Enforcing the law
- Possibility of submitting a complaint to the same public institution that has treated the person differently or to a higher institution.
- State Labour Inspectorate if discrimination has occurred within the framework of a labour relationship; the inspectorate can impose a fine. Sanctions have mostly been imposed for discriminatory advertisements (age, gender, and in one case - ethnicity).
- Ombudsman’s Office, which is empowered to strive for amicable settlement; it can file a complaint in an administrative court if it is in the public interest, or bring a case to the civil court if the issue is violation of equal treatment.
The normal avenue for redress would be a court of general jurisdiction. A law on state-sponsored legal aid in civil and administrative cases has been in force from 2005, which is a welcome development, yet its real impact has still to be evaluated. After the November 2006 amendments organisations can submit a complaint or being a case on behalf of the natural persons who are the victims of discrimination. Also the Ombudsman's Office can bring such a case.
The provision on the shift in the burden of proof is included in the Labour Law, which only applies to employment relationships, the Law on Consumer Protection and the Law on prohibition of discrimination of natural persons who are economic operators(both latter laws covering access to goods and services), as well as in Law on Education and Law on the Support to Unemployed Persons and job seekers. In two Supreme Court judgements lower courts have been criticised for failing to shift the burden of proof (2011 – employment, gender; 2007 -employment, disability) as the proceedings had continued in adversarial fashion In cases coming under the Administrative Procedure Law the exception of examination ex officio applies.
The national law is silent on the issue of situation testing and the use of statistical evidence, and there is no evidence of them being used and hence no case law; it is difficult to predict how the courts would react to the use of such evidence.
The relatively low average compensations awarded in discrimination cases raise the issue of their proportionality, effectiveness and disuasiveness. Moreover, the majority of court judgements are not publicly available. The provisions of Criminal Law providing for criminal penalties of up to two years’ imprisonment have not been applied yet.
In the context of employment, in 2005-2006 in the discrimination cases brought under the Labour Law the amounts awarded were 1,000 LVL (around 1500 EUR) in the gender discrimination cases; and the courts, when deciding on the amount of damages to be awarded, specifically and expressly use the considerations of the need for the sanction to fulfil the preventive function. From 2007 through 2011 in the known discrimination cases before the courts which resulted in the favourable outcome for the victim (eight - concerning discrimination on ground of gender, two - on ground of disability) the amounts awarded ranged from 300 LVL (~428 EUR) to 5,000 LVL (~7,142 EUR). In two conciliation agreements confirmed by courts in 2008, the claimants were awarded 5,000 LVL (~7,142 EUR, gender (pregnancy, termination of the labour contract) and 800 LVL (1,142 Euros, gender, job interview). In one conciliation agreement in 2007, the claimant was awarded 3,000 LVL (4,285 Euros, disability, dismissal). In 2010, the claimant was awarded 300 LVL (~428 Euros, gender, recruitment, claimed 5,000 LVL (7,142 Euros). In 2011 one claimant was awarded moral compensation 1,000 LVL (1,428 Euros, employment, disability) by appeal court, but the case is pending with the Supreme Court.
The Administrative Procedure Law provides for compensation for financial loss or personal harm, including moral harm, which has been caused to an individual by an administrative act or an actual action of an institution. The Code of Administrative Offences provides for a fine of from 100 to 500 LVL for violation of prohibition of discrimination.
From 1 January 2008 until 31 July 2011, the State Labour Inspectorate took decisions in 11 cases concerning violation of prohibition of discrimination, two cases in 2008, two in 2009, one in 2010, and six in the first seven months of 2011. The majority of cases concern advertisements for job vacancies indicating unjustified requirements concerning potential employee’s gender, age or ethnicity. In practice, in discrimination cases the SLI has tended to apply the general provision on violations concerning employment legal relation and not the anti-discrimination provision. Minor sanctions - warnings, small fines 100-200 LVL, availability of decisions only upon requests, small maximum sanction raises the question whether the sanctions are effective, proportionate and dissuasive.