Equal Treatment Act

The year 2008 was an important year for Estonia as it brought about changes in the application of the principles of equal treatment. The equal treatment principle is stated in §12 of the Constitution of the Republic of Estonia:

“Everyone is equal before the law. No one shall be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds. The incitement of national, racial, religious or political hatred, violence or discrimination shall, by law, be prohibited and punishable. The incitement of hatred, violence or discrimination between social strata shall, by law, also be prohibited and punishable.” [1]

However, a more concrete protection from discrimination is necessary to specify the implementation of this principle. Such protection is provided by the Equal Treatment Act (ETA) that was passed on December 11th, 2008 and came into force January 1st, 2009.[2]

Passing the Equal Treatment Act

The passing of ETA at the Riigikogu [the Parliament] did not go quickly and smoothly and is characterised by the procedure preceding the passing of the act. The draft of ETA had been in proceedings in the Parliament several times before it was passed. The first time the ETA draft was presented was to the session of September 24th, 2002 of the Parliament, but proceedings of the draft stopped with suspension of the second reading.[3] The proceedings of the next ETA draft (67 Draft Act) were not initiated again until 5 years later – on May 30th, 2007. Memorandum of the initiator to the ETA draft stated the following:

“In June 28th, 2006 the European Commission sent Estonia an official letter which concerned the implementation of the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. In January 3rd, 2007 the Commission sent Estonia an official letter which concerned the implementation of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The Commission was of the opinion in their official letters that Estonia is not fulfilling its duties under Directives 2000/43/EC and 2000/78/EC. The official letter signifies the first formal step in the infringement proceedings of Article 226 of Treaty establishing the European Community. Since European Commission has initiated infringement proceedings, the draft needs to be processed as quickly as possible.”

Therefore, it can be deducted from the memorandum to the draft legislation that the main reason for processing the ETA was the infringement proceeding of the Commission.

The proceedings of the ETA draft initiated in 2007 (Draft Act 67) lasted for nearly a year and the third reading took place in May of 2008, but it was rejected from proceedings for lack of necessary support from the plenary assembly of the Parliament in May 7th, 2008.[4]

the Estonian Reform Party faction, Estonian Socialdemocratic Party faction, Isamaa and Res Publica Party faction decided to initiate the ETA draft again in the same form (Draft Act 262 III) on May 8th, 2008. The third reading by plenary assembly of the Parliament took place on October 23rd, 2008 and the Parliament decided to reject it.

On November 6th, 2008 the same factions initiated the ETA again in the same form. At the first reading of ETA on November 11th, 2008 the Parliament sitting was chaired by member of Estonian Reform Party Väino Linde, whose speech reaffirmed the claim that ETA is most of all needed because of the requirements of the European Commission:

“At this stage we cannot say that Estonia does not fight against discrimination, because we do not have provisions for it. Quite the opposite, it is written in our Constitution. the Estonian Constitution provides protection from discrimination … But as I said, it is not enough from the point of view of European Commission, they require a special Act. Because of that this Act is before you as a draft now.”

Väino Linde repeated this statement once more in his speech:

“When we look back on the proceedings before the previous of a similar draft in the Parliament, our good colleague Urmas Reinsalu, performing in the name of IRL fraction stated that IRL does not really need this Act. I am sorry, but that was essentially his position and he explained that this Act was most of all necessary for the European Commission and precisely for Estonia’s relations in the European Union. I am of this position today as well.”

Such emphasis of the legislators on the necessity of the law makes it doubtful whether the legislators realise that the principle of equal treatment would not receive necessary attention by just being based on other Acts. All of the memorandums to the draft act make it rather clear that ETA is needed to present to the European Commission and for the reputation of state of Estonia and not for Estonian society. The necessity of ETA for Estonia’s reputation was affirmed by Väino Linde in his speech on November 11th, 2008 having phrased it as follows:

“if we make this draft into an Act in the near future, one good thing will happen – namely the infringement procedure against Republic of Estonia initiated by the European Commission will not progress to the next stage. This is what we should be worried about. It does not leave a good impression of our state.”

The purpose of the draft of ETA was supported by the Chancellor of Justice, but he found that the draft was in accordance with the subject-matter of European law rather than the Constitution of Republic of Estonia. The Parliament dismissed the opinion of Chancellor of Justice on the draft of ETA. The Chancellor also pointed out several deficiencies in the draft of ETA, like the list of grounds of discrimination, which is problematic in the light of the Constitution and international treaties. The Chancellor proposed opening up the processing area of the draft to ETA, providing protection in all aspects of social life and providing exceptions of non-application of the Act. The Chancellor of Justice found it a problem that provisions regulating a specific legal area are fractioned and divided between various legal acts.

In order to leave a good impression of our state (if to quote the speech of Väino Linde), the Parliament passed the draft to Equal Treatment Act on December 11th, 2008 as an act of law with 55 (out of 101) votes in favour.

Changes stemming from the entering into force of the Equal Treatment Act

The ETA that entered into force on January 1st, 2009 brought about several changes in other Acts as well – such as the Estonian Employment Contract Act, Salary Act, Public Service Act, Government of the Republic of Estonia Act, Individual Labour Dispute Resolution Act, State Public Servants Official Titles and Salary Scale Act, Gender Equality Act.

Passing ETA had the most direct effect on the Gender Equality Act (GEA) and the institution of the Gender Equality Commissioner. Chapter 4 of ETA is dedicated to Gender Equality and the Equal Treatment Commissioner, including the appointment of the Commissioner, financing, administration, competence and providing of opinion. Until the entering into force of ETA there was one Gender Equality Commissioner in Estonia, but as ETA entered into force she became “Gender Equality and Equal Treatment Commissioner.” This means that after the entering into force of ETA one Commissioner supervises both GEA and ETA (ETA § 15 section 1).[5] The memorandum to draft of ETA (Draft Act 384) provides

“Considering that there are not numerous breaches of human rights in Estonia, it is not reasonable to create separate institutions for different equality rights. The best solution would be creation of one Commissioner, whose tasks include protection of equality in general (irrespective of grounds of discrimination).”[6]

Thereby, now there is one Gender Equality and Equal Treatment Commissioner (from hereon Commissioner in this text) in Estonia, who deals with unequal treatment based on gender, nationality, race, colour, creed or opinion, disability or sexual orientation. Before January 1st, 2009 the gender equality Commissioner dealt with one area – gender discrimination, but now five more areas have been added.

The memorandum to the ETA draft (Draft Act 384) foresaw additional costs upon the entering into force of ETA, such as creating the Office of the Commissioner, creating additional posts and increasing operatiing costs (the prognosis of the Commissioner’s budget was 4.4 million). The budget of the Ministry of Social Affairs for 2009 did not include additional resources allocated to the Commissioner, although it was promised. According to the opinion of Minister of Finance, it is not expedient to allocate additional resources of state budget to a department, which has duties that have already been covered by other institutions or officials financed by state budget.[7]

At the Parliament’s sitting of May 5th, 2009 Evelyn Sepp had the floor and explained Estonia’s situation in the area of gender equality and equal treatment:

“…When we [in the Parliament] merged the areas of equal treatment and gender equality the previous year, it was supposed to bring about substantial increase in financial support of the activity of the independent Commissioner, so that she would be able to hire help. Despite this concrete promise, the situation is precisely the opposite: instead of adding one and one, she has lost quite a large fraction of her budget. We have, essentially, done something meaningless. In this form the institution is certainly not efficient.”[8]

Contradictory positions exist on the necessity of funding the activity of the Commissioner and this brings about doubts as to the capacity of the Commissioner. Thereby the actual purpose – protection from discrimination – has not been achieved, because Estonia cannot provide sufficient funds and that severely impacts the institution promoting equality (the Commissioner), and the Commissioner’s ability to carry out her role in promoting equality as well as helping the victims of discrimination. The events that took place in 2009 characterise the situation in Estonia regarding the prioritisation of the Commissioner’s work and its funding. The efficiency of the Commissioner’s activity was limited in 2009 by the cutting back of resources. Despite the need described in the draft to ETA for increase of the Commissioner’s resources due to additional duties, her resources were decreased. In 2008 the Commissioner’s budget was 950,000 kroons (60,716 euros), in 2009 the budget was 923,254 kroons (59,007 euros). There are only two people working at the office of the Commissioner: the Commissioner and an advisor, therefore the promise of additional human resources in the draft to ETA has not come to fruition. On the contrary, the budget deficit forced the Commissioner to work on a partial workload basis (75%) since May of 2009.

The decrease in funding of the Commissioner’s activity and simultaneous addition of new areas of work indicate that the Commissioner’s work does not belong among the priorities of the government.

The society, on the other hand, has shown more trust in the Commissioner, as confirmed by the number of inquiries made with the Commissioner. In fact, the number of inquiries nearly doubled in comparison to 2008 – a total of 161 inquiries were made in 2009. Most of them had to do with gender equality (77 inquiries). There were substantially fewer inquiries on other grounds (nationality, disability, sexual orientation and other) – 47 inquiries. A third of these had to do with issues of equal treatment regarding employment. Many of the inquiries had to do with the principle of equal treatment in general without specifying an area of life or the ground of discrimination.[9]

Amendments to the Equal Treatment Act

ETA has come into force, but the Parliament has already held proceedings on the amendments to the Equal Treatment Act. Motions to amend the ETA covered a shared burden of proof and the opinion of Commissioner. The Draft Act 317 came to third reading on February 19th, 2009, was passed and forwarded to the President of Republic of Estonia. The President of Republic of Estonia refused to proclaim it stating that passing an act breaches the rules set in the Rules of Procedure of the Parliament Act to such an extent that it amounts to a significant distortion of the Parliament’s resolution process and breach of the Constitution.[10]A new discussion of the said draft took place on March 11th, 2009 and decision was made to pass it in an unaltered form. The proceedings of Draft Act 317 began again, it was passed and it came into force on October 23rd, 2009.[11]

Legal protection guaranteed by the Equal Treatment Act

From point of view of the principle of equal treatment the passing and entering into force of ETA was a positive step towards protection of right to equality. It allows people to rely on a specific act that is in force in Estonia for protection of their rights, if they have been discriminated against based on nationality, race, colour, creed or opinion, disability or sexual orientation. Commissioner Margit Sarv has confirmed the need for a special act: “It is good to have equal treatment as a separate basic right and also protection from discrimination, which is based on a special act, because the principle of equal treatment may remain in the background in the context of other acts, or the connection may not be seen.”

The ETA allows people to turn to courts or labour dispute committees in solving disputes of discrimination and demand compensation for damage. People can also turn to the Commissioner, who advises and helps people with lodging complaints regarding discrimination and gives opinions on possible cases of discrimination. People also have the right to turn to the Chancellor of Justice, who solves disputes of discrimination in the course of conciliation procedure, since the principles of equal treatment and equality are stated within the field of activity of the Chancellor of Justice.[12] The activity of Chancellor of Justice in promoting the principles of equality and equal treatment is regulated by the Chancellor of Justice Act, which specifies the duties of the Chancellor of Justice.[13] Everyone has the right to turn to the Chancellor of Justice if he finds that he has been discriminated against on the basis of gender, race, ethnicity, colour, language, origin, creed or religious belief, political or other opinion, property, social status, age, disability, sexual orientation or other indication of discrimination by a natural or a legal person governed by private law (Chancellor of Justice Act §19).

52 inquiries were made with Chancellor of Justice pertaining to the principle of equal treatment in 2008.[14]

Principles of equal treatment in the Employment Contract Act

Year 2009 brought about radical changes in Estonian labour legislation. A new Employment Contract Act (ECA) was passed by the Parliament on December 17th, 2008 and entered into force on July 1st, 2009.[15] Upon the drawing up of this act, obligations stemming from EU law and international treaties and their incorporation into Estonian law were analysed. The area regulating relations between employers and employees includes the principle of equal treatment. The ECA §3 states the principle of equal treatment as follows:

“The employer must ensure the protection of employees from discrimination, follow the principle of equal treatment and promote equality according to the Equal Treatment Act as well as the Gender Equality Act.”

Thereby the employer has an obligation stemming from law to follow the principle of equal treatment. The principle of equal treatment and non-discrimination has been stated in several areas regulating relationships between employers and employees. The employer is obliged to avoid discrimination even during the precontractual negotiations. ECA §11 states the order of precontractual negotiations in a way that prohibits employer from asking the applicant for information that he has no legitimate interest in. The explanatory memorandum to the draft ECA set out areas, where employer’s interest may result in discrimination. Such areas are, for example, private data of the employee, their political and religious views, questions about employee’s family planning, hobbies, opinions etc. Principles of equal treatment have also been stated in other contexts of the act, such as non-discrimination between a part-time and a full-time employee, discrimination between employers with employment contracts with a time limit and those with contracts without time limits.

The ETA has been passed and entered into force but it does not automatically result in better protection from discrimination. If people do not know what their right to equal treatment entails they are not able to stand up for this right, and in addition the representatives of vulnerable groups refrain from relying on legal protection because of the attitude of the enforcers of social and legal norms.[16]

As a conclusion, it can be said that equal treatment in Estonia is guaranteed by the Constitution as well as the Equal Treatment Act and Estonia has finally fulfilled its legal duty to implement Directives 2000/43/EC and 2000/78/EC. The adoption of the ETA filled a very important gap in the Estonian legal order, which was confirmed by the Chancellor of Justice.[17] Then again, it is not yet clear how effective this act will turn out to be in practice, especially in a situation where the resources assigned to the Gender Equality and Equal Treatment Commissioner are extremely limited.

 


[1] Eesti Vabariigi põhiseadus [Constitution of Republic of Estonia] (RT [State Gazette] I 1992, 26, 349; RT I 2007, 33, 210).

[2] Võrdse kohtlemise seadus [Equal Treatment Act] (RT I 2008, 56, 315; RT I 2009, 48, 323).

[3] Government of Republic of Estonia, explanatory memorandum to Equal Treatment Act (Draft Act 67 III).

[4] Explanatory memorandum (reference 127).

[5] ETA (reference 130), §15 section 1.

[6] Explanatory memorandum (reference 127). Chancellor of Justice is of a similar opinion (reference 129).

[7] Explanatory memorandum (reference 127).

[8] Records of the XI Parliament, III session, 5.05.2009 at 10:00.

[9] Information from the Gender Equality and Equal Treatment Commissioner.

[10] Resolution of the President of the Republic from 3 March 2009 no 440 “Soolise võrdõiguslikkuse seaduse, võrdse kohtlemise seaduse, Eesti Vabariigi töölepingu seaduse, kohaliku omavalitsuse korralduse seaduse ja kohaliku omavalitsuse volikogu valimise seaduse muutmise seaduse” väljakuulutamata jätmine” [Refusal to proclaim the Act that amends the Gender Equality Act, the Equal Treatment Act, the Employment Contracts Act, Local Government Organisation Act and the Local Government Council Election Act] (RT Appendix, 10.03.2009, 22, 284).

[11] Soolise võrdõiguslikkuse seaduse ja võrdse kohtlemise seaduse muutmise seadus [Act amending the Gender Equality Act and the Equal Treatment Act] (RT I 2009, 48, 323).

[12] ETA (reference 130).

[13] Õiguskantsleri seadus [Chancellor of Justice Act] (RT I 1999, 29, 406; RT I 2009, 15, 94).

[14]Overview of activities of Chancellor of Justice (reference 129).

[15]Töölepingu seadus [Employment Contracts Act] (RT I, 2009, 5, 35; RT I 2009, 36, 234).

[16] Explanatory memorandum (reference 127).

[17] Overview of activities of Chancellor of Justice (reference 129).

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