Exceptions

AuthorKostic-Mandic, Maja
Pages53-62
53
4 EXCEPTIONS
4.1 Genuine and determining occupational requirements (Artic le 4)
In Montenegro, national legislation provides a n exception for genuine and determining
occupational requiremen ts. Although inappropriately titled (‘positive di scrimination’),
Article 9 of the Labour Law pr ovides an exception for genuine and determining
occupational requirements. Namely, pursuant to its paragraph 1, differ ence, exclusion or
giving priority with regard to a specific job is not considered discrimination where, by
reason of the nature of the particular occupational activities concerned or of the context
in which they are carried out, characteristics related to grounds such as sex, birth,
language, race, religion, skin colour, age, pregnancy, health state, that is, disability,
national origin, marital status, family duties, sexual orientation, political or other
affiliation, social background, material status and membership of political and trade union
organisations constitute a genuin e and determining occupational requirement, provided
that the purpose to be achieved is justified.
Although the legislation does not use wording provided that the objective is legitimate,
and the requirement is proportionate it may be construed that the legislator had in mind
the proportionality principle. Therefore, the pr ovision of Article 9 of the Labour Law is
drawn up in line with Article 4 of Directive 2000/43/EC and Article 4(1) of Directive
In addition to the general prohibition of discrimi nation in the field of labour, the Law on
the Prohibition of the Discrimination in Article 16 paragraph 2 contains an excepti on for
genuine and determining occupational requirements by prescribing that it is not
considered as di scrimination to differentiate, exclude or give priority due to the
characteristics of a particular job in which an individual’s personal characteristics
represent a real and decisive condition for performin g a job.
4.2 Employers with an ethos based on religion or belief ( Article 4(2) Directive
In Montenegro, national law provides for an excepti on for employers with an ethos based
on religion or belief. Th e Law on the Prohibiti on of Discriminati on in Article 2a paragraph
1 point 2 provides that it is not considered as discrimination to differentiate when
performing professional activities, i.e. empl oyment, membership of relig ious communities
and other organisations or activities of persons who are in accordance with religious
education, rituals and activities of the religious community, as well as other publi c or
private organisations whose valu e system is based on religious learning or belief, and
which act in accordance with the Constitution and the law, i f so required by religious
learning or belief, and due to the nature of those activities or the circumstances i n which
they are performed, religious learning or beli ef is a true, lawful and justifiable condition
for the conduct of a job . This exception could be covered by A rticle 9 of the Labour Law
which provides an exception for genuine and determining occupational requirements , as
described above under Section 4.1.
Conflicts between rights of organisations with an ethos based on religion or belief
and other rights to non-discrimination
As previously stated, exceptions for employers with an ethos based on religion or belief
are not considered as discrimination if religious learning or belief is a true, lawful and
justifiable condition for the conduct of a job. In practice, there are no known cases of
discrimination based on religion or belief in employment and occupation, or
discriminatory employment conditions based on religion or belief.

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