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Gender Equality Act1

Passed 7 April 2004

(RT2I 2004, 27, 181),

entered into force 1 May 2004.

Chapter 1

General Provisions

§ 1. Purpose of Act

(1) The purpose of this Act is to ensure equal treatment arising from the Constitution of the Republic of Estonia and to promote gender equality of men and women as a fundamental human right and for the public good in all areas of social life.

(2) For the given purpose, this Act provides for:

1) the prohibition on discrimination based on sex in the private and public sectors;

2) the obligation of state and local government agencies, educational and research institutions and employers to promote gender equality of men and women;

3) the right to claim compensation for damage.

§ 2. Scope of application of Act

(1) This Act applies to all areas of social life.

(2) The requirements of this Act do not apply to:

1) professing and practising faith or working as a minister of a religion in a registered religious association;

2) relations in family or private life.

(3) The Administrative Procedure Act (RT I 2001, 58, 354; 2002, 53, 336; 61, 375; 2003, 20, 117, 78, 527) applies to administrative proceedings prescribed by this Act, taking into account the specifications provided for in this Act.

§ 3. Definitions

(1) In this Act, the following definitions are used:

1) "gender equality" means the equal rights, obligations, opportunities and liability of men and women in professional life, upon acquisition of education and participation in other areas of social life;

2) "equal treatment for men and women" means that there shall be no discrimination whatsoever based on sex, either directly or indirectly;

3) "direct discrimination based on sex" occurs where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation. Direct discrimination based on sex also means the less favourable treatment of a person in connection with pregnancy and child-birth, parenting, performance of family obligations or other circumstances related to gender, and sexual harassment;

4) "indirect discrimination based on sex" occurs where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;

5) "sexual harassment" occurs where, in any subordinate or dependent relationship, any form of unwanted verbal, non-verbal or physical activity or conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating a disturbing, intimidating, hostile, degrading, humiliating or offensive environment and the person rejects or submits to such conduct as it is a direct or indirect prerequisite for getting hired, maintaining the employment relationship, participation in training, receipt of remuneration, or other advantages or benefits.

(2) For the purposes of this Act:

1) "employee" means a person employed under an employment contract or a public servant within the meaning of the Public Service Act (RT I 1995, 16, 228; 1999, 7, 112; 10, 155; 16, 271 and 276; 2000, 25, 144 and 145; 28, 167; 102, 672; 2001, 7, 17 and 18; 17, 78; 42, 233; 47, 260; 2002, 21, 117; 62, 377; 110, 656; 2003, 4, 22; 13, 67 and 69; 20, 116; 51, 349; 58, 387; 90, 601);

2) "employer" means a natural or legal person who provides employment on the basis of an employment contract, or a state agency or a local government agency.

§ 4. Burden of proof

(1) If a person discovers that he or she has been discriminated against on the bases specified in §§ 6 or 8 of this Act and submits an application to a competent body describing facts relating to such discrimination on the basis of which it can be presumed that direct or indirect discrimination based on sex has occurred, the person against whom the application is submitted shall, at the request of the competent body, explain the reasons and motives of his or her behaviour or decision. If the person fails to do so or refuses to give explanations, such behaviour shall be deemed to be equal to acknowledgement of discrimination by the person.

(2) The shared burden of proof does not apply in administrative or criminal proceedings.

Chapter 2

Prohibition on Discrimination Based on Sex

§ 5. Discrimination based on sex

(1) Direct and indirect discrimination based on sex is prohibited.

(2) The following are not deemed to be direct or indirect discrimination based on sex:

1) provisions concerning the special protection of women in connection with pregnancy and child-birth;

2) establishment of compulsory military service only for men;

3) acceptance of only women or only men into the membership of a non-profit association if this arises from the articles of association of the association;

4) as regards access to employment including the training leading thereto, a difference of treatment which is based on a characteristic related to sex where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate;

5) application of special measures which promote gender equality and grant advantages for the less-represented gender or reduce gender inequality.

§ 6. Discrimination in professional life

(1) In professional life, cases in which an employer selects for employment or a position, hires or admits to practical training, promotes, selects for training or performance of a task or sends for training a person of one sex and overlooks a person with higher qualifications and of the opposite sex shall be deemed to be discriminating, unless there are strong reasons for the decision of the employer or such decision arises from circumstances not related to gender.

(2) The activities of an employer shall also be deemed to be discriminating if the employer:

1) upon making a decision listed in subsection (1) of this section, overlooks a person due to pregnancy, child-birth or other circumstances related to gender or limits the duration or extent of work for the same reasons;

2) upon hiring, establishes conditions which put persons of one sex at a particular disadvantage compared with persons of the other sex;

3) establishes conditions for remuneration or other conditions which are less favourable regarding an employee or employees of one sex compared with an employee or employees of the other sex doing the same or equivalent work;

4) directs work, distributes work assignments or establishes working conditions such that persons of one sex are put at a particular disadvantage compared with persons of the other sex;

5) harasses sexually or fails to perform the obligation provided for in clause 11 (1) 4) of this Act. An employer is responsible for failure to perform the duty of care if the employer is aware or should reasonably be aware that sexual harassment has occurred and fails to apply the necessary measures to terminate such harassment;

6) downgrades the working conditions of an employee or terminates an employment relationship with him or her due to the fact that the employee has made reference to the rights and obligations provided for in this Act;

7) punishes an employee under disciplinary procedure, transfers an employee to another position, terminates an employment relationship or promotes the termination thereof due to reasons connected with gender.

§ 7. Duty of employer to provide explanations

(1) When a person suspects discriminatory behaviour specified in subsection 6 (1) of this Act in respect of him or her, the employer is required, at the person's request and within ten working days as of submission of such written application, to provide a written explanation to the person. In the explanation the employer must submit the following information concerning the person who was selected:

1) length of employment;

2) education;

3) work experience and other skills required for the work;

4) other skills or reasons which give the person a clear advantage.

(2) Within fifteen days as of submission of an application, the employer is required to provide a written explanation concerning his or her activities to the person who believes that he or she has been discriminated against on a basis specified in subsection 6 (2) of this Act.

(3) An employee has the right to demand that the employer explain the bases for calculation of salaries and obtain other necessary information on the basis of which it is possible to decide whether discrimination specified in clause 6 (2) 3) of this Act has occurred.

§ 8. Discriminating offer of employment or training

Offers of employment and training which are directed at persons of one sex only are prohibited unless the reasons specified in clauses 5 (2) 4) and 5) of this Act exist.

Chapter 3

Promotion of Gender Equality

§ 9. State and local government agencies as persons promoting gender equality

(1) State and local government agencies are required to promote gender equality systematically and purposefully. Their duty is to change the conditions and circumstances which hinder achievement of gender equality.

(2) Upon planning, implementation and assessment of national, regional and institutional strategies, policies and action plans, the agencies specified in subsection (1) of this section shall take into account the different needs and social status of men and women and consider how the measures applied and to be applied will affect the situation of men and women in society.

(3) The Minister of Social Affairs shall make recommendations concerning performance of the obligations set out in subsections (1) and (2) of this section. The recommendations shall be published on the website of the Ministry of Social Affairs.

(4) The membership of committees, councils and other collegial bodies formed by state and local government agencies shall, if possible, include both sexes.

§ 10. Promotion of gender equality in field of education and training

Educational and research institutions and institutions engaged in the organisation of training shall ensure equal treatment for men and women upon vocational guidance, acquisition of education, professional and vocational development and re-training. The curricula, study material used and research conducted shall facilitate abolishment of the unequal treatment of men and women and promote equality.

§ 11. Employers as persons promoting gender equality

(1) Upon promotion of equal treatment for men and women, an employer shall:

1) act such that persons of both sexes are employed to fill vacant positions;

2) ensure that the number of men and women hired to different positions is as equal as possible and ensure equal treatment for them upon promotion;

3) create working conditions which are suitable for both women and men and support the combination of work and family life, taking into account the needs of employees;

4) ensure that employees are protected from sexual harassment in the working environment;

5) inform employees of the rights ensured by this Act;

6) regularly provide relevant information to employees and/or their representatives concerning equal treatment for men and women in the organisation and measures taken in order to promote equality.

(2) An employer shall collect statistical data concerning employment which are based on gender and which allow, if necessary, the relevant institutions to monitor and asses whether the principle of equal treatment is complied with in employment relationships. The procedure for the collection of data and a list of data shall be established by a regulation of the Government of the Republic.

Chapter 4

Resolution of Disputes concerning Discrimination Based on Sex

§ 12. Resolution of disputes concerning discrimination based on sex

Disputes concerning discrimination shall be resolved in court and also pursuant to the procedure provided for in the Chancellor of Justice Act (RT I 1999, 29, 406; 2000, 92, 597; 2001, 43, 240; 58, 353; 2002, 30, 176; 57, 357; 2003, 20, 119; 23, 142; 90, 601), this Act or other Acts.

§ 13. Compensation for damage

(1) Upon violation of a prohibition on discrimination provided for in §§ 6 or 8 of this Act, an injured party may demand compensation for damage and termination of the harmful activity.

(2) An injured party may demand that, in addition to the provisions of subsection (1) of this section, a reasonable amount of money be paid to the party as compensation for non-patrimonial damage caused by the violation.

(3) Upon determination of the amount of compensation, a court shall take into account,inter alia, the scope, duration and nature of the discrimination. A court shall also take into account whether the violator has eliminated the discriminating circumstances or not.

§ 14. Expiry of claim for compensation for damage

A claim provided for in § 13 of this Act expires within one year as of the date when the injured party becomes aware or should have become aware of the damage caused.

Chapter 5

Gender Equality Commissioner

§ 15. Gender Equality Commissioner

(1) The Gender Equality Commissioner (hereinafter Commissioner) is an independent and impartial expert who acts independently, monitors compliance with the requirements of this Act and performs other functions imposed by law.

(2) The work procedure of the Commissioner shall be provided for in the statutes of the Commissioner. The statutes of the Commissioner shall be established by the Government of the Republic.

(3) The Commissioner shall be appointed to office by the Minister of Social Affairs for five years.

(4) The activities of the Commissioner shall be financed from the state budget.

§ 16. Competence of Commissioner

The Commissioner shall:

1) monitor compliance with the requirements of this Act;

2) accept applications from persons and provide opinions concerning possible cases of discrimination;

3) analyse the effect of Acts on the situation of men and women in society;

4) make proposals to the Government of the Republic, government agencies, local governments and their agencies for amendments to legislation;

5) advise and inform the Government of the Republic, government agencies and local government agencies on issues relating to the implementation of this Act;

6) take measures to promote gender equality.

§ 17. Opinion of Commissioner

(1) The Commissioner shall provide opinions to persons who suffer from discrimination and persons who have a legitimate interest in monitoring compliance with the requirements for equal treatment.

(2) The purpose of an opinion specified in subsection (1) of this section is to provide an assessment which, in conjunction with this Act, international agreements binding on the Republic of Estonia and other legislation, allows for an assessment of whether the principle of equal treatment has been violated in a particular legal relationship.

(3) An applicant for an opinion shall submit to the Commissioner an application which sets out the circumstances which indicate that discrimination based on sex has occurred.

(4) In order to provide an opinion, a Commissioner has the right to obtain information from all persons who may possess information which is necessary to ascertain the facts relating to a case of discrimination, and demand written explanations concerning facts relating to alleged discrimination based on sex, and submission of documents or copies thereof within the term designated by the Commissioner.

(5) An opinion shall be provided within two months after submission of an application specified in subsection (3) of this section.

§ 18. Refusal of Commissioner to provide opinion

The Commissioner may refuse to provide an opinion, may return a written application submitted by a person or refuse to formalise an oral application if:

1) provision of an opinion is impossible due to lack of facts indicating discrimination;

2) the Commissioner has previously provided an opinion on the same bases and regarding the same object;

3) on the same bases and regarding the same object, judicial proceedings have been commenced, a court judgment has entered into force, a petition has been filed with the Chancellor of Justice, or a conciliation procedure of the Chancellor of Justice for the resolution of a discrimination dispute or an agreement approved by the Chancellor of Justice in conciliation proceedings is in process.

§ 19. Termination of authority of Commissioner

The authority of the Commissioner shall be deemed to be terminated:

1) as of the date of expiry of the five year term specified in § 15 of this Act;

2) as of the date of acceptance of his or her letter of resignation;

3) in the case of his or her extended inability to perform his or her functions for more than six consecutive months;

4) as of the date of entry into force of a judgment of conviction for an intentionally committed criminal offence;

5) as of the date of entry into force of a judgment of conviction which prescribes imprisonment for a criminal offence committed due to negligence;

6) upon his or her death.

§ 20. Restrictions on activities of Commissioner

(1) During his or her term of office, the Commissioner shall not:

1) hold any other state or local government office or an office of a legal person in public law;

2) belong to the management board, supervisory board or supervisory body of a company;

3) engage in enterprise, except the making of personal investments and receipt of interest and dividends therefrom, as well as the receipt of income from the disposal of his or her property.

(2) The Commissioner is permitted to engage in research and teaching unless this hinders the performance of his or her functions.

§ 21. Disclosure of results of investigation relating to application

Without the consent of the applicant, the Commissioner may disclose to the public only the content of an application concerning which proceedings are conducted.

Chapter 6

Duties of Ministry of Social Affairs upon Implementation of Gender Equality Act

§ 22. Duties of Ministry of Social Affairs

The Ministry of Social Affairs shall:

1) provide consultations on matters related to implementation of the principle of equal treatment and give instructions for the implementation of this Act;

2) analyse the effect of Acts and legislation on the situation of men and women in society;

3) publish reports on implementation of the principle of equal treatment for men and women.

§ 23. Consultations

(1) An official of the structural unit of the Ministry of Social Affairs which deals with gender equality (hereinafter consultant) shall provide consultations to all persons on matters related to implementation of the principle of equal treatment for men and women. Consultations shall be provided orally or in writing. The office hours of the consultant shall be published on the website of the Ministry of Social Affairs.

(2) If necessary, the consultant shall explain to a person which institution is competent to resolve a possible case of discrimination. At the request of the person, assistance shall be provided upon preparation of a written application, and the application shall be submitted to the competent body. Applications shall not be submitted to the courts or labour dispute committees.

Chapter 7

Gender Equality Council

§ 24. Gender Equality Council

(1) The Gender Equality Council is an advisory body within the Ministry of Social Affairs, which:

1) approves the general objectives of gender equality policy and performs the duties prescribed in this Act and its statutes;

2) advises the Government of the Republic in matters relating to the promotion of gender equality;

3) presents its opinion to the Government of the Republic concerning compliance with § 9 of this Act of national programmes presented by the ministries.

(2) The rules of procedure of the Gender Equality Council shall be provided for in its statutes. The Government of the Republic shall establish the statutes of the Gender Equality Council.

(3) The Government of the Republic shall approve the composition of the Gender Equality Council.

Chapter 8

Implementing Provisions

§ 25. Entry into force of Act

This Act enters into force on 1 May 2004.

1Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ L 45, 19.02.1975, p. 19–20); Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ L 39, 14.02.1976, p. 40–42); Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ L 6, 10.01.1979, p. 24–25); Council Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ L 225, 12.08.1986, p. 40–42); Council Directive 86/613/EEC on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood (OJ L 359, 19.12.1986, p. 56–58); Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC (OJ L 348, 28.11.1992, p. 1–8); Council Directive 96/97/EC amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ L 46, 17.02.1997, p. 20–24); Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex (OJ L 14, 20.01.1998, p. 6–8); Directive 2002/73/EC of the European Parliament and of the Council amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ L 269, 5.10.2002 p. 15–20).

2RT =Riigi Teataja=State Gazette