Norcous & Partners

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Overview

The legal Acts of Lithuania outline the following types of age discrimination: direct discrimination, indirect discrimination and harassment. Direct discrimination shall be taken to occur when on the basis of the person’s age one person is treated less favourably than another, has been or would be treated in a comparable situation, except for the cases provided for by the laws, when certain age requirements are justified. Indirect discrimination is considered to be where an action or inaction, legal norm or criterion, provision or practice, which is age neutral advantages persons of a certain age can, do, or might emerge. Harassment shall be deemed to be undesirable conduct (discrimination), when on the basis of age one strives to violate or violates the dignity of a person and strives to create or creates an intimidating, hostile and degrading or offensive environment.

The main national law implementing the EU Directive 2000/78/EC is the Law on Equal Treatment. Age discrimination rules are also established in the Labour Code.

Age discrimination may not be justified in Lithuania. However, different treatment because of age may be allowed in certain established cases (e.g. when age limits for certain positions are prescribed by applicable laws).

Who’s covered?

The Law on Equal Treatment obliges all state, municipal, education and other institutions (entities) to implement equal treatment. However, there is neither regulation nor case law regarding the application of equal treatment rules in respect of self-employed or agency workers. There are also no specific limitations established, except that for certain positions mandatory retirement ages are prescribed by the laws, e.g. the Law on Public Service establishes an upper age limit for career civil servants; the Law on the Prosecutor’s Office, for public prosecutors; the Law on Courts, for judges, etc. Such retirement age limits established for different professions are different and in most cases vary from 60 to 65 years.

What enforcement/remedies exist?

No criminal sanctions are established for the infringement of age discrimination rules. The body supervising the enforcement of age discrimination rules and hearing the claims regarding the alleged infringement thereof is the Office of the Equal Opportunities Ombudsman. In case of unlawful dismissal and other violation of age discrimination rules, the enforcing body shall be a court. The civil remedies mainly comprise reinstatement and compensation and are provided for the cases of unlawful dismissal. If such violation is established, the court shall reinstate the employee in his/her previous job and award him/her the average work pay for the entire period from the day of dismissal until the day of execution of the court decision. If the court establishes that the employee may not be reinstated in his/her previous job (e.g. because he/she may be provided with unfavourable work conditions), it shall take a decision recognising the dismissal as unlawful and award him/her a severance payment as well as his/her average wage for a certain period.

Courts competent to hear cases of unlawful dismissal in violation of age discrimination rules shall be the courts of first instance, decisions of which may be subject to further appeal.

There is no case law regarding other forms of age discrimination (e.g. harassment, etc.).

How common are claims?

In our estimation, age discrimination claims are not common so far. The Law on Equal Treatment, although enacted in 2003, is in force only from 1 January 2005; therefore there is no long term experience in administrative or judicial enforcement of age discrimination rules. According to the statistics of the Office of the Equal Opportunities Ombudsman for the year 2005, 30 age discrimination claims were lodged with the Office: age discrimination claims constituted 22%, claims regarding discrimination on the ground of sex – 23%, ethnic subordination – 11%, disability – 10%, sexual orientation – 2%, religion and beliefs – 2%, sexual harassment – 2%. In addition, there are only several reported cases heard in courts and all those cases deal with unlawful dismissal.

What claims are most common and what are trickiest issues for employers?

According to available statistics, the most common age discrimination claims are the claims in the sphere of the protection of consumer rights, i.e. people often feel discriminated because of age in relation to the buying of goods or services (e.g. sometimes old people are refused to pay for goods by instalments). Another significant group of claims is related to the provisions of legal acts which, in the opinion of applicants, restrict the rights of old people and give certain priorities for the young. In addition, claims regarding the methods for calculation of certain social benefits established under applicable laws and resulting in unequal pay for different age groups are also quite common.

We have spent very little time advising on age discrimination issues yet. All such assignments are mainly related to unlawful dismissal.

Are there any specific exceptions in your laws?

S pecific exceptions are mainly established for retirement age limits which are set for certain positions by applicable laws (please see “Who’s covered?” above).

Retirement ages

Retirement age itself may not be considered a valid reason for dismissal, save certain established cases where age limits for certain positions are prescribed by laws (please see “Who’s covered?” above).

Interesting cases

As already mentioned, so far there is a very scarce case law concerning age discrimination. All reported cases heard by court dealt with unlawful dismissal on the ground of age. Other age discrimination issues are dealt with by the Office of the Equal Opportunities Ombudsman.

In one of the cases, the Office of the Equal Opportunities Ombudsman received a claim complaining that the applicant had applied for the position of a secretary in a real estate company; however, she was rejected for such position because of age (47 years). According to the applicant, she was asked about her age by phone firstly and afterwards was told that she would not fit for the job. The Office asked the company’s manager for explanation. The manager replied in writing that various requirements were raised for the secretary’s position, including nice appearance. During a conversation at the Office, the manager did not agree with the woman’s claim alleging that, irrespective of the negative answer by phone, she still could apply for the position. He also admitted that he would better employ younger employees because they simply perform their functions better. The Office noted that the manager failed to explain that the applicant whether she complied with the job requirements, he indicated in advance that the applicant would not have been suitable for the position. Therefore the Office concluded that the manager violated Paragraph 1 Article 7 of the Law on Equal Treatment (”The acts of an employer shall be deemed as violating equal treatment, if due to a person’s age <…> he/she: 1) applies less (more) favourable condition of employment or recruitment to public service <…>”). The Office decided to notify the company’s manager of the infringement of the law.