Exceptions

• Author: Kamenska, Anhelita
• Pages: 46-54

46

4 EXCEPTIONS

4.1 Genuine and determi ning occupational req uirements (Article 4)

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

occupational requirement s.

The only statute that refers to occupa tional requirements is the Labour La w. Article 29(2)

provides that ‘differentia l treatment based on t he gender of employees is permitt ed only

in cases where a particular gender i s an objective and substantia ted precondition for

performance of the relevant work or for t he relevant employment’. Article 29(9) applies

this also to differential treatment based on a person’s race, colour, age, disability,

religious, political or other opinions, national or social origin, property or family status,

sexual orientation and other circumstances. There is no further explanation of such

preconditions. In the only case – the case of Kozlovska v. SIA Palso157 – where the court

does refer to an ‘objective precondition ’, there is no real discussion of it, sin ce the

employer claimed that he had indicated that the p erson’s ‘accent’ determined the refusa l

to employ at the request of the claimant, and that the real reasons behind this had been

a lack of required secondary education an d an appearance that was unsui table for the

available position. Thus, the employer did not actually argue that the absence of a

certain accent was an objective and substantiated precondition. The court concluded that

there was no dispute as to the claimant’s knowledge of the Latvian language – which

would have been an objec tive precondition – and that the respondent had not shown that

the absence of an accent was such a precondition .

The current solution, permitting individual tailoring depending on the tasks of the

particular position, is preferable. However, the way in wh ich the courts will in terpret

‘objective and substantiated requirements’ in cases of dispute is critical.

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

2000/78)

In Latvia, national legislation provides for an exception for employers with an ethos

based on religion or belief.

The Labour Law includes a provision stating that ‘in a religious organisation differential

treatment based on a person ’s religious belief is admissib le where, taking into a ccount

the ethos of the organisation , a particular religious belief is an objective and

substantiated precondition for the work or activity in question’ (Article 29(10)). According

to the wording of the law, this only applies to a religious organisation, thus excluding

other beliefs, and the measu res seem to create a broader exception than the one

provided for in Article 4(2) of Directive 2000/78, yet it remains to be seen how this will

be interpreted by the court s. This provision is a count erpart of Article 14(1) of the Law on

Religious Organisations, which provides that religious organisations elect or appoint their

religious personnel in accorda nce with their regulation s,158 while other empl oyees are

employed and dismissed in accordance with the law regulating employment. In other

aspects of employment, the Labour Law applies.

4.3 Armed forces and other specif ic occupations (Article 3(4) and Recital 18

Directive 2000/78)

In Latvia, national legislation does not explicitly provide for an exception for the armed

forces in relation to age or disability discrimination (Article 3(4), Directive 2000/78).

157 Jelgava Court, Case No. 15066406, 25.05.2006.

158 The Law on Religious Organisations does not contain any other provision whereby this exception c annot lead

to discrimination on a ground other than religion/belief.