Labour Court rules in pregnancy sex discrimination case

In April 2002, the Swedish Labour Court delivered its judgment in a sex discrimination case involving a midwife who was not recruited for a job, even though she was the best qualified applicant. At the time, the midwife in question was pregnant. The Labour Court ruled that she had been subject to sex discrimination, although all the other applicants were also women.

In summer 1999, Västmanland County Council (Landstinget i Västmanland) - an area 200 kilometres northwest of Stockholm - announced a vacancy for a midwife in one of its care centres. There were five applicants for the job, all women, of whom one was pregnant. One of the other four applicants was given the job, despite the fact that the pregnant woman had the best qualifications for the position. The Ombudsman for Equal Opportunities (Jämställdhetsombudsmannen, Jämo) took up the case, arguing that the pregnant job applicant had been subject to sex discrimination, and should have been given the job as she had the best qualifications. The case went to the Labour Court (Arbetsdomstolen), which delivered its judgment, in favour of the unsuccessful applicant, on 3 April 2002 (Dom nr 45/02).

The Court found that the county council had not breached the Equal Opportunities Act (Jämställdhetslagen) as it stood at the time. The Act at this point was applicable only when a person had been discriminated against in comparison with people of the opposite sex. The Act was subsequently amended in January 2001 (SE0102179N), with the effect that sex discrimination may now be considered to exist between men or between women, as well as between women and men.

In its arguments, Jämo referred to the ruling of the European Court of Justice (ECJ) in the Dekker case (C-177/88). This established that, since only women that can be denied employment on the grounds of pregnancy, such a refusal constitutes discrimination, whether or not there are any male applicants for the job in question. Jämo also argued that the measures taken by the county council were contrary to the prohibition of sex discrimination in the 1976 EU Directive (76/207/EEC) on equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Accepting these arguments, the Labour Court, referring to the Dekker case and the provisions of the 1976 EU Directive, found that the midwife had been subject to sex discrimination.

The county council had wanted the Labour Court to refer the interpretation of the equal treatment Directive to the ECJ, but the Labour Court stated that this was not necessary. Further, the Court awarded all the damages claimed by the midwife, in order to underline that sex discrimination is not allowed.

Both Jämo and the white-collar Trade Union Confederation for Professional Employees (Tjänstemännens Centralorganisation, TCO) stated that they were very satisfied with the Labour Court judgment. 'A job applicant cannot not be passed over even if she is pregnant, a point which now will be clear for the future,' Jämo said. The chair of TCO, Sture Nordh stated in a press release that employers have now received a clear signal not to ignore pregnant workers.