Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Sabatauskait?, Birut?
• Pages: 81-84

81

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 D irective

2000/78)

a) Scope for positive acti on measures

In Lithuania, positive action is p ermitted in national law in respect of disability, gender,

race, ‘nationality’, citizenship, language, origin, social status, belief, convictions or views,

age, sexual orientation, disability, ethnic origin or religion.

Article 2(9) of the Law on Equal Treatment provides exceptions to direct discrimination

legislation that could be interpreted as allowing positive acti on:

(1) special measures applied in healthcare, safety at work, employment and the labour

market when striving to create and implement conditions and opportunities

guaranteeing and promoting the integration of disabled persons into the work

environment;

(2) special temporary meas ures applied in an attempt to ensure equality and prohibit

violation of equal t reatment on the basis o f gender, race, ‘nationality’, citizenship,

language, origin, social status, belief, convictions or views, age, sexual orientation,

disability, ethnic origin or religion.

The concept of positive action is not widely discussed at national level. Although different

measures, which vary in scope and form, exist in practice, a consistent legal/political

approach is lacking. This issue wa s highlighted by the Equal Opportunities

Ombudsperson.235 The Ombudsperson id entified the need fo r a comprehensive ap proach

to positive action measures, as well as highlighting the fact that the country lacks a clear

mechanism for the implementation of positive measures. The Ombudsp erson

recommended that a law on positi ve action be passed.

In its Annual Reports for 2017 to 2019, the Ombudsperson recommends amending the

Law on Equal Treatment so as to establish exceptions within the Law to allow for certain

benefits for pers ons with disabilities, persons of certain ages, those in certain financial

conditions or those with limited legal capacity when a ccessing goods or se rvices. The

report indicated that ‘justification of such advantages is not established by Law’ and

recommended amend ing the Law so as to add an exception whereby access to goods an d

services may be provided only (or primarily) to persons of certain characteristics, wh en

that can be justified by a legitimate aim and when the means of achieving that aim are

appropriate and necessary.236

There is no legislati on that deals with positive action measures, and a definition of such

measures is not provided in national law. A ruling of the Constitutional Court237 made

some time before the Law on Equal Treatment was passed gives some idea as to how

positive action measures may be applied in practice. According to the Constitutional

Court, a legal regu lation that treats certain groups of people differently in order to

achieve positive and socially meaningful goals is not rega rded as discrimination. In

addition, special requirements or certain conditions relating to a g roup that are linked to

the specificities of a particular employment position do not constitute discriminatory

restrictions – for example, the laws that set out certain requirements in respect of the

235 Lithuanian Equal Opportunities Ombudsperson (2009), Annual Report for 2009, available in Lithuanian at:

https://www.lygybe.lt/lt/veikla/metines-ataskaito s/405.

236 Lithuanian Equal Opportunities Ombudsperson (2019), Annual Report for 2018, available in Lithuanian at:

https://lygybe.lt/data/public/uploads/2019 /04/lgk-2018-m.-veiklos-ataskaita-.pdf.

237 Ruling of the Constitutional Court of the Republic of Lithuania No. 100-2791, 1998, Lietuvos Respubliko s

Konstitucinio teismo 1998 m. Lapkr ičio 11 d. nutarimas Dl Lietuvos Respub likos Seimo rinkim statymo 38

straipsnio 4 dalies ir Lietuvos Respublikos savivaldybi taryb rinkim statymo 36 straipsnio 4 dalies

atitikimo Lietuvos Respublikos Konstitucijai.