Sensitive or controversial issues

• Author: Kamenska, Anhelita
• Pages: 91-92

91

11 SENSITIVE OR CONT ROVERSIAL ISSUES

11.1 Potential breaches of the directives (if any)

In relation to vocational training outside employment relationships, differential treatment

is not adequately prohibited. The Law on Education contains a closed list of grounds that

does not include age, disability or sexual orientation. As far as the application of the Law

on Education in the private sector is concerned, there is nothing to make up for the

missing grounds. Similarly, amendments to the Law on Support to Unemployed Persons

and Job Seekers coveri ng access to vocati onal retraining apply to only three grounds,

gender, race and ethnic origin, and so ignore Directive 2000/78.

Disability is defined as a long-term or non-transition al very severe, sever e or moderate

level of limited functioning, and is divided into three possible degrees of disability in

accordance with the provisions of the Disability Law, depending on the gravity of the

impairment. The issue may arise whether the concept of disability in the laws prohibiting

discrimination covers only those disabilities that have received official qualification, in

which case the person’s sta tus as disabled has consequen tly been officially recognised, or

whether it covers any de facto disability. This can be problematic and can result in

insufficient implementation unless the courts, when confronted with this issue, interpret

the notion of disability in the laws prohibiting discrimination in a manner compatible with

the CJEU case of Skouboe Werge and Ring.290

It would appear that Latvian legislation provides for a wider range of exceptions for direct

race discrimination than the Racial Equality Directive, extending beyond a general

occupational requirement.

11.2 Other issues of concern

A strict time limit of three months for bringing a discrimination claim before the court in

employment cases, as opposed to a two-year limit in other labour dispute cases, may

serve as a barrier for victims of discrimination. In a case alleging gender discrimination in

2018, the Supreme Court decided that the claim for compensation for non-pecuniary

damage was dependent on establishing discrimination in the first place, which is subject

to a three-month limit, hence the claim for non-pecuniary damages falls under the same

limit.291

The shift in the burden of proof is not included in the Law on S ocial Protection expressi s

verbis. Hence, the areas of social protection and social adva ntages remain uncovered.

Since the transposition of the Racial Equality Directive and the Employment Directive,

there is still only limited case law concerning discrimination on grounds of race/ethnic

origin (1), disability (3), age (2), religion (0) and sexual orientation (0). Court cases on

discrimination are not specifically recorded and remain unknown to the wider public. The

Ombudsman has not represented a discrimination victim in court, despite having such a

mandate.

In March 2015, the Legal Equality Department of the Ombudsman’s Office was closed

down and the staff were assigned to other departments.292 According to the Office,

‘considering that violations of the prohibition of discrimination in practice include

violations of other rights (from the aspect of civil and political, social, economic, cultural

or children rights), the Office does not collect separate statistics about discrimination

290 Judgment of 11 April 2013, joined cases C-335/11 and C-337/11, EU:C:2013:222.

291 Supreme Court Senate Civil Cases Department, C31247015 (SKC-79/2018), 06.06.2018,

https://manas.tiesas.lv/eTiesasMvc/nolemumi/pdf/355573.pdf.

292 LR Tiesbsargs (2015), ‘Staff’, available at: http://www.tiesibsargs.lv/en/about-us/darb inieki.