The definition of discrimination

• Author: Sabatauskait?, Birut?
• Pages: 18-40

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2 THE DEFINITION OF D ISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibited in the main legislation

transposing the two EU anti-discrimination directives:

The Law on Equal Treatment covers gend er, race, ‘nationality’,30 citizenship, language,

origin, social status, belief, convictions or views , age, sexual orientation, disability, ethnic

origin and religion.31

However, some laws on ly state the principle of equality as such, for example the Law on

Education, while other s provide a wide-ranging list of non-discrimination grounds. Article

2 of the Labour Code32 lists the following grounds of equality of persons involved in

employment relationships: gender, sexual orientation, race, ethnicity (or, as translated in

the LET, ‘nationality’), l anguage, origin, social status, beli ef,33 marital and family status,

intention to have a child or children, ag e, views and convictions, membership of political

parties and non-govern mental organisations, and any other characteristics that are not

connected to work-related characteristics. This Article does not include citizenship as a

ground, however it is included in other articles of the Labour Code, such as Arti cle 59

(termination of employment contract by employer) and Article 75 (application of non-

discrimination principle).

Article 169 of the Criminal Code prohibits severe discriminatory behaviour on the basis of

various grounds:

‘A person who has committed acts ai med at a certain group or members ther eof on

account of their ethnic backgroun d, race, sex, sexual orientation, origin or religion,

social status, views or convictions, with a view to interfering with their right to

participate as equals of other persons in political, economic, social, cultural or

employment activity or to restrict the human rights or freedom s of such a group or

its members, shall be punished with (a) community service work (b) a fine (c)

detention or (d) imprisonment for up to 3 years.’34

In addition, Article 170 of the Criminal Code pr ohibits incitement of discrimination against

certain groups of residents:

‘A person who, by making public statements orally, in writing or by using the public

media, ridicules, expresses contempt for, urg es hatred towards or encoura ges

discrimination against a group of residents or against a specific person, on account

of his or her sex, sexual orientation, race, “nationality”, language, ethnicity, social

status, faith, religion or beliefs, shall be punished with (a) a fine, (b) detention or

(c) imprisonment for up to 3 years.’

The Law on the Provision of Information to the Public prohibits the publishing of

information that

30 The term used in the LET is tautyb, which refers to belonging to a national minority and is not used with

the meaning of ‘citizenship’.

31 ‘Citizenship’ was added to the list in 2017 as a result of the transposition of Directive 2014/54/EU and only

applies to citizens of the EU and EEA countries and their family members (partners, however, are not

explicitly included).

32 Labour Code (Darbo kodekso patvirtinimo, sigaliojimo ir gyvendinimo statymas. Darbo Kodeksas), 2016,

No. XII-2603, available in Lithuanian at: https://www.e-

tar.lt/portal/lt/legalAct/f6d686707e7011e 6b969d7ae07280e89.

33 The term ‘belief’ should be understood as covering religion.

34 Criminal Code (Lietuvos Respublikos Baudžiamojo kodekso patvirtinimo ir sigaliojimo s tatymas.

Baudžiamasis Kodeksas), 2000, No. 89-2741, available in Lithuanian at: https://www.e-

tar.lt/portal/lt/legalAct/TAR.2B866DFF7D43/Z pNMZQSaRN.

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‘Instigates war propaganda, war or hatred, ridicule, or scorn, or instigates

discrimination, violence, harsh treatment of a group of p eople or a person

belonging to it on the basis of gender, sex ual orientation, ethnic origin, race,

“nationality”, citizenship, language, origin, social status, beli ef, convictions, views

or religion’ (Article 19).35

2.1.1 Definition of the grounds of un lawful discrimination within the direc tives

The general rule is that national legislation does not provide definit ions of equality

grounds, with the exception of ‘social status’, ‘disability’ and ‘citizenship’, which are

defined in different laws.

According to Article 2(8) of the Law on Equal Treatment , ‘social status’ is defined as the

level of education attained by a natural person, his or her qualifications and

characteristics related to that person’s financial or ec onomic situation (such as income or

property ownership).

Citizenship was added to the list of protected g rounds in the Law on Equal Treatment in

2017 as a result of the transp osition of Directive 2014/54/EU on measures facilitating the

exercise of rights conferred on workers in the context of freedom of movement for

workers. In the context of the Law on Equal Treatment, it is explicitly defined that the

ground of citizenship only applies to citizens of EU and EEA countries and their family

members. However, the wording does not mention unmarried partners (neither opposite-

sex nor same-sex partners).

a) Racial or ethnic origin

Neither the Law on Equal Tre atment nor any other law provides definitions of race or

ethnic origin. In the reports of the Equal Opportunities Ombudsperson, race, ‘nationality’,

citizenship, language, origin and ethnic origin are always reported under the same

headline and are dealt with as interrelated concepts. The Ombudsperson refers to the

definition of racial discrimination provided in the UN Convention on the Elimination of All

Forms of Racial Discrimination:

‘As defined by the Convention, “racial discrimination” mean s any distinction,

exclusion, restriction or preference based on race, colour, descent, or national or

ethnic origin which has the purpose or effect of nullifying or i mpairing the

recognition, enjoyment or exercise, on an equal footing, of human rights and

fundamental freedoms in the political, economic, social, cultural or any other field

of public life.

Therefore, such definition implies a possibility to claim that the characteristics of

race, “nationality”, origin, ethnic origin and language are highly related.’36

As the Annual Report of the Equal Opportunities Ombudsperson states:

‘Legal acts of the Republic of Lithuania do not provide any definition of race,

‘nationality’, ethnic origin or origin, nevertheless, persons approaching the Office

based on alleged discrimination on the ground of language very often indicate the

grounds of ‘nationality’ together. Identification of the grounds is made with the help

of indicated factual circu mstances within the complaint. When applicants file

35 Law on the Provision of Information to the Public (Lietuvos Respublikos Visuomens informavimo

statymas), No. I-1418, 1996, available in Lithuanian at: https://e-

seimas.lrs.lt/portal/legalAct/lt/TAD/TAI S.222522/asr.

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

https://lygybe.lt/data/public/uploads/201 9/04/lgk-2018-m.-veiklos-ataskaita-.pdf.

Lithuanian Equal Opportunities Ombudsperson (2015), Annual Re port for 2015, available in Lithuanian at:

https://www.lygybe.lt/lt/veikla/metines-ataska itos/405.