New Ombudsman fights discrimination on grounds of sexual orientation

Since May 1999, Sweden has had legislation in place forbidding discrimination in employment on grounds of sexual orientation, overseen by an Ombudsman. In the first six months of operation, 40 cases of alleged discrimination have been brought to the office of the first Ombudsman, Hans Ytterberg. Spreading information about the issue of discrimination on grounds of sexual orientation is another important task for the Ombudsman.

On 1 May 1999 an Act banning discrimination on the grounds of the sexual orientation of a worker (SFS 1999:133) came into force in Sweden (SE9903148F). The Act applies to the whole labour market, and to the recruitment process as well as the employment relationship. Sexual orientation is defined as "homosexual, bisexual or heterosexual orientation". Different kinds of sexual behaviour, such as exhibitionism or paedophilia, are not included.

Both direct and indirect discrimination are prohibited by the act. Employers must not discriminate against a job applicant or an employee by treating him or her less favourably than a person with another sexual orientation would have been treated in a similar situation. However, if the employer can show that the treatment has nothing to do with the sexual orientation of the disadvantaged person, there is no discrimination. Indirect discrimination mean cases where job applicants or employees of a certain sexual orientation are treated less favourably than others, but the discrimination is carried out in a formally neutral way. Such formally neutral criteria are legal only if the purpose of them can be justified by objective reasons and if they are suitable and necessary to fulfil that purpose.

As mentioned, the ban on discrimination based on sexual orientation applies to the whole recruitment process and is effective even in cases that do not result in a decision on employment. Employers' decisions on whom to call for an interview, as well the decision on employment itself, can be challenged. The ban also applies to the whole employment relationship - for example employers' decisions on promotion, training to receive a promotion, salaries and other working conditions. Decisions on dismissal, notice or other important measures are also included. An employer must investigate and address any harassment for sexual reasons that has occurred among its workforce and resulted in violation of an employee's dignity.

Damages

The penalties on employers for breaching the act are both general and economic damages payable to employees, and general damages payable to job applicants. There is also a sanction whereby individual employment contracts containing discriminatory clauses can be declared null and void.

Discrimination on the grounds of sexual orientation does not require a discriminatory purpose on the part of the employer. A discriminatory purpose might, however, lead to higher damages. In Swedish courts, the EC rules on the burden of proof in cases of sex discrimination (set out in the 1997 Directive on the burden of proof in cases of discrimination based on sex (97/80/EC)) applies to all cases regarding the new Act. If the plaintiff can demonstrate facts that give reason to believe that discrimination has taken place, the court may presume that an act of discrimination has occurred. The employer then has to prove that there were other, objective reasons for the decision.

The first sexual orientation Ombudsman

The role of the Ombudsman against Discrimination based on Sexual Orientation (Ombudsmannen mot diskriminering på grund av sexuell läggning, HomO) is to ensure that the legislation is being implemented. The Ombudsman has a right to bring cases to the Labour Court. However if the person alleging discrimination is a trade union member, the Ombudsman has a right to initiate an action only if the union declines to take on the case.

"The possibility of taking cases of alleged discrimination to court is certainly important," says Hans Ytterberg, the first HomO. However, he also expects the Act to have a normative effect, stating that the mere existence of legislation has already had an impact. He mentions, for example, the recent revision of the terms of a collective life insurance scheme for employees in public services, based on a collective agreement. In case of an employee's death, the insurance money will now be paid to his or her surviving partner, irrespective of sex. Organisations supporting the rights of sexual minorities had for 15 years been pointing out that the terms of the insurance were discriminatory against homosexual couples, by allowing only partners of the opposite sex to be beneficiaries. "After the new Act came into force the terms of insurance were promptly changed", Mr Ytterberg states.

According to the regulation establishing the position (SFS 1999:170), the Ombudsman has to work against discrimination on the grounds of sexual orientation in other areas of society as well, mainly through means of information. Mr Ytterberg expects that the ban on discrimination in labour law will help to prevent discrimination in other areas of society.

Cases of alleged discrimination

Anyone who thinks that he or she has been discriminated against on grounds of sexual orientation can apply to the office of the HomO. Although the Act will probably be of greater importance to people belonging to a sexual minority, it protects all individuals, including those belonging to the heterosexual majority.

At the time of writing (late November 1999), around 40 cases of alleged discrimination have been taken to the Obudsman's office, about one-third of which concern employment issues. After investigation, the HomO rejects cases where no discrimination seems to be have occurred. In cases of apparent discrimination, the HomO confers with the employer in an effort to solve the problem. If the plaintiff is a job applicant and the employer a big company it might, for example, be possible to find him or her another position in the company. Under the penalty of a fine, the HomO may oblige the employer to show documents describing the qualifications of the person who was employed. Appeal against the Ombudsman's decision to impose a fine can be made to a special panel, whose decision is final. The HomO can also take the case to the Labour Court.

In Mr Ytterberg's opinion, one case reported to the HomO's office in autumn 1999 may be taken to the Labour Court. It concerns a homosexual person who had substituted at a workplace on several occasions. The worker did not receive any more offers of work when the employer learnt that he was homosexual. Recently, the HomO carried out his first conciliation, in a case concerning a worker whose former employer contacted his new employer to inform the latter about the worker's homosexuality. The worker received damages.

Harassment at work

According to Mr Ytterberg, discrimination on grounds of sexual orientation is more common in the employment relationship than in the recruitment process. Many homosexuals or bisexuals experience harassment from fellow workers or supervisors. "The Act establishes that employers are responsible for taking measures in these cases, which is important," he states.

There has been some criticism of the HomO from the Swedish Employers' Confederation (Svenska Arbetsgivareföreningen, SAF). In SAF's opinion, there is a risk of the new Act, together with other new Acts forbidding other kinds of discrimination (on grounds of ethnic origin or against workers with disabilities), imposing a bureaucratic burden on employers. The employers claim that in order to guard themselves against accusations of discrimination, employers will be forced to formalise their recruitment process, which might ultimately impede their will to employ. This risk is prominent in smaller companies, according to SAF. The irritation became evident when the HomO, and three other Ombudsmen, issued a booklet (entitled Rekrytera utan att diskriminera) with the aim of giving advice to employers. In SAF's opinion, the Ombudsmen showed very little understanding of the conditions of working life.

The Act does not force any bureaucracy upon employers, is the firm reply from the HomO. Most employers do not want to discriminate. The Act will make employers more aware of the issue of discrimination on grounds of sexual orientation. It protects the individual, but it is in the employers' interest to analyse the qualifications of each job applicant or worker. "Some employers are unsure of how to deal with these issues. But the only obligation the Act really imposes on them is not to attach any undue importance to sexual orientation. Discrimination is not about your opinions, it is an action," Mr Ytterberg says. From employers in general, as well as from trade unions, the HomO has received a positive reception and is constantly invited to companies, organisations and authorities to give lectures. Spreading information is an important task for the HomO, and Mr Ytterberg sees it as a primary goal to enhance general knowledge about the Act and to influence attitudes. " We are going to make a difference," he says.

Commentary

When passing the bill, parliament gave a committee the task of investigating the possibility of consolidating all discrimination legislation and integrating the offices of the various Ombudsmen. No committee has yet been appointed, but work on the issue of integrating the Ombudsmen's offices is now being prepared within the Ministry for Industry, Employment and Communications. Mr Ytterberg sees the need for an analysis of the protection against discrimination set out in the Constitution, penal code and civil law, describing the current Swedish legal system is a patchwork.

Although the new Act has received some criticism, nearly all politicians, employers and trade unions seem to agree upon the need for some kind of legislation. Now there is a great need for instruction and education. The newly appointed Ombudsman hopes that, in the future, dealing with issues concerning discrimination on grounds on sexual orientation will be as natural to employers as handling working environment issues. (Margareta Edling, Arbetslivsinstitutet)

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