Personal and material scope

AuthorSabatauskait?, Birut?
3.1 Personal scope
3.1.1 EU and non-EU nationals (Recital 13 a nd Article 3(2), Directive 2000/43
and Recital 12 and Article 3(2), Directi ve 2000/78)
In Lithuania, there are no residency or citizenship/nationality requirements for prot ection
under the relevant national laws transposin g the directives.
The protection from discrimination should be valid for irregular or undocumented
migrants and for pers ons under 18 years old in all sph eres. The protection fr om
discrimination in employment or social benefits, however, might not be covered for adult
irregular migrants, even if they are asylum seekers, because they do not have a right to
work in Lithuania. There has been no case law to provide a more thorough interpretation.
The protection from discrimination on the ground of citizenship applies to EU and EEA
citizens and their family members.
3.1.2 Natural and legal per sons (Recital 16, Directive 2000/43)
a) Protection against discrimination
In Lithuania, the personal scope of anti-discrimination law covers natural and legal
persons for the purpos e of protection against discrimin ation.
The Law on Equal Treatmen t, in Article 12(24), does not explicitly distinguish between
natural and legal persons, and the word ‘persons’ should be interpreted to encompass
both legal and natural pers ons. This is supported by the findings of the Equal
Opportunities Ombudsperson as well as by other provisions under the LET and by case
law. For instance, on the provision on the shift of the burden of proof, Article 4 of the
Law on Equal Treatment states that it should be applied while investigating complaints of
discrimination submitted by natural and legal persons.
b) Liability for discrimination
In Lithuania, the personal scope of anti-discrimination law covers natural and legal
persons for the purpose of liability for discrimination. Both natural and legal persons are
liable for discriminatory acts according to the law. Natural persons can have
administrative and criminal responsibility. Legal persons bear administrative liability (the
obligation to pay a fine in the case of a violation of the La w on Equal Treatment), and
criminal liability based on Article 170 of the Criminal Code (incitement of hatred or
hatred). Criminal liability for natural persons is covered in Article 169 of the Criminal
Code (in the article on Discrimination on Gr ounds of Nationality”, Race, Sex, Descent,
Religion or Belonging to Other Groups, where other grounds are also included).100
When it comes to the scope of liability, there is a lack of clarity. The Law on Equal
Treatment, in Articles 29 and 30, mentions persons but does not specify whether they
are legal or natural persons to whom the Equal Opportunities Ombudsperson can a ddress
a decision after analysing the complaint, although the law does mention that both natural
and legal persons are obliged to submit the requested information, documents, etc.
However, since natural persons can also be employers and providers of goods and
services, the liability should also apply to them.
100 The grounds mentioned in Article 169 of the Criminal Code are: age, sex, sexual orientation, disability, race,
nationality, language, descent, social status, religio n, and convictions or views.
It is not very clear whether, in cases of discrimination in the occupational sphere, both
the employer and the employee ca n be held liable for discrimination. The only available
case law on the matt er concerns the scope of liability for sex discrimination in
employment relations and the decisions of the Equal Opportunities Ombudsperson
(although the outcomes may also be applied to other grounds of discrimination). Two
previous decisions cont radicted each other: in one case, Vilnius Regio nal Administrative
Court stated that only employers, not their representatives, could be held liable;101 a
month later, the Supreme Administrativ e Court of Lithuania ruled that, although the Law
on Equal Opportunities did not expressis verbis provide a list of subjects who could be
admonished, a systematic analysis of the Law on Equal Opportunities for Women and
Men and of the jurisprudence of the Supreme Court led the court to believe that not on ly
employers but also th eir representatives could be held ac countable for discrimination and
could be admonished by the Equal Opportunities Ombudsperson.102 This means that
managers or heads of administration and other personnel with the legal capacity to
represent the employ er can be held accou ntable according to the Law on Equal
Opportunities. The decision of the Supreme Administrative Court is definitely of greater
importance, but this example demonstrates that the lack of clarity in national legislation
might lead to inconsistencies in almost identical situations.
Another case was considered by the Court in 2019, concerning a failure to meet the
requirements of reasonable accommodation. Th e issue of liability was addressed in the
decision of the Court, which recognised the applicant’s requ est in her complaint for a
warning to be issu ed to a shop manager who made a decision regarding the applicant’s
employment. The Court referred to the official registry, according to which the chief
executive officer was acting in the name of UAB Palink:
‘the Manager of the shop is n ot a representative of the legal entity, therefore the
Equal Opportunities Ombudsperson reasonably issued a warn ing to the company’s
3.1.3 Private and public sector includ ing public bodies (Article 3(1))
a) Protection against discrimination
In Lithuania, national law covers the private and public sectors, including public bodies,
for the purpose of pr otection against discrimination, as regulated by Articles 5 to 9 of the
Law on Equal Treatment.
b) Liability for discrimination
In Lithuania, the persona l scope of anti-discrimination law covers the privat e and public
sectors, including public bodies, for the purpose of liability for discrimination.
The Law on Equal Treatment was designed with the particular purpose of t ransposing the
requirements of the EU anti-discrimination directives into national legislation. The law
does not make a distinction between the public and private sectors in the fields of
employment, education and the provision of goods and services (Articles 6-9). In
addition, it has a separate provision on public entities, Article 5, which states that:
‘state and local government institutions and ag encies must within the scope of their
competence ensure that in all the legal acts drafted and passed by them, equal
rights and treatment are laid down without regard to gender, rac e, “nationality,
101 Vilnius Regional Administrative Court, Case No. I-1278-624/2012, decision of 1 March 2012.
102 Supreme Administrative Court of Lithuania, administrative case No. A858-403/2012, decision of 2 April 2012.
103 Vilnius Regional Administrative Court decision, Case No. eI-2472-244/2019, 3 July 2019, ( Vilniaus
apygardos administracinio teismo 2019 m. liepos 3 d. sprendimas administracinje byloje).

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