The definition of discrimination

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

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2THE DEFINITION OF DISCRIMINATION

2.1Grounds of unlawfuldiscriminationexplicitly 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 gender, race, ‘nationality’,30citizenship, language,

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

origin andreligion.31

However, some laws only state the principle of equality as such,for example theLaw on

Education, while othersprovide awide-ranging list of non-discrimination grounds. Article

2 of the Labour Code32lists the following grounds of equalityofpersons involved in

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

the LET, ‘nationality’), language, origin, social status, belief,33marital and family status,

intention to have a childor children, age, views andconvictions, membership of political

parties andnon-governmental organisations, and any other characteristics that are not

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

ground, howeverit is included in other articlesof the Labour Code, such as Article 59

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

discrimination principle).

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

various grounds:

‘A person who has committed acts aimed at a certain groupor members thereof on

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

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

participate as equals of otherpersons inpolitical, economic,social, cultural or

employment activity or to restrict the human rights or freedoms of such a groupor

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 Codeprohibits 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, expressescontempt for, urges hatred towards or encourages

discrimination againsta group of residentsoragainst aspecific 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.’

TheLaw on the Provision of Information to the Public prohibits the publishing of

information that

30The 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/EUand only

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

explicitly included).

32Labour 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/f6d686707e7011e6b969d7ae07280e89.

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

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

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

tar.lt/portal/lt/legalAct/TAR.2B866DFF7D43/ZpNMZQSaRN.

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

discrimination, violence, harsh treatmentof a group of people or a person

belonging to it on thebasis ofgender, sexual orientation, ethnic origin, race,

“nationality”, citizenship, language, origin, social status, belief, convictions, views

or religion’ (Article19).35

2.1.1Definition of the grounds of unlawful discrimination within the directives

Thegeneral ruleis that nationallegislationdoes not providedefinitionsof equality

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

defined in different laws.

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

levelof education attained by a naturalperson, his or her qualifications and

characteristics related to that person’s financial or economic situation (such as incomeor

property ownership).

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

2017 as a result of the transposition 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 citizenshiponly applies to citizens of EU and EEA countries and their family

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

sexnor same-sex partners).

a)Racial orethnic origin

Neither the Law on Equal Treatment nor any otherlaw provides definitions of raceor

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

citizenship, language, origin and ethnic origin are always reportedunder the same

headlineandaredealtwithas interrelated concepts.The Ombudspersonrefersto the

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

Forms of Racial Discrimination:

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

exclusion, restriction or preference based onrace, colour, descent, or national or

ethnic origin which has the purpose or effect of nullifying or impairing the

recognition, enjoyment orexercise, on an equalfooting, of human rights and

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

of publiclife.

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 Reportof the Equal Opportunities Ombudspersonstates:

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

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

based on alleged discrimination on theground of languagevery oftenindicatethe

grounds of ‘nationality’ together. Identificationof the grounds is madewiththe help

of indicated factual circumstances within the complaint. When applicants file

35Lawon 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/TAIS.222522/asr.

36Lithuanian 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.

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

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