Exceptions

• Author: Poleshchuk, Vadim
• Pages: 26-34

26

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

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

occupational requirements.

The Equal Treatment Act stipulates a provision regarding genuine and determining

occupational requirements (Article 10(1)), which is worded almost identically to that in the

directives: a difference of treatment which is based on an attribute related to ethnic origin,

race, colour, religion or other beliefs, age, disability or sexual orientation will not constitute

discrimination where, by reason of the nature of the particular occupational activities

concerned or of the context in which they are carried out, such an attribute constitutes a

genuine and determining occupational requirement, provided that the objective is

legitimate and the requirement is proportionate.

In Estonia, there is no case law to clarify this legal concept so far.

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

2000/78)

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

religion or belief.

The Equal Treatment Act stipulates in Articles 10(2) and 10(3) the relevant provisions

regarding employers with an ethos based on religion or belief, which are worded almost

identically to that in the directives:

‘(2) In the case of occupational activities within religious associations50 and other

public or private organisations the ethos of which is based on religion or belief, a

difference of treatment based on a person's religion or belief shall not constitute

discrimination where, by reason of the nature of these activities or of the context in

which they are carried out, a person's religion or belief constitute a genuine,

legitimate and justified occupational requirement, having regard to the organisation's

ethos.

(3) This Act shall thus not prejudice the right of religious associations and other public

or private organisations, the ethos of which is based on religion or belief, to require

individuals working for them to act in good faith and with loyalty to the organisation's

ethos.’

There are no other provisions in Estonian law that ban or permit discrimination/unequal

treatment by organisations, the ethos of which is based on religion or belief. By default,

Articles 10(2) and 10(3) of the Equal Treatment Act provide the only exception to the

general ban on discrimination by such organisations. The act makes it clear that only a

difference of treatment based on a person's religion or belief will not constitute

discrimination and that other grounds of discrimination are not exempted.

In practice in the Estonian context, the requirement ‘to act in good faith and with loyalty

to the organisation's ethos’ would mean that access to some key positions (especially

clergy) might be limited by internal rules or traditions of a church, but that would not apply

to all positions or jobs. There is no case law to clarify this issue. However, the Constitutional

50 According to Article 2(1) of the Churches and Congregations Act, ‘religious associations’ are churches,

congregations, associations of congregations and monasteries as well as institutions of a church operating

on the basis of an international agreement. Estonia, Churches and Congregations Act (Kirikute ja koguduste

seadus), 12 February 2002, RT I 2002, 24, 135; available at:

https://www.riigiteataja.ee/akt/121062014030?leiaKehtiv (Estonian);

https://www.riigiteataja.ee/en/eli/523012015005/consolide (English). In other words, the term ‘a religious

association’ in Estonian law is essentially equivalent to the term ‘a church’ in Directive 2000/78.