Exceptions

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

65

4 EXCEPTIONS

According to Article 2 of the Law on Equal Treatment, the following are not consid ered

direct discrimination:

1) ‘restrictions on the grounds of age as established by law where it is justified by a

legitimate aim and the means of achieving that aim are appropriate and neces sary;

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

3) prohibition of participation in political activities in cases specified by law;

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

5) special measures in the field of h ealthcare, safety at w ork, employment and the

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

conditions and opportunities guaranteeing and promoting integration into the

working environment;

6) special temporary mea sures, established by law, which are ta ken to ensure equality

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

‘nationality’, citizenship, language, orig in, social status, belief, c onvictions or views,

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

7) where, by reason of the nature of the particular occupational act ivities concerned or

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

constitutes an essential [genuine – author] and determining occupational

requirement, provided that the aim is legitimate, and the requirement is

proportionate;

8) where the legal regulat ion of restrictions, sp ecial requirements or conditions with

regard to a person’s social status are justified by a legitimate aim and the mean s of

achieving that aim are appropriate a nd necessary;

[According to Article 2(8), ‘social status’ is defined as the status of a person based

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

dependence on social a ssistance schemes as well 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 de scribed in Section 4.2 below.

In most cases, the Law on Equal Trea tment requires that except ions regarding particular

grounds must be established by law and objectively justifi ed by a legitimate aim, and

that the means of achieving that aim must be appropriate and necess ary.

4.1 Genuine and determining occupational requirements (Article 4)

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

occupational requirements.

The provision on genuine and determining occupational requiremen ts is contained in the

Law on Equal Treatmen t in the form of a list of exceptions to direct anti-discrimination

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

does not elaborate on i t.

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

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

measures.

66

The Equal Opportunities Ombudsperson has summarised complaints received in 2018 in

which applicants complained about language requirement s (knowledge of foreign

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

administrator with a requirement to know English and Russian. The Ombudsperson

concluded that knowledge of foreign languages could be held as a genuine and

determining occupational requirement, and that the aim (of providing services) w ould be

reached through appropriate and proportionat e measures – including a requirement t o

know English and Russian, being the most common foreign languages among clients in

Vilnius. Therefore, no violation of equal treatment was rec ognised.193

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

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

Municipality to set a special requirement for the director of the Verkiai and Pavilniai Park

Directorate to ride a bike constituted a violation of equal opportun ities. In a previous

decision, in 2017, the Equal Opportunities Omb udsperson had recognised th is as indirect

discrimination on the ground of disability and had recommended that the municipality

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

Ombudsperson reasonably stated in their decision that the req uirement established in the

Job Description for the Director of th e Directorate to be able to ride a bicycle cannot be

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

to the nature of their disability, are not able to rid e a bicycle, the Job De scription

establishes a de facto restricti on on the exercise of their rights equally in comparison

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

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

2000/78)

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

religion or belief.

According to Article 3 of the Law on Equal Treatment, the law would not apply to

teachers, employees or members of religi ous communities, associations or centres, nor

would it apply to associations or leg al persons (whose ethos was based on a religion or

belief and that had been established to serve its purposes) established by these religious

communities or their membe rs where, by reason of the nature of the activities of these

entities, or of the context in which they are carried out, a person’s religi on or belief

constitutes a genuine, legitimate and justified occupational requirement with regard to

the organisation’s ethos. 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 of the L abour Code.195

The first version of the Law on Equal Treatment did not contain such an exception, and

there is no case law or in terpretation on the matter. There is also no information

available about whether such practices existed before the country adopted the directive,

and in which organisations and to what extent they we re used, since none of this was

discussed in Parliament when the amendments were p assed.

193 Lithuanian Equal Opportunities Ombudsperson (2019), Annual Report for 2018, available in Lithuanian at:

https://lygybe.lt/data/public/uploads/201 9/04/lgk-2018-m.-veiklos-ataskaita-.pdf.

194 Vilnius Regional Administrative Court (Vilniaus apygardos administracinis teismas), Office of the Equal

Opportunities Ombudsperson v. Vilnius City Municipality, administrative case No. I-45 23-789/2019, decision

of 3 October 2019.

195 Labour 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/f6d686707e7011e 6b969d7ae07280e89.