Sensitive or controversial issues

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

123

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national level

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

directives, without going into details of particular pr ovisions. In the opinion of the author,

the transposition into national law is still insuffi cient with regard to the following aspects:

- The existing Law on Equal Treatment does not explicitly prohibit harassment in

access to and the provision of goods and services (Article 8); it only does so in

respect to employment and education (Articles 6 and 7), as in Article 3(1)(h)) of

Directive 2000/43/EC – see Section 1.4 of this report. Parliamentary consideration

of the Draft Law on Equal Treatment, which would remedy this, among other

things, began in 2019. The bill is still pending, however.

- The duty to provide reasonable accommodation (Article 5 of Dir ective 2000/78/EC),

as it is phrased in Article 7(1)(9) of the LET and Article 26(2)(6) of the Labour

Code, lacks precision and i s somewhat more ‘narrow’ than that contained in the

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

more difficult to enforce in practice, even though the Equal Opportunities

Ombudsperson and the courts often refer to the UN Convention on the Rights of

Persons with Disabilities. For more information, please see Section 2.6.

Amendments are also contained in the draft Law on Equal Treatment, which was

registered in 2019.

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

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

2000/78/EC and 3(1)(a)) of Directive 2000/43/EC (see Section 3.2.1).

- The existing Law on Equal Treatment does not explicitly state that soci al protection,

social security and h ealthcare fall under its scop e, as in A rticle 3(1)(e)) of Directive

2000/43/EC. For more information, please se e Section 3.2.6-3.2.7.

- The Law on Equal Treatment has provided an exception concerning recruitment a nd

employment by employers with an ethos based on religion or belief since June

2008, in accordance with Article 4(2) of Directive 2000/78/EC. However, Article 3 of

the LET sets out other spheres where the Law on Equal Treatment shall not be

applied in relation to religion and ethos, including in the provision of goods and

services, access to education, th e content of education programmes and education.

This may be in breach of Article 3(1)(g) and (h) of Directive 2000/43/EC.358 The

first version of the LET did not contain this ex ception and there is still no case law

or interpretation on the matter. There is also n o information available about

whether such practices exist ed bef ore the adoption o f the directive in the country,

which organisations used th em and to what extent. Besides, th e exception in the

Law is much broader than that of Directive 2000/78/EC, in which a ‘person’s

religion or belief constitute a genuine, legitimate and justified occupational

requirement’. There is no mention of the p rovision that ‘difference of treatment …

should not justify discrimination on another ground.’ It therefore seems t hat, if

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

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

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

is based on religion or belief, supply products, goods and services for re ligious or belief 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, enterprises and organisa tions 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 or association w here refusal to admit a person is

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

textbooks and teaching aids where religious instruction of traditional re ligious 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, gene ral education

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

specify that their ethos is based on religion or belief, to educate children in an environment fo stering the

values of a religious community or association.’