Suchergebnisse

This paper analyzes the legal labour relations and the laws, regulating the prohibition of gender discrimination in establishing or terminating the labour relations. In order to reveal this theme in as more details as possible, first the principle of equality is examined, where the prohibition of discrimination (discriminatory) principle is derived from. The latter is established in both Lithuanian and international law. The principles of equality and non-discrimination allows the application of different employment criteria, different working conditions, bases of dismissal from work, to treat the same relations differently due to the circumstances, unrelated with employee's professional characteristics. Discrimination in the field of legal labour relations is understood as any exclusion, restriction or superiority, violating or voiding the equal employment and career opportunities, and the equal relations. In other words, any different treatment of employees because of their gender, the consequences of which include unequal rights in labour relations, for example, certain working conditions, promotion, training, is considered as discrimination. The paper also discusses a number of persons, who are subject to protection against gender discrimination, in legal labour relations. It should be noted that it includes all the persons, belonging to the following groups of labour relations category: employees, self-employed persons, persons, who wish to occupy a vacancy, people working in the public and private sectors. Next, the national and international anti-discrimination laws are discussed. Prohibition of gender discrimination in Lithuania is provided by Law on Equal Opportunities for Women and Men of the Republic of Lithuania that came into effect on 1st of December, 1998. It was passed, in order to implement the general provisions of Directive 2006/54/EC of the European Parliament and of the Council of 5th of July, 2006, on the implementation of the principles of equal opportunities of men and women in matters of employment and occupation. Therefore, the present thesis analyzes the transfer of provisions of aforementioned Directive into Lithuanian law. It also analyzes the different forms of discrimination, direct discrimination, indirect discrimination, and positive discrimination. Direct discrimination is considered when one person due to his/her gender has less favourable conditions, in comparison with conditions, which are, were or would be had by another person in a similar situation. Direct discrimination in labour relations is illegal. An employer cannot knowingly create worse conditions of employment or dismiss an employee because of his/her gender. This also includes the cases, when employer's refusal to establish legal labour relations or decision to terminate is justified not by objective circumstances, but by certain employee's characteristics that are directly related with employee's gender. Indirect discrimination is considered as any act or omission, rule of law, assessment criterion or practice, which is formally equal for women and men, but during their implementation or application, persons of one gender may find themselves or find themselves in certain less advantageous position than persons of other gender. While comparing the difference between direct discrimination and indirect one, the main difference is that indirect discrimination can be objectively justified under the exceptions provided for by law, therefore, one often face difficulty in proving it. Positive discrimination includes state actions, whereby it is sought to equalize the opportunities for persons working in the field of labour by eliminating the existing actual inequality. The actions of positive discrimination in Lithuania are called temporary special measures aimed at speeding up the establishment of actual equality of men and women. It is provided by Law on Equal Opportunities of Women and Men of the Republic of Lithuania. It is important to note that positive discrimination is only a temporary measure, in order to eliminate illegal forms of discrimination by ensuring the equal opportunities for employees. When examining the issue of gender discrimination, the cases of illegal and justifiable discrimination cases in legal labour relations are also analyzed. The paper discusses the common cases of gender discrimination when establishing or terminating labour relations. One of them is the job ads, it is one of stages of labour relations development, where gender discrimination is forbidden. Law on Equal Opportunities for Women and Men of the Republic of Lithuania Equal Opportunity Act also precludes discriminatory ads giving priority to one gender in applying for a job. So, job ads, showing the preferred gender of employee directly (e.g., looking for administrator or sales person-woman) are illegal, since they constraint the right of other gender to work. Next, the paper discusses the status of pregnant women, who are discriminated on the grounds of gender when establishing or terminating the labour relations. Employers arbitrarily reduce their salaries, force them to leave the work by their own free will, do not grant vacation, and do not pay bonus and premiums. What is more, those, who intent to return to work after maternity leave, also face difficulties. Employer's decision to dismiss an employee solely because the employee is pregnant or a parent is returning after maternity leave is discriminatory. The laws provide for the cases when gender discrimination in establishing or terminating labour relations is justified. In some cases, gender can be objectively necessary occupational requirement. Law on Equal Opportunities for Women and Men of the Republic of Lithuania provides several exceptions (justifiable discrimination), when a certain unequal treatment of genders in legal labour relations shall not be considered as gender discrimination, i.e., special protection of women during pregnancy, childbirth, and nursing; requirements for safety at work applicable to women aimed at protecting the women's health owing to their physiological properties; specific work which can be performed only by a person of a particular gender, when gender is necessary (inevitable) and decisive occupational requirement as a result of specific types of occupational activity or as a result of their implementation conditions, this treatment is legal and the requirement is suitable (proportional). In summary, it might be concluded that gender of labour subjects cannot be a legal cause to refuse to establish or terminate the legal labour relations with employee when a person meets the requirements applied to employee, and when there are no conditions, provided for in legal acts, resulting in person's inability to work for a particular job.