The definition of discrimination

• Author: Poleshchuk, Vadim
• Pages: 13-20

13

2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The grounds of discrimination explicitly prohibited in the main legislation transposing the

two EU anti-discrimination directives (as listed in the Introduction above) are outlined

below.

1) Ethnic origin, race, colour, religion or other beliefs, age, disability or sexual orientation.

Furthermore, the Equal Treatment Act ‘does not preclude the requirements of equal

treatment in labour relations on the basis of attributes not specified above, in particular

due to family-related duties, social status, representation of the interests of employees or

membership of an organisation of employees, level of language proficiency or duty to serve

in defence forces’ (Equal Treatment Act, Articles 1(1) and 2(3)).

2) Sex, race, ethnic origin, colour, language, origin, religious, political or other belief,

property or social status, age, disability, sexual orientation or other ground of

discrimination provided for in the law - conciliation procedure (Chancellor of Justice Act,

Article 19 (2)); no grounds are specifically mentioned in the Chancellor of Justice Act in

the context of the ombudsman-like procedure.

The Public Service Act (Article 13) does not specify the grounds of discrimination. However,

both the Equal Treatment Act and the Gender Equality Act apply to the protection of public

officials.

The Employment Contracts Act (Article 3) refers to the Equal Treatment Act and the Gender

Equality Act.

2.1.1 Definition of the grounds of unlawful discrimination within the directives

a) Racial or ethnic origin

The explanatory note that was attached to the draft Equal Treatment Act included the

following clarifications regarding the protected grounds:24

− race (rass) – a group of people with certain hereditary features;

− ethnicity (rahvus) – ethnic origin (etniline kuuluvus); not to be confused with

nationality/citizenship (kodakondsus).

In Estonia, ‘race’ is normally associated with a particular skin colour (nevertheless, ‘colour’

was added to the Equal Treatment Act as a separate ground of prohibited discrimination).

There is no case law to highlight differences between ‘race’ and ‘ethnicity’ or to define the

terms ‘race’ or ‘ethnicity’ ('ethnic origin’).

The term ‘ethnicity’ is often understood in primordial terms. For instance, in one case the

Tallinn District Court argued that ‘ethnic origin cannot be altered but a person can develop

better language proficiency’.25

b) Religion and belief

The explanatory note that was attached to the draft Equal Treatment Act included the

following clarifications regarding religious, political and other beliefs (usutunnistus,

24 See explanatory note attached to the draft No. 384 SE (11th Riigikogu); available at:

http://www.riigikogu.ee.

25 Judgment of the Tallinn District Court (Tallinna Ringkonnakohus) of 30 November 2009 in administrative

case 3-08-2604, para. 15.