sou · GUB322 · 2007-01-01 00:00:00 — As regards disability, there has not previously been any discrimination prohibition re- garding social services, etc., the social insurance system, unem- ployment insurance and health and care services. Another new feature is also that the discrimination prohibition, as regards goods, services and housing, will apply to anyone providing goods, services or housing to the public. Private persons will therefore be subject to this prohibition. However, this prohibition will not ap- ply if it is necessary considering the protection of private life. A prohibition of discrimination against legal persons shall apply as regards labour market policy activities, the setting up or running of business operations, membership, etc., goods, services and housing and as regards public appointments and public assignments. For those who are protected by the discrimination prohibitions, the new rules on discrimination prohibition as regards sexual iden- tity and age may be deemed to be of great positive significance. This new protection can be assumed to correspond to a great need in both areas. The issue of age discrimination is very topical and has been hotly debated. Several proposals in this area can probably be viewed as a first step towards even more advanced legislation as regards age discrimination. For transpersons (sexual identity), it is perhaps the first time that their vulnerable situation is emphasised in a major context of legislation. We consider that the new protec- tion for sexual identity will have a great legal and moral significance for those persons who are subject to the new rules. Increased requirements for measures The discrimination prohibitions are supplemented by meas- ures. measures can generally be described as measures that are taken to promote equality between men and women and other equal treatment. The measures can basically be said to be tar- geted at the treatment of employees and others as groups and not as individual cases. Generally, it can be stated that measures are intended to constitute a driving force and encouragement for further endeavours to counteract discrimination. In our opinion, measures are a truly important component of the discrimination legislation. They constitute a complement to the discrimination prohibitions, but are also valuable in their own right as being aimed at the future and more positive initiatives than the discrimination prohibitions, which can be said to be of a more repressive nature. In contrast to the discrimination prohibi- tions, the provisions on measures are formulated so that they invite creativity and recognize the wish to work effectively against discrimination and for equal opportunities and rights, which can be observed among, for instance, individual employers and union or- ganisations. Work with measures may impede individuals being adversely affected by discrimination, but it may also mean that employers and others avoid being vulnerable to allegations or accusations of discrimination or omissions to investigate and rec- tify harassment. As stated already when the former Act on Equality between Men and Women was passed in 1979, the prohibition of individual injus- tices – that is to say, the discrimination prohibitions – was not suf- ficient for a true and rather rapid move towards equal opportunities between the sexes and equality, regardless of the other grounds of discrimination, to be achieved (cf. Government 1978/79:175 p. 78.). Consequently, measures are also required. The rules on measures should resemble as closely as possi- ble those for the various grounds of discrimination. that the provisions on measures – which currently exist for sex, ethnic background and religion or other religious belief – should also apply for sexual identity, disability, sexual orientation and age, and the rules should be similar wherever possible and ap- propriate for the purpose. We also propose that an obligation is introduced to implement measures for all grounds of dis- crimination. In addition, first the possibilities should be utilised to sharpen the existing measures in the sense that they should be made more efficient, second attempts should be made to try to find new kinds of measures. The proposals in this respect are primarily the following. Employers and employees should cooperate regarding measures to achieve equal rights and opportunities in working life, regardless of sex (equal opportunity in working life), sexual iden- tity, ethnic background, religion or other religious belief, disability, sexual orientation or age. In particular, they should counteract all forms of discrimination, as referred to in Chapter 2 of the Act. As regards discrimination on the grounds of sex, employers and em- ployees – as currently is the case in the Equal Opportunities Act – should work particularly first to equalise and impede differences in pay and other terms and conditions of employment between men and women who perform work that is to be regarded as equal or equivalent, second to promote equal opportunities for develop- ment of pay for men and women. Employers should also take measures regarding recruit- ment, etc, education and development of skills, the opportunity for everyone to seek vacant jobs, to get applicants from the underrep- resented sex and to seek to ensure that the proportion of employ- ees of that sex increases over time to ensure that there should be employees from various ethnic backgrounds in the workplace, re- garding pay issues, and prepare an annual equal treatment plan for their work with measures to achieve equal rights and oppor- tunities in working life, regardless of sex (equality in working life), sexual identity, ethnic background, religion or other religious be- lief, disability, sexual orientation or age. This plan should contain an overview of the measures that are required at the work- place according to the Act together with a report on which of these measures the employer intends to commence or implement during the forthcoming year. measures regarding education should be in place at all educational and other referred to in the Education Act (1985:1100), education referred to in the Higher Education Act (1992:1434), education that can lead to a degree or diploma according to the Award of Act (1993:792), or other educational or training . This requirement should cover all grounds of discrimination. Schools and others who conduct courses and training should implement measures as regards goal-oriented work in order to prevent and impede discrimination and victimisation, and pre- pare an annual equal treatment plan. measures as regards compulsory military service and com- pulsory civilian service involve requirements for goal-oriented work to actively promote the equal rights and opportunities of total de- fence service conscripts, regardless of sex, sexual identity, ethnic background, religion or other religious belief, disability or sexual orientation. These measures shall relate to service condi- tions, measures to prevent and impede discrimination and victimi- sation, and the preparation of an annual equal treatment plan. Employers, schools and the authorities that train and recruit to- tal defence service conscripts, and who do not comply with the provisions of the Act on measures, can be ordered (subject to a default fine) to fulfil their obligations. measures in areas of society other than working life, edu- cation and compulsory military and civilian service should be sub- ject to further investigation. According to our proposals, positive special treatment on the grounds of ethnic background or sex should be allowed in working life. Exemptions from the prohibition against discrimination in working life are therefore introduced. The prohibition against dis- crimination does not apply if an employers means of acting on matters relating to employment, selection for employment inter- views or other measures during the employment procedure, pro- motion or education and training for promotion, or other educa- tion and training, represent a step in an endeavour to promote equal treatment regardless of ethnic background (positive special treatment on the grounds of ethnic background). tive special treatment relating to sex, the existing exclusion for positive special treatment contained in the Equal Opportunities Act (1991:433) is carried over to the new Prohibition and other Measures against Discrimination Act. This discrimination prohibi- tion does not apply if an employers means of acting represents a step in an endeavour to promote equality in working life, and it is not a matter involving the application of pay or other terms and conditions of employment for work that is to be regarded as equal or equivalent (positive special treatment on the grounds of sex). We also propose that positive special treatment on the grounds of sex should be allowed in respect of higher education studies, la- bour market policy activities and memberships, etc. of employee, employer and professional organisations. As regards membership, etc., the existing exemption contained in the Prohibition of Dis- crimination Act (2003:307) carried over to the new Prohibition and other Measures against Discrimination Act. Measures to increase accessibility, etc. It is proposed that the following shall apply in the new Prohibition and other Measures against Discrimination Act. Those subject to the prohibitions under the Act against dis- crimination relating to education and areas of society other than working life may not disfavour a person with a disability by failing to implement such reasonable measures for accessibility as could possibly contribute to that person being able to gain access to goods, services or housing or the operations referred to on equal conditions as people without such a disability. However, the liability to implement measures for accessibility does not apply to private individuals who provide goods, services or housing. A failure to implement measures for accessibility should be re- garded as discrimination. Within working life – that is, the relationship between employers and employees – it is proposed that the current regulations con- tained in of People because of Disability Act (1999:132) are carried over to the new Act. The discrimination prohibition for employers thereby also applies when an employer, in connection with employment, promotion or education/training for promotion, through imple- menting support or adaptation measures, can create a situation for a person with a disability that is comparable with that for people without such a disability, and it may reasonably be required that the employer implements such measures. Victimisation means unfavourable treatment or unfavourable con- sequences that can adversely affect someone who has reported someone or presented a complaint regarding what he or she per- ceives to be discrimination or has made an allegation that the offi- cer responsible within the operation has not, for example, imple- mented measures to prevent continued harassment. The character- istic feature of victimisation is that it is in the nature of a punish- ment. It is proposed that the following prohibitions against victimisa- tion are included in the new Act. An employer may not subject a job seeker or employee to vic- timisation owing to the job seeker or employee having –rejected the employers sexual approaches, –complained about or pointed out that the employer has acted in violation of one of the provisions contained in Chapter 2 of the Act, or –participated in an investigation according to Chapter 2 of the Act. This prohibition also applies in relation to someone who, with- out being an employee at a workplace, is seeking or completing practical work experience or performing work there as agency or borrowed . When the prohibition is applied, the party with whom the work experience position is being sought or per- formed or the work carried out is deemed to be an employer. A person who is subject to the prohibitions against discrimina- tion as regards education/training and areas of society other than working life may not subject anyone to reprisals owing to he or she having –reported or complained about someone acting in violation of the provisions contained in Chapter 3 of the Act, or –participated in an investigation according to Chapter 3 of the Act. Obligation to investigate and implement measures against harassment Employers, schools and authorities that educate or recruit total defence service conscripts shall be liable to investigate and imple- ment measures against harassment as follows. An employer, who becomes aware that an employee considers that he or she has been subjected to harassment that is related to sex, sexual identity, ethnic background, religion or other religious belief, disability, sexual orientation or age or sexual harassment in conjunction with the work, is under an obligation to investigate the circumstances surrounding the said harassment and, where appro- priate, implement those measures that may reasonably be required to impede continued harassment. The employers obligation also applies in relation to a person who, without being an employee at the workplace, is seeking or performing practical work experience or is performing work there as agency or borrowed . A school that becomes aware that someone who is participating in or applying for a course/training or activity considers that he or she has been subjected to harassment that is related to sex, sexual identity, ethnic background, religion or other religious belief, dis- ability, sexual orientation or age or sexual harassment in conjunc- tion with the course/training or activity, is liable to investigate the circumstances surrounding the said harassment and, where appro- priate, implement those measures that may reasonably be required to impede continued harassment. An authority that trains or recruits total defence service conscripts and that becomes aware that a total defence service conscript con- siders that he or she has been subjected to harassment that is re- lated to sex, sexual identity, ethnic background, religion or other religious belief, disability or sexual orientation or sexual harass- ment in conjunction with compulsory military or compulsory civil- ian service, is liable to investigate the circumstances surrounding the said harassment and, where appropriate, implement those measures that may reasonably be required to impede continued harassment. It is proposed that the mandatory nature of the Act is directly indi- cated by the wording of the Act. A contract that restricts anyones rights under the Act shall be invalid in that respect. A provision in an individual contract or in a collective bargaining agreement that allows or entails that someone is discriminated against in a that is prohibited by the Act shall be adjusted or declared invalid if the party discriminated against so requests. If the provision is of such significance to the contract that it cannot reasonably be required that it should in other respects apply with unchanged content, the contract may also be adjusted in other re- spects or declared invalid in its entirety. If someone is discriminated against through a notice of termina- tion of a contract or through another such legal act in a that is prohibited according to the Act, such legal act shall be de- clared invalid if the person discriminated against so requests. If someone is discriminated against through rules of procedure or similar internal provisions at the workplace in a that is prohibited according to Chapter 2 on working life, the provision shall be adjusted or declared invalid if the person discriminated against so requests. Anyone, who breaches the prohibitions against discrimination – including the provisions applicable to support and adaptation measures – or victimisation, or fails to perform an obligation to investigate and implement measures against harassment and sexual harassment, shall pay damages for the violation that this entails (general or non-pecuniary damages) and for the loss that arises (economic damages). The severity of the violation shall be decisive for the amount of non-pecuniary damages. If there are special rea- sons, the damages may be reduced or lapse completely. The inten- tion of the party committing the discrimination shall not consti- tute reasons for adjusting the damages. We proposed in the preliminary report Extended protection against sexual discrimination (Official Government Report - SOU 2004:55 p. 314 f.) that the current limitation on economic damages in discrimination legislation should be removed. However, the Riksdag and the Government had a different view when the matter was dealt with in the spring of 2005 (see Government 2004/05:147 p. 116 f., Report 2004/05:AU7, Riksdag Communica- tion 2004/05:267). We are still of the opinion that EC law re- quires the removal of the link between discrimination legislation and the ceiling rule for economic damages under the Employ- ment Protection Act. However, we do not repeat our proposal now, but anticipate that the Government, when processing this matter in the future, will consider our deliberations on this matter. Labour law discrimination cases should also in the future continue to be dealt with by the Labour Court (AD). We have concluded that the AD is an independent and impartial court in the sense re- ferred to in Article 6.1 of Convention and that the AD also generally satisfies the requirements prescribed by this Ar- ticle. However, in our opinion, there are no mandatory legal rea- sons to change the role of the AD or the composition of the bench of the court in discrimination cases. However, this is not to say that it cannot for other reasons be justified to propose changes in some respect. One important point of departure is that judicial procedures should be formulated in such a way that the interest in safeguarding the secure, rapid and uniform application of the law is promoted in the optimum way. should any amendments create new difficulties that could be avoided under the current system. The composition of the AD in discrimination cases should be changed. The Labour Disputes (Judicial Procedure) Act is amended so that only five members participate in such cases. The composition should be a chairperson, a vice-chairperson, a third party, an employer member and an employee member. In this way, the interest members will not be in the majority in cases, but are nonetheless included and can contribute with their special expertise about the labour market. It would be an advantage for the adjudication if special expertise in discrimination issues was included on the bench of the court. One special way of ensuring that the court has such competence is that the independent official member (the third party), besides the requirement already applying for a special insight into the situa- tion in the labour market, should also have a special insight into discrimination issues. This should be stated in the Labour Disputes (Judicial Procedure) Act (1974:371). The third parties are ap- pointed from a special list which includes people with such compe- tence. In this way, valuable expert knowledge could be brought into the court. Such a system would constitute a usable comple- ment to the powers that the court and the parties already have to call in an expert(s) when this is considered necessary. A member with special experience or understanding of discrimination issues would constitute a valuable supplement for adjudication. The wish to have special competence in discrimination issues could also be satisfied within the framework of increased and targeted educa- tion/training initiatives. An action in a case concerning discrimination that is brought by the Ombudsman against Discrimination should be instituted at the district court. The AD is a superior instance in the case of an ap- peal. Actions may not be brought against any judgment or decision of the AD. The chairperson of the AD, who is currently appointed for three years, should instead be an ordinary judge in the AD. The Ombudsman against Discrimination should be empowered, as a party, to bring an action for an individual in a case concerning the prohibitions against discrimination and victimisation and an obliga- tion to investigate and implement measures against harassment, if the person gives consent. If the Ombudsman brings such an action, the Ombudsman may also, in the same proceedings, bring other actions for the individual. In working life, the right of action of the Ombudsman, as ac- cording to the current provisions, should be subsidiary in relation to the trade union right of action. When a trade union organisation is entitled to bring proceedings on behalf of the individual, in ac- cordance with Chapter 4, Section 5 of the Labour Disputes (Judi- cial Procedure) Act (1974:371), the Ombudsman may only bring an action if the employee organisation does not do so. A not-for-profit association that according to its rules protects its members interests, is entitled, as a party, to bring an action for an individual in cases concerning the prohibitions against discrimi- nation and victimisation and the obligation to investigate and im- plement measures against harassment, provided the person gives consent. In working life, the right of action of the association shall be subsidiary in relation to the trade union right of action. When the employee organisation is entitled to bring proceedings for an indi- vidual in accordance with Chapter 4, Section 5 of the Labour Dis- putes (Judicial Procedure) Act (1974:371), the association may only bring proceedings if the employee organisation does not do so. The precondition for the right of action of an interest organisa- tion is that the association, considering its operation and its inter- ests in the matter, its financial capacity to bring proceedings and the circumstances generally, is appropriate to represent the indi- vidual. An evidential rule entailing a relaxation of evidence for someone who alleges that discrimination has occurred is necessary. We pro- pose that this is formulated in the following way. If there is cause to assume that someone has been disadvantaged in a way indicated by the prohibitions against discrimination or victimisation, it is the defendant who must show that there has not been any discrimina- tion or victimisation. If someone brings an action as a result of notice of termination or dismissal, the following provisions contained in the Employment Protection Act (1982:80) shall apply: –Section 40 on time limits for actions concerning declaration of invalidity, –Section 41 on time limits for actions for damages or other claims of debt, and –Section 42 on lapse of right of action owing to time limit. On matters concerning actions other than those referred to in the first paragraph, the following provisions of the Employment (Co-Determination in the Workplace) Act (1976:580) shall apply: –Section 64 on time limits for calling for negotiations, –Section 65 on time limits for instituting proceedings, –Section 66 on an extended time limit for a person who is not represented by an employee organisation, with the difference that the time limit referred to in Section 66, first paragraph, first sen- tence, should be two months, and –Section 68 on the lapse of right of action owing to time limits. If the proceedings relate to damages as a result of an employ- ment decision that has been made by an employer with public status, the time limits are calculated in accordance with the second paragraph from the date when the employment decision entered into final force.