Volvo’s demand for a specific height for female work applicant is discrimination, the Swedish Labour Court rules
21 September 2005 the Swedish Labour Court fined the automobile company Volvo Cars to pay damages to a female job applicant. The company was guilty of indirect discrimination as it rejected the applicant saying she was too short, according to the Court.
The Swedish Labour Court (Arbetsdomstolen) gave in 21 September 2005 a judgment in a case where a female job applicant was turned down because she was too short for the job she applied for. Her height being 160 centimeter was 3 centimeters below the demands that the company, Volvo Cars (Volvo Personvagnar) stipulated. The worker was represented in court by the Equal Opportunities’ Ombudsman (Jämställdhetsombudsmannen, JämO) suing the company for indirect sex discrimination according to the Swedish Equal Opportunities’ Act (Jämställdhetslagen, 19991) and its ban on sex discrimination. JämO advocated, with the support of official statistics from the Sweden Statistics about the height of women and men, that Volvo Cars’ demands that job applicants should have the height between 163 and 195 centimeters treated especially women unfairly.
According to the statistics brought to the Court by the two parties 25-28% of the female working population would fall below the limit at Volvo Cars. Only 1-2% of the male working population would do so.
Volvo Cars, represented by the employer association the Swedish Engineering Industries (Teknikföretagen) advocated that the demand of height was necessary in order to decrease the risk for work damages, especially musculoskeletal disorders. The production has increased more and more and the assemblage work means more tasks at shoulder height than before. This increases the risk for shorter workers and is the reason why the demand of the certain height was established.
JämO pointed to that Volvo Cars had not through its own work damage statistics been able to show that the risk for damage is higher for short persons. The demand of a certain height was, according to JämO, a tool being too general and too blunt to avoid work damages.
By indirect discrimination the Swedish Equal Opportunities Act (Section 16) means that an employer may not disfavour a job seeker or an employee by applying a provision, a criterion or a method of procedure that appears to be neutral but which in practice is particularly disadvantageous to persons of one sex, unless the provision, criterion or method of procedure is appropriate and necessary and can be justified with objective factors that are not connected to the sex of the persons.
The prohibitions against sex discrimination apply - among other situations - when the employer decides on an employment issue, selects a job seeker for an employment interview or implements other measures during the employment procedure (Section 17).
The Labour Court said in its judgment (Dom nr 87/05) that Volvo Cars did not show, in a convincing way that the demand of a certain height was appropriate nor necessary in order to avoid work damages. Volvo acted in a sex discriminatory way. However, as Volvo had not had the intent to discriminate the female job applicant, the Court fined a rather small amount of damages, SEK 40,000. (Jämo and the plaintiff demanded an amount of SEK 200,000).
The Equal Opportunities’ Ombudsman Claes Borgström was satisfied with the Court’s standing point. The case certainly deals with one single person, he stated in a press announcement. However Volvo Cars cannot go on by automatically excluding persons being shorter than 163 centimeters from employment. A third of the Swedish people belong to this category. Instead one must individually judge the applicants’ physical qualifications for the job for example reach and muscle strength.
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