Dicrimination: questions and answers
1. How is the term “discrimination” understood in Estonia?
Discrimination can be either direct or indirect. The Equal Treatment Act and the EU directives contain similar definitions.
Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation. For example,
• There are two equally qualified employees (same education, work experience and skills). These two people only differ by one of the discriminatory grounds, for instance, by age.
• Unequal treatment, such as disparate remuneration for the same work, occurs.
Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons belonging to a potentially vulnerable group at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. For example,
• A potential employer requires the ability to do physical exercises as the selection criteria for office employees – a prerequisite that has nothing to do with their future duties. This “neutral” and “equally applied to everyone” requirement can actually result in an insuperable obstacle for the disabled candidates, although the office tasks can be well done by the disabled.
Harassment and instruction to discriminate are also deemed to be discrimination.
Harassment shall be considered as discrimination, when an unwanted conduct related to the discriminatory grounds takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. For example,
• The employer regularly ridicules his employee’s physical defects, accent or religious convictions.
2. Whom and on what grounds is it forbidden to discriminate in Estonia?
According to the Estonian Constitution, discrimination is prohibited against anyone, on any grounds and in any sphere of life. This circumstance is essential, considering the fact that the constitutional provisions are directly applicable in Estonia. Everybody must avoid discriminating, i.e. both natural and legal persons, as well as state and administration organs.
Likewise, the Penal Code prescribes responsibility for illegal limitations of human rights, as well as concession of unlawful advantages on the grounds of a person’s race or ethnicity, colour, sex, language, origin, religion, sexual orientation, political opinion, property or social status.
As far as gender is concerned, discrimination is prohibited by the Gender Equality Act in all spheres of public life.
The Equal Treatment Act regards the cases of discrimination on the basis of race, ethnic origin, skin colour, religious convictions, age, disability and sexual orientation, and guarantees protection against discrimination in the following fields:
• Access to occupation, employment and self-employment, including promotion, both in public and private sphere;
• Access to all types and all levels of vocational guidance and training;
• Employment and working conditions, including dismissals and pay;
• Membership of an organisation of workers or employers and professional associations;
• Social care, including social security and health care;
• Social welfare;
• Access to public goods and services, including housing.
Protection against discrimination on the grounds of religion or belief, age, disability and sexual orientation is only implemented in the field of occupation.
In the field of employment and occupation, both private workers and public servants, as well as job applicants are protected under the Equal Treatment Act, which can also be applied in cases of discrimination on other grounds, defined in the Employment Contracts Act and the Public Service Act.
In some cases, discrimination on the ground of language proficiency can be considered as a form of ethnic or racial discrimination.
3. What are the exceptions to the principle of prohibition of discrimination?
According to the Equal Treatment Act, a difference of treatment shall not be considered as discrimination where, by reason of the character of the particular occupational activities concerned or of the context in which they are carried out, genuine and determining occupational requirements are set (provided that the objective is legitimate and the requirement is proportionate). For instance, a film director is not obliged to assign the role of a little boy to an elderly person.
At the same time, deep-rooted and “self-evident” conception of personal characteristics that better suit a certain job shall not secure legitimacy and proportionality of a particular requirement. Indeed, it is doubtful that an employer can prove that a candidate for the hotel administrator’s job must be “young and vigorous”, and this kind of requirement would probably be regarded as discriminatory on the grounds of age or physical defects.
Furthermore, the Equal Treatment Act does not prohibit the so called positive action intended to compensate for disadvantages related to the inequalities of certain social groups. However, these measures should be proportionate to the desired result. They can include, for instance, some extra steps in personnel recruitment process, such as the publication of advertisements in a variety of ways in order to encourage the members of potentially vulnerable groups to apply and assisting them if necessary.
The Equal Treatment Act does not exclude the possibility of taking proper measures for public order and security purposes, crime prevention, public health interests, as well as for the protection of other persons’ rights and freedoms. However, these measures must be proportionate to the pursued objective.
4. Do disabled persons have any particular rights?
Under the Equal Treatment Act, employers are required to take appropriate measures in order to enable persons with disabilities to have access to, participate or advance in employment, or to undergo training, unless such measures would impose a “disproportionate burden” on the employer. These measures are called reasonable accommodation. For example,
• The employer hires a sign language interpreter for his deaf employee in order to let him undergo vocational training;
• If an accident in the workplace disables a manual worker and he or she is not able to perform his regular job anymore, the employer can organise necessary vocational training in order to enable him or her to work at the office.
• If a disabled person using a wheelchair applies for a job at the office situated on the fourth floor of the company building, the employer can transfer the office in question on the first floor, if possible. However, if the office rooms on the fourth floor are the only rooms owned by the company and there is no elevator in the building, the employer has no appropriate measures at his disposal to reasonably accommodate the disabled person.
• In order to favour a blind employee accompanied by a guide dog, the employer can arrange working hours so as to enable the employee to avoid rush hour.
LICHR lawyers provide assistance to discrimination victims.