Woman wins equal pay case against the state

The decision of the Norwegian Equality and Anti-discrimination Tribunal to reject the complaint of a female senior consultant against her employer for breaching the principle of equal pay for work of equal value, according to Norwegian law, was overruled by a court of law in November 2007. The court ruled that the decision made by the tribunal was invalid.

Background

The woman who lost her equal pay claim against her employer in the Norwegian Equality and Anti-discrimination Tribunal (Likestillings-og diskrimineringsnemnda) (NO0703019I) was employed as a senior consultant by a major newspaper in Norway. The worker claimed that her work was of equal value to that of a male typographer employed by the same company. In all, 73% of senior consultants working for the newspaper are women and 80% of the typographers are men; thus, paying senior consultants less than typographers could be seen as gender discrimination. According to the Gender Equality Act (Likestillingsloven), a claim in relation to equal pay must firstly be put before the Equality and Anti-discrimination Ombud (Likestillings- og diskrimineringsombudet), then it may be brought before the Equality and Anti-discrimination Tribunal (Likestillings- og dirskrimineringsnemnda), and finally the judgement of the tribunal may be overruled by a court of law.

At the time when the case was brought before the Equality and Anti-discrimination Ombud, the woman was working as a consultant with a major newspaper in Norway. She later applied for and was promoted to the position of senior consultant. Consultants, senior consultants and typographers have their wages fixed by collective agreements. As a consultant, however, the woman was paid less a year – up to NOK 50,000 (about €6,222 as at 9 February 2008) – than a typographer in the same company.

The promotion to the position of senior consultant also implied a pay rise. The tribunal decided to use her position as senior consultant, and not the position as consultant, as a benchmark, when comparing her work and salary to that of the male typographer. While the tribunal concluded that the work carried out by the workers in the two positions was of equal value, it maintained that the latest pay rise had levelled the wage levels between the two positions. Furthermore, the tribunal did not perceive itself to possess the competence to decide on whether the woman had a right to compensation for damages for the period prior to the pay rise; thus, the woman was not granted any compensation. As a result, the woman decided to have her case considered by an ordinary court of law.

Court decision

The question put before the city court was the extent to which the tribunal should have based its decision on the woman’s salary level at the time of submission of her complaint to the Equality and Anti-discrimination Ombud, namely when she was still working as a consultant.

The court heard the case in November 2007, and ruled against the tribunal’s decision. In its judgement, the court argued that the tribunal should base its decisions in all cases on the situation at the time when complaints are being filed with the Equality and Anti-discrimination Ombud. In this case, the woman had first made her complaint to the Ombud when she was still working as a consultant. According to the court, this was the case on which the tribunal should have made a decision. As such, the tribunal had applied an incorrect procedure when deciding against taking into account what the woman earned as a consultant, and the state therefore lost the case.

Commentary

The complaint by the woman in question to the Equality and Anti-discrimination Ombud was filed in January 2005, and the latest ruling does not mean that the case is closed. The verdict has been appealed by the state to the Court of Appeal (Lagmannsretten). If the Court of Appeal comes to the same decision as the city court, and its judgement is not appealed to the Supreme Court (Norges Høyesterett), the case will be transferred back to the tribunal. The tribunal will then have to compare the woman’s position to that of the typographer before the promotion took place. However, this does not necessarily mean that the woman will be compensated for any damages. The tribunal will most likely also have to assess whether the position as a consultant, and not a senior consultant, is of the same value as that of a typographer, and the outcome of this might prove different than the assessment carried out in relation to the senior consultant position.

Kristin Alsos, Fafo Institute for Labour and Social Research