Legal framework on discrimination strengthened

On 1 July 2001, discrimination against job applicants with disabilities in Norway was made unlawful by amendments to the Act Relating to Workers' Protection and Working Environment (AML). Additional provisions were also incorporated in the Act to make the general ban on all forms of discrimination in the recruitment and appointment of employees more effective.

On 1 July 2001, the general prohibition against discrimination in recruitment and selection provided by the Act Relating to Workers' Protection and Working Environment (AML, §55A) was extended also to cover people with disabilities. The result is that it is no longer possible to show prejudice to job applicants "on grounds of race, colour, national or ethnic origin, homosexuality or homosexual form of cohabitation, or disability". In cases where there is sufficient reason to believe that discrimination has taken place due to a person's disability, the determining factor will be the extent to which "it would have been possible for the employer to adapt the workplace to suit the needs of the disabled person concerned."

The move to include people with disabilities in the general prohibition against recruitment discrimination is relatively uncontroversial. Both trade unions and employers' organisations support the intentions behind the legal alterations. In the new provisions, the Ministry of Labour and Government Administration defines disability in its broadest sense in order to include both physical and mental disabilities. Furthermore illnesses with a more progressive course are also to be included, such as HIV. The ban, however, does not include persons with a limited capacity to perform even with a reasonable degree of work adaptation. Thus it may not be regarded as a general requirement to appoint all people with disabilities.

The prohibition of discrimination against people with disabilities is reinforced by the rules in the national insurance scheme that provide financial support for employers to adapt the workplace or to acquire the necessary disability aids. These regulations, however, are not new, because employers are already receiving financial support for such activity (TN0102201S). The parliamentary committee considering the matter argued that the waiting time to receive such aids is far too long, and that the government should take measures to shorten it.

Changes to rules concerning burden of proof

The new amendments do not relate solely to disability. Another significant alteration to the AML is a duty on employers, if requested by an unsuccessful job applicant, to provide information in writing on the job-related qualifications and skills of the persons being appointed to a job. Furthermore, the principle of "shared burden of proof" has also been introduced: if there has beyond reasonable doubt been an instance of discrimination on any grounds, the employer is required to demonstrate the probability of this not being due to discrimination. If it is proven that the employer has acted in breach of the law, the applicant may demand compensation. The new rules concerning the duty to inform and the principle of shared burden of proof are very much the same as those of the Act Relating to Equality between the Sexes, which bans discrimination on grounds of sex.

These changes, however, were subject to some controversy. A majority in the Norwegian parliament (Stortinget) argued that the legal measures taken were necessary in order to make the provisions banning discrimination more effective. Thus they gave their support to the proposal put forward by the Ministry of Labour and Governmental Administration, which recommended a strengthening of the sanctions available in relation to discrimination. It was further argued in the Ministry's proposal that it would be hard to enforce the new provisions without an additional strengthening of the legal framework.

The employers' organisations fear that the new provisions will curb the management prerogatives of employers in an important area of working life. This view also received support from a minority in parliament consisting of the Conservative Party (Høyre) and the Progress Party (Fremskrittspartiet). These two parties also argued that the new provisions may lead to a situation in which the employers focus more on formal education and qualifications, and less on other more intangible qualities that makes a person qualified for a specific job. They further stated that it may also lead to a situation in which recruitment takes place without formal advertisement of vacant positions, so that the employer may circumvent the duty to inform. This will not be in breach of the new provisions in the AML.

Commentary

Although the tightening of the legal framework is unlikely to bring about major changes in Norwegian working life, it may nevertheless strengthen the ability of individuals (and indirectly also organisations) to focus attention towards the issue of discrimination. A significant number of cases concerning sex discrimination are considered each year, and it is reasonable to assume that over time this activity has brought about greater awareness about these problems. In relation to sex discrimination, however, there is also the additional dimension of an ombudsman who may express an opinion in each individual case, which means that the propensity to complain is much lower.

In addition to sexual discrimination, discrimination on grounds of race, colour and national or ethnic origin has also received considerable attention. Both researchers and interest organisations have pointed to the fact that such discrimination still occurs in the recruitment and appointment of employees. A recent report indicates that employers are much more uncertain in dealing with job applicants with an observable minority background, among other reasons because the employer may possess little knowledge about these groups. The implication is that such applicants are either ignored or that the employer bases its choices on presumptions and prejudice rather than facts (see Jon Rogstad, ISF-report 2000-17). Organisations representing minority groups also point to the fact that there is much discrimination in working life. Racial and ethnic discrimination is the most commonly registered complaint at the Centre for Combating Ethnic Discrimination, and discrimination in recruitment and appointment represents a large proportion of these cases.

The discussion on gay people has centred more around the type of post or positions that are exempted from the ban on discrimination on grounds of sexuality. Today certain positions within the religious community are exempted, and there is an ongoing debate as to whether these exclusionary provisions should be tightened.

There is no doubt that people with disabilities experience greater difficulties with regard to employment than able-bodied people. A recent study indicates that approximately 50% of disabled people between the ages of 16 and 66 are part of the labour force, compared with around 80% of the whole population. The differentiations are greater among the older age cohorts than among the younger (according to 2001 figures from Statistics Norway). There are reasons to believe that the effect of the new legal provisions and the right to register complaints with the ombudsman may be increased awareness among employers about the demand for equal treatment for people with disabilities. However, in so far as the new provisions only safeguard equal treatment in relation to appointments – and do not require companies to appoint more people with disabilities – it remains to see what the practical consequences of the legal changes will be. (Kristine Nergaard, FAFO Institute for Applied Social Science)

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