Personal and material scope

• Author: Sabatauskait?, Birut?
• Pages: 41-64

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3PERSONAL AND MATERIAL SCOPE

3.1Personal scope

3.1.1EU and non-EU nationals (Recital 13andArticle 3(2), Directive 2000/43

and Recital12 and Article 3(2), Directive 2000/78)

In Lithuania, there are no residency or citizenship/nationality requirements for protection

under the relevantnational laws transposing the directives.

The protection fromdiscrimination shouldbe valid for irregular orundocumented

migrantsand for persons under 18 years oldin all spheres. The protection from

discrimination in employment or social benefits, however, might not be coveredfor adult

irregular migrants, even ifthey are asylumseekers, because theydo not havea right to

work in Lithuania. There has been nocase law to provide a more thorough interpretation.

The protectionfromdiscrimination on the ground of citizenship appliesto EU and EEA

citizens and theirfamily members.

3.1.2Natural and legal persons(Recital 16, Directive 2000/43)

a)Protection against discrimination

In Lithuania, the personal scope ofanti-discrimination law covers natural and legal

persons for the purpose of protection against discrimination.

TheLaw on Equal Treatment, in Article 12(24),does not explicitly distinguish between

natural and legal persons, andthe word‘persons’ shouldbe interpreted to encompass

both legal and natural persons. This is supported by the findings of the Equal

OpportunitiesOmbudsperson as well as by other provisions under the LETand bycase

law. For instance, on the provision on the shift of the burden of proof, Article 4 of the

Law onEqual Treatmentstates that it should be applied while investigating complaintsof

discrimination submittedbynaturaland legal persons.

b)Liability for discrimination

In Lithuania, thepersonal scope of anti-discrimination law covers natural and legal

personsfor the purpose of liability for discrimination.Both natural and legal persons are

liablefor discriminatory actsaccording to the law. Natural persons can have

administrative andcriminal responsibility. Legal persons bear administrative liability (the

obligation to paya fine in the case of a violation of the Law on Equal Treatment), and

criminal liability basedonArticle 170of theCriminal Code(incitement of hatred or

hatred). Criminal liability for natural persons is coveredinArticle 169 of the Criminal

Code (in the article on ‘Discrimination on Grounds of“Nationality”, Race, Sex, Descent,

Religion orBelonging to Other Groups’, whereother grounds are also included).100

When it comes to the scope of liability, there isa lack of clarity. The Law on Equal

Treatment, inArticles 29 and 30, mentionspersonsbutdoes notspecify whether they

are legal or naturalpersons to whomthe Equal Opportunities Ombudsperson can address

a decisionafter analysing the complaint, althoughthe lawdoes mention that both natural

and legal persons are obliged to submit therequestedinformation, documents, etc.

However, since natural personscan also be employersand providers ofgoods and

services, the liability should also apply to them.

100The grounds mentioned in Article169 of the Criminal Code are: age, sex, sexual orientation, disability, race,

nationality, language, descent, social status, religion, and convictions orviews.

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Itisnot very clear whether, in cases of discrimination in the occupational sphere, both

theemployer and the employee can be held liable for discrimination. The only available

case law on the matter concerns the scope ofliability for sex discriminationin

employmentrelations and the decisions ofthe EqualOpportunities Ombudsperson

(although the outcomes may also be applied to other grounds of discrimination).Two

previous decisions contradicted each other: in one case, Vilnius RegionalAdministrative

Court stated that only employers, not their representatives, couldbe heldliable;101a

month later,the Supreme Administrative Court of Lithuania ruled that, although the Law

on Equal Opportunities didnot expressis verbisprovide a list of subjects who couldbe

admonished, a systematic analysis of the Law on Equal Opportunities for Women and

Men and ofthe jurisprudence of the Supreme Court led the court to believethat not only

employers but also their representatives couldbe held accountable for discrimination and

couldbe admonished by the Equal Opportunities Ombudsperson.102 This means that

managers or headsof administration and other personnel with the legal capacity to

represent the employer can be held accountable 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 clarityin national legislation

might lead to inconsistencies in almost identical situations.

Another case was considered by theCourt in 2019, concerning afailureto meet the

requirements of reasonable accommodation. The issue of liability was addressedin the

decision of the Court, which recognised the applicant’s request in her complaint fora

warning to be issuedto a shop manager who made a decision regarding the applicant’s

employment. The Court referredtothe official registry, according to which the chief

executive officerwas actingin the name of UAB Palink:

‘the Manager of the shop is not a representativeof the legal entity, therefore the

Equal Opportunities Ombudsperson reasonably issued awarning to the company’s

CEO.’103

3.1.3Private and public sector including public bodies(Article 3(1))

a)Protection against discrimination

In Lithuania, national law coversthe private and publicsectors,including public bodies,

for the purpose of protection against discrimination, as regulated by Articles 5 to 9 of the

Law on Equal Treatment.

b)Liability for discrimination

In Lithuania,the personal scope of anti-discrimination law covers theprivate and public

sectors, includingpublic bodies, for the purpose of liability for discrimination.

The Lawon Equal Treatment was designed with the particular purpose oftransposingthe

requirements of the EU anti-discrimination directives into national legislation. The law

does not makea distinction between the public and private sectors in the fields of

employment, education and the provision ofgoods and services(Articles 6-9). In

addition, it has a separate provision onpublic entities, Article 5, which states that:

‘state and local government institutions and agencies mustwithin 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 regardto gender, race, “nationality”,

101Vilnius Regional Administrative Court, Case No. I-1278-624/2012, decision of 1 March 2012.

102Supreme Administrative Court of Lithuania, administrative case No. A858-403/2012, decision of 2 April 2012.

103Vilnius Regional Administrative Court decision, Case No. eI-2472-244/2019, 3 July2019, (Vilniaus

apygardosadministracinio teismo 2019 m. liepos 3d. sprendimasadministracinje byloje).