What is discrimination?
A simplified description of Discrimination Act's definition of discrimination is when a person is treated disfavourably or when a person's dignity is violated. The disfavourable treatment or the violation of the person's dignity must have a connection to one of the seven grounds of discrimination. Discrimination can be direct or indirect. Inadequate accessibility, harassment, sexual harassment and instructions to discriminate are also forms of discrimination.
The concept of discrimination can, in a broad sense, include events or chains of events that a person has experienced as for instance insulting, unfair, racist, unjust, unequal and so on. However, there are often differences between the legal definitions of discrimination and what people may experience as discriminatory. Here we describe how the Discrimination Act defines discrimination as well as the central concepts that are connected to the definition in the law.
The legal definition of discrimination
A simplified description of the legal definition of discrimination is when a person is treated disfavourably or when a person's dignity is violated. The disfavourable treatment or the violation of a person's dignity must also be related to one of the seven grounds of discrimination.
- transgender identity or expression
- religion or other belief
- sexual orientation
The law prohibits six forms of discrimination: direct discrimination, indirect discrimination, inadequate accessibility, harassment, sexual harassment and instructions to discriminate.
The law only protects individuals
The Discrimination Act protects individuals (and not for example organisations or companies). The prohibition of discrimination means that an employer may not discriminate against employees, a school system may not discriminate against pupils and staff in a shop may not discriminate against customers.
Whether an event is discrimination or not depends on the individual situation. Here are some examples of what may constitute discrimination.
- A restaurant does not admit a guest because the person has cerebral palsy.
- An employee has lower pay than a colleague of the opposite sex with the same or equivalent work.
- A manager makes unwelcome sexual advances.
- A teacher ridicules a pupil for wearing a headscarf.
- A dentist will not allow a man to make an appointment because he is wearing a dress.
- A factory demands that all employees must be over a certain height.
- An official at the public employment service ridicules a person for being bisexual.
- An employer terminates a trial employment period when the employee informs the employer that she is pregnant.
- The staff at a restaurant refuse to read the menu for a guest who has a visual impairment.
Where can you be discriminated?
The prohibition of discrimination applies in the following areas in society
- working life
- labour market activities and employment services not under public contract
- starting up or running a business
- professional recognition
- membership of certain organisations
- goods, services and housing (outside the private and family sphere)
- the organisation of a meeting or event that is open to the public (such as concerts, markets or fairs)
- health and medical care
- social services and assistance in the form of special transport services and housing adaptation allowances
- social insurance system (the Social Insurance Agency's services)
- unemployment insurance
- state financial aid for studies
- national military service and civilian service.
The Discrimination Act also contains an additional provision for the prohibition of discrimination when public employees meet members of the public. This provision only applies to the public sector and complements the prohibition of discrimination that applies in the above areas. Those covered under the prohibition are government, municipal and county council employees. The prohibition applies in particular to how employees treat the public when providing information, guidance, advice, or other such assistance.
The Discrimination Act does not apply everywhere
The Discrimination Act does not regulate what happens between private individuals, such as how neighbours or relatives behave towards each other. Nor is the content of advertising, or in programs on TV, radio, social media or newspapers covered by the prohibition of discrimination. There are other laws and regulations that set limits for behaviour between private individuals, and for what is permissible in print and in advertising and media.
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Six forms of discrimination
There are different forms of discrimination in the law. They are
- direct discrimination
- indirect discrimination
- Inadequate accessibility
- sexual harassment
- instructions to discriminate.
Direct discrimination is when a person is disadvantaged by being treated less favourably than another person in a comparable situation. The disadvantaging must be related to one of the seven grounds of discrimination. Whether an event is discrimination depends on the individual situation. Here are some examples of what may constitute direct discrimination:
- If someone applies for a job and meets the requirements of the advertisement but is not invited to an interview, while someone else who has the same or similar qualifications is called for an interview, and the difference in treatment is related to a ground of discrimination such as the person's sex.
- If a person who wants to buy petrol at a service station must pay in advance while another customer is allowed to pay afterwards, and if the difference in treatment is linked to a ground of discrimination such as the person's ethnicity.
What constitutes a disadvantage?
A disadvantage occurs if someone's action, decision or behaviour has a negative consequence for someone else. It may be a matter of the person being put in a worse position or losing out on an improvement, an advantage or service. It makes no difference whether or not there is an intention to disadvantage the person; it is the effect or the result that determines whether a person has been disadvantaged.
Examples of what constitutes a disadvantage include: someone not being invited to an interview for a job, not being allowed to go on a course, not being allowed to buy in a shop, not being admitted to a restaurant, and not being able to rent a car or an apartment.
What is a comparable situation?
For something to be a case of direct discrimination, one person must have been treated less favourable than another in a comparable situation. This means that the person who feels discriminated against should be compared with someone else who is in a similar situation. If there is no real comparable person, a comparison may be made with how a hypothetical person would have been treated.
If two persons are seeking the same job and they have roughly the same merits, they are in a comparable situation. If there is a great difference in their qualifications, they are most often not in a comparable situation under the law.
In health care or social services, the assessment of what constitutes a "comparable situation" may start with a person's needs. For example, two persons who have both broken a leg have the same health care needs, and they are therefore in a comparable situation. If one of the persons has a disease that affects the health care needs necessitated by a broken leg, this may mean that the persons are no longer in a comparable situation because they have different health care needs.
Another example of situations that are comparable is when several people apply for a course and all of them meet the requirements, such as passing grades in mathematics and English.
In other cases the starting point is that most people are in a comparable situation and therefore have the right not to be treated in a discriminatory manner. This applies, for example, in a shop, in a restaurant or on a bus.
Requirement of a connection with the grounds of discrimination
For a situation to involve direct discrimination, there must also be a connection between the disadvantage and the ground of discrimination.
The strongest connection is when there is an intention to disadvantage a person on one of the grounds of discrimination. However, there is no requirement of intent or desire to disadvantage someone on one of the grounds of discrimination. If someone discriminates in order to satisfy some other person's wishes, it is also discrimination. An example of this is a landlord who refuses to allow a person with a certain disability to rent an apartment because the other tenants do not want to have a neighbour with that disability.
Even if the intention is to save the person from suffering or discomfort, but where the outcome is that the person is put at a disadvantage, there may be a connection between the act and a ground of discrimination. An example is un owner of a kiosk who does not want to employ a young woman for the night shift because the owner thinks the job is too dangerous for a young woman.
There is also a connection in the case of an "incorrectly presumed" connection to one of the grounds of discrimination. For instance, if a person is not allowed into a restaurant because the doorman dislikes gay persons and wrongly believes that the person in question is gay there is a link between the disadvantage and a ground of discrimination. The connection is there, even if the doorman was wrong about the person's sexual orientation.
The necessary link between a disadvantage and a ground of discrimination may also exist when someone is disadvantaged because of his or her association to another person who, in turn, is connected to a ground of discrimination. An example of this may be if a landlord refuses to rent an apartment to a person because the person's partner has a certain ethnicity.
A connection between a disadvantage and a ground of discrimination also exists where the ground of discrimination is one of several factors that are the cause of discriminatory treatment.
Indirect discrimination is when there is a rule or a procedure that appears to be neutral but in fact disadvantages people of a certain sex, a certain sexual identity or expression, a certain ethnic affiliation, a certain religion or belief, a certain disability, a certain sexual orientation or a certain age. The rule may then be discriminatory, even if the same rule applies to everyone. Examples may be a certain height requirement that could disadvantage women, or a requirement for a driving license which could disadvantage people with disabilities.
It is not a case of indirect discrimination, however, if the following criteria are met:
- The purpose of the rule or procedure is justified, that is to say, legitimate and objectively acceptable. This entails that the aim itself must be worth protecting and sufficiently important to take precedence over the principle of non-discrimination.
- The means used are appropriate and necessary to achieve the purpose. This means that there are no alternative means of achieving the objective.
Example, requirements concerning language proficiency:
If an employer places high demands on knowledge of Swedish by job applicants, it could disadvantage people who have Swedish as a second language. The requirement of knowledge of Swedish could then be a case of indirect discrimination. If the requirement of language skills is actually required to carry out the work, it would then be relevant and not be regarded as discrimination. If a municipality is going to employ a teacher of Swedish, it is a reasonable demand to say the job requires good Swedish skills. For other types of services, there are not always the same reasons to demand high language proficiency skills. If the requirement is put on services where it is not relevant, it may be a case of indirect discrimination.
Inadequate accessibility is when a person with a disability is disadvantaged through a failure to take reasonable accessibility measures that would put that person in a comparable situation with others without the disability.
Examples of measures that can be required include the removal of thresholds, reading the menu at a restaurant, or providing an aid that a person needs to participate in school or work.
What are reasonable measures?
The law demands that reasonable accessibility measures be implemented. Exactly what measures are reasonable must be determined by an overall assessment of each individual case. The starting point for what is a reasonable measure is the accessibility requirements that apply under the laws or other regulations for the activities in question, such as in the work environment law, school law, planning and building law or according to the EU regulations on passengers' rights during transport.
In addition to the requirements in laws and other regulations, for most activities it is only relevant to implement simpler measures. Additional measures may be required in workplaces and in higher education premises.
In the overall assessment of what constitutes a reasonable measure, the following are also taken into account:
- The financial and practical situation at the organisation.
- The duration and level of the relationship between the individual and the organisation.
- Other significant factors, such as the benefits of a measure.
Which measures provide accessibility?
Accessibility measures may relate to support or personal service, information and communication, as well as the physical environment.
Examples of support or personal service:
- Support in school classes.
- Guidance through an authority's premises.
- Help in picking and packing groceries in a shop.
- Having the menu read out at a restaurant.
Examples of accessible information and communication:
- Information in alternative formats, for example in large print or on a Daisy (text on a CD-ROM with good search functions).
- Alternative ways of supplying tickets.
Examples of measures in the physical environment:
- Increased accessibility in a shop through the relocation of goods.
- Levelling of thresholds and other differences in levels.
- Installing contrast marking around differences in levels.
- Measures that allow a person to get on board and travel on a bus or other means of transport.
- Guidance and assistance with baggage.
Note that the list above only provides some examples of accessibility measures that may be implemented. Exactly what measures are reasonable are determined by an overall assessment of each individual case.
Harassment and sexual harassment
Harassment is conduct that violates a person's dignity. To fall within the scope of the Discrimination Act, the offensive behaviour must be related to one or more of the grounds of discrimination.
Harassment may be the expression of ridicule or degrading generalisations that have a connection to the grounds of discrimination.
Harassment may also be of a sexual nature. Besides comments and words, this could involve unwanted touching or leering. It could also be a question of unwelcome compliments, invitations or insinuations.
Harassment and sexual harassment are behaviours that are unwelcome. It is the victim of harassment who decides what is unwelcome or offensive. According to the law, the perpetrator must understand how the behaviour is perceived for it to be classified as harassment or sexual harassment. It is thus important that the victim makes it clear to the perpetrator that the behaviour is unpleasant and unwelcome. In certain circumstances the offensive nature of the behaviour may be so obvious that no comment is required from the victim.
Instruction to discriminate
An instruction to discriminate is when someone gives an order or instructs someone who is in some way dependent, such as an employee, to discriminate against another person. An instruction to discriminate may also be given to a person or a company that has undertaken a commission, such as a staffing agency.
The instruction could for example be that:
- only applicants with Swedish names are to be interviewed
- a person is not to be provided with a certain service because of his or her sexual orientation
- a person with a certain ethnicity is not to be allowed into a shop or restaurant.
An instruction to discriminate can involve direct or indirect discrimination, lack of accessibility, harassment or sexual harassment.
Court decides on compensation
A party that subjects someone else to discrimination may become liable to pay compensation to the victim of discrimination. This applies to all forms of discrimination.
It is a court which determines whether discrimination has taken place and which amount of compensation shall be paid due to the discrimination. Compensation for discrimination has a dual function. The compensation ordered should provide reasonable compensation to the victim (restorative function), and it should act as a deterrent and thus effectively counteract discrimination in society (preventive function).
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