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

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

81

5POSITIVEACTION (Article 5Directive 2000/43, Article 7 Directive

2000/78)

a)Scope for positive action measures

In Lithuania, positive action is permitted 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 action:

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

market when striving to create and implement conditions and opportunities

guaranteeing and promoting the integration of disabledpersons into the work

environment;

(2) special temporary measures appliedin anattempt to ensure equality and prohibit

violation of equal treatment on the basis of gender, race, ‘nationality’, citizenship,

language, origin, social status,belief, convictions orviews, 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

approachis lacking. This issue was highlighted by the Equal Opportunities

Ombudsperson.235The Ombudsperson identified the need for a comprehensive approach

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

mechanismfor the implementation of positive measures. TheOmbudsperson

recommended thata law on positive action be passed.

InitsAnnual Reports for 2017to 2019, the Ombudspersonrecommends amendingthe

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

benefits for persons with disabilities, personsof certain ages, those in certain financial

conditionsor those with limited legal capacity when accessing goods or services. The

report indicated that ‘justificationof such advantagesis not established byLaw’and

recommended amending the Lawso as to add anexception wherebyaccess to goods and

services maybe provided only (or primarily) to persons of certain characteristics, when

thatcan be justifiedby a legitimateaim and when the meansof achieving that aim are

appropriate and necessary.236

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

measures is not provided in national law. A ruling of the Constitutional Court237made

some timebefore the Law on Equal Treatmentwaspassedgivessome idea as tohow

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

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

achieve positive and socially meaningfulgoals is not regarded as discrimination. In

addition, special requirements or certain conditionsrelating to a group that are linked to

the specificities of a particular employment position do not constitute discriminatory

restrictions– forexample, the laws that set outcertain requirements in respect of the

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

https://www.lygybe.lt/lt/veikla/metines-ataskaitos/405.

236Lithuanian 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.

237Ruling of the Constitutional Courtof the Republic of LithuaniaNo. 100-2791, 1998, Lietuvos Respublikos

Konstitucinio teismo 1998 m. Lapkričio 11 d. nutarimas Dl Lietuvos Respublikos Seimo rinkim statymo 38

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

atitikimo Lietuvos Respublikos Konstitucijai.