Sensitive or controversial issues

• Author: Sabatauskait?, Birut?
• Pages: 123-125

123

11SENSITIVE OR CONTROVERSIAL ISSUES

11.1Potentialbreaches ofthe directives atthe nationallevel

National anti-discrimination legislation in most cases repeats the wording of the

directives, without going into details of particularprovisions. In the opinion of the author,

the transpositionintonational lawis still insufficient with regard to the following aspects:

-The existing Law on Equal Treatment does not explicitly prohibitharassment in

access to andthe provisionof goods and services (Article 8); itonlydoes soin

respect toemployment and education(Articles 6 and 7), as inArticle 3(1)(h))of

Directive2000/43/EC – see Section 1.4of this report. Parliamentary consideration

oftheDraft Law on Equal Treatment, which would remedy this, among other

things, began in 2019. Thebill is still pending, however.

-The duty to provide reasonable accommodation(Article 5 of Directive2000/78/EC),

as it is phrasedin Article 7(1)(9)of theLETand Article 26(2)(6) of the Labour

Code, lacks precision and is somewhat more ‘narrow’ than that contained inthe

directive, in that it only comprisesa duty to adapt premises, and it is therefore

more difficult toenforce inpractice, even though the Equal Opportunities

Ombudsperson andthe courts oftenreferto theUNConvention on the Rights of

Persons with Disabilities.For moreinformation, please see Section 2.6.

Amendmentsarealso containedin thedraft Law on Equal Treatment, which was

registered in 2019.

-The Law on Equal Treatment does not clearly prohibit discrimination in the field of

self-employment and occupation, as required underArticle 3(1)(a))of Directive

2000/78/ECand 3(1)(a)) of Directive2000/43/EC (see Section3.2.1).

-The existing Law on EqualTreatment does notexplicitly state that social protection,

social security and healthcarefall under its scope, as in Article 3(1)(e)) of Directive

2000/43/EC. For more information, please see Section3.2.6-3.2.7.

-The Law on Equal Treatment has providedan exception concerning recruitment and

employment by employers with an ethos based on religion orbelief since June

2008, in accordance withArticle 4(2) of Directive2000/78/EC. However, Article3 of

the LET sets out other spheres where the Law on Equal Treatmentshall notbe

appliedin relationtoreligion and ethos, including in the provisionofgoods and

services, accesstoeducation, the contentof education programmesand education.

Thismaybe in breach of Article 3(1)(g) and (h) of Directive2000/43/EC.358 The

first version of the LET did not contain this exception and there is stillno case law

or interpretation on the matter. There is also no information available about

whether such practices existed before the adoptionof the directivein the country,

whichorganisations used them and to what extent. Besides, the exception in the

Law is muchbroader than thatof Directive 2000/78/EC, in whicha ‘person’s

religion or belief constitute a genuine,legitimate and justified occupational

requirement’. There is no mention ofthe provisionthat ‘difference of treatment …

should not justify discrimination on another ground.’ It thereforeseems that, if

358The relevant provisions of the LET read as follows (official translation): ‘The provisionsof this Law shall not

applyto:3)cases where religious communities and associations, as well as organisations established by

them or their members, the founding documents or equivalent documentsof which specify that their ethos

is based on religion or belief, supply products, goods and services for religious orbelief purposes;4) the

admission of persons to study at schools of religious communities and associations, schools established by

them or their members, as well as establishments, enterprisesandorganisations whose main activity is

other than academic education, which have been established with the purpose of education in an

environment fostering the values of a religious community orassociation where refusal to admit a person is

necessary in order to maintain the ethos ofthe said organisations;5)thecontent of education programmes,

textbooks and teaching aids where religious instruction of traditional religious communities and associations

is provided;8)education and training where the application of the provisions of this Law is inconsistent with

the striving of communities of state or private pre-school education establishments, general education

schools or other educational establishments, the foundingdocuments or equivalent documents of which

specify that their ethos is based on religion orbelief, to educate children in an environment fostering the

values of a religious community or association.’