Discrimination in working life
Discrimination in working life is not permitted. Consequently, employers are responsible for ensuring that employees and jobseekers are not subjected to discrimination. This is stipulated in the Discrimination Act.
(Diskriminering i arbetslivet)
Employers must comply with a number of acts containing legislation that protects employees. The Discrimination Act is one of them. This act also contains regulations that protect jobseekers, trainees, interns and temporary employees.
Who is considered an employer?
An employer is a natural or legal person that enters into an employment contract with someone. If an employee has a position that gives them decision-making powers over other employees, their actions are equated with those of the employer. For example, this means that the employer can be responsible for a team leader's, middle manager's or supervisor's actions in relation to an employee.
What applies when using employment agencies for recruitment?
When an employer engages a third party, for example an employment agency, to help recruit staff, the employer may be liable for how that agency conducts its assignment. For example, if the employment agency sifts out a jobseeker because they are pregnant, use a wheelchair or has a name that is perceived to be foreign, the employer may be liable for violating the prohibition of discrimination.
What applies in the event of other victimisation
Cases where someone has been disadvantage or victimised in a way that is not linked to any of the grounds of discrimination are not encompassed by the prohibition in the Discrimination Act.
However, the Swedish Work Environment Authority's Organisational and Social Work Environment Regulations (AFS 2015:4) contains provisions concerning victimisation
The Discrimination Act describes both a prohibition of discrimination against individuals and work with prevention. Employers shall work to promote equal rights and opportunities in the workplace in the form of what are known as active measures. The employer is also responsible for preventing sexual harassment, harassment and reprisals.
Employers may not punish those who report discrimination
Those who have reported discrimination or complained that an employer is breaking the law (e.g. by not working to prevent harassment) are protected from being punished, i.e. being subject to reprisals. This protection also applies when someone has participated in an investigation under the Discrimination Act or rejected or given in to harassment or sexual harassment.
Reprisals can take such forms as temporary employment not being extended, someone receiving a low pay rise or that having their duties changed in a negative manner.
The protection against reprisals applies to
- those who are asking for work or applying for a job
- those who are applying for an traineeship internship or working as an trainee or intern
- those who perform work as temporary or borrowed labour.
When does the prohibition apply?
The protection against discrimination applies in all situations connected to work. It applies to incidents in the workplace but also to what happens outside of the workplace if this is connected to work (e.g. business trips and office parties). The protection covers all grounds of discrimination.
An employer may not discriminate against those who
- are employees
- are asking for work or applying for a job
- are applying for an internship or working as an intern
- are employed through an employment agency.
Examples of what may constitute discrimination
What constitutes discrimination or not depends on the situation. The following are examples of things that may be discrimination in working life:
- An employee has a lower salary than a colleague with the same or equivalent job and this is associated with their sex.
- An employer thinks that a jobseeker has a foreign-sounding name and, as a result, chooses not to call that person for an interview.
- An employee applies for a more senior position at the company but does not get that position and this is associated with the fact that they use a wheelchair.
- A probationary period is terminated when the employer finds out that the employee is pregnant.
- A manager is making unwelcome sexual advances towards an employee.
- An employer refuses to improve the lighting for an employee with a visual impairment.
Exemptions from the prohibition of discrimination
In certain cases it may be permissible for an employer to give special treatment to people in a way that is associated with the grounds of discrimination. Whether this is permissible depends on the circumstances in the individual case. It applies to the following cases:
- specific professional requirements that are relevant to the position
- affirmative action associated with sex (for certain types of measures)
- special treatment due to age
- application of certain age limits, such as age limits for retirement benefits.
We describe the various exemptions here
Specific requirements that are relevant to the position
It may be permissible to apply special treatment for a job where there are essential and vital requirements for the employee to, for example, have a certain sex, a certain sexual orientation or be of a certain faith.
One prerequisite for the exemption to be applicable is that the professional requirement has a justified aim. The requirement must also be appropriate and necessary in order to achieve the aim. Acceptable aims are those that are consistent with the values of a democratic society that respects human rights and freedoms. Examples include:
- A non-profit organisation that wants to employ someone who is homosexual or bisexual in order for that person to give advice to people who have questions about homosexuality and bisexuality.
- A religious community that wants the person employed to convey a faith or hold spiritual care conversations to have a certain religious belief.
- A theatre company that wants to employ a male actor to play a male leading role.
Affirmative action in respect of sex
The term affirmative action is sometimes used in different c0ntexts. In general, what it means is measures that involve giving priority, advantages or benefits to disadvantaged or under-represented groups in order to, in practice, achieve gender equality or equality for people in that group.
Under the Discrimination Act it may be permissible in some circumstances to apply affirmative action in working life, but only in the context of sex. It means that it may be permissible for an employer to give priority to individuals from the under-represented sex when deciding who to employ. For example, if there are fewer women than men in a certain occupation. In the equivalent manner, it may be permissible for an employer to give priority to individuals from the under-represented sex when making decisions about in-service training or promotion. However, the special treatment may never be connected to salary or other terms of employment.
In order for affirmative action to be permissible, the measure must be implemented with respect for the limitations stipulated in European Court of Justice case law. The implications of this include:
- Affirmative action may be used when two people have the same or almost identical qualifications. If there is an evident difference between the qualifications of two people, affirmative action is not permitted.
- Affirmative action must not mean that a person's sex is automatically or unconditionally decisive. An objective comprehensive assessment shall be conducted of, for example, all of a jobseeker's qualifications.
- The special treatment shall stand in proportion to the purpose of the measure.
One prerequisite for affirmative action to be permissible is also that the employer is working systematically in order to promote gender equality.
Special treatment associated with age
Special treatment associated with age may also be permissible if it has a justified aim and the means used are appropriate and necessary in order to achieve that aim. Examples of what may constitute permissible special treatment associated with age include:
- Improving older employees' opportunities to gain or remain in employment.
- Taking into consideration the age of the employees in a team in order to avoid several people retiring at the same time.
- Not choosing a jobseeker who is soon to retire if the training costs would be too high.
The prohibition of discrimination does not prevent there being age limits for the right to certain contractual pension benefits, survivors' benefits and invalidity benefits.
Accessibility in working life
Lack of accessibility is a form of discrimination. In order to prevent this, employees are obliged to implement "reasonable measures" in order to comply with the requirement for accessibility. The basic premise for what constitutes reasonable measures is that which applies under the provisions governing working life, for example in the Work Environment Act.
The employer's responsibility to implement reasonable measures applies to employees, jobseekers, trainees and interns with disabilities. Temporary employees are also covered by this protection. However, the protection does not apply to people who are making unsolicited enquiries about work.
Examples of what may constitute reasonable measures in working life
- technical reading aids for computers
- audio induction loops in meeting rooms
- the placement of door openers
- good ventilation (for people with allergies)
- the design of thresholds, ramps and lifts
- the design of bathrooms and staff kitchens etc.
- adjustment of working hours, division of labour and management.
What is inadequate accessibility?
Inadequate accessibility in working life is when a person with a disability is discriminated against through the employer not implementing reasonable accessibility measures in order to put that person in a comparable situation to people without this disability.
Employers are also responsible for
Stopping harassment and sexual harassment
Harassment is conduct that violates a person's dignity. In order to be covered by the Discrimination Act, the act in question must be associated with one or more of the grounds of discrimination.
Sexual harassment is conduct of a sexual nature that violates a person's dignity. Besides comments and words, this can involve unwanted touching or leering.
If, in your capacity as an employer, you find out that an employee is being subjected to harassment or sexual harassment at work you have are obliged to investigate what has happened. You must also implement reasonable measures to prevent the harassment continuing.
The obligation to take action applies to harassment by both managers and colleagues. The obligation comes into effect as soon as a manager (or equivalent) finds out that a person in the workplace feels they are being harassed.
The employer's obligation to investigate and take action against harassment and sexual harassment applies to employees, trainees and interns as well as to temporary and borrowed staff.
Allowing jobseekers to have access to others' qualifications when recruiting
If an applicant does not get the position, they have the right to access some documentation about those who were called to an interview or got the position. If the jobseeker requests this, the employer shall provide written documentation about the applicants'
- work experience
- other qualifications.
There is an equivalent right for those who were not called for an interview. An employer does not need to disclose recommendations, references and other subjective opinions, nor information about a jobseeker that is negative.