Two more women lose sex discrimination case on pay in Sweden

Only six cases of alleged wage discrimination on grounds of sex have been decided by the Swedish Labour Court since the implementation in 1980 of the Act on Equality between Men and Women. In four of the cases, the last one in May 1997, the Court rejected the women's complaints. This article summarises the legislation and the Court's case law, examining why women have had such little success in these cases.

On 28 May 1997, the Labour Court ruled that the municipality of Mjölby in southern Sweden did not discriminate against two women teachers by paying them SEK 1,119 less per month than their male colleague was paid for the same job (AD 1997:68). The judgment is the latest of several setbacks for women invoking the Act on Equality between Men and Women by claiming sex discrimination in relation to pay.

Only six cases of this kind have been decided since the Act came into force in 1980. Theoretically this could mean that unjust wage differentials are rare. In fact it indicates that those who consider themselves wronged have a heavy burden of proof to contend with. The rulings of the Labour Court have confirmed this. In four of the cases it has rejected the women's complaints. However these cases have been controversial even among the judges themselves - only in one of the six cases did they manage to reach a unanimous verdict.

Legal action versus collective bargaining

One argument in the debate is that legal action should not be the primary means of achieving equal pay for work of equal value. Wages are normally set by means of collective bargaining. When the then non-socialist Government introduced a law on equality between men and women at the end of the 1970s, both trade unions and employers' organisations were opposed to the idea of legislation. They argued that equal pay and sex discrimination was exclusively a matter for the labour market organisations to determine.

The Act on Equality between Men and Women consists of two parts: one part imposes a duty on every employer to promote equality actively through purposeful efforts; while the second part of the Act imposes a ban on sex discrimination. To oversee compliance with the Act, there is an Equal Opportunities Ombudsman (JämO). However, the original Act permitted employers and trade unions to comply with the Act by means of collective bargaining and both sides thereby evaded JämO's supervision.

As a result, agreements on active measures to promote equality between the sexes were concluded in all sectors, but with little effect on women's working conditions. After a period when the differences in pay between the sexes narrowed year by year, there was evidence that they began to widen again in certain sectors. Dissatisfaction about the way employers and unions had carried out their responsibilities led to a change in the Act as from 1 January 1994. The new Act expressly provides that employers must review the existence of pay differentials in all forms of work and for various categories of employees each year. Furthermore, JämO now ensures compliance with the Act in sectors covered by collective agreements. This means that the active measures carried out by employers must maintain a minimum standard, and JämO is authorised to investigate if the employer has reviewed the pay differentials correctly. However, this does not mean that JämO can order a company to change its wage policy or require it to level out certain differentials.

An individual who feels that he or she has been discriminated against can, however, invoke the ban on sex discrimination, ultimately before the Labour Court. If the trade union concerned desists from presenting the case, the employee can ask JämO to do so.

Work of equal value?

The burden of proof in cases of alleged sex discrimination is divided between the plaintiff and the defendant. If the employee can establish facts from which discrimination may be presumed to exist, the burden of proof reverts to the employer, which has to show that the wage differentials are due to objective factors unrelated to any discrimination on grounds of sex.

Thus, in a typical case the woman (so far no men have complained) first has to prove that the work she is carrying out is equal, or at least of equal value, with the work of the man that she compares herself with. This has succeeded where both have had the same profession and where the employer has given them the same job title, but not in other cases.

The most spectacular case was decided in 1996. In what was meant to be a pilot case, JämO sought to convince the Labour Court that the work of a midwife was of equal value with the work of two male technicians who worked at the same clinic and whose wages were SEK 2,000-4,000 higher than the wages of the midwife. The wages of all three were set out in collective agreements. JämO claimed that the wage differentials were not a result of an objective assessment of the tasks that they had to perform, but a manifestation of deeply-rooted gender prejudices. JämO claimed therefore that the collective agreement that determined the midwife's wage should be declared null and void,.

JämO's problem was that the employer, the County Council of Örebro, did not recognise any system for job assessment, and had also rejected JämO's proposal to carry out a joint assessment of the jobs concerned. In its judgment (AD 1996:41), the Labour Court wrote that a job assessment that deviates from the general assessments that manifest themselves in the collective agreements must satisfy high requirements when invoked in a case on wage discrimination, especially when the job comparisons are related to different occupations. JämO presented a comprehensive investigation applying a system for job assessment borrowed from New Zealand, but it did not satisfy the Court's demands.

Objectively founded differences?

In the May 1997 case referred to at the beginning of this article, it was common ground that the women performed the same work as the man. Consequently it was for the employer to prove that the differentials in pay were due to factors unrelated to any discrimination based on sex.

The women had worked for the municipality as teachers for several years when the man was recruited at a higher salary. In 1996 the wages were reviewed and the gap was diminished, but the man still received SEK 500 a month more than the women.

The Labour Court ruled in favour of the employer. When the man was engaged the municipality had reason to believe that he would contribute new knowledge to the school, and therefore, it thought, it was a necessary and adequate measure to afford him a monthly salary of SEK 18,900. However it did not agree with the employer that there were any differences in the qualifications of the three teachers that would necessitate maintaining these wage differentials in 1996.

So on what grounds was the Court's ruling based? It expressly stated that there is never a strong presumption that someone has been discriminated against on the grounds of sex. That is to say, an employer does not have to present much evidence to fulfil its burden of proof. In this case the 1996 wages were provided for by means of collective bargaining, and since it was a revision of a salary of an employee who was engaged "only two years earlier" when the employer had especially estimated his competence in using computers, the remaining difference between his salary and the women teachers' salary was not related to their sex, the Court ruled.

Commentary

Many women, especially those working in the medical service, want to invoke the ban on discrimination against wage differentials that depend on the divided labour market, where "a woman's job" is paid less than their male counterparts. These differentials are built in to collective agreements. But a general conclusion of the case law of the Labour Court is that the Court is reluctant to believe that collective agreements could have discriminating effects. In addition, the conclusion of the midwife case is that as long as there are no agreed systems for work assessment on the Swedish labour market, it will be very hard to invoke the ban on discrimination in these cases. So far it has been effective only in cases where the jobs are almost identical.

Furthermore it will be very easy for employers to exculpate themselves if the ruling in the Mjölby case is upheld. However JämO is preparing an action where the Court of Justice of the European Communities will be asked to give a preliminary ruling. There is nothing in its case law that supports the statement that the employer should not have a normal burden of proof. (Kerstin Ahlberg, NIWL)