DISCRIMINATION
| SWEDEN |
| DISKRIMINERING DISCRIMINATION |
Unfair treatment of one or more members of a specific group as compared with other people.
In working life, protection against discrimination has long existed in Sweden in regard to freedom of association (see right to organize). To some extent the latter carries with it protection for unionized employees against pay discrimination, but there is no general legislation and no corresponding protection for non-unionized employees. And protection against dismissal in certain particular situations (see right to organize) can also be seen as an expression of protection against discrimination. Nowadays, however, these various protective rules are not usually perceived as constituting anti-discrimination law, which is essentially associated with four areas. The Instrument of Government protects citizens constitutionally against discrimination on grounds of gender or ethnic origin, and in more recent times discrimination on grounds of sexual orientation and disability have become added factors. All four aspects (see right to organize) are covered by legislation: the 1991 Equal Opportunities Act, 1999 Act Against Ethnic Discrimination in Working Life, 1999 Act Prohibiting Discrimination Against Disabled Persons in Working Life and 1999 Act Prohibiting Discrimination in Working Life based on Sexual Orientation. These statutes protect employees against discrimination on the part of employers but do not extend to relations between employees themselves or between employees and their unions. All four, however, impose an obligation on employers to investigate and take action against any harassment which an employee considers he or she suffers from fellow employees; forms of sexual harassment, in particular, have attracted considerable attention here.
Although the four anti-discrimination statutes have many features in common, proposals that the rules should be combined into a single piece of legislation have so far come to nothing. They have been drafted in very close connection with existing EC law: in many cases the travaux préparatoires indicate that the Swedish rules are intended to have the same content as the corresponding EC rules, e.g. the concept of direct and indirect discrimination.
The statutes are founded on the presumption that every individual is entitled to be judged on the basis of their personal characteristics and qualities: stereotyped preconceptions of the characteristics of people belonging to particular groups are not accepted. The rules apply to the entire labour market, providing protection for all jobseekers and for all employees irrespective of the form of employment concerned, i.e. whether they work full-time or part-time and are employed on fixed-term contracts or permanent contracts of unspecified duration. The protection provided against discrimination on the grounds of ethnic origin, disability and sexual orientation covers not only individuals who actually fall within one of the protected groups but also instances of discrimination where the employer mistakenly assumes this to be so. The four statutes make no provision for the use of quotas or any other mandatory form of priority in favour of the respective groups. However, the Equal Opportunities Act permits limited positive action in respect of gender discrimination. All four statutes require or encourage active equality-promotion measures to foster the interest in question, e.g. an appropriate ethnic mix in working life. In the Act Prohibiting Discrimination Against Disabled Persons in Working Life employers are enjoined to take all such concrete supportive and adaptation measures as are reasonable, on pain of being found guilty of direct discrimination.
The statutes cover both direct and indirect discrimination as defined with reference to EC law. Direct discrimination signifies that a jobseeker or employee is the victim of unfair treatment by an employer in being treated less favourably than the latter treats or would have treated, in the same circumstances, an individual not exhibiting the factor concerned, i.e. not of that gender, sexual orientation, etc. The unfair treatment must be connected with the factor concerned, but need not necessarily occur solely or mainly for that reason. The prohibition does not, however, apply to such treatment in situations where overriding moral, religious or other similar concerns are manifestly more important than the interest in preventing discrimination on the ground of the factor concerned (see the discussion below on the burden of proof). Indirect discrimination signifies that a jobseeker or employee is the victim of unfair treatment as a result of the fact that an employer applies a condition, criterion or procedure which, although apparently impartial, in practice operates to the particular detriment of people exhibiting the factor concerned, e.g. ethnic origin or disability. The prohibition does not, however, apply to situations where the purpose of the condition, criterion or procedure is justifiable for objective reasons and its application is appropriate for and necessary to the achievement of that purpose (see the discussion below on the burden of proof). In both cases, the employer's intent with respect to the treatment received is of no significance. However, direct discrimination can exist only if the employer was aware, or should have been aware, of the presence of the factor concerned, e.g. disability. Comparison with a real-life comparable individual is not necessary: hypothetical comparison with a notional comparable person is sufficient.
Discrimination at the recruitment stage
Discriminatory behaviour during the recruitment process is interpreted identically under the statutes relating to ethnic discrimination, sexual orientation and disability. The level of protection provided under the Equal Opportunities Act is lower, but is likely to be upgraded in the near future to match that of the other anti-discrimination legislation. The first three statutes cover the entire recruitment procedure. This means that they apply right from the initial receipt, processing and short-listing of job applications as well as to the summoning of candidates for interview and other more far-reaching action possibly taken by an employer. The latter does not escape liability when using outside recruitment agencies, since the statutes concerned provide that the employer is also liable towards jobseekers with respect to the actions of such private-sector agencies, although no such employer liability exists with respect to the actions of the public Employment Services. Nor does the fact that an employer ends up by not hiring anyone at all release him or her from liability: a situation where an employer discontinues the entire hiring process because of not wishing, for example, to employ a person of a certain ethnic origin can in itself constitute discrimination. Only genuine job applicants enjoy protection, however; a general expression of interest is not sufficient, and a person who claims to have applied for a job carries the burden of proof of the fact.
Discrimination in the course of employment
Similarly, discriminatory behaviour during existing employment relationships covers the same area under the statutes relating to ethnic discrimination, sexual orientation and disability. The protection provided by the Equal Opportunities Act is formulated somewhat differently but in principle relates to the same area and is likely to be brought into line with the other statutes in the near future. The scope of application is the broadest imaginable and in principle covers all decisions. A few notable examples include promotion, selection for training, pay and other employment conditions and decisions which influence an employee's job security. The resultant protection also takes in day-to-day decisions falling within the purview of the employer's right to direct work.
What constitutes discrimination
Discrimination presupposes unfair treatment. This is taken as meaning an action or omission which puts the individual in question in a relatively less favourable position, i.e. at a disadvantage. What constitutes a disadvantage is determined in objective terms. It may be external and clearly discernible or internal and more subtle. Even general unpleasantness caused by harassment or bullying can constitute a disadvantage. However, trivial deviations from an imagined norm are usually regarded as acceptable behaviour. In the case of jobseekers, unfair treatment exists if a better qualified applicant is passed over, but can also exist where applicants are equally well qualified, although not solely on the grounds that the employer selects the one who does not exhibit the factor in question, e.g. ethnic origin or sexual orientation. In this situation, in the private sector the principle applies that the employer is free to exercise the right to hire at will. Unfair treatment can exist in circumstances other than where the individual concerned is passed over at the final stage. One such example is where a jobseeker whose qualifications are, in themselves, adequate for the job being applied for is not even invited to attend for interview because of the factor in question, e.g. ethnic origin. This applies even if an investigation shows that they would not in any case have ultimately been given the job because another applicant was objectively superior.
Jobseekers and employees who have been passed over are entitled to receive, on request, a written statement from the employer (see disclosure of written information) containing purely factual information on the training, experience and other qualifications of the person who in the case in question has been given the job, selected for promotion or granted a training place. This applies independently of any suspicion of discrimination, or evidence on the part of the unsuccessful individual that he or she differs from the person selected. Under the Equal Opportunities Act, however, the latter must be of the opposite sex.
All four statutes contain essentially equivalent rules on the employer's obligation to investigate and take action against forms of harassment, and likewise identical rules providing protection against victimization by the employer for an employee who lodges a complaint of discrimination.
Burden of proof
Matters of proof are regulated identically in the statutes with the exception of the Equal Opportunities Act, which differs only slightly from the other three. The rules of evidence laid down in Directive 97/80/EC on the burden of proof in cases of discrimination based on sex constitute the starting-point. For both direct and indirect discrimination, the burden of proof is apportioned and slanted in favour of the individual who complains of being discriminated against. In stage one, the latter must establish facts from which it may be presumed that unfair treatment exists. No evidence need be produced of intention on the employer's part, since this bears no relevance to whether the situation will be deemed to constitute discrimination. If the plaintiff fails to fulfil this share of the burden of proof, they have lost the case and the employer's counter-argument need not even be examined. If they succeed, the burden of proof then passes, in stage two, to the employer. If the latter fails to produce evidence constituting proof to the contrary, unfair treatment as alleged by the plaintiff is deemed to exist. In the case of allegations of direct discrimination, the employer can refute them by proving that the unfair treatment concerned has no connection with the factor in question, that he or she was unaware of the presence of that factor or that the treatment complained of is justified on the basis of a business or other special interest which is manifestly more important than the interest in preventing discrimination in working life against individuals exhibiting the factor in question, e.g. sexual orientation. The scope for doing so is very limited. The overriding interest cited may concern the gender of employees within a religious community, or a wish on the part of the latter or some other non-profit-making association to ensure that employees hold views which accord with those of the association. Being of a particular gender may be a permissible job qualification for selection in the acting and modelling professions. In the case of indirect discrimination, it is for the employer to prove that the purpose of the criterion, condition or procedure imposed is justifiable for objective reasons and that its application is appropriate for and necessary to the achievement of that purpose. This weighing-up of interests follows the principles of EC law (for example, the ECJ's judgment in Case 170/84 Bilka [1986] ECR 1607).
Sanctions, remedies and enforcement
The system of sanctions has an identical basis in all four statutes. A jobseeker who is found to have been passed over in contravention of the anti-discrimination legislation is never entitled, by virtue of that fact, to redress in the form of obtaining the job he or she should have been given, and the same applies to an employee who has not been promoted or selected for training. Damages are the only remedy available to the victim of discrimination. Jobseekers are entitled only to damages for non-pecuniary loss, as are also those who have been passed over for promotion or selection for training or have suffered harassment. In other cases, pecuniary damages representing compensation for losses that can be specifically quantified are also awarded. The amount of any such damages must be such as to constitute genuine and effective judicial protection, have a realistically deterrent effect on employers and be reasonably proportionate to the damage suffered. Deliberate discrimination incurs, as a matter of principle, liability to pay higher damages.
All agreements, whether collective agreements or individual contracts of employment, are invalid insofar as they prescribe or allow discrimination: any person who suffers discrimination by virtue of an agreement contravening its prohibition can have that agreement amended or pronounced invalid. And under the 1982 Employment Protection Act (see employment protection), dismissal either with or without notice which contravenes the prohibition is deemed to be without just cause and will be pronounced invalid if the employee so requests. This means that the employment relationship continues as if no dismissal had taken place.
Enforcement of the four statutes is entrusted in each case to an Ombudsman and a Commission. The Ombudsmen's task is to keep under review observance of the statute within their respective spheres. The Equal Opportunities Ombudsman and Ethnic Discrimination Ombudsman, in particular, are also responsible for promoting the interests expressed in the relevant statute in every respect, and the latter is additionally charged with working to eliminate ethnic discrimination in other areas of society as a whole. They have a litigatory role in possessing the right to plead a case, given the consent of the individual concerned, before the Labour Court (see right to be a party in judicial proceedings), and can order an employer to submit certain information, on pain of payment of a fine. The respective Commissions each assist the Ombudsman concerned and to a certain extent also function as supervisory authorities.
Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.
Useful? Interesting? Tell us what you think.