Court admits that EFHR is right in argument with Equal Treatment Controller’s Service

The decision of the Equal Treatment Controller’s Service (ETCS) is contradictory to its aims and tasks. Therefore, in an obvious way, it has violated its competence. This is what results from the decision of the District Administrative Court in Vilnius, taken on May 6^th 2013. Thus, the Court has positively considered the complaint sent by the European Foundation of Human Rights (EFHR).

On September 17^th 2012 EFHR submitted a complaint to ETCS about a discriminative announcement published by the “Rojus group” company on the darbo.lt website. In the announcement from August 19^th,2012 it was said that “girls who are able to work and want to earn some money are welcomed”. It should be pointed out that Article 14 of the directive 2006/54/EC of the European Parliament and the Council from July 5^th 2006 on introducing the rule of equality of chances and equal treatment of men and women in the field of employment and work states that there is total prohibition on direct and indirect discrimination in employment, running a business activity on one’s own account and performing professional tasks, including the selective criteria and recruitment conditions, in any kind of business activity and on all levels of professional hierarchy, including professional promotion.

Article 8 of the Lithuanian act on equal treatment of men and women, which introduces the directive, states that in job announcements, announcements about public service admission or educational service admission it is prohibited to list conditions determining primacy in terms of sex. For EFHR, the sued job announcement has violated these regulations in an obvious way.

Unfortunately, in the decision taken on November 12^th 2012, ETCS discontinued proceedings, pointing out to lack of objective data about the violation. ETCS accused EFHR of having no legal interest in the case. According to ETCS a legal person must represent a natural person whose rights have been violated, even in a situation when it takes an action in the domain of human rights.

Disagreeing with this decision, the EFHR represented by attorney’s assistant Ewelina Baliko has sent a complaint to the District Administrative Court in Vilnius asking for cancellation of the ETCS’s decision and for obliging ETCS to consider EFHR’s complaint about the discriminative announcement.

The Foundation has directed particular attention towards the fact that ETCS’s attitude is incompatible not only with legal acts but also with decisions of the Court of Justice of the European Union. The Court of Justice, after considering the request of the Labour Court in Brussels about giving preliminary ruling in the case C-54/07, explained that the appearance of indirect discrimination in this form does not need an identifiable petitioner, who would state that he or she was a victim of such an act of discrimination. […] In public statements, on the basis of which an employer informs that within the framework of his or her employment policy he or she will not employ persons of a particular race of ethnic origin, as defined in article 8 part 1 of the Directive 2000/43 there is a sufficient reason for assuming the existence of a discriminative employment policy. Thus, an employer should prove that the rule of equal treatment has not been violated.

On May 6^th 2013, the District Administrative Court in Vilnius fully acceded to EFHR’s complaint. In the decision, the Court has stated that ETCS had not taken into consideration the real state of matters, it had not given a statement about the possible conflict of the above-mentioned action with acts and other legal regulations, and it had not decided which facts or proofs confirm or negate the character of violation of the legal acts. Additionally, the District Administrative Court in Vilnius has assessed the ETCS’s stance negatively and it has admitted that every person, both legal and natural, has the right to submit a complaint to ETCS in a case of violating the rule of equal treatment.

It should be mentioned that the presented case is of great importance not only because of the stated irregularity in the way in which ETCS performs its functions, but also because of the fact that the question whether non-governmental organisations can sue decisions taken by the ETCS has been answered. Thus, the Court has confirmed that a discriminative job announcement is an independent act that violates the law and it does not refer to any natural person.

Equal Treatment Controller’s Service has the right to appeal from the decision of the Court within fourteen days from the date of its announcement.

                      EFHR

Translated by Emilia Zawieracz within the framework of a traineeship programme of the European Foundation of Human Rights, www.efhr.eu.