A comparative analysis of non-discrimination law in Europe 2017 (excerpts)

This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein.

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National experts: (..) Latvia [:] Non-discrimination [:] Anhelita Kamenska

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1 PROTECTED GROUNDS OF DISCRIMINATION

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1.2 Grounds of discrimination

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Although anti-discrimination provisions still exist in various pieces of legislation in some countries (e.g. Bulgaria and Latvia), this method has largely been replaced by more general antidiscrimination provisions and legislation.

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Table 1: Grounds protected on the national level in various laws, whether at the federal or regional level

(..) Latvia: Race, ethnic origin, colour, skin colour, age, disability, health condition, state of health, religious, political or other conviction, religious and political belief, national and/or social origin, gender, property status, family status, marital status, sexual orientation, occupation, place of residence, other circumstances

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1.2.2 Religion or belief

Most of the controversy around the implementation of the provisions of the Employment Equality Directive on religion or belief centres on the extent of any exceptions provided for organised religions (e.g. churches) and organisations with an ethos based on religion or belief (e.g. religious schools). Under Article 4(2) of the Employment Equality Directive, Member States can maintain national legislation or practices that allow churches and other public or private organisations whose ethos is based on religion or belief to treat people differently on the basis of their religion or belief. Such different treatment does not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitutes a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This exception only allows for differential treatment on the grounds of religion or belief, and cannot be used to justify discrimination on another ground, for example sexual orientation.

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Not all countries chose to explicitly include the Article 4(2) exception: this is the case in Finland, France, Iceland, Liechtenstein, Montenegro, Portugal, Romania, Serbia and Sweden. Although the Romanian Anti-discrimination Law (Ordinance 137/2000) does not include specific provisions on an
exemption for employers with an ethos based on religion or belief to comply with the Employment Equality Directive, the provisions of Article 41 on genuine and determining occupational requirements and articles 23-26 of the Law 489/2006 on Religious Freedom and the General Status of Religious Denominations, on the employment of own employees, can be interpreted to allow ethos or religion-based exceptions. In a similar manner, in Finland, the Non-Discrimination Act does not provide for an exception for employers with an ethos based on religion or belief, but the Government proposal cites article 4(2) and additionally, it states that ‘setting such a requirement cannot lead to discrimination on another ground.’ Likewise, Serbian legislation does not include provisions based on Article 4(2), but Article 18(2) of the Law on the Prohibition of Discrimination contains a similar exception that is unclear and appears to provide a blanket exemption from the prohibition of discrimination for religious officials, contrary to the directive. In contrast, the following states have adopted provisions in national law which seek to rely on Article 4(2): Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, the Former Yugoslav Republic of Macedonia, Germany, Greece, Hungary, Italy, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Slovakia, Slovenia, Spain, Turkey and the United Kingdom.

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1.3 Assumed and associated discrimination

Discrimination can sometimes occur because of an assumption about another person, which may or may not be factually correct, e.g. that the person has a disability. Alternatively, a person may face discrimination because they associate with persons of a particular characteristic, e.g. a non-Roma man may be denied admission to a bar because he is with friends from the Roma community. In many countries, the application of discrimination law to such scenarios is neither stipulated nor expressly prohibited, and only future judicial interpretation will clarify this issue. This is the case for instance in Estonia, Germany,148 Iceland, Italy, Latvia, Liechtenstein, Lithuania, Malta,149 Poland, Portugal, Romania and the UK.

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2. Definitions and scope

2.1 Forms of discrimination

2.1.1 Direct discrimination

All examined countries except Iceland and Liechtenstein have adopted legislation that reflects closely the definition of direct discrimination found within the directives in relation to the relevant grounds. In most countries, there are common elements to the definitions of direct discrimination:
– the need to demonstrate less favourable treatment;
– a requirement for a comparison with another person in a similar situation but with different characteristics (e.g. ethnic origin, religion, sexual orientation);
– the opportunity to use a comparator from the past (e.g. a previous employee) or a hypothetical comparator; and
– a statement that direct discrimination cannot be justified.
These elements can be generally found in legislation in Austria, Belgium, Bulgaria, Croatia, the Czech Republic, Cyprus, Denmark, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France (although hypothetical comparison is not covered, in breach of the directives),181 Germany, Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Poland (although the definition of direct discrimination given in the Labour Code is still erroneous with regard to the comparator), Portugal, Serbia, Slovakia, Slovenia, Spain (although the law does not determine whether past and hypothetical comparators are covered), Sweden and the United Kingdom

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Although the Latvian definition of direct discrimination appears to be in line with the directives, the general justification – applicable in fields such as education, access to and provision of goods and services, social protection and social advantages – does not distinguish between direct and indirect discrimination.

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Table 3: Prohibition of direct discrimination in national law (..)

LawArticleDefinedDefinition
equivalent to
the directives
LatviaLabour LawArt. 29(5)YesYes
Law on Prohibition of Discrimination against
Natural Persons -Economic Operators
Art. 4(2) YesYes
Consumer Rights Protection Law Art. 3.1 (6) YesYes
Law on Social Security Art. 2.1 (3) YesYes

2.1.2 Indirect discrimination

A large proportion of states have introduced a definition of indirect discrimination that generally reflects the definition adopted in the directives. This includes Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

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Table 4: Prohibition of indirect discrimination in national law (..)

LawArticleDefinedDefinition
equivalent to
the directives
LatviaLabour LawArt. 29(6)YesYes
Law on Prohibition of Discrimination against Natural Persons -Economic Operators Art. 4(2) YesYes
Consumer Rights Protection Law Art. 3.1 (6) YesYes
Law on Social Security Art. 2.1 (4) YesYes

2.1.3 Harassment

The concept of harassment, in particular sexual harassment, was traditionally developed in the 1990s from EU gender equality legislation. Harassment in the anti-discrimination directives does not differ much from from the established baseline and is defined as unwanted conduct relating to racial or ethnic origin, religion or belief, disability, age, or sexual orientation with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.192 The majority of states have adopted definitions of harassment that appear in line with that contained in the directives. This includes Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, the Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Serbia, Slovakia, Slovenia and the United Kingdom.

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Table 5: Prohibition of harassment in national law (..)

LawArticleDefinedDefinition
equivalent to
the directives
LatviaLabour LawArt. 29(7)YesYes
Law on Prohibition of Discrimination against Natural Persons -Economic Operators Art. 3. 1(8) YesYes
Consumer Rights Protection Law Art. 2.1 (5) YesYes
Law on Social Security Art. 2.1 (6) YesYes
Law on the Support of Unemployed and Job
Seekers
2. 1 (6)YesYes

2.1.4 Instructions to discriminate

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National law varies greatly among the countries regarding the scope of liability for instructions to discriminate. In some countries, only the instructor (and not the instructed discriminator) can be held liable for instructions to discriminate. These include Estonia, Greece, Liechtenstein, Lithuania, and the Netherlands. However, in a large majority of the countries, both the instructor and the discriminator can be held liable, including Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Finland, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Montenegro, Norway, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, and the United Kingdom.

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Table 6: Prohibition of instructions to discriminate in national law

LawArticleDefined
LatviaLabour LawArt. 29(4)No
Law on Prohibition of Discrimination against Natural Persons -Economic OperatorsArt. 2. 1
(5)
No
Consumer Rights Protection LawArt. 3. 1
(7)
No
Law on Social Security Art. 2. 1
(2)
No

2.2 Scope of discrimination

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2.2.2 Material scope

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The material scope is not fully covered in Iceland, Liechtenstein, Serbia and Turkey. In addition, in Latvia, national law does not clearly cover vocational training outside the employment relationship, on any of the five grounds.

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2.2.2.1 Employment

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Military service is not included in the scope of legislation transposing the directives in Latvia (..)

2.2.2.5 Access to and supply of goods and services

The Racial Equality Directive prohibits discrimination concerning access to and supply of goods and services, including housing, that are available to the public. The boundaries of this prohibition have generated debate in many countries, although almost half of the countries examined do not restrict protection to publicly available goods and services (Bulgaria, Croatia, Cyprus, the Former Yugoslav Republic of Macedonia, France, Iceland, Ireland, Italy, Latvia, Lithuania,268 Luxembourg, Malta, Montenegro, Poland, Romania, Spain and Turkey).

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3 EXCEPTIONS TO THE PRINCIPLE OF NON-DISCRIMINATION AND POSITIVE ACTION

The directives are based on a dichotomy between direct discrimination, which cannot be justified, and indirect discrimination, which is open to objective justification. Most countries have complied with this approach, although there are some states where it may be argued that national law continues to permit the justification of direct discrimination (e.g. Latvia280 and Slovenia with regard to the ground of race and ethnicity).

Footnote 280 Latvian legislation in fields such as social security, education and access to goods and services does not distinguish between direct and indirect discrimination, thereby causing confusion regarding the limits of the possibility of justifying (indirect) discrimination. See for instance Article 2.1 (1) of the Law on Social Security.

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3.3 Nationality

Article 3(2) Racial Equality Directive and Employment Equality Directive
‘This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.’

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Table 8: Nationality is an explicitly protected ground in anti-discrimination legislation

LawArticleEquality body
has explicit
mandate to deal
with nationality
If not,
does
so in
practice
LatviaNoNoNo

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3.7 Positive action

Article 5 of the Racial Equality Directive and Article 7(1) of the Employment Equality Directive
‘With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.’

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Table 9: Main grounds and fields where positive action is used in practice

LatviaDisability, age. (employment)

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4 ACCESS TO JUSTICE AND EFFECTIVE ENFORCEMENT

4.1 Judicial and administrative procedures

4.1.1 Available procedures

Some non-judicial proceedings are general but provide an effective forum for discrimination cases, whereas others have been established especially for discrimination cases as an alternative dispute resolution procedure, complementary to the normal courts. Among the general non-judicial procedures are inspectorates, ombudsmen and human rights institutions.

Labour inspectorates are charged with enforcing employment law, including equal treatment provisions, in the Czech Republic, Finland,310 Latvia, France, Poland, Portugal, Slovakia and Spain.

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Some countries propose conciliation, such as Austria (mandatory for disability cases)313 or Latvia where the Ombudsman’s Office examines and reviews complaints of human rights violations and attempts to resolve conflicts through conciliation, which, if unsuccessful, is followed by non-binding recommendations.

4.1.2 Specific procedures in the public sector

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Cases of alleged discrimination by public institutions in Latvia can be filed with the same public institution that has treated the person differently, with a higher institution, with an administrative court, or with the public prosecutor’s office.

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4.2 Legal standing and associations

Article 7(2) of the Racial Equality Directive and Article 9(2) of the Employment Equality Directive ‘Member States shall ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of [these Directives] are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under [these Directives].’

Under the directives, EU Member States have some discretion as to how this clause is implemented in terms of the type of legal standing that associations can have, and therefore national legal orders present many different patterns that are difficult to compare. In some countries, the relevant anti-discrimination legislation provides associations and/or trade unions or other organisations with some legal standing specifically in cases of discrimination. These include Belgium, Bulgaria, Cyprus, the Czech Republic, France, Germany, Greece,327 Hungary, Ireland, Italy, Lithuania, Malta, Montenegro, Norway, Portugal, Romania, Slovakia, Slovenia, Spain, Serbia and Sweden. In a number of countries however, no such specific provision is made for cases of discrimination, although general provisions of civil, administrative or labour law provide some standing to associations under certain conditions (e.g. Denmark, Estonia, the Former Yugoslav Republic of Macedonia, Iceland, Latvia, Liechtenstein, the Netherlands, Poland and Turkey).

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4.2.2 To engage ‘on behalf of’

A majority of the countries examined allow associations and/or trade unions to engage in proceedings ‘on behalf of’ victims of discrimination (i.e. representing them), including Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, the Former Yugoslav Republic of Macedonia, France, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Malta, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Spain, Sweden and Turkey. However, the conditions for associations to engage on behalf of victims of discrimination as well as the scope of such potential action vary among the countries. (..)

(..). In Latvia, organisations and foundations whose aims are the protection of human rights and individual rights may represent victims of discrimination in court, but as of 4 January 2014 this option exists only before the lower instance courts.334 Thus, an association having acted on behalf of a victim of discrimination before the first two instances may no longer appeal the decision of the Court of Appeal before the Court of Cassation, where a barrister needs to be present. Until the entry into force of this amendment, most cases of discrimination were brought before the civil courts by NGOs or legal practitioners other than barristers, which may indicate that the amended provisions could have a very negative impact on the (already low) number of court decisions in discrimination cases in Latvia. However, in 2003 the Constitutional Court found a similar provision to be in violation of the Constitution, and it was repealed.335

Footnote 334 Amendments to the Civil Procedure Law, 19 December 2013, published in the Latvian Herald 2(5061), 3 January 2014, available in Latvian at: www.vestnesis.lv/?menu=doc&id=263490.
Footnote 335 Decision of the Constitutional Court of the Republic of Latvia in Case No 2003-04-01 of 27 June 2003, available in Latvian at:
http://www.satv.tiesa.gov.lv/?lang=1&mid=19.

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Table 10: Legal standing in court of organisations for discrimination cases

Legal standing to act on behalf of victimsLegal standing to act in support of victims
LatviaLaw on Organisations and Foundations, Art.
10(3)
Administrative Procedure Law, Art. 138

4.2.3 Collective redress

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Neither actio popularis nor class action is permitted in discrimination cases in the following countries: the Czech Republic, Belgium, Estonia, Finland, Greece, Ireland, Latvia, Sweden and Turkey.

4.3 Burden of proof

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A minority of states appear to have failed to introduce burden of proof provisions in line with the directives. In Latvia, the shift of the burden of proof applies mainly to employment, but also to education and access to goods and services.

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4.4 Victimisation

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Table 11: Prohibition of victimisation in national law

LawArticlesProtection
extended outside
employment
LatviaLabour Law109Art. 9Yes

Footnote 109 Victimisation is also dealt with outside the employment field in the following laws: the 1995 Law on Social Security, Art. 34(2), the 1999 Law on Consumer Protection, Art. 3(1), and the 2012 Law on Prohibition of Discrimination against Natural Persons who are Economic Operators, Art. 6.

4.5 Sanctions and remedies

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In Latvia, there is no maximum amount for damages under civil law, but the Reparation of Damages caused by State Administrative Institutions Act sets maximum amounts of damages for material harm at EUR 7 115, or EUR 9 960 in cases of grievous bodily harm, and EUR 28 457 if life has been endangered or grievous harm has been caused to health. The maximum amount of damages for non-pecuniary harm is set at EUR 4 269 or EUR 7 115 in cases of grave non-pecuniary harm and EUR 28 457 if life has been endangered or grievous harm has been caused to health. It is as yet unclear whether the courts would award damages for both material and non-pecuniary harm in cases of discrimination. The definitions of material and non-pecuniary harm permit cases of discrimination to be brought under both, and the law permits applications for several kinds of damages at the same time

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5 EQUALITY BODIES


Article 13, Racial Equality Directive:
‘Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals’ rights.’

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Table 12: Relevant specialised bodies dealing with racial/ethnic origin and the grounds covered by their mandates

CountryRelevant specialised body dealing with
race/ethnic origin
Does this body cover other grounds than race
or ethnic origin as specified by Article 13? If
so, which ones?
LatviaOmbudsman, (Law on Ombudsman,
Art. 11 (2)
Grounds not specified, hence any ground

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In 24 countries, 27 bodies deal with the five grounds protected by the two anti-discrimination directives and other grounds. In Latvia and Poland no grounds are specified under the competencies of the body.

5.2 Competencies of equality bodies

Overall, the majority of countries comply with the requirements of the Racial Equality Directive and have provided the relevant equality bodies with a mandate to exercise all four competencies listed under Article 13. However, this does not mean that all of them exercise the full range of their competencies in practice. Priorities and focus points may change over time, but budget and staff concerns can also impact the effectiveness of equality bodies.

In terms of the specific powers of specialised bodies, it is notable that the relevant bodies support victims of discrimination in a variety of ways. Member States must ensure that ‘associations, organisations or other legal entities’ may engage in support of complainants in judicial or administrative proceedings, but such engagement is not required by the directive. Some specialised bodies provide support in taking legal action – for example the Belgian, Bulgarian, Finnish, Hungarian, Irish, Italian, Serbian, Swedish, British, Northern Irish, Norwegian and Croatian bodies. Others give their – usually non-binding – opinion on complaints submitted to them, e.g. the Austrian Equal Treatment Commission and the Netherlands Institute for Human Rights, the Danish Board of Equal Treatment, the Hungarian Equal Treatment Authority, the Latvian Ombudsman’s Office, the Greek Ombudsman and the Slovenian Advocate of the Principle of Equality. Such proceedings do not preclude the victim from subsequently taking legal action before the courts with a view to obtaining a binding remedy.

Article 13, Racial Equality Directive:
‘Member States shall ensure that the competences of these bodies include:
• without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 7(2), providing independent assistance to victims of discrimination in pursuing
their complaints about discrimination,
• conducting independent surveys concerning discrimination,
• publishing independent reports and making recommendations on any issue relating to such discrimination.’

Out of the 36 specialised bodies, 31 have a mandate to provide independent assistance to victims and five do not. The countries where the relevant bodies do not officially have a mandate to provide such assistance include: Cyprus (although in practice both the Equality Authority and the Anti-discrimination Authority advise victims informally of their rights), Estonia (the Chancellor of Justice, which nevertheless does so in practice), Lithuania, the Netherlands (the Netherlands Institute for Human Rights), and Norway.

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Independence, but also effectiveness is greatly affected by the available budget for equality bodies. In the past, the budget cuts following the economic crisis have had an impact, for instance, in Ireland, Hungary and the United Kingdom. Financial cuts in previous years had already affected Ireland, Latvia, and the UK. (..)

6. IMPLEMENTATION AND COMPLIANCE

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6.2 Ensuring compliance

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In some jurisdictions, an entire agreement is invalidated if it includes a discriminatory clause (e.g. Germany). However, legislation that can annul individual discriminatory rules in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations is more common among the Member States. This is the case in the Netherlands where the main equal treatment acts stipulate that ‘agreements’ that are in contravention of the equal treatment legislation are void. General labour law is relied on to this end in many countries, including Hungary,,426 where Article 27 of the Labour Code provides that an agreement (individual or collective) that violates labour law regulations is void. If annulled or successfully contested the agreement is invalid (Article 28) and, if invalidity results in loss, compensation must be paid (Article 30). Similar general labour law provisions are found in Italy (Article 15 of the Workers’ Act), Latvia (Article 6 of the Labour Act)

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Annexes

Annex 1. Main national specific anti-discrimination legislation

CountryConstitutional
anti-discrimination
provisions
Main specific anti-discrimination legislation Grounds covered
LatviaArticle 91 of the
Constitution
Labour Law of 20 June 2001, as
last amended in 2016
Race, skin colour, age, disability, religious, political or other conviction, national or social origin, property or marital status, sexual orientation “or other circumstances”
Law on Prohibition of
Discrimination against Natural
Persons – Economic Operators of
19 December 2012
Gender, age, religious, political or
other conviction, sexual orientation,
disability, race or ethnic origin

Annex 2. Signature/ratification of international convention

LATVIA. Ratified: European Convention on Human Rights, Revised European Social Charter, International Covenant on Civil and Political Rights, Framework Convention on the Protection of National Minorities, International Convention on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of Discrimination against Women, ILO Convention No 111 on Discrimination, Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities. Signed: Protocol 12, ECHR

Annex 3. National specialised bodies

Country: Latvia

Specialised body designated by law in compliance with Article 13: Ombudsman, (Law on Ombudsman, Art. 11(2))

Grounds covered other than racial or ethnic origin: Grounds not specified, hence any ground

Provides independent assistance to victims: Yes

Conducts independent surveys: Yes

Publishes independent reports: Yes

Issues recommendations: Yes

Is a quasi-judicial body: No

Its decisions are binding: N/A


Document data: published in November 2017, based on information current on 01.01.2017 ISBN 978-92-79-75353-4 Link: https://www.equalitylaw.eu/downloads/4489-a-comparative-analysis-of-non-discrimination-law-in-europe-2017-pdf-1-35-mb

Publisher’s note: Older analogous annual reports on the issue can be found at http://providus.lv/article_files/1575/original/ke7807323_en.pdf?1332248757 (2007 edition), at publications.europa.eu (2010-2014), at equalitylaw.eu (2015-2016)

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