her past or present education, qualifications, income or property ownership,

dependence on social assistance schemes aswell as any other characteristics

related to the financial situation of a person.]

9)organisation of special sports competitions for people with disabilities.’

In addition to this list, Article 3 of the Law on Equal Treatment states that the Law does

not apply to a wide range of activities in relation to ethos-based organisations

(membership, employment, educational activities) and/or education materials providing

traditional religious teaching, and that it also does not apply in the spheres of family and

private life.These provisions are described in Section 4.2below.

Inmost cases, the Law on Equal Treatment requires thatexceptions regarding particular

grounds must be establishedby lawandobjectively justified by a legitimate aim, and

that the meansof achieving that aim must be appropriate and necessary.

4.1Genuine anddetermining occupational requirements (Article 4)

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

occupational requirements.

The provision ongenuine and determining occupational requirements is containedin the

Law on Equal Treatment inthe form ofa list of exceptions to direct anti-discrimination

provisions (Article 2(9)). The national provision repeats the wording of the directive and

does not elaborate on it.

192However, special temporary measures are not defined in any other laws, except for those identified in

relationto a person’s disability. It is also unclear whether all of them could be identified as temporary

measures.

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The Equal Opportunities Ombudsperson has summarisedcomplaints received in 2018 in

whichapplicants complainedabout language requirements (knowledge of foreign

languages) for a specific job.One of the examples concerneda job vacancy as an

administratorwith a requirement to knowEnglish and Russian.The Ombudsperson

concluded that knowledge of foreignlanguagescouldbe held as a genuine and

determiningoccupational requirement, andthatthe aim (ofproviding services) would be

reached through appropriate andproportionate measures – including arequirement to

know English and Russian,being themost common foreign languages amongclients in

Vilnius. Therefore, no violation of equal treatment was recognised.193

An importantdecision was made in 2019, in which the Court recognised, as per the

request of the Equal Opportunities Ombudsperson, that the decision ofVilnius City

Municipality to set a specialrequirement for thedirectorof the Verkiai and Pavilniai Park

Directorateto ride abikeconstituted a violation of equal opportunities. In a previous

decision, in 2017, the Equal OpportunitiesOmbudsperson hadrecognised this asindirect

discriminationon the ground of disabilityandhadrecommended that the municipality

amend the requirements. The Vilnius Regional Administrative Court concluded ‘that the

Ombudsperson reasonably stated in their decisionthat the requirement established in the

Job Description for the Director of the Directorate to beableto ride a bicycle cannot be

related to the performance of functions. The Court concludes that, for persons who, due

to the nature of their disability, are not able toride a bicycle, the Job Description

establishes a de factorestrictionon the exercise of their rights equally in comparison

with other persons to apply forthe position offered in the announcement.’194

4.2Employers with an ethos based onreligion or belief (Article4(2) Directive

2000/78)

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

religion or belief.

According to Article3 of the Law on EqualTreatment, the law would not apply to

teachers, employees or members of religious communities, associations orcentres, nor

wouldit apply toassociations or legal persons (whoseethoswas based on a religionor

belief and that had beenestablishedto serve its purposes) establishedby these religious

communities or their members where, by reason of the natureof the activities of these

entities, or of the context in which they are carriedout, a person’sreligion or belief

constitutes agenuine,legitimate and justified occupational requirementwithregard to

the organisation’sethos. Additionally, the LET provides these organisations and

institutions with the right to require individuals working for them to act in good faith and

with loyalty to the organisation’s ethos, as allowed by the directive.

Similar wording is repeated in Article 26 ofthe Labour Code.195

The first versionof theLaw on Equal Treatment did not contain such an exception, and

there is no case law or interpretation on the matter. There isalsonoinformation

availableabout whether suchpractices existed before the countryadopted the directive,

and in whichorganisations and to what extent theywereused, since none of this was

discussed in Parliament when the amendments were passed.

193Lithuanian Equal Opportunities Ombudsperson (2019), Annual Reportfor 2018, available in Lithuanianat:

https://lygybe.lt/data/public/uploads/2019/04/lgk-2018-m.-veiklos-ataskaita-.pdf.

194Vilnius Regional Administrative Court (Vilniaus apygardos administracinis teismas), Office oftheEqual

Opportunities Ombudspersonv. Vilnius City Municipality, administrative case No. I-4523-789/2019, decision

of 3 October 2019.

195Labour Code (Darbo kodekso patvirtinimo, sigaliojimo ir gyvendinimo statymas.Darbo Kodeksas), 2016,

No. XII-2603, available in Lithuanian at: https://www.e-

tar.lt/portal/lt/legalAct/f6d686707e7011e6b969d7ae07280e89.