Three new anti-discrimination Acts approved by parliament

On 3 March 1999 the Swedish parliament approved three new Acts forbidding discrimination at work - covering discrimination on grounds of ethnic origin, sexual orientation and disability.

On 1 May 1999, three Acts banning discrimination in working life come into force in Sweden. The Acts apply to discrimination on grounds of ethnic origin, discrimination against workers with disabilities and discrimination by the employer because of the sexual orientation of a worker.

The existing Swedish Act against ethnic discrimination (1994:134) had proved to be ineffective, and in 1997 an official committee was given instructions (Dir.1997:11) to make stricter rules. The committees' proposal (SOU 1997:174) for a new Act was released in December 1997 (SE9712157N). The new Act against discrimination against people with disabilities and the new Act against discrimination based on sexual orientation, were prepared in two other committees that also both made their proposals (SOU 1997:176 and SOU 1997:177) in December 1997 (SE9801166N and SE9712159N).

The government then made its three legislative proposals to parliament on 20 May 1998 (prop.1997/98:177, prop.1997/98:179 and prop.1997/98:180). Generally speaking, few changes were made to the original proposals during the legislative process. However, there was a lively discussion during the committee stage and on the floor of parliament. Most of the discussion focused on the possibility of an alternative, all-embracing piece of legislation, which would cover all kinds of discrimination and all sections of life, not just working life.

When the proposals were put to a vote in parliament on 3 March 1999, the Conservative and Centre parties did not voted in favour. The Conservative Party did so because it is seeking legislation focusing on human rights in a wider sense and extending over all aspects of life. The Centre Party, also a non-socialist party, abstained because it advocates joint legislation for all kinds of discrimination. However, the Acts were adopted by a majority in parliament. Parliament also recommended that the government appoint a new committee charged with the task of investigating the possibility of consolidating all discrimination legislation and integrating the offices of the various "ombudsmen".

Ethnic discrimination

Some important changes have been made by the new Act on Ethnic Discrimination. One modification is that the whole recruitment process is now covered by legal rules. An employer can no longer discard applicants at the beginning of the recruitment process, because they have a foreign accent or a foreign-sounding name. Another important change is that the Act prohibits any discriminatory action, irrespective of whether the employer has a discriminatory intent or not.

A further important issue in the new legislation relates to the burden of proof. The committee which drew up the new rules - in effect composed of just one person, Margareta Wadstein, who was recently appointed as the Ethnic Discrimination Ombudsman (Diskrimineringsombudsmannen, DO) - stated that the "old" 1994 ethnic discrimination Act had been somewhat disappointing, and its report discussed the reasons why cases involving such discrimination on the labour market had not been taken to the Labour Court (Arbetsdomstolen, AD) to the extent expected.

Under the Act on Ethnic Discrimination, anyone who believes that he or she has been discriminated against can make an application to the office of the DO. During the period from 1 July 1994 to 31 December 1996, 66 applications were received by the DO from job applicants. These cases were rejected by the DO either because no unlawful discrimination could be shown, or because there was no apparent discrimination at all. Three cases were settled by the parties themselves and possible discrimination was shown in just three cases. Ms Wadstein concluded that nearly all these cases would not have succeeded in court because of the existing rules on the burden of proof. The same conclusion is valid for the 100 applications that were received from employees over the same period, the results of which show the same pattern.

Only one case has so far been heard in the Labour Court. A trade union, the Association of Graduate Engineers (Sveriges Civilingenjörsförbund, CF) and a systems engineer with a Greek background, asserted that the engineer was turned down for a job because he was Greek. The court, however, could not find that the employer in question had done anything wrong. The man who was successful in obtaining the job did not have superior qualifications to the plaintiff, but he had exactly the qualifications that the employer was seeking for the job. In addition, the systems engineer with the Greek background was found to be overqualified and to have demanded too high a salary (AD nr 61 1997, CF vs Österåkers kommun).

Burden of proof and indirect discrimination

Because the burden of proof rested with the claimant, it used to be very hard to show a discriminatory intent on the part of the employer. Under the new legislation, determining ethnic discrimination will no longer require establishing a discriminatory purpose on the part of the employer. Now, the employer's intent will be taken into account only when the amount of compensation is determined. A discriminatory purpose should be seen in general as a factor leading to higher damages.

The Swedish courts are now to apply a rule of evidence based on the 1997 EU Directive on the burden of proof in cases of discrimination based on sex (97/80/EC). If a job applicant or an employee can demonstrate that three specific conditions apply, then the courts may presume that an act of discrimination has occurred. These conditions are that: there is an ethnic factor; the applicant/employee was treated less favourably than a person with another ethnic background; and he or she was in a position similar to that of the other person. It will then be up to the employer to provide "objective reasons" for its actions. If the employer's explanations show good reason, there is no discrimination.

Direct discrimination (as described above) means that the grounds for a discriminatory action is linked to an affiliation to a certain ethnic group. The other kind of discrimination in the EC rules, now incorporated into the Swedish discrimination legislation, is indirect discrimination. It means that workers or job applicants from a certain ethnic group are treated less favourably than other employees or applicants, but the way the discrimination is carried out is formally neutral. For example, if an employer in advertising a new job, states that "applicants must be over 185 centimetres in height", there may be a case of indirect discrimination. The Directive defines indirect discrimination (in sex discrimination cases) as existing "where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex".

In cases of alleged indirect discrimination on ethnic grounds, the plaintiff must prove that there is an ethnic factor in the alleged indirect discrimination. The plaintiff must also prove that the employer uses a procedure that is in theory neutral but which in practice leads to a disadvantageous result for a significantly large percentage of persons with the same ethnic background of the applicant/employee. He or she must also prove that the person who was successful in being offered the job or promotion was not sufficiently qualified.

If the plaintiff successfully proves these factors, the employer must show that its actions fulfil a business need and that the measure is suitable to that need. If there are alternative methods that can be used, the employer will not be allowed to continue with its old methods

Common provisions

The ban on discrimination in all three Acts applies to the whole recruitment process and is effective even in cases that did not result in a decision on employment. 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 dismissals, notice or other important measures. In court, the EC rules on the burden of proof in cases of sex discrimination will eventually apply to all cases regarding discrimination under the three new Acts.

An employer must investigate and attend to any harassment that has occurred among its workforce and resulted in a violation of an employee's dignity for ethnic, sexual or disability reasons.

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

Three different ombudsmen, with separate offices, will oversee compliance with the legislation, with an Ombudsman against Discrimination based on Sexual Orientation (Ombudsmannen mot diskriminering på grund av sexuell läggning) being created for the first time. The Disability Ombudsman (Handikappombudsmannen, HO), who has been working since 1994 but without the right to bring cases, now has the same right as the other two officials to initiate an action in the Labour Court. However, the trade union to which the person alleging discrimination belongs still has the right to bring an action in the Labour Court. In cases where a person alleging discrimination does not belong to a trade union, or the union for some reason refuses to take on the case, the ombudsman may go to a district court or to the Labour Court.

Specific issues

The Act on Ethnic Discrimination differs from the other two Acts in that it contains rules obliging the employer to take active measures in the workplace in order to maintain ethnic diversity. Employers are required to carry out goal-oriented work in this area. This obligation follows the existing pattern in the Act on Equality between Men and Women, but it does not go so far as to impose an obligation on the employer to formulate special plans for measures relating to employees from particular ethnic backgrounds.

Under the new Act on discrimination on grounds of sexual orientation, Swedish legislation now contains an important distinction between sexual orientation and sexual behaviour. "Sexual orientation" can mean only homosexual, bisexual and heterosexual orientation. "Sexual behaviour" (for example paedophilia and exhibitionism), is not included in the Act.

Under the new disability legislation, the employer is specifically obliged, to a reasonable extent, to create a work environment that suits workers with disabilities. The employer must, for example, ensure that special technical equipment is installed to help disabled persons to do their work.

Commentary

Nearly all politicians, employers and trade unions agree that there is a great need for a legal system that outlaws different kinds of discrimination and the violation of the dignity of those adversely affected by it. Expectations were high when the Act on Ethnic Discrimination appeared in 1994. In practice, it was a failure. Going to court proved to be meaningless, because of the ineffectiveness of the rules then in force on the burden of proof and because of the limited definition of discrimination.

This problem has been rectified in the new legislation. Furthermore, all three ombudsmen have at least a formal right to take discrimination cases to court.

The new Acts place a lot of responsibility on employers from now on. At this level, there will be a great need for instruction and education, as employers are arguably not always so unprejudiced as one might wish. The new Acts are a step in the right direction but it remains to be seen how effective they will be. With regard to the new provisions on ethnic discrimination, the need for support among immigrant groups is very great. (Annika Berg, Arbetslivsinstitutet)

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