Do Professional Linguistic Requirements Discriminate? – A Legal Analysis: Estonia and Latvia in the Spotlight

Abstract

This article tests the premise that professional linguistic requirements, although arguably necessary in many circumstances, at times lack a justifiable purpose, while at the same time operate in a discriminatory way by indirectly targeting migrants and ethnic minorities alike. It adopts a multifaceted legal perspective in approaching the question of where the legitimate borderline of state interference in the field of professional language use may lie, drawing on the EU-inspired principle of the prohibition of indirect discrimination and the rising importance of the principle of proportionality at the different levels of application of the law in the context of a general move from the culture of authority to the culture of justification fully reflected in European Union law. Latvia and Estonia provide two extreme case-studies to demonstrate how far the misuse of noble pretexts can go if national law and the judicial system fail to apply sufficient scrutiny to policies with noble stated goals. Based on the survey of all the relevant court practice in the two countries this article demonstrates that the systematic discrimination policy institutionalised in the two countries in question breaches key requirements of at least three levels of the law, including international, European, and also national law of Latvia and Estonia, as it is marked by the complete ignorance (by the courts and the legislators) of the two vital legal concepts: that of proportionality and that of indirect discrimination. Language is often deployed as the tool for ethnic discrimination.

Keywords: Latvia, Estonia, Linguistic discrimination, language, indirect discrimination, proportionality, baltic states, minorities, russian speaking, minority protection, EU Law, compliance, enlargement, ethnic discrimination