7 - chapter

Prohibition of discrimination

Author: Kelly Grossthal

Prohibition of discrimination

In the observable period the amendments to the Equal Treatment Act were repeatedly under focus, its too narrow area of protection, and the act’s possible contradiction with the Constitution. At the same time there was an occasionally fierce discussion on migration, incitement of hatred, work reform, absence of implementing provisions to the Registered Partnership Act, sexual harassment, as well as on other topics directly or indirectly related to equal treatment going on. The discussions were largely emotional, less often there was a connection to fundamental right to equality stemming from the Constitution of Republic of Estonia and relevant international acts of law. It is worth pointing out that the new government lead by Jüri Ratas that assumed office, as well as Kersti Kaljulaid who was elected president, have been supportive on the topics of equal treatment.

Political developments and institutions active in the area of equal treatment

The new government assuming the office took place in the observable period. Jüri Ratas became Prime Minister, his government assumed office on November 23rd, 2016. Government coalition was formed by the Estonian Centre Party, the Social Democratic Party and the Pro Patria and Res Publica Union. The newly-formed government coalition’s founding principles contain several important goals regarding equal treatment – the coalition considers it important to increase social well-being and social cohesion, they wish to increase the proportion of women in governance, decrease the gender pay gap, ratify and rapidly implement the Istanbul convention.

The Gender Equality and Equal Treatment Commissioner as an independent expert who works for promotion of equal treatment of women and men continued counselling people within her competence and giving opinions in discrimination cases. The number of people turning to the office of the Commissioner in 2016 increased a considerable amount. While the Commissioner registered 209 inquiries in 2015, in 2016 the number had increased by a third, to 332. Of the basis for discrimination there were most inquiries regarding discrimination based on gender (including family obligations), and labour dominated among the areas, which is understandable as the Commissioner’s competence to give opinions is widest in that area. The reason for increase in number of inquiries may be people’s higher awareness of equal treatment in general as well as Commissioner Liisa-Ly Pakosta’s active communication with the public. The office of the Commissioner also published in 2016 alone 17 different publications, guidelines or other documents directly contributing to introduction of the equal treatment concept and solving of problems.[1]

As of November 23rd, 2017, the Labour Inspectorate’s labour dispute committees had received 22 applications regarding discrimination, the largest number of discussion have been on detecting discrimination based on disability.[2] In 2016 the labour dispute committees solved 25 disputes related to discrimination or unequal treatment, and in three of these cases the employee’s unequal treatment of discrimination by the employer was confirmed. The Labour Inspectorate mentions in its 2016 review that the main problem in solving disputes is the fact that workers do not state the basis, which they feel they have been discriminated on and there are also problems in proving unequal treatment.[3] The conclusion of the Labour Inspectorate shows that there is a continued need to acquaint workers with the topic of discrimination more widely.

The Chancellor of Justice’s jurisdiction includes reviewing legislation regarding concordance with the Constitution (including the principle of equality stated in section 12) and other acts, as well as actions of representatives of public authorities. She also has the mandate to carry out conciliation procedures in discrimination disputes between legal persons in private law and promote the principle of equality and equal treatment. The Chancellor of Justice’s Annual Report for 2016/2017, which concerns petitions made to the Chancellor and her office from 1 September 2016 until the end of August 2017 states that in the period mentioned the Chancellor received 37 petitions regarding equal treatment. 23 of the petitions had to do with the general fundamental right to equality and 14 concerned discrimination. For example, the Chancellor of Justice analysed a case where the bank refused to issue a 76-year-old pensioner a credit card due to their age. In Chancellor’s appraisals the credit institutions must not refuse to issue a loan or a credit card merely because of the client’s age, and upon making the decision the person’s income, property and credit history should be taken into account. In addition, the Chancellor, in her Annual Report drew attention to the fact that the different degree of protection with regard to different grounds of discrimination in unconstitutional.[4]

Legislative developments

On June 6th, 2017 came into force the Act amending the Citizen of the European Union Act and the Equal Treatment Act.[5] According to the explanatory memorandum to the draft act the goal of the act is to enforce requirements stemming from Directive 2014/54/EU in order to enable better and more general application of rights of family members (who are citizens of EU Member States or third countries) of people making use of the free movement of workers right, and guarantee methods against discrimination.

On 27 March 2017 the Estonian Human Rights Centre in cooperation with the Equal Treatment Network[6] submitted an opinion of their own to the Constitutional Committee, which was critical of the draft act.[7] The main criticism was about the fact that although it had initially been the intention to include protection of EU citizens’ from discrimination in the Equal Treatment Act the Constitutional Committee later proceeded with the draft act where protection of EU citizens’ was moved to the Citizen of the European Union Act, thereby providing EU citizens unlimited protection in comparison to the Equal Treatment Act.

The opinion of the Estonian Human Rights Centre was that adding the equal treatment requirement of citizens of the EU and the European Economic Area Member States in the Citizens of the European Union Act instead of the Equal Treatment Act was unfounded. Adding the section in the Citizens of the European Union Act does not give the citizens of the Member States similar protection to what is stated in section 2 of the Equal Treatment Act. This means that the text in the Citizens of the European Union Act offers narrower protection than the protection provided by Equal Treatment section 2 subsection 1 clauses 1–7. The opinion also states that if equal protection of EU citizens is stated in the Citizens of the European Union Act the discrimination cases that take place on the grounds of EU citizenship will not be in the jurisdiction of the Equal Treatment Commissioner and people won’t be able to turn to her for help and the Commissioner won’t be able to give her opinion.

Another important legislative development in the observable period also had to do with the Equal Treatment Act and its area of protection. The fact that the Equal Treatment Act provides a wider scope of protection based on gender, nationality, race and colour than on the grounds of age, disability, sexual orientation, religion or beliefs has been repeatedly criticised in human rights reports of previous years. The Equal Treatment Network that consists of NGOs has drawn attention to such differentiation and advised the state to harmonise protection based on all grounds mentioned in the Equal Treatment Act, and all areas of life. On 4 August 2017 the Ministry of Social Affairs sent the amendments to the Equal Treatment Act to an external coordination round with the intention of amending the act for two purposes: firstly, extend its application so that protection from discrimination is extended to all groups protected from discrimination in the same way, and secondly, give the Equal Treatment Commissioner an independent role in promoting the rights of disabled people. The extension of the scope of the Equal Treatment Act is also the prerequisite for enabling the Equal Treatment Commissioner to fulfil her tasks stemming from section 33 subsection 2 of the Convention on the Rights of Persons with Disabilities – to promote, protect and review the convention.[8]

The Estonian Human Rights Centre gave the draft its supporting opinion on 28 August 2017, where it conceded that extension of the scope is a necessary and an important amendment and the Centre has previously repeatedly drawn attention to the shortcomings in the Act as well as possible contradictions with the Constitution.[9] The Estonian Council of Churches (EKN) also submitted its own opinion. In their view the principle of equal treatment restricts freedom of religion and beliefs, where the person cannot discriminate against the other contracting party based on their religion, beliefs or sexual orientation. According to the EKN’s vision, the principle of non-discrimination and the principle of freedom of religion can conflict, as both parties have faith and beliefs, therefore, in their opinion the inner convictions of both parties as well as the principle of discrimination clash.[10]

The Estonian Human Rights Centre and The Estonian LGBT Association then separately turned to the Chancellor of Justice for appraisal on whether the situation, where a person claims they cannot offer goods or services otherwise aimed at the general public to persons of non-heterosexual orientation or organisations standing for their rights due to their own religious beliefs, is in concordance with the Constitution. The opinion of the Chancellor of Justice had not been submitted as of 28 November 2017, however, the debate over the area of protection under the Equal Treatment Act is certainly important in interpreting and following the principle of equal treatment stemming from the Constitution.

Court practice

On 30 June 2016 the Supreme Court en banc made a decision according to which the provision of the Parental Benefit Act was in conflict with the Constitution in so far as it prescribed reducing the parental benefit due to delay by the employer so that the total income received during the period of receipt of the parental benefit and the parental benefit was less than in the case where the employer had not delayed the payment of remuneration. The Social Insurance Board had ordered the applicant to repay the parental benefit that they had been paid without a valid legal basis. The applicant also believed that the respondent had not considered that the payment exceeding the limits occurred because the employer payed the applicant redundancy payment along with two months’ unpaid salaries at the same time. Supreme Court en banc explained in its reasoning that the fundamental right to equality guaranteed in section 12 of the Constitution forbids unequal treatment of people in similar situations. In order to detect unequal treatment in judicial proceedings it is always necessary to figure out points of origin for comparison and the comparable groups. Supreme Court en banc found that the first comparable group are the recipients of benefit who are paid in the calendar month that they are to receive parental benefit income that is delayed at the fault of the social tax payer, which the person was entitled to at the time of receiving the benefit (the applicant). The second comparable group are the recipients of benefit who are paid in the calendar month that they are to receive parental benefit income that is delayed at the fault of the social tax payer, which the person was entitled to before receiving the benefit. Supreme Court en banc found that the comparable groups are treated unequally and found no justification for such unequal treatment.[11]

On 8 November 2017 the Constitutional Review Chamber declared subsection of section 24 of the State Pension Insurance Act (RPKS) unconstitutional and invalid insofar as they do not allow sharing supplementary years of pensionable service among persons where both persons met the requirements stated in the section 28 subsection 2 clause 12, but they do not come to an agreement on how to share it between them. The respondent and the applicant have a total of 5 children. The respondent had agreed that the applicant would receive the larger part of supplementary years of pensionable service for raising the children. At the same time, he did not agree that the applicant would have two years for raising each older child added to her years of pensionable service because, according to the respondent, they lived as one family and raised the children together. Therefore, the respondent found that he has the right to receive a part of supplementary years of pensionable service. The applicant did not agree with that.

In the appraisal of Supreme Court en banc the right regarding supplementary years of pensionable service given for raising a child during at least eight years primarily breaches the general fundamental right to equality contained in section 12 of the Constitution. The Supreme Court also recalled that according to section 27 subsection 3 of the Convention the parents have an equal right and obligation to raise and look after the child, and equality of parents is prescribed in Article 8 in conjunction with Article 14 of the European Convention on Human Rights. Supreme Court en banc also conceded that the purpose of supplementary years of pensionable service stated in section 28 subsection 2 clause 12 of the RPKS is to recognise raising of a child, which has lasted at least eight years, and both parents who fulfil this criterium are entitled to it. The Court explained that in this case the comparable persons are the parents, who both have dedicated at least eight years to raising the child, and are both in a similar situation. Supreme Court en banc found no reasonable justification to restriction of right to equality and therefore declared section 28 subsection 2 clause 12 of RPKS in contradiction of the Constitution and invalid insofar as it foresees giving supplementary years of pensionable service to just one parent while the other parent also meets the requirements.[12]

Statistics and surveys

In the period from 28 March until 10 April 2014 Turu-uuringute AS carried out a public opinion survey on topics related to LGBT persons’ rights and certain areas of diversity. Similar surveys have previously been conducted in 2012 and 2014. It can be concluded from the 2017 outcome that people’s attitude to equal treatment, diversity, work environment and goods and services has become significantly more supportive of the area.

Most members of the public (81%) are of the opinion that employers should better notify their employees of principles of equal treatment. 83% of respondents consider it important that companies/organisations pay more attention to equal treatment in their activities. It also transpired that if a company or an organisation considers diversity and equal treatment important it would make it an attractive employer for 44% of the respondents; 55% would prefer goods and services by such company/organisation to others’. In comparison to the 2014 survey the portion of those respondents has increased (+18%) who prefer goods and services of such companies. A company/organisation that values diversity and equal treatment would seem an attractive employer more often to women (59%), to 20-29-year-olds (66%), to mid-level specialists, officials and service industry workers (61%).

Another survey conducted in the observable period worth mentioning is the report compiled on the request of European Network Against Racism called “Racism, racial discrimination and migration in Estonia 2015–2016”, which discusses society’s views on migration as well as migrants’ personal experiences. The author of the report, legal expert Anni Säär conducted several interviews with persons in Estonia with migration or refugee backgrounds and conceded that a lot of the interviewed people had had contact with negative attitude, hate speech or had fallen victim to hate crimes because of the colour of their skin and their background. At the same time availability of legal protection is complicated. The main problem for migrants and ethnical/religious minorities in Estonia is the limited scope of the Penal Code, as it does not contain regulation on hate crimes and their various motivations. The report also draws attention to possible racial profiling at Tallinn harbour and at the airport.[13]

Good practices and noteworthy public discussions

In March of 2016 the Equal Treatment Commissioner established the “Good employer” web portal, which enables organisations and companies to navigate the topic of equal treatment and helps employers create good and lawful work culture. The portal explains various life situations, which may occur in work environments via questions and answers, and offers answers and practical solutions.[14]

On November 6-7, 2017 the conference “Diversity and Leadership in a World in Flux” took place in Tallinn in the course of Estonian presidency, which focused on challenges of diversity management in a rapidly changing Europe and the world. The conference was also an annual forum for Diversity Charters created by European companies and organisations. Speeches were made by leaders and experts of several well-known companies (IKEA, Siemens, Swedbank Estonia, Google and many others). The conference was organised by the European Commission, the Ministry of Social Affairs, the Estonian Human Rights Centre and the European Diversity Charters.[15]

In spring of 2016 the Estonian Human Rights Centre, in cooperation with the Ministry of Social Affairs, started work on the Diverse Workplace label. The first labels will be distributed 21 March 2018, the next opportunity to obtain a label will come in February of 2020. In order to obtain the label, the company has to fulfil a self-analysis questionnaire and then compile a two-year diversity plan. The label intends to take real practices of diversity and inclusion in Estonian companies and organisations to a new level, where the employers have a real plan and a plan of action on how to promote diversity and inclusion and thereby guarantee equal opportunities to all of their current and future employees.[16]

Estonian research institutions and the Estonian Research Council signed the Estonian Code of Conduct for Research Integrity Agreement on 1 November 2017. The agreement also includes several topics concerning the area of equal treatment, and it describes the kind of behaviour that is expected from researchers and what the research institutions’ responsibility in guaranteeing good science is. It is presumed that the researcher is helpful towards their colleagues, avoids discrimination and unfounded different treatment. Research institutions are expected to guarantee a safe work-environment and equal treatment for all of their workers, and condemn any kind of bullying and harassment. Research institutions are also to establish an in-house procedure for dealing with violations of equal treatment and other rules of good relations among colleagues, and bullying. Researchers have to consider the rights and interests of people involved in studies when conducting research work. Special attention has to be paid to vulnerable groups, evaluating vulnerability and risk of the included persons and social groups, protecting them from possible shame, marginalisation or damaging of their interests.[17]

In 2016 and 2017 there was quite a lot of discussion on aging and the sustainable pension system. Since 2016 the Foundation Estonian Cooperation Assembly has been analysing the challenges of aging in the future and modelling the solutions on expert level in its two-year programme “Pension 2050”.[18] In March of 2017 the Foundation Estonian Cooperation Assembly launched an active public debate on this topic[19] – how does the Estonian society envision old age in the future and how to guarantee sustainability of the pension system in an aging population. Specific proposals were found via public idea gathering and expert analysis concerning flexible work, lifelong learning, long-term care insurance and making second pillar payments more flexible. Two ideas are currently being discussed at the Riigikogu, and with regards to the order ideas the Foundation Estonian Cooperation Assembly is looking for solutions on how to monitor their process. Aimar Altosaar, the founder of the NGO Kuldliiga Algatus contributed a view of his own to the ongoing debate, drawing attention to the fact that the topic of equal treatment is absent from the selected topics and more people who are already older should be included in the debate.[20]

Recommendations

  • Adopt amendments to the Equal Treatment Act, which would erase differences between different grounds for discrimination.
  • Raise the public’s as well as organisations’ awareness and share examples of good practices regarding benefits of diversity and inclusion to individuals, organisations and the society. Among other things, the employees need to be explained how to submit reasoned petitions on discrimination.
  • Continue and broaden discussion on growing old with dignity and also pay attention to equal treatment aspects in it.

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[1] Pakosta, L. 2017. Riigikogu põhiseaduskomisjonile voliniku tööst 2016 [To the Constitutional Committee on the Commisioner’s work]. Available at: http://www.vordoigusvolinik.ee/wp-content/uploads/2017/04/aastaaruanne-2016.pdf

[2] Inquiry to the Labour Inspectorate. Response. 24.11.2017

[3] Labour Inspectorate (2017). Töövaidluskomisjoni menetluses olnud ebavõrdse kohtlemisega seotud töövaidlusasjad perioodil 01.01.2016-31.12.2016 [labour dispute committee cases involving unequal treatment in the period 01.01.2016-31.12.2016]. Available at: http://www.ti.ee/fileadmin/user_upload/dokumendid/Meedia_ja_statistika/Statistika-toeoeonnetused/Ebavordse_kohtlemise_vaidlused_2016.pdf

[4] Õiguskantsleri aastaülevaade 2016/2017 [Chancellor of Justice’s Annual Report 2016/2017]. Available at: http://www.oiguskantsler.ee/ylevaade2017/muud-ulesanded

[5] Euroopa Liidu kodaniku seaduse ja võrdse kohtlemise seaduse muutmise seadus [the Act amending the Citizen of the European Union Act and the Equal Treatment Act]. 2017 – State Gazette I, 26.04.2017, 6

[6] Members of the Equal Treatment Network are: the Estonian Human Rights Centre, the Estonian LGBT Association, Estonian Women’s Association Roundtable, the Estonian National Youth Council, the Estonian Patient Advocacy Association, the Estonian Chamber of Disabled People, Ida-Virumaa Integratsioonikeskus, the Estonian Union for Child Welfare, the NGO Oma Tuba, the NGO SEKY.

[7] Foundation Estonian Human Rights Centre. Arvamuse andmine Euroopa Liidu kodaniku seaduse ja võrdse kohtlemise seaduse muutmise seaduse eelnõu 189 SE II kohta [Giving opinion on the draft act amending the Citizens of the European Union and Equal Treatment Act]. 2017. Available at:  https://humanrights.ee/app/uploads/2017/04/vkv-pskomisjon-elkodanik.pdf

[8] Võrdse kohtlemise seaduse muutmise seadus [The act amending the Equal Treatment Act]. Document no in the information system for draft acts: 17-0909/01.

[9] Foundation Estonian Human Rights Centre. Arvamus võrdse kohtlemise seaduse muutmise seaduse eelnõu ja seletuskirja kohta [Opinion on the draft and explanatory memorandum of the Equal Treatment Act]. 2017. Available at: https://humanrights.ee/2017/08/arvamus-vordse-kohtlemise-seaduse-muutmise-seaduse-eelnou-ja-seletuskirja-kohta/

[10] Opinion of the Estonian Council of Churches on the draft act of the Equal Treatment Act. Available at: http://adr.rik.ee/som/dokument/5210009

[11] Supreme Court en banc judgment in case no 3-3-1-86-15. 30 June 2016.

 

[12] Constitutional Review Chamber judgment in case no 5-17-9. 10 October 2017.

[13] Säär, A. 2017. Rassism, rassiline diskrimineerimine ja migratsioon Eestis 2015-2016 [Racism, racial discrimination and migration in Estonia 2015–2016]. Available at: https://humanrights.ee/2017/07/rassism-rassiline-diskrimineerimine-ja-migratsioon-eestis-2015-2016/

[14] The Website’s address: http://heatooandja.vordoigusvolinik.ee/

[15] The conference’s home page. Available at: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=107031

[16] The Diverse Workplace label’s home page. Available at: https://humanrights.ee/teemad/mitmekesisus-ja-kaasatus/mitmekesise-tookoha-margis/

[17] Hea teadustava [Estonian Code of Conduct for Research Integrity Agrement], 2017. Available at: https://www.eetika.ee/sites/default/files/www_ut/hea_teadustava_nov.pdf

[18] Eesti Koostöö Kogu programm Pension 2050 [the Foundation Estonian Cooperation Assembly’s programme Pension 2050]. Available at: https://www.kogu.ee/pension2050/

[19] More detailed information of the new citizen initative on aging available at: https://uuseakus.rahvaalgatus.ee/

[20] Altosaar, A. 2017. Eesti Päevaleht. 16 March 2017. Available at:   http://epl.delfi.ee/news/arvamus/uue-rahvakogu-kriitika-kuhu-jai-tanaste-pensionaride-vaarikus-ja-vordne-kohtlemine?id=77566008

 


Author

  • Juristiharidusega Kelly Grossthal töötab Eesti Inimõiguste Keskuses võrdse kohtlemise valdkonna õiguseksperdina. Lisaks koordineerib ta Eesti Inimõiguste Keskuse ja Tallinna Tehnikaülikooli poolt ellu kutsutud Eesti mitmekesisuse kokkulepet. Vabatahtlikuna lööb Kelly kaasa mitmete noorteprojektide juures ning kuulub noorte mitteformaalset haridust edendava Eesti Kodanikuhariduse Keskuse juhatusse.