New bill to offer greater protection against discrimination in recruitment

The Norwegian Ministry of Children and Equality has presented a proposal to parliament on legislative change aiming to prevent discrimination in employment. The proposal makes it illegal for employers to ask about pregnancy and family planning in recruitment and appointment procedures. Moreover, the proposal aims to strengthen the principle of objective justification regarding differential treatment of homosexuals in relation to appointments in religious communities.

In April 2009, the Ministry of Children and Equality (Barne- og likestillingsdepartementet) in Norway presented a proposal to parliament for legislative change aiming to prevent discrimination in employment (Ot.prp. nr. 79 (2008–2009) (in Norwegian)). The proposal involves legislative change in two areas. The first proposal makes it illegal to inquire about pregnancy and family planning in recruitment and appointment procedures. The other involves changes to the existing provisions allowing for differential treatment of gay persons in connection with appointment to positions in religious communities.

Ban on inquiring about family planning in job applications

A new provision explicitly prohibits an employer from asking about pregnancy, family planning and adoption in the course of the appointment process. This is achieved by incorporating the following provisions into the Equal Status Act (Likestillingsloven):

In the course of the recruitment process, including the interview, the employer may not ask the candidate, regardless of the candidate’s gender, to disclose personal information concerning pregnancy, adoption or family planning. Moreover, the employer may not in any way take any action to obtain such information.

This rule is supported by a provision stating that ‘questions relating to pregnancy, adoption or family planning in the recruitment process, regardless of the applicant’s gender, are to be regarded as direct discrimination.’

The proposed legal change is a response to the increasing number of cases concerning pregnancy discrimination forwarded to the Equality and Anti-Discrimination Ombud (Likestillings- og diskrimineringsombudet) in recent years. Furthermore, the belief is that an explicit ban on enquiring about these types of conditions will serve to strengthen existing statutory protection within the Norwegian legal framework, such that it is not permitted to place emphasis on these types of conditions in the recruitment process.

The proposed provision is gender neutral. The ministry justifies this neutrality on account of the fact that an increasing number of men are taking as much parental leave as women do.

Discrimination by religious communities against gay applicants

The ministry further proposes changes to existing provisions allowing for differential treatment of gay persons in connection with appointments to positions in religious communities. Currently, the Working Environment Act (2.1Mb PDF) (Arbeidsmiljøloven) has a special provision allowing religious communities the opportunity to give differential treatment to persons living in same-sex relationships. In other words, religious communities may deny people living in same-sex relationships employment in certain positions (Working Environment Act, Section 13.3, paragraph 3).

The ministry considers the current provisions potentially to be in violation of EU Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, which prohibits discrimination on the grounds of: religion or belief, disability, age and sexual orientation. Furthermore, it is not clear which types of positions are actually covered by this special rule. Thus, it is proposed to abolish the regulation. Instead, the issue of appointment and employment in religious communities will, in the future, be governed by the existing general rule allowing for discrimination on the basis of an assessment of objectivity (Working Environment Act, Section 13.3, paragraph 1), which states:

Discrimination that has a just cause, that does not involve disproportionate intervention in relation to the person or persons so treated and that is necessary for the performance of work or profession, shall not be regarded as discrimination pursuant to this act.

Differential treatment in certain circumstances

Religious communities, given that the objectivity criterion established by the law is met, may give differential treatment to applicants on the basis of their sexual orientation or relationships. Positions that fall within the scope of this rule are religious leaders, priests and teachers in religious communities. In such cases, employers are also allowed to ask about the type of relationship the applicant is in. Differential treatment of applicants may also be permitted in connection with other types of positions that serve a religious function in the religious communities or in enterprises that are run by religious communities. In these cases, the employer must prove that the position serves or contributes to a religious function. It is up to the employer to prove that discrimination on the basis of sexual orientation or relationship is objectively justified.

Gender equality in religious communities

Similar alterations to the legal framework with regard to gender discrimination are also undertaken. A special provision regarding religious communities is removed from the Act relating to Gender Equality (Likestillingsloven), and differential treatment of men and women in connection with appointments to positions in religious communities must be justified on grounds of legal objectivity.

Kristine Nergaard, Fafo

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