sou · H9B394 · 2021-12-01 00:00:00 — However, this proposal does not cover statements or com- munications covered by the protection of the Freedom of the Press Act or the Fundamental on Freedom of Expression since this would require a constitutional amendment and the Inquiry’s terms of reference do not cover proposing constitutional amendments. But we make the assessment that it is valuable to obtain a prohibition that extends over the area not covered by the Freedom of the Press Act and the Fundamental on Freedom of Expression and also that it may be of value to give further consideration to the question of whether the constitution should be amended in this respect to make the protection from discrimination as comprehensive as possible. This question may therefore need to be investigated separately if the Government considers this appropriate. Financial penalties should be introduced as a sanction Now that we are strengthening the protection against direct discri- mination, this means that the requirement of EU law for effective, dissuasive and proportionate sanctions must be fulfilled. The Inquiry has considered various sanctions for the situations involved: a financial penalty, compensation for discrimination, an action for a prohibition with a financial penalty or sanction charges. Based on its deliberations, the Inquiry has made the assessment that a financial penalty is the most appropriate sanction to introduce to prevent the dissemination of this type of communications. We make the assessment that the requirements of EU law regarding the character of the sanctions are met since a financial penalty is a sanction that has been accepted by the CJEU, as is shown by the Court's pronouncements in the Accept case (C-81/12). The Equality Ombudsman should be given the possibility of making a request for a financial penalty to the Board against Discrimination We propose that the Board against Discrimination be assigned the task of ordering a financial penalty to prevent dissemination of discriminatory statements or communications. already examines orders imposing financial penalties under Chapter 3, Section 5 of the Discrimination Act (measures) and appeals of decisions under Chapter 3, Section 4 of the Act. In addition, in our interim report (SOU 2020:79) we have proposed that the Board should be made more effective, which ought to be able to help to make it better suited to handle questions concerning financial penalties in the situations being considered here. Our proposal means the introduction of a possibility of countering discrimination when there are no other possibilities. But it has been designed to also cover situations where there is, in fact, an individual victim who is known. In our assessment, however, the possibility proposed here will primarily be used in situations where there is no such identified victim. There may, otherwise, be parallel examinations of the same incident, in a court regarding discrimination under Chapter 2 of the Discrimination Act and at the Board regarding an action for a conditional financial penalty. This should be avoided if possible, and it will be the Equality Ombudsman, as the supervisory authority, that ought to take the overall responsibility for assessing when it is appropriate from the public perspective to apply for a conditional financial penalty. We also make the assessment – considering that this concerns a limitation of freedom of expression –that it should only involve a limited number of cases where the breaches are relatively clear and distinct. The remit concerning an expanded prohibition for certain public employment The fundamental problem that we have identified is that, at present, such a large part of public activities is not covered by the Discrimination Act to the same extent as the activities regulated specially in Chapter 2 of the Act. This is because the present prohibition against discrimination in Chapter 2, Section 17 of the Discrimination Act is limited to employees’ treatment of the public and therefore does not cover all of an agency’s activities. The Inquiry therefore proposes that the prohibition against discrimination in Chapter 2, Section 17 of the Discrimination Act be amended to cover measures or failure to takes measures, in relation to the public and within the framework of their employ- ment, by a person covered or partly by the Public Employ- ment Act (1994:260). This means that the prohibition will cover not only treatment but also, for example, the exercise of public authority in relation to individuals, decisions, the content of advice and information in conjunction with the processing of cases and positions taken that form the basis for substantive assessments. The proposed prohibition would apply to different kinds of inter- ventions and actions, for instance outreach activities and supportive measures or interventions in connection with the enforcement of decisions. The prohibition would also cover failure to take measures, i.e. failure to act due to passivity. Discriminatory aspects of the pro- cessing of cases would also be hit by the prohibition, for instance if discrimination is included in the basis of a decision. The prohibition would continue to apply subsidiary in relation to the other provisions of Chapter 2 of the Discrimination Act, which means that only conduct that does not fall under any of the other prohibition provisions in Chapter 2, Section 5 or Sections 9–15 of the Discrimination Act would be covered by the expanded prohibition we propose. As is the case today, the prohibition would apply in relation to the public. The prohibition should also cover persons performing public administrative functions The Inquiry also proposes extending the prohibition to also cover persons performing public administrative functions that have been delegated to a private person under Chapter 12, Article 4, second para- graph of the Instrument of Government. This means that it will be possible to apply the prohibition not only in relation to pubic employers but also against private actors conducting activities in which they perform public administrative functions. With the present scope of Chapter 2, Section 17 of the Discri- mination Act, the prohibition does not cover employees who perform public administrative functions within the framework of the activities of a private law actor, e.g, privately employed guards performing work for municipalities or employees of independent schools. As a result of this scope, persons who can be viewed by individuals as representative of the public institutions can fall out- side the area covered by the prohibition against discrimination. In our opinion, this would be a defect in the regulatory framework. For an individual, moreover, it is important that the protection against discrimination is equally strong, irrespective of whether or not the public administrative function has been assigned to a private actor. Considering that the other prohibitions in the Discrimination Act do not distinguish between activities run publicly or under private law, this results in a coordination with those regulations. Exemption for justified differential treatment We propose a general exemption from the prohibition for measures that have a justified purpose and where the means used are appro- priate and essential to achieve that purpose. All differential treat- ment cannot be considered discriminatory; in certain situations there may, instead, be legitimate reasons that make an instance of differential treatment acceptable. Considering that the prohibition will hit employees in public activities with very different tasks and ways of working, it is not possible to foresee in detail all the situations where differential treatment can be justified. So it is not possible to regulate the reasons for exemption separately. Some examples of measures that can be justified are measures taken to protect the life, safety and health of other persons. A two-stage assessment will be required to determine whether the exemption is applicable in a particular situation. First, there must be a justified purpose and, second, the measures must be appropriate and essential to in relation to the purpose of the measures. This therefore means that a balancing of interests (assessment of proportionality) must be carried out between the purpose and the measures taken. Exemption for courts’ processing, judgments and decisions We also propose that courts’ processing, judgments and decisions in individual cases and matters should not be covered by the expanded prohibition in Chapter 2, Section 17 of the Discrimination Act. Provisions on the independence of the courts are set out in Chapter 11, Articles 3–5 of the Instrument of Government and else- where. Under these provisions courts must only follow the law and must not take instructions or orders about how to adjudicate an individual case or apply a legal rule in a particular case. This independence is part of the fundamental character of the Swedish legal order as a state governed by the rule of law and its purpose is that individuals appearing in court will be able to rely on being given an impartial examination. Central government and local governments often appear as parties in court, and this reinforces the need to make the point that the courts do not in any way come under or follow the instructions of the authorities. In our view, a certain of safety should be maintained in these matters, and it is therefore important to avoid any suspicion that the courts can be subjected to improper influence or take account of considerations not grounded in legislation, and this is why we propose this exemption. Other measures in the activities of the courts, e.g. the processsing of administrative measures and how court staff behave towards and treat individuals should continue, to the extent that they are not processing, judgments and decisions, to be covered by the prohibition in Chapter 2, Section 17 of the Discrimination Act. The activities and measures of the relating to national security should be exempted from the prohibition The inquiry proposes that the activities and measures of the relating to national security should not be covered by the prohibition in Chapter 2, Section 17 of the Discrimination Act. Certain government agencies, such as the and the Swedish Armed Forces, conduct activities intended to protect national security from internal and external threats. In the measures relating to national security and other kinds of law enforcement activities can be conducted in one and the same context. It can therefore be difficult to separate out the different parts of these activities. As regards the activities and measures of the that relate to national security, the Inquiry therefore sees a need for an exemption from the expanded regime in Chapter 2, Section 17 of the Discrimination Act. The exemption we are discussing here already has something of an equivalent in the exemption from the obligation to provide information in Chapter 4, Section 3 of the Discrimination Act. That provision enables the Equality Ombudsman to conduct supervision relating to agencies that handle sensitive information since infor- mation covered by secrecy does not have to be released in connection with the supervision. This exemption is, however, not comprehensive and we have found that it opens up for different assessments in a way that is not satisfactory now that we are expanding the scope of the prohibition. A more comprehensive exemption should therefore be introduced. A further point is that activities to protect national security are not normally performed in relation to the public in the meaning of the Act. This means that the agencies concerned seldom come under the prohibition we propose and that the prohibition is therefore only a guarantee that particularly sensitive activities will not be capable of being harmed by our proposal of a general prohibition in Chapter 2, Section 17 of the Discrimination Act. The exemption should cover public activities of importance for national security. National security covers both internal and external security, i.e. both threats from within and from foreign powers. The Inquiry also wants to stress that exemptions from the regime in Chapter 2, Section 17 of the Discrimination Act do not mean that the question of discrimination in these activities is not regulated. There is already general protection against discrimination through Convention and our constitution, for instance. In cases where the question of discrimination would arise, there are therefore other possibilities of exercising control and possibilities of obtaining compensation via the Tort Liability Act for a person who has been subjected to discrimination. The Inquiry’s deliberations and proposals concerning expanded protection against harassment and threats for workers Analysis of the Discrimination Act The regulations in the Discrimination Act mean that harassment and sexual harassment by an employer and a person who has the right to make decisions on an employer’s behalf are covered by the prohibition against discrimination, while harassment and sexual harassment by other employees or persons equated with employees give the employer an obligation to investigate and take measures. If an employer breaches the prohibition of discrimination or fails to fulfil their obligation to investigate and take measures, the employer has to pay compensation for discrimination to the employee or person equated with an employee who has been subjected to this. In contrast, cases of harassment and sexual harassment of employees or persons equated with employees performed by a third party fall outside both the prohibition of discrimination and the obligation to investigate and take measures. does the Discrimination Act contain provisions that place an obligation on anyone other than the employer, i.e. there is no regulation of personal responsibility for either employees or third parties. Chapter 3, Section 6 of the Discrimination Act states specifically regarding measures that employers are to have guidelines and procedures for their activities to prevent harassment and sexual harassment. This provision is an important complement to the prohibitions against discrimination and the obligation to investigate and take measures. Our conclusion is that it is uncertain whether harassment and sexual harassment by a third party is covered by the employer’s obligations concerning guidelines and routines, and that most considerations contradict that interpretation. Threats are not regulated independently in the Discrimination Act, but can be harassment and sexual harassment. Analysis of work environment legislation The Work Environment Act (1977:1160) imposes a responsibility on the employer for the whole of the work environment. This includes protection from different kinds of violations, among them harass- ment and sexual harassment as well as threats by third parties. It is therefore clear that the employer has a responsibility for harassment and sexual harassment as well as threats to employees, even when the acts are performed by a third party. However, the fundamental provisions of the Act are mainly given greater detail through ‘substantive regulations.’ The substantive regulations that regulate protection from violations such as harass- ment and sexual harassment are the victimisation at work regime in the regulations on the organisational and social work environment. Our conclusion is that it is uncertain whether these regulations regulate harassment and sexual harassment by a third party, and that most considerations contradict that interpretation. The lack of clear regulations regarding violations such as harass- ment and sexual harassment by a third party entails a lack of clarity about which specific obligations an employer has to counter such acts, since it is mainly the substantive regulations that specify the requirements. In contrast, there are substantive regulations addressing violence and threats of violence against employees by third parties that specify in detail how the employer has to counter these acts. This obligation includes investigating and taking measures, preventing risks and providing support for victims. This can, for example, include a pro- hibition of solitary work or access to alarm equipment. Comparison of employees’ protection What has been stated means that employees’ protection against harassment and sexual harassment in working life is worse if the acts are performed by third parties than if the employer or another employee is responsible. Moreover, the protection against harass- ment and sexual harassment is less extensive than the protection against violence and threats of violence. In addition, the protection for employees in the Discrimination Act is worse than protection for other groups in this Act. Criminal law protection against harassment is also relatively weak. The Inquiry’s overall review shows that what, in practice, generally constitutes harassment against employees by third parties is only criminalised through the offence of insulting behaviour. The main rule is that this offence does not come under public prosecution, which means that, in many instances, the individual has to conduct their case in court instead of the prosecutor doing so. In contrast, there is more extensive protection in criminal law against what, in practice, generally constitutes sexual harassment and threats to employees. In our assessment, there are reasons to make a more thorough investigation of the protection in criminal law against discrimination. There is a lack of correspondence between the regulation under private law in the Discrimination Act and the provisions in criminal law on illegal discrimination and agitation against a population group in the Criminal Code. In addition, the offence of unlawful discri- mination only covers acts by a business operator or the equivalent, anyone who is in public employment or holds elected office and organisers of a public gathering or event or anyone who aids such an organiser. The Inquiry’s conclusion is that a review of this kind is not accommodated within its terms of reference and therefore proposes that this be done separately. Employees’ protection against threats by third parties Our remit regarding harassment and threats is based on the seven grounds of discrimination in the Discrimination Act, but threats are not regulated specially in that Act. There are thus, for all forms of threats of violence against employees without any requirement of a link to a ground of discrimination, overarching provisions in the Work Environment Act, which have been specified in substantive regulations. The substance is that it is clear that there is an obligation for employers to counter threats of violence against employees made by third parties. serious forms of threats are also criminalised and the offence comes under public prosecution. So, as regards protection from threats of various kinds, there is a regulatory framework outside the Discrimination Act that is relatively In the specific case of threats to employees/persons equated with employees made by third parties in the light of the grounds of discrimination, we therefore make the assessment that there is no reason to reinforce the legal protection. In contrast, threats that constitute harassment or sexual harassment will, of course, be covered by our assessments and proposals concerning them. Sexual harassment by third parties is a serious work environment problem Even though the protection is weak at several points, sexual harassment by third parties of employees and persons equated with employees is a serious work environment problem. Surveys show that almost of young women report that they have been harassed sexually by third parties in working life in the past year. The problem is widespread, but in certain particularly vulnerable industries, the prevalence is almost for female employees, irrespective of age. In the view of the Inquiry these figures are remarkable. What is striking, over and above this, is that surveys show that sexual harass- ment by third parties is much more prevalent than sexual harassment by employers and by other employees; in actual fact the third party problem for women appears to be three times as big. On this basis, the Inquiry draws the conclusion that the legislation does not correspond fully to the problem and that protection for employees against harassment and sexual harassment by third parties needs to be reinforced. Starting points for expanded protection The legislation means that discrimination is regulated specifically in the Discrimination Act. If the discrimination entails a work environ- ment problem, there also has to be protection in work environment legislation. Our starting point is therefore that it is desirable for the necessary reinforcement to be made both in the Discrimination Act and in work environment legislation. So there should be protection in both regulatory frameworks against harassment and sexual harass- ment even when the acts are performed by third parties. At the same time, both the Discrimination Act and work environ- ment legislation place the legal responsibility on the employer. What is complex regarding acts by third parties is that the employer is unable to exercise control over these persons to the same extent as over employees. A balance therefore needs to be struck between the need for further measures and the employer’s actual possibilities of bearing a responsibility. Expanded protection in the Discrimination Act The Inquiry takes the view that it is not appropriate to propose that the employer should have an obligation to investigate and take measures, sanctioned by compensation, for harassment and sexual harassment by a third party in the same way as applies when this happens between employees. An employer can summon employees to talks to investigate sequences of events and can take measures, such as a warning, transfer or dismissal, that ultimately mean that an employee no longer has the right to be at a workplace as a person employed there. The same does not apply when acts are performed by a third party, and the employer is therefore very much in the position of not having the tools required to be able to live up to an obligation to investigate and take measures. Another difficulty is that workplaces, such as shops, restaurants and libraries, are public places, to which the public has a consti- tutional right of access. An employer can, for instance, call on a guest to leave or not serve the guest, but sharper measures may require support from society in the form of e.g. a report to the or a report for an entry prohibition under new legislation. The employer is, however, able to take unilateral measures regarding the employee, such as a prohibition of solitary work or access to alarm equipment, i.e. measures for the purpose of pro- tecting the employee. On this basis we draw the conclusion that any expanded protection ought to contain clearly defined obligations for the employer to protect the employee in various ways from acts by third parties and that this requires a regime other than an expanded obligation to investigate and take measures. Instead, we propose making clear both that the employer’s work on measures under the Discrimination Act also relates to harassment and sexual harassment by third parties and that the employer has an obligation under work environment legislation to address such acts. We therefore propose clarifying the current provision in Chapter 3, Section 6 of the Discrimination Act so that it clearly states that harassment and sexual harassment by third parties against employees are also covered by the requirements for guidelines and routines put in place by the employer.