Country report : non-discrimination : Sweden 2018.
Date: 2019-01-07
Institutions: Directorate-General for Justice and Consumers
Subjects: Sweden, age discrimination, anti-discriminatory measure, discrimination based on disability, discrimination on the basis of sexual orientation, equal treatment, ethnic discrimination, national law, religious discrimination, report, sexual discrimination, social policy

Sweden 

2018 

Including summaries in 
English, French and 
German 

1 

 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.1 Non-discrimination and Roma coordination 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Non-discrimination 

Sweden 

Paul Lappalainen∗ 

Reporting period 1 January 2017 – 31 December 2017 

2018 

Directorate-General for Justice and Consumers 



Per Norberg was the expert of the previous year's country reports. 

Europe Direct is a service to help you find answers  
to your questions about the European Union. 

Freephone number (*): 

00 800 6 7 8 9 10 11 

(*) 

The information given is free, as are most calls (though some operators, phone 

boxes or hotels may charge you). 

LEGAL NOTICE 

This document has been prepared for the European Commission however it reflects the views only of the 
authors, and the Commission cannot be held responsible for any use which may be made of the information 
contained therein. 

More information on the European Union is available on the Internet (http://www.europa.eu). 

Luxembourg: Publications Office of the European Union, 2018 

PDF 

ISBN 978-92-79-84514-7   

doi: 10.2838/246746 

DS-04-18-386-3A-N 

© European Union, 2018 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Non-discrimination – Sweden – 2018 

CONTENTS 

EXECUTIVE SUMMARY ........................................................................................ 5 
RÉSUMÉ ............................................................................................................ 14 
ZUSAMMENFASSUNG ........................................................................................ 25 
INTRODUCTION ................................................................................................ 36 
The national legal system .............................................................................. 36 
List of main legislation transposing and implementing the directives ................... 37 
GENERAL LEGAL FRAMEWORK .................................................................. 39 
THE DEFINITION OF DISCRIMINATION .................................................... 40 
2.1  Grounds of unlawful discrimination explicitly covered ................................ 40 

1 
2 

2.1.1  Definition of the grounds of unlawful discrimination within the 

directives ................................................................................. 40 
2.1.2  Multiple discrimination ............................................................... 44 
Assumed and associated discrimination ....................................... 46 
2.1.3 
2.2  Direct discrimination (Article 2(2)(a)) ...................................................... 46 
2.2.1 
Situation testing ....................................................................... 49 
Indirect discrimination (Article 2(2)(b)) ................................................... 51 
Statistical evidence ................................................................... 52 
2.3.1 
2.4  Harassment (Article 2(3)) ...................................................................... 54 
2.5 
Instructions to discriminate (Article 2(4)) ................................................ 56 
2.6  Reasonable accommodation duties (Article 2(2)(b)(ii) and Article 5 Directive 

2.3 

2000/78) ............................................................................................. 57 
PERSONAL AND MATERIAL SCOPE ............................................................ 65 
3.1  Personal scope ..................................................................................... 65 

3.1.1 

EU and non-EU nationals (Recital 13 and Article 3(2) Directive 
2000/43 and Recital 12 and Article 3(2) Directive 2000/78) ........... 65 
3.1.2  Natural and legal persons (Recital 16 Directive 2000/43) ............... 65 
Private and public sector including public bodies (Article 3(1)) ........ 66 
3.1.3 
3.2  Material scope ...................................................................................... 66 
Employment, self-employment and occupation ............................. 66 

3.2.1 
3.2.2  Conditions for access to employment, to self-employment or to 

3.2.3 

3.2.4 

occupation, including selection criteria, recruitment conditions and 
promotion, whatever the branch of activity and at all levels of the 
professional hierarchy (Article 3(1)(a)) ........................................ 67 
Employment and working conditions, including pay and dismissals 
(Article 3(1)(c)) ........................................................................ 68 
Access to all types and to all levels of vocational guidance, vocational 
training, advanced vocational training and retraining, including 
practical work experience (Article 3(1)(b)) ................................... 68 

3.2.5  Membership of, and involvement in, an organisation of workers or 

3.2.6 

employers, or any organisation whose members carry on a particular 
profession, including the benefits provided for by such organisations 
(Article 3(1)(d)) ........................................................................ 68 
Social protection, including social security and healthcare (Article 
3(1)(e) Directive 2000/43) ......................................................... 69 
Social advantages (Article 3(1)(f) Directive 2000/43) .................... 69 
Education (Article 3(1)(g) Directive 2000/43) ............................... 69 
Access to and supply of goods and services which are available to the 
public (Article 3(1)(h) Directive 2000/43) .................................... 73 
3.2.10  Housing (Article 3(1)(h) Directive 2000/43) ................................. 75 
EXCEPTIONS ............................................................................................. 79 
4.1  Genuine and determining occupational requirements (Article 4) .................. 79 
4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

3.2.7 
3.2.8 
3.2.9 

2000/78) ............................................................................................. 79 

4.3  Armed forces and other specific occupations (Article 3(4) and Recital 18 

Directive 2000/78) ................................................................................ 79 

3 

3 

4 

 
 
4.4  Nationality discrimination (Article 3(2)) ................................................... 80 
4.5  Work-related family benefits (Recital 22 Directive 2000/78) ....................... 80 
4.6  Health and safety (Article 7(2) Directive 2000/78) .................................... 81 
4.7  Exceptions related to discrimination on the ground of age (Article 6 Directive 

2000/78) ............................................................................................. 82 
4.7.1  Direct discrimination ................................................................. 82 
4.7.2 

Special conditions for young people, older workers and persons with 
caring responsibilities ................................................................ 83 
4.7.3  Minimum and maximum age requirements ................................... 84 
4.7.4  Retirement ............................................................................... 84 
4.7.5  Redundancy ............................................................................. 87 
4.8  Public security, public order, criminal offences, protection of health, protection 
of the rights and freedoms of others (Article 2(5), Directive 2000/78) ......... 87 
4.9  Any other exceptions ............................................................................. 87 
POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 
2000/78) .................................................................................................. 89 
REMEDIES AND ENFORCEMENT ................................................................. 93 
6.1 
Judicial and/or administrative procedures (Article 7 Directive 2000/43, Article 
9 Directive 2000/78) ............................................................................. 93 

6.2  Legal standing and associations (Article 7(2) Directive 2000/43, Article 9(2) 

Directive 2000/78) ................................................................................ 96 
6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78).. 99 
6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) .... 102 
6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) ........................................................................................... 103 

5 

6 

7 

8 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) ................................................................................................ 109 
IMPLEMENTATION ISSUES...................................................................... 128 
8.1  Dissemination of information, dialogue with NGOs and between social partners 
 ........................................................................................................ 128 
8.2  Compliance (Article 14 Directive 2000/43, Article 16 Directive 2000/78).... 131 
9 
COORDINATION AT NATIONAL LEVEL ..................................................... 133 
10  CURRENT BEST PRACTICES ..................................................................... 135 
11  SENSITIVE OR CONTROVERSIAL ISSUES ................................................ 138 
11.1  Potential breaches of the directives (if any) ............................................ 138 
11.2  Other issues of concern ....................................................................... 139 
12  LATEST DEVELOPMENTS IN 2017 ............................................................ 141 
12.1  Legislative amendments ...................................................................... 141 
12.2  Case law ............................................................................................ 141 
ANNEX 1: TABLE OF KEY NATIONAL ANTI-DISCRIMINATION LEGISLATION ... 146 
ANNEX 2: TABLE OF INTERNATIONAL INSTRUMENTS ..................................... 148 

4 

 
 
EXECUTIVE SUMMARY 

1. Introduction 

Sweden  has  long  had  various  minorities  such  as  the  Roma,  the  Finns  and  the  Jewish 
community.  The  Sami  have  always  constituted  an  indigenous  population.  Nevertheless, 
Sweden  has  long  viewed  itself,  and  has  been  viewed  until  fairly  recently,  as  a 
homogenous  country.  In  2017  its  population  reached  10.1  million.  The  proportion  of 
foreign-born  inhabitants  has  increased  from  6.7  %  in  1970  to  18.5  %  in  2017  and 
continues to rise.1 Sweden is considered to be a strongly secular country although, at the 
same  time,  most  people  still  belong  to  the  Lutheran  church,  formerly  the  state  church. 
There  is  no  tradition  of  monitoring  ethnicity  within  society  and  no  long-established 
tradition as regards anti-discrimination legislation either. 

In  order  to  understand  discrimination  legislation  and  its  enforcement  in  Sweden,  it  is 
imperative  to  understand  the  functioning  of  Swedish  labour  law,  and  the  special  and 
dominant role designated to the social partners. The labour market is characterised by a 
high  degree  of  organisational  density  among  the  unions  as  well  as  the  employers’ 
organisations – at roughly 70 %. This applies to both the private and public sectors. This 
organisational  structure  is  reflected  in  collective  bargaining  and  in  the  fact  that  some 
important issues, for instance  wages,  still lie  outside the scope  of  the law. As a general 
rule, work as a civil servant is controlled by contracts and collective agreements, largely 
in the same way as private employment. With some exceptions, the same rules apply.  

Sweden,  which  has  had  predominantly  Social  Democratic  Governments  during  the  past 
century,  has  developed  a  fairly  comprehensive  welfare  state.  Social  and  economic 
benefits  have  been  formulated  only  to  a  limited  extent  in  terms  of  rights  giving  rise  to 
legal  claims.  At  the  same  time,  the  constitutional  tradition  in  regard  to  fundamental 
rights  has  been  weak.  This  has  started  to  change,  however,  due  to  the  increasingly 
important  role  played  by  the  European  Convention  on  Human  Rights,  EU  law  and  the 
Swedish constitution.  

Because  of  their  special  role,  the  unions  and  the  employers’  associations,  the  social 
partners, were influential in at least initially hindering the development of discrimination 
law,  and  thereafter  in  its  formulation  and  enforcement.  Other  NGOs,  such  as  those 
representing  discriminated-against  groups,  have  thus  far  had  a  very  limited  role  in 
relation  to  the  development  and  particularly  the  enforcement  of  laws  against 
discrimination.  

Up  to  the  1990s,  there  was  little  in  the  form  of  discrimination  law  covering  grounds  or 
fields  other  than  sex  discrimination  in  employment.  However,  from  1999,  the  Swedish 
Government  has  been  active  regarding  the  introduction  of  relatively  modern  anti-
discrimination legislation. This was due to domestic needs in addition to anticipating and 
transposing EU law. In 2009, seven civil laws covering various grounds and fields such as 
education  and  working  life  were  basically  merged  into  a  single  Discrimination  Act, 
covering  all  grounds  and  much  of  society.  One  step  further  on  this  road  was  taken  on 
1 January  2015,2  when  a  new  form  of  discrimination  –  inadequate  accessibility  –  was 
established. This extended the ability of persons with disabilities to obtain discrimination 
compensation  awards  for  failures  to  adopt  reasonable  accommodation  measures  to 
provide  access  to  areas  of  society  not  covered  by  the  framework  directive  for  equal 
treatment in employment and occupation (2000/78).  

1   Statistics Sweden, Summary of Population Statistics 1960–2017, accessed 2018-05-10, 

https://www.scb.se/en/finding-statistics/statistics-by-subject-area/population/population-
composition/population-statistics/pong/tables-and-graphs/yearly-statistics--the-whole-country/summary-of-
population-statistics/. 

2   Act (2014:958) changing the Discrimination Act. 

5 

 
 
 
 
 
 
  
 
                                                 
The Roma have been the focus of both official and unofficial racism and discrimination. It 
was  not  until  the  late  1950s  that  there  was  some  focus  on  recognising  their  right  to 
reside  in  a  municipality.  Up  until  that  time,  many  municipalities  had  adopted  various 
means to discourage or prevent their settlement. Regulations limiting the rights of Roma 
to  stay  for  more  than  a  few  days  were  common.  In  this  way,  local  authorities  avoided 
responsibility for the schooling of children and various welfare rights. The Roma still face 
a  more  open  racism  and  discrimination  compared  with  various  other  ethnic  groups,  but 
the Government now seems somewhat more aware and active.3  

2. Main legislation 

There  are  constitutional  provisions  with  respect  to  discrimination  in  the  Swedish 
Instrument of Government (part of Sweden’s constitution). According to the first chapter, 
which  cannot  be  cited  as  a  basis  for  a  legal  claim,  the  public  institutions  shall  combat 
discrimination  against  persons  on  grounds  of  gender,  colour,  national  or  ethnic  origin, 
linguistic  or  religious  affiliation,  functional  disability,  sexual  orientation,  age  or  other 
circumstances  affecting  the  individual.  This  principle  does  not  grant  any  legally 
enforceable rights. There are two articles in Chapter 2 that can form the basis of a legal 
claim:  Article  12,  which  provides  protection  against  laws  and  regulations  that 
discriminate  on  the  basis  of  ethnic  origin,  colour,  or  other  similar  circumstances,  or  on 
account of  sexual orientation. Article 13 prohibits laws and regulations that discriminate 
on  the  basis  of  sex.  The  relationship  to  the  European  Union  and  EU  law  is  regulated 
through the Instrument of Government (1:10 and 10:6) and through other laws. 

The  European  Convention  on  Human  Rights  (ECHR)  was  incorporated  into  national 
legislation in 1995 under the requirement of dualism, and was given quasi-constitutional 
status through Chapter 2 § 19 of the Instrument of Government. Basically, any law that 
contradicts the rights set forth in the Convention is void and may not be applied. Sweden 
has  also  signed  and  ratified  various  other  human  rights  instruments  such  as  the 
International  Covenant  on  Civil  and  Political  Rights,  the  International  Covenant  on 
Economic,  Social  and  Cultural  Rights,  the  Convention  on  the  Elimination  of  All  Forms  of 
Racial  Discrimination,  the  Convention  on  the  Elimination  of  Discrimination  against 
Women,  the  Convention  on  the  Rights  of  Persons  with  Disabilities,  and  a  number  of 
relevant  ILO  conventions.  Under  the  requirement  of  dualism,  if  an  international 
instrument  has  not  been  incorporated  into  Swedish  law,  such  international  agreements 
are  not  part  of  the  internal  Swedish  hierarchy  of  laws  as  such,  and  these  instruments 
thus  cannot  be  directly  relied  upon  in  the  courts.  However,  Swedish  laws  are  to  be 
interpreted by the courts as being in conformity with such international agreements. 

Sweden  was  a  late  starter  in  the  field  of  anti-discrimination  legislation  (despite  its 
reputation  concerning  human  rights).  However,  by  2008  Swedish  domestic  civil  law 
contained the discrimination protections, with the exception of age, that were required by 
EU  law,  as  found  in  seven  specific  acts.4  Concerning  working  life,  these  were  grounds-
based. In other fields of society such as goods and services and education, they covered 
multiple  grounds.  There  were  also  four  independent  grounds-based  anti-discrimination 

3   See e.g. Den mörka och okända historien: VITBOK OM ÖVERGREPP OCH KRÄNKNINGAR AV ROMER UNDER 
1900-TALET (The Dark, Unknown History – a White Paper on Abuses and Rights Violations against Roma in 
the 20th Century) Ds 2014:8. 

4   The Equal Opportunities Act (1991:433, sex discrimination in employment/jämställdhetslagen); the Act 

(1999:130) on Measures against Discrimination in Working Life on grounds of Ethnicity, Religion or other 
Belief (lagen om åtgärder mot etnisk diskriminering i arbetslivet); the Act (1999:132) Prohibiting 
Discrimination in Working Life due to Disability (lagen om förbud mot diskriminering i arbetslivet av 
personer med funktionshinder); the Act (1999:133) Prohibiting Discrimination in Working Life due to Sexual 
Orientation (lagen om förbud mot diskriminering i arbetslivet på grund av sexuell läggning); the Act 
(2001:1286) on Equal Treatment of Students at Universities (lagen om likabehandling av studenter i 
högskolan); the Act (2003:307) Prohibiting Discrimination (outside of working life and education/lagen om 
förbud mot diskriminering); and the Act (2006:67) Prohibiting Discrimination against Pupils (lag om förbud 
mot diskriminering och annan kränkande behandling av barn och elever). 

6 

 
 
 
 
 
                                                 
ombudsmen.  On  1  January  2009,  the  seven  acts  were  repealed  and  replaced  with  the 
Discrimination Act (2008:567).5 Age and transgender identity/expression were added as 
grounds.  The  four  ombudsmen  were  merged  in  the  new  office  of  the  Equality 
Ombudsman. Among other things, a new form of discrimination, inadequate accessibility 
(outside  of  employment)  was  added  in  20156  and,  in  2016,  the  act  was  amended  with 
regard  to  active  duties.  Today,  the  general  active  duties  apply  to  all  grounds,  while 
certain specific duties still only apply to sex/gender.7 The Discrimination Act goes beyond 
the minimum requirements established by EU law in various ways. 

There are criminal law provisions, such as the provision that bans unlawful discrimination 
by merchants on the grounds of ethnicity, religion and sexual orientation with regard to 
the provision of goods and services. Prosecutions under these provisions are rare. There 
is  also  the  ‘hate  speech’  provision,  which  makes  it  a  criminal  offence  to  disseminate 
speech that is threatening or degrading to a group of persons. 

Generally  speaking,  Swedish  law  can  be  said  to  be  in  conformity  with  the  minimum 
requirements of the Article 13 Directives. Furthermore, especially as regards religion and 
other  beliefs,  sexual  orientation,  age8  and  disability,  domestic  law  goes  beyond  the 
requirements  of  EU  law  in  that  certain  additional  grounds  are  covered  (transgender 
identity and expression), along with the material scope that applies to all grounds.  

Nevertheless, there are some remaining questions concerning full implementation of the 
directives in the Discrimination Act: 

1. 

2. 
3. 

The  protection  against  discrimination  or  victimisation  does  not  fully  cover  self-
employed people; 
Discrimination against legal persons is not prohibited; 
Discrimination  and  harassment  by  fellow  workers  or  third  parties  is  not  prohibited 
as such. 

The  unwillingness  to  prohibit  harassment  by  fellow  workers  as  such  is  connected  to  a 
more general restriction of the vicarious liability of employers, at least as applied by the 
Labour Court. This can be illustrated with Labour Court case 2007 number 45.9 All parties 
accepted  the  fact  that  the  Iranian  job  applicant  had  been  discriminated  against,  but  no 
person, according to the court, could be held responsible, since the employee at fault did 
not  have  the  authority  to  reject  his  application  for  the  job.  In  such  cases  we  have  a 
person  being  discriminated  against  by  an  employee  who  is  not  liable  under  civil 
discrimination law. The claimant, according to the court, must be able to assert that the 
employer is liable for the employee’s actions, and the employer can only be liable if he or 
she  has  been  negligent  by,  for  instance,  not  reacting  promptly  on  being informed  of  an 
instance  of  harassment  or  by  giving  authority  to  represent  them  to  an  employee  with 
poor judgment. The limited application of vicarious liability concerning discrimination law 
limits  the  liability  of  employers  when  employees  act  outside  their  authority.  This  is 
problematic in relation to effective implementation of the law. 

5   Part-time work and parental leave protections are contained in separate legislation. 
6   Act (2014:958) on changing the Discrimination Act (2008:567). 
7   Act (2016:828) on changing the Discrimination Act (2008:567), adopted on 12.07.2016. The new rules on 

active measures are process oriented and cover all seven grounds. However, certain special rules 
concerning gender were retained. Employers and education providers are to document their work with 
active measures, but they are not required to make annual plans. Apart from having a system for reporting 
and dealing with harassment cases, there are no specific requirements with regard to the grounds covered 
by this report. Furthermore, no improvements concerning enforcement or supervision were included.  
8   The protection of age was extended to many new areas on 01.01.2013. See Act 2012:673 on changing the 

Discrimination Act, and Government bill 2011/12:159. 

9   Labour Court 2007 no. 45, The Ombudsman Against Ethnic Discrimination v. Laika film & amp (Judgment of 

16.05.2007). 

7 

 
 
 
 
 
 
 
 
                                                 
3. Main principles and definitions 

The definition of direct discrimination in the Discrimination Act Chapter 1 Section 4 point 
1 reads as follows: 

Direct  Discrimination:  that  someone  is  disadvantaged  by  being  treated  less  favourably 
than  someone  else  is  treated,  has  been  treated  or  would  have  been  treated  in  a 
comparable  situation,  if  this  disadvantaging  is  associated  with  sex,  transgender  identity 
or expression, ethnicity, religion or other belief, disability, sexual orientation or age. 

This  definition  requires  a  person  to  be  disadvantaged.  A  discriminatory  statement 
directed at the general public thus does not amount to direct discrimination.  

An employer, an educational institution or a provider of goods and services etc. may not 
disadvantage  any  individual  from  any  of  the  protected  groups  by  treating  him  or  her 
worse than the employer etc. treats, has treated or would have treated someone else in 
a comparable situation, if the disadvantage is associated with the protected ground. The 
protection thus covers situations of discrimination by association.  

The  ban  on  direct  discrimination  is  limited  by  the  possibility  of  justification.  The  new 
Discrimination  Act  reduces  the  ability  to  justify  direct  discrimination  in  comparison  with 
the  old  acts.  Except  for  age  discrimination,  there  are  no  longer  any  examples  of 
justifications in national law which may be too wide to be acceptable according to EC law.  

The  definition  of  indirect  discrimination  in  the  new  Discrimination  Act  is  in  close 
adherence  to  the  Article  13  Directives.  At  the  same  time,  as  there  is  relatively  limited 
case  law  regarding  the  old  acts  and  the  2009  Discrimination  Act,  it  is  too  early  to  tell 
what ‘the test to be satisfied’ in these situations really is.  

The  Discrimination  Act  defines  harassment  and  instructions  to  discriminate  as  forms  of 
prohibited discrimination. Furthermore, the legislation obliges an employer or educational 
institution  that  is  aware  of  the  fact  that  an  employee/student  feels  that  she  or  he  has 
suffered harassment related to any protected ground to investigate the matter and, when 
appropriate, to take action to prevent such harassment from continuing. Victimisation is 
also forbidden.  

Inadequate  accessibility  has  been  a  new  form  of  discrimination  since  2015.10  It  applies 
when  an  employer,  education  provider  or  merchant  fails  to  provide  support  and 
accommodation measures that would create a situation for a person with a disability that 
is  similar  to  that  for  persons  without  such  a  disability,  and  the  employer/education 
provider/merchant  may  reasonably  be  required  to  implement  such  measures.  The  main 
legal  change  was  the  extension  of  the  possibility  of  obtaining  discrimination  awards  for 
lack of reasonable accommodation in areas beyond education and employment, such as 
the provision of goods and services.  

In Sweden, there is no specific prohibition of multiple discrimination in the law. However, 
many  cases  can  be  said  to  involve  multiple  discrimination.  The  issue  of  multiple 
discrimination was to some extent dealt with in the case of Labour Court 2010 No 91.11 
Several  grounds  were  involved,  and  thus  multiple  discrimination.  The  court  determined 
that if the same act  can be presumed to be discriminatory in relation to more than one 
ground, it is still regarded as a single discrimination event, and the amount of damages 
is  unaffected  by  the  number  of  grounds  involved.  At  the  same  time,  in  the  author’s 
opinion, even though the court did not refer to them, the results indicate that some form 

10   Act (2014:958) changing the Discrimination Act (2008:567). 
11   Labour Court 2010 No 91, The Equality Ombudsman v. State Employment Board (Statens arbetsgivarverk) 

(judgment of 15.12.2010). 

8 

 
 
 
 
 
 
 
 
 
 
                                                 
of  multiple  discrimination  or  intersectionality  analysis  was  used.  This  case  and  others 
have led to various discussions in Sweden about the role of intersectionality and multiple 
discrimination.12 

4. Material scope 

The material scope of the Discrimination Act fulfils the minimum standards established by 
EU law and in various ways extends beyond the material scope required by EU law.13  

The  Discrimination  Act  enumerates  the  material  scope  by  specifying  the  following 
headings:  Working  life,  Education;  Labour  market  policy  activities  and  employment 
services  not  under  public  contract;  Starting  or  running  a  business  and  professional 
recognition;  Membership  of  certain  organisations;  Goods,  services  and  housing  etc.; 
Health and medical care and social services etc.; Social insurance system, unemployment 
insurance and financial aid for studies; National military service and civilian service; and 
Public employment. 

The  Discrimination  Act  applies  to  all  aspects  of  the  employer-employee  relationship  in 
both  the  public  and  private  sectors.  However,  self-employed  people  are  not  covered  by 
the  prohibition  of  discrimination  in  working  life,  which  may  indicate  a  problem  with  the 
scope of the act. Self-employed persons can, however, be protected as natural persons, 
for  example  in  starting  or  running  a  business  and  as  regards  professional  recognition 
(Chapter  2,  Section  10).  Professional  organisations  are  prohibited  from  discriminating 
against  the  self-employed  as  well  as  the  employed  (Chapter  2  Section  11).  Another 
potentially  relevant  issue  is  that  the  Discrimination  Act  does  not,  as  a  general  rule, 
protect legal persons. 

5. Enforcing the law 

Civil proceedings regarding working life under the Discrimination Act are to be dealt with 
in accordance with the Labour Disputes Act, assuming that the claimant is represented by 
a  union  or  the  equality  Ombudsman  (DO,  the  equality  body  in  Sweden).14  If  the 
individual concerned is a member of a trade union, the DO’s right to represent the victim 
(see  also  section  6  below)  is  subsidiary  to  the  right  of  a  trade  union  to  represent  its 
member. The procedures are the same regardless of whether the case concerns a private 
sector  or  public  sector  employee.  However,  with  regard  to  state  employees,  due  to  the 
constitutional  rules  on  objective  grounds  in  hiring,  there  is  sometimes  also  the 
complementary route of appealing against a decision through administrative procedures. 
If an individual brings an employment case without the support of the DO or a union, the 
case is first filed with and heard by a district court, with the Labour Court functioning as 
a court of appeal. The Labour Court is a special court and its decisions are final. 

Cases  outside  working  life  are  dealt  with in  the  ordinary  court  system,  i.e.  the  relevant 
district  court  in  the  first  instance,  with  appeals  then  going  to  the  appeal  court  and  the 
Supreme  Court.  Discrimination  in  connection  with,  for  instance,  social  security  (an 
example  of  an  area  normally  falling  under  administrative  law)  is  thus  dealt  with  by  the 
ordinary civil court system, and the ordinary rules on civil procedure apply.15  

12   See for example Schömer, E. (2012) Multiple discrimination: A smokescreen over differences, RETFÆRD 

ÅRGANG 35 2012 NR. 3/138, available at: http://retfaerd.org/wp-
content/uploads/2014/08/Retfaerd_3_2012_3.pdf.  

13   For example, the Discrimination Act essentially already fulfils the minimum standard that would apply if and 
when the Proposal (COM (2008) 426 final) for a Council Directive on implementing the principle of equal 
treatment between persons irrespective of religion or belief, disability, age or sexual orientation is adopted. 

14   Act (1974:371) on Labour Law Procedure. 
15   Some higher education cases may also be brought before the Board of Appeal for Higher Education. 

9 

 
 
 
 
 
 
 
 
 
                                                 
In addition to the right of the DO and the unions to bring actions, the Discrimination Act 
also gives non-profit organisations whose statutes state that they are to look after their 
members’ interests the right to bring actions in their own name as a party. However, for 
most  NGOs  that  represent  groups  suffering  discrimination,  taking  legal  actions  such  as 
going to court is not part of their advocacy culture – although there are some indications 
that this is changing.  

There  seems  to  be  an  increasing  interest  among  NGOs  in  the  possibility  of  bringing 
actions on behalf of their members. Both the ‘Law as a tool for social change’ project and 
the  ‘From  talk  to  action’  project  are  examples  of  this  tendency,  at  least  in  the  field  of 
disability  discrimination.16  After  concluding  that  the  current  enforcement  system  is 
insufficient, the supporting NGOs have decided that discriminated-against groups need to 
take on the issue of more effective enforcement themselves. They have also realised that 
this  is  an  important  form  of  advocacy.17  Their  goal  is  not  to  replace  the  local  anti-
discrimination bureaus discussed below; they seek to complement each other’s work. 

The  general  rule  in  Sweden  is  that  the  loser  pays  the  winning  party’s  legal  costs.  One 
advantage of representation by the DO or a union is that the DO or the union then takes 
on the economic risk in cases that are lost. An individual can hire their own lawyer, but 
they then run the risk of being required to pay not only their own lawyer’s fees but also 
the winning party’s legal costs. This economic risk is often prohibitive for most victims of 
discrimination. 

Relevant criminal proceedings may be initiated by a public prosecutor (or in rare cases by 
the  private  party  on  their  own).  The  DO  and  non-profit  organisations  do  not  have  legal 
standing before the courts in criminal procedures.  

A  shifted  burden  of  proof  of  discrimination  had  already  been  introduced  under  the  old 
acts and is specified in the 2009 Act. Nevertheless, very few cases of discrimination have 
been won so far. There are  some indications that a key problem  lies  in how the Labour 
Court applies the burden of proof.18 At the same time, statistics from the DO indicate that 
a number of cases are being settled out of court. The same is probably true for the trade 
unions. 

It is also worth pointing out that it seems to be easier to establish a prima facie case and 
to win discrimination cases in the ordinary court system compared with the Labour Court. 
It seems to be particularly hard to bring successful cases on ethnic discrimination in the 
Labour Court. One possible reason is that the Labour Court applies  the rules on shifting 
the  burden  of  proof  under  the  Swedish  Discrimination  Act  and  EU  legislation  in  a  more 
restrictive  manner  compared  with  the  ordinary  courts.  One  case  in  2016  in  Stockholm 
District Court19 and a very similar case in the Labour Court in 201720 concerning religion 
and  discrimination  illustrate  this.  The  circumstances  of  the  two  cases  were  basically 
identical,  as  was  the  evaluation  of  the  proof.  Both  courts  agreed  on  the  facts  that 
remained  uncertain,  however  they  differed  as  to  who  should  bear  the  burden  of  proof 
concerning  that  uncertainty.  The  discriminated-against  party  won  in  the  District  Court, 
since  the  alleged  discriminator  failed  to  carry  their  burden  of  proof.  The  Labour  Court 
instead  found  that  the  discriminated-against  party  had  failed  to  carry  their  burden  of 
proof. 

16   Lagen som verktyg (The law as a tool for social change), available at: https://lagensomverktyg.se, and Från 
snack till verkstad (From talk to action), available at: https://funktionsrattskonventionen.se/om-projektet/. 
17   One example of inspiration is Disability Rights Advocates, whose offices are in New York and California. See 

their website at: https://dralegal.org.  

18   Farkas, L. and O’Farrell, O. (2014), Reversing the burden of proof: Practical dilemmas at the European and 

national level, p. 76. 

19   Stockholm District Court, case T 3905-15, Equality Ombudsman v. The Swedish State through Karolinska 

institutet (judgment of 16.11.2016). 

20   Labour Court 2017 no. 65, Equality Ombudsman v. Public Dentists of Stockholm County (judgment of 

20.12.2017)). 

10 

 
 
 
 
 
 
                                                 
A  contract  (collective  or  individual)  is  invalid  to  the  extent  that  it  prescribes  or  permits 
discrimination,  and  a  discriminatory  provision  or  legal  act  may  be  declared  invalid  if  so 
requested.  

There is also a right to compensation for the violation caused by the discrimination and – 
in  employment  cases  not  related  to  hiring  or  promotion  –  for  the  economic  loss  that 
arises. Damages are known to be low in Sweden. The 2009 Discrimination Act introduced 
a  new 
form  of  civil  damages:  discrimination  compensation.  Beyond  providing 
compensation  to  the  victim,  the  courts  have  been  instructed  by  law  to  give  particular 
attention to the aim of discouraging infringements of the law. The level of compensation 
awards  was  therefore  expected  to  be  higher  in  the  future  as  compared  to  the  amounts 
awarded prior to 2009 in the form of damages.  

Generally  speaking,  the  sanctions  are  supposed  to  be  proportionate,  effective  and 
dissuasive. 

Nevertheless,  with  the  limited  case  law  that  exists  there  seems  to  be  little  difference 
between discrimination compensation awards and the awards of damages granted under 
the old acts by the general courts or the Labour Court. There has been some hope that 
this  might  change,  at  least  in  the  general  courts,  due  to  two  Supreme  Court  decisions 
from June 2014, clarifying the court’s reasoning concerning discrimination compensation 
related to goods and services.21 The focus here was on the dual purpose of compensation 
for  the  victim  as  well  as  effective  prevention.  The  court  seems  to  have  come  to  the 
conclusion  that,  in  a  relatively  normal  case,  a  basic  compensation  of  SEK 15 000  was 
reasonable. It also found that the preventive award in an individual case could be set at a 
level equivalent to the compensation amount, i.e. an additional  SEK 15 000 or a total of 
SEK 30 000 (EUR 3 300). This seems to mainly relate to cases where the service provider 
has never wanted the discrimination to take place, acts diligently, cautions the employee 
at  fault  and  apologises  to  the  victims.  In  the  author’s  view,  these  cases  basically 
establish  some  guidelines  concerning  awards.  This  is  positive,  but  the  reasoning  of  the 
case  still  maintains  a  focus  on  compensation  (or  damages)  rather  than  on  the  issue  of 
prevention  (or  dissuasion).  Such  cases  seem  to  provide  greater  potential  to  focus  on 
increasing the prevention element of discrimination compensation in situations where the 
discrimination is more purposeful. However, given the limited number of cases, as well as 
their variety in the ordinary court system, it is difficult to point to any specific tendency.  

A recent study has examined the awards granted by the Labour Court over a long period 
of  time.  According  to  Laura  Carlson’s  analysis,  the  amounts  awarded  in  discrimination 
cases are about 4.5 % higher today than they were in 1980, adjusting for inflation. Her 
conclusion is that this does not appear to reach the threshold of enhanced compensation, 
as was envisaged by the change in terminology that came with the Discrimination Act in 
2009.  She  also  points  out  that  this  modest  increase  in  compensation  can  be  compared 
with the 170 % increase in trial costs and fees since the 1980s. She  concludes that the 
trends  concerning  compensation  awarded  and  increasing  lawyers’  costs  and  fees, 
combined  with  low  success  rates,  ‘create  a  significant  deterrent  for  plaintiffs  bringing 
discrimination claims.’22 Her conclusion is that more effective enforcement and sanctions 
are needed. 

Compared  with  the  ordinary  court  system,  the  Labour  Court  seems  to  pay  much  less 
attention  to  the  prevention  issue.  In  future,  this  may  cause  some  confusion,  as  some 
employment discrimination cases start in the district courts and can then be appealed to 
the Labour Court. 

21   Supreme Court case T 3592-13, Equality Ombudsman v. Veolia (judgment of 26.06.2014). The second case 

was Supreme Court case T 5507-12, Equality Ombudsman v. Stockholm County (judgment of 26.06.2014) 
NJA 2014 p. 499. 

22   Carlson, L. (2017), Comparative Discrimination Law: Historical and Theoretical Frameworks, Brill, pp. 79-80. 

11 

 
 
 
 
 
 
 
                                                 
One  potential  complementary  tool  in  Sweden  for  increasing  the  cost  risks  of 
discrimination for those with the power to discriminate, which in turn would lead to more 
effective  implementation  of  the  Discrimination  Act,  can  be  found  in  Regulation 
(2006:260)  On  Anti-Discrimination  Conditions  In  Contracts.23  For  Sweden’s  28  largest 
national  government  agencies,  this  regulation  requires  the  inclusion  of  an  anti-
discrimination  condition  in  all  of  their  larger  public  building  and  services  contracts.  In  a 
normal discrimination case, even if the discriminated-against party overcomes  all of the 
obstacles in getting their case to court and actually wins, the risk for the discriminator is 
a  compensation  award  of  probably  EUR 14 000  (SEK 150 000)  at  most.  In  the  author’s 
view,  assuming  that  such  a  condition  is  properly  formulated  and  that  there  is  a 
reasonable  possibility  of  follow-up,  for  example  if  the  government  agency  reserves  the 
right  to  cancel  the  entire  contract  if  there  is  a  violation  of  the  Discrimination  Act,  it  is 
reasonable  to  assume  that  businesses  with  such  contracts  will  pay  greater  attention  to 
compliance  with  the  Discrimination  Act,  both  as  a  preventive  measure  involving  active 
measures  and  when  they  are  accused  of  discrimination.  The  cost  risk  of  losing  a  case 
worth  EUR 14 000  is  one  thing;  the  risk  of  losing  a  contract  worth  EUR 140 000  or 
EUR 1 400 000  is  quite  another.  Such  violations  could  also  cause  problems  concerning 
the  ability  to  compete  for  future  public  contracts.24  The  total  value  of  all  public  sector 
contracts in Sweden is over EUR 56 billion (SEK 600 billion) annually.25 

6. Equality bodies 

The DO is the key public institution for counteracting discrimination and promoting equal 
rights.  The  DO  has  the  right  to  investigate  complaints  concerning  discrimination  in 
relation to all grounds. The DO also has the right to take cases to court on behalf of an 
individual.  

Furthermore,  the  DO  can  provide  advice,  independent  assistance  and  support  to 
individuals and institutions more generally; it can engage in educational, informative and 
opinion-shaping work to combat discrimination; it can propose legal and other measures 
to  the  Government  that  may  be  of  use  in  combating  discrimination;  it  can  monitor 
international  developments;  and  it  can  undertake  other  suitable  measures  to  promote 
equality  and  counteract  discrimination.  Independent  surveys  and  reports  are  important 
parts  of  this  work.  The  DO  is  appointed  by  the  Government,  like  other  heads  of 
government  agencies.  Also  like  other  agencies,  the  DO  has  an  independent  status  in 
matters  concerning  individual  cases.  The  DO  is  state-funded,  with  decisions  on  funding 
being 
the  Swedish  Parliament,  based  on  Government 
recommendations. The DO is funded out of the general state budget. 

taken  annually  by 

As  has  already  been  indicated,  the  role  played  by  NGOs  other  than  trade  unions  and 
employer  organisations  in  Sweden  is  known  to  be  fairly  weak.  To  the  extent  that  there 
are  NGOs,  the  DO  has  an  ongoing  dialogue  with  them.  In  particular,  the  local  NGOs 
known  as  anti-discrimination  bureaus  should  be  mentioned  here.  They  are  beginning  to 
take cases to court. So far, they have limited their risks mainly by taking cases to court 
as  small  claims  cases,  thus  avoiding  the  risk  of  being  required  to  pay  the  opposing 
parties’  full  legal  expenses  if  they  lose.  At  the  same  time,  as  the  DO  has  given  less 
priority  to  individual  cases,  there  is  mounting  pressure  on  the  bureaus  to  step  in  to 
provide additional assistance, including by taking cases to court.  

23   Regulation (2006:260) On Anti-Discrimination Conditions In Contracts (Förordning (2006:260) om 

antidiskrimineringsvillkor i upphandlingskontrakt), available at: 
http://rkrattsbaser.gov.se/sfst?bet=2006:260.  

24   Although it was changed to a large extent, the original proposal for the regulation as a complementary tool 

to the laws against discrimination and its potential effects can be seen in Government White Paper 2005:56, 
The Blue and Yellow Glass House: Structural Discrimination in Sweden, pp. 579-584. 

25   Swedish Government (2016), Varför behövs en nationell upphandlingsstrategi? (Why is a national public 

procurement strategy needed?) p. 4.  

12 

 
 
 
 
 
 
                                                 
7. Key issues 

The  Equality  Ombudsman  is  changing  its  priorities.  There  is  a  decreased  focus  on 
investigating  complaints  and  taking  cases  to  court  or  engaging  in  settlements.  Instead, 
more priority has been given to issuing assessments of discrimination that are not legally 
binding  and  cannot  be  appealed.  Individual  complaints  are  at  times  transformed  into 
more  general  supervisory  inquiries  or  a  follow-up  of  active  duties.  In  the  author’s 
opinion, the focus is thus on information as a means of improving attitudes and hopefully 
future  behaviour,  rather  than  more  effective  enforcement  of  the  law  as  a  more  direct 
means  of  affecting  behaviour,  and  thus  deeper  underlying  attitudes.  The  DO  also  has 
some focus on monitoring the duty to carry out active measures,  which include carrying 
out  wage  surveys  as  well  as  various  promotional  activities.  In  the  author’s  view,  these 
actions  carry  with  them  the  risk  of  a  similarly  ineffective  focus,  with  the  idea  that 
information – as opposed to implementation of the law – is the key to social change.  

The  victims  of  discrimination,  in  the  author’s  view,  need  improved  means  of  ensuring 
that their cases are heard. Otherwise, only those who have sufficient financial resources 
to go to court can hope to get justice. For a person  who discriminates against Roma  or 
people  of  African  ethnic  origin,  for  example,  the  risk  of  ending  up  in  court  is  extremely 
small, especially given the decreasing number of investigations by the DO and the limited 
mandate  of  the  unions.  There  was  a  Government  inquiry  on  the  issue,  which  presented 
its  results  in  2016.26  The  only  relatively  concrete  measure  proposed  was  increased 
funding for the NGO-run anti-discrimination bureaus. 

Given  the  decreased  focus  on  access  to  justice,  the  prospects  for  the  development  of 
case law  concerning the  effective prevention portion of discrimination compensation  are 
becoming correspondingly limited. 

In addition to the lack of access to justice issue, the burden of proof problem is probably 
the  most  important  principle-based  legal  issue.  In  the  long  run,  a  system  where  it  is 
easier to prove discrimination in the general or ordinary courts, rather than in the Labour 
Court, is not sustainable. The same inquiry has suggested a new wording for the rules on 
the burden of proof, although it found no problem in the application of the current rule in 
the Labour Court.  

In the view of the author, a slightly different wording is probably not an effective solution 
unless the problem at issue becomes clearer. This is why more attention needs to be paid 
to  the  access  to  justice  issue.  This  is  not  just  a  question  of  processing  more  cases  on 
behalf  of  individuals.  Although  that  is  important,  what  is  more  important  is  the 
development  of  case  law  through  sustained  and  engaged  advocacy.  Just  as  those  with 
the  power  to  discriminate  need  to  be  challenged  regarding  their  actions,  those  with  the 
power to decide discrimination cases  also need to be challenged, so that they can learn 
to understand and recognise discrimination.  

In the author’s opinion, it is not the law itself that changes norms, but implementation of 
the law, including through case law. Moreover, it is not just case law that is required, but 
a  critical  mass  of  cases  that  reflect  a  deeper  understanding  of  the  words  used  in  the 
legislation,  which  in  turn  increases  the  cost  risks  of  discrimination,  leading  to  actual 
changes  in  behaviour  and  norms,  particularly  among  those  with  the  power  to 
discriminate.  This  should  lead  to  the  main  goal  of  anti-discrimination  law,  which  is  not 
that  victims  can  get  some  kind  of  redress,  but  that  they  are  not  subjected  to 
discrimination in the first place. 

26   Government White Paper 2016:87. 

13 

 
 
 
 
 
 
 
 
 
                                                 
RÉSUMÉ  

1. Introduction 

La  Suède  compte  de  longue  date  diverses  minorités  parmi  lesquelles  les  Roms,  les 
Finlandais  et  la  communauté  juive.  Le  peuple  Sami  est  autochtone  depuis  toujours.  La 
Suède  s’est  pourtant  considérée  longtemps,  et  a  été  considérée  jusqu’à  récemment, 
comme un pays homogène. En 2017 toutefois, sa population, qui atteignait 10,1 millions 
d’habitants,  comprenait  18,5 %  de  résidents  nés  à  l’étranger  contre  6,7 %  en  1970,  et 
cette  proportion  continue  d’augmenter.27  La  Suède  est  considérée  comme  un  pays 
fortement laïc même si la majeure partie de sa population continue d’appartenir à l’Église 
luthérienne,  qui  a  eu  le  statut  d’Église  d’État.  Il  n’existe  pas  de  tradition  de  suivi  de 
l’appartenance  ethnique  au  sein  de  la  société,  ni  de  tradition  établie  de  longue  date  en 
matière de législation antidiscrimination. 

Il  est  impératif,  pour  bien  comprendre  la  législation  relative  à  la  discrimination  et  son 
application  en  Suède,  de  bien  saisir  le  fonctionnement  du  droit  du  travail  suédois  ainsi 
que  le  rôle  particulier  et  prédominant  assigné  aux  partenaires  sociaux.  Le  marché 
national du travail se caractérise par une densité organisationnelle extrêmement élevée – 
tant  du  côté  des  syndicats  que  du  côté  des  associations  patronales  –  puisqu’elle  atteint 
70 %  environ.  Il  en  va  ainsi  dans  le  secteur  privé  comme  dans  le  secteur  public.  Cette 
structure organisationnelle se reflète dans les négociations collectives et dans le fait que 
certaines questions importantes (les salaires, par exemple) échappent encore au champ 
d’application de la loi. Le travail des fonctionnaires est régi de manière générale par des 
contrats  et  des  conventions  collectives  selon  des  modalités  qui  sont  très  similaires  à 
celles  du  secteur  privé  et  qui  appliquent,  moyennant  quelques  exceptions,  les  mêmes 
règles.  

La Suède, essentiellement dirigée par des gouvernements sociaux-démocrates durant le 
dernier  siècle,  a  développé  un  État-providence  assez  complet.  La  formulation  des 
avantages sociaux et économiques en tant que droits – pouvant dès lors donner lieu à un 
recours en justice – est restée limitée. La tradition constitutionnelle en matière de droits 
fondamentaux  demeure,  elle  aussi,  assez  faible.  On  commence  néanmoins  à  observer 
une  évolution  à  cet  égard,  impulsée  par  l’importance  croissante  que  revêtent  la 
Convention  européenne  des  droits  de  l’homme,  la  législation  de  l’UE  et  la  constitution 
suédoise.  

Leur  rôle  particulier  fait  que  l’influence  des  syndicats  de  travailleurs  et  des  associations 
d’employeurs, autrement dit des partenaires sociaux, a consisté, dans un premier temps 
du moins, à freiner l’élaboration d’une législation antidiscrimination avant de participer à 
sa  formulation  et  à  sa  mise  en  œuvre.  D’autres  ONG,  et  notamment  celles  qui 
représentent  des  groupes  visés  par  les  discriminations,  n’ont  joué  à  ce  jour  qu’un  rôle 
très limité dans le développement et surtout dans la mise en application des dispositions 
législatives visant à lutter contre le phénomène.  

la 
législation  antidiscrimination  couvrant  d’autres  motifs  ou  domaines  que 
La 
discrimination  fondée  sur  le  sexe  en  matière  d’emploi  est  restée  très  embryonnaire 
jusqu’aux années 1990. À partir de 1999 toutefois, le gouvernement suédois s’est efforcé 
d’introduire  une  législation  antidiscrimination  relativement  moderne  pour  anticiper  et 
transposer le droit de l’UE mais aussi pour  répondre à des besoins nationaux. En 2009, 
sept  lois  civiles  couvrant  divers  motifs  et  domaines  tels  que  l’éducation  et  la  vie 
professionnelle  ont  été  fondamentalement  fusionnées  en  une  seule  et  même  loi 
antidiscrimination  englobant  l’ensemble  des  motifs  et  une  large  part  de  la  société.  Une 

27   Statistics Sweden, Summary of Population Statistics 1960–2017, consulté le 10 mai 2018, 
https://www.scb.se/en/finding-statistics/statistics-by-subject-area/population/population-
composition/population-statistics/pong/tables-and-graphs/yearly-statistics--the-whole-country/summary-of-
population-statistics/. 

14 

 
 
 
 
 
 
  
                                                 
étape  supplémentaire  a  été  franchie  dans  cette  voie  le  1er janvier  201528  avec 
l’instauration  d’une  nouvelle  forme  de  discrimination:  l’accessibilité  insuffisante.  Les 
personnes  handicapées  sont  désormais  mieux  en  mesure  d’obtenir  une  indemnisation 
pour  discrimination  lorsque  des  mesures  d’aménagement  raisonnable  ne  sont  pas 
adoptées  pour  leur  permettre  d’accéder  à  des  sphères  de  la  société  non  visées  par  la 
directive-cadre  relative  à  l’égalité  de  traitement  en  matière  d’emploi  et  de  travail 
(2000/78/CE).  

La  population  rom  a  longtemps  fait  l’objet  d’un  racisme  et  d’une  discrimination  au  plan 
officiel comme au plan non officiel. Ce n’est qu’à la fin des années  1950 qu’une certaine 
attention a été portée à la reconnaissance de leur droit de résider dans une municipalité. 
Nombreuses  étaient  en  effet  les  municipalités  qui  avaient  mis  en  place  jusque-là 
différents  moyens  de  dissuader  ou  d’empêcher  leur  établissement.  Il  était  courant  que 
des règlements limitent le droit des Roms de séjourner pendant plus de quelques jours. 
Les  autorités  locales  éludaient  ainsi leurs  responsabilités  concernant  la  scolarisation  des 
enfants  et  divers  droits  relevant  de  la  protection  sociale.  Les  Roms  restent  plus 
ouvertement  confrontés  que  d’autres  groupes  ethniques  au  racisme  et  à 
la 
discrimination, mais il semble que le gouvernement soit désormais davantage sensibilisé 
et proactif face à leur situation.29  

2. Législation principale 

Des dispositions constitutionnelles concernant la discrimination figurent dans l’Instrument 
de gouvernement, qui fait partie de la constitution suédoise. Son premier chapitre, qui ne 
peut  être  invoqué  en  tant  que  fondement  d’un  recours  en  justice,  dispose  que  les 
institutions  publiques  doivent  lutter  contre  la  discrimination  envers  des  personnes  en 
raison  de  leur  genre,  de  leur  couleur,  de  leur  origine  nationale  ou  ethnique,  de  leur 
appartenance linguistique ou religieuse, d’une déficience fonctionnelle, de leur orientation 
sexuelle,  de  leur  âge  ou  de  toute  autre  situation  les  affectant.  Ce  principe  ne  confère 
cependant  aucun  droit  juridiquement  exécutoire.  Le  chapitre 2  contient  deux  articles 
susceptibles d’être invoqués en justice: l’article 12, qui prévoit une protection contre les 
lois  et  règlements  donnant  lieu  à  une  discrimination  fondée  sur  l’origine  ethnique,  la 
couleur  ou  autres  caractéristiques  similaires,  ou  en  raison  de  l’orientation  sexuelle;  et 
l’article 13, qui interdit les lois et règlements qui génèrent une discrimination fondée sur 
le  sexe.  Le  lien  avec  l’Union  européenne  et  le  droit  de  l’UE  est  régi  au  moyen  de 
l’Instrument de gouvernement (1:10 et 10:6) et d’autres lois. 

La  Convention  européenne  des  droits  de  l’homme  (CEDH)  a  été  intégrée  dans  la 
législation  nationale  en  1995  avec  une  exigence  de  dualisme,  et  un  statut  quasi-
constitutionnel  lui  a  été  conféré  au  chapitre  2,  article 19,  de  l’Instrument  de 
gouvernement.  Fondamentalement,  toute  loi  qui  contredit  les  droits  inscrits  dans  la 
Convention  est  nulle  et  non  avenue,  et  ne  peut  être  appliquée.  La  Suède  a  également 
signé et ratifié divers autres instruments en matière de droits de l’homme parmi lesquels 
le  Pacte  international  relatif  aux  droits  civils  et  politiques,  le  Pacte  international  relatif 
aux  droits  économiques,  sociaux  et  culturels,  la  Convention  internationale  sur 
l’élimination de toutes les formes de discrimination raciale, la Convention sur l’élimination 
de toutes les formes de discrimination à l’égard des femmes,  la Convention relative aux 
droits  des  personnes  handicapées  et  un  certain  nombre  de  conventions  pertinentes  de 
l’OIT. En raison de l’exigence de dualisme, lorsqu’un instrument international n’a pas été 
incorporé dans la législation suédoise, il ne fait pas partie de la hiérarchie interne des lois 
suédoises  et  ne  peut  donc  être  directement  invoqué  devant  les  juridictions  nationales. 
Les cours et tribunaux sont néanmoins tenus d’interpréter les lois suédoises comme étant 
conformes à ces accords internationaux. 

28   Loi 2014:958 portant modification de la loi antidiscrimination. 
29   Voir par exemple «Den mörka och okända historien: VITBOK OM ÖVERGREPP OCH KRÄNKNINGAR AV 

ROMER UNDER 1900-TALET» (L’histoire sombre et méconnue – Livre blanc sur les abus et les violations des 
droits commis envers les Roms au 20e siècle), Ds 2014:8. 

15 

 
 
 
 
 
                                                 
Si  la  Suède  a  connu  un  démarrage  tardif  dans  le  domaine  de  la  législation  anti-
discrimination (en dépit de sa réputation en matière de droits de l’homme), son droit civil 
n’en  contenait  pas  moins  dès  2008  les  protections  contre  la  discrimination  (exception 
faite  de  celle  fondée  sur  l’âge)  exigées  par  le  droit  de  l’UE  et  énoncées  dans  sept  lois 
spécifiques.30  Ces  lois  étaient  fondées  sur  des  motifs  particuliers  dans  le  cas  de  la  vie 
professionnelle  et  elles  couvraient  des  motifs  multiples  dans  les  autres  sphères  de  la 
société (biens et services et éducation notamment). La Suède comptait également quatre 
médiateurs indépendants en charge de motifs particuliers. Les sept lois ont été abrogées 
le 1er janvier 2009 et remplacées par la loi antidiscrimination (2008:567).31 Les motifs de 
l’âge  et  de  l’identité/expression  transgenre  ont  été  ajoutés.  Les  quatre  médiateurs  ont 
été  regroupés  au  sein  d’un  nouveau  Bureau  du  Médiateur  pour  l’égalité.  Une  nouvelle 
forme de discrimination, à savoir l’accessibilité insuffisante (en dehors de l’emploi) a été 
ajoutée entre autres en 201532 et la loi a été modifiée en 2016 pour ce qui concerne les 
obligations  actives.  Des  obligations  actives  générales  s’appliquent  désormais  à  tous  les 
motifs  tandis  que  certaines  obligations  plus  spécifiques  s’appliquent  uniquement  au 
sexe/genre.33  La  loi  antidiscrimination  va  à  divers  égards  au-delà  des  exigences 
minimales définies en droit de l’UE. 

Il existe des dispositions de droit pénal, et notamment celle qui interdit la discrimination 
illégale  pratiquée  par  des  commerçants  et  fondée  sur  l’origine  ethnique,  la  religion  et 
l’orientation sexuelle en ce qui concerne la fourniture de biens et de services. Les recours 
invoquant  ces  dispositions  sont  rares.  Il  existe  aussi  une  disposition  visant  le  discours 
haineux,  qui  pénalise  la  diffusion  d’un  discours  menaçant  ou  dégradant  vis-à-vis  d’un 
groupe de personnes. 

La  législation  suédoise  peut  être  considérée,  de  façon  générale,  comme  conforme  aux 
exigences  minimales  des  directives  «article 13».  De  surcroît,  en  ce  qui  concerne  plus 
particulièrement  la  religion  et  autres  convictions,  l’orientation  sexuelle,  l’âge34  et  le 
handicap, le droit national va au-delà des exigences du droit de l’UE dans la mesure où il 
couvre  des  motifs  supplémentaires  (identité/expression  transgenre)  parallèlement  au 
champ matériel qui s’applique à tous les motifs.  

Un  certain  nombre  de  questions  subsistent  néanmoins  en  ce  qui  concerne  la  pleine 
transposition des directives dans la loi antidiscrimination: 

30   La loi 1991:433 sur l’égalité des chances, discrimination fondée sur le sexe dans le domaine de 

l’emploi/jämställdhetslagen); la loi 1999:130 sur les mesures de lutte contre la discrimination dans la vie 
professionnelle fondée sur l’origine ethnique, la religion ou d’autres convictions (lagen om åtgärder mot 
etnisk diskriminering i arbetslivet); la loi 1999:132 portant interdiction de discrimination dans la vie 
professionnelle à l’égard des personnes handicapées (lagen om förbud mot diskriminering i arbetslivet av 
personer med funktionshinder); la loi 1999:133 portant interdiction de discrimination dans la vie 
professionnelle fondée sur l’orientation sexuelle (lagen om förbud mot diskriminering i arbetslivet på grund 
av sexuell läggning); la loi 2001:1286 sur l’égalité de traitement des étudiants à l’université (lagen om 
likabehandling av studenter i högskolan); la loi 2003:307 sur l’interdiction de la discrimination (en dehors 
de la vie professionnelle et de l’éducation) (lagen om förbud mot diskriminering); et la loi 2006:67 portant 
interdiction de discrimination envers les élèves (lag om förbud mot diskriminering och annan kränkande 
behandling av barn och elever). 

31   Les protections relatives au travail à temps partiel et au congé parental figurent dans une législation 

distincte. 

32   Loi 2014:958 portant modification de la loi antidiscrimination 2008:567. 
33   Loi 2016:828 portant modification de la loi antidiscrimination 2008:567, adoptée le 12 juillet 2016. Les 

nouvelles règles en matière de mesures actives sont axées sur des processus et couvrent l’ensemble des 
sept motifs. Certaines règles spéciales concernant le genre ont toutefois été maintenues. Les employeurs et 
les prestataires d’enseignement sont tenus de documenter leur travail en matière de mesures actives, mais 
ne sont pas tenus de faire des plans annuels. En dehors de l’existence d’un système d’établissement de 
rapports et de gestion des cas de harcèlement, aucune exigence spécifique n’est stipulée en rapport avec 
les motifs couverts par le présent rapport. Aucune amélioration n’a par ailleurs été prévue en ce qui 
concerne la mise en application ou la supervision.  

34   La protection de l’âge a été étendue à de nombreux nouveaux domaines au 1er janvier 2013. Voir la loi 

2012:673 portant modification de la loi antidiscrimination et le projet de loi gouvernemental 2011/12:159. 

16 

 
 
 
 
 
                                                 
1. 

2. 
3. 

la protection contre la discrimination ou les rétorsions ne couvre pas complètement 
les travailleurs indépendants; 
la discrimination à l’égard des personnes morales n’est pas interdite; 
la discrimination et le harcèlement pratiqués par des collègues de travail ou par des 
tiers ne sont pas interdits en tant que tels. 

Les  réticences  vis-à-vis  de  l’interdiction  du  harcèlement  pratiqué  par  des  collègues  de 
travail s’inscrivent dans une limitation plus générale de la responsabilité des employeurs 
du fait d’autrui, du moins de la façon dont elle est appliquée par le Tribunal du travail  – 
dont l’arrêt n° 45 prononcé en 2007 offre une bonne illustration.35 Tous les intervenants 
avaient  admis  en  l’espèce  le  fait  que  le  candidat  iranien  à  l’emploi  avait  été  victime  de 
discrimination mais personne ne pouvait, selon le Tribunal, en être tenu pour responsable 
dans  la  mesure  où  l’employé  fautif  n’était  pas  habilité  à  rejeter  la  candidature  du 
plaignant.  Nous  sommes  donc  en  l’espèce  en  présence  d’une  personne  faisant  l’objet 
d’une  discrimination  de  la  part  d’un  salarié  qui  ne  peut  être  tenu  pour  responsable  en 
vertu  du  droit  civil  antidiscrimination.  Selon  le  Tribunal,  la  partie  requérante  doit  être 
capable  de  faire  valoir  que  l’employeur  est  responsable  des  actions  du  salarié,  et 
l’employeur  ne  peut  être  tenu  pour  responsable  que  s’il/si  elle  s’est  montré(e) 
négligent(e):  s’il/si  elle  ne  réagit  pas  immédiatement  en  apprenant  des  faits  de 
harcèlement  ou  s’il/si  elle  habilite  pour  le/la  représenter  un  salarié  manquant  de 
jugement,  par  exemple.  L’application  restreinte  de  la  responsabilité  du  fait  d’autrui  en 
droit  antidiscrimination  limite  la  responsabilité  des  employeurs  lorsque  des  salariés 
agissent  en  dehors  de  leur  autorité,  et  cette  situation  pose  problème  pour  l’application 
effective de la loi. 

3. Principes généraux et définitions 

La  définition  de  la  discrimination  directe  stipulée  dans  la  loi  antidiscrimination 
(chapitre 1er, article 4, premier alinéa) est libellée comme suit: 

Discrimination  directe:  le  fait  qu’une  personne  fasse  l’objet  d’un  traitement  moins 
favorable que celui qui est accordé, qui a été accordé ou qui serait accordé à une autre 
personne dans une situation comparable, lorsque le désavantage en cause est associé au 
sexe,  à  l’identité  ou  à  l’expression  transgenre,  à  l’origine  ethnique,  à  la  religion  ou  à 
d’autres convictions, au handicap, à l’orientation sexuelle ou à l’âge. 

Cette  définition  requiert  qu’une  personne  soit  désavantagée.  Une  déclaration 
discriminatoire adressée au grand public n’est donc pas constitutive d’une discrimination 
directe.  

Un  employeur,  un  établissement  d’enseignement  ou  un  fournisseur  de  biens  ou  de 
services,  etc.  ne  peut  désavantager  une  personne  appartenant  à  l’un  des  groupes 
protégés en la traitant moins correctement que l’employeur,  etc. ne traite, n’a traité ou 
n’aurait  traité  quelqu’un  d’autre  dans  une  situation  comparable,  si  le  désavantage  est 
associé  au  motif  protégé.  La  protection  couvre  donc  les  cas  de  discrimination  par 
association.  

L’interdiction  de  discrimination  directe  est  limitée  par  la  possibilité  de  faire  valoir  une 
justification. La nouvelle loi antidiscrimination restreint cette faculté par rapport aux lois 
antérieures.  Hormis  en  ce  qui  concerne  la  discrimination  fondée  sur  l’âge,  on  ne  trouve 
plus en droit suédois d’exemple de justification qui soit trop large pour être admissible au 
regard du droit de l’UE.   

35   Tribunal du travail, arrêt n° 45 du 16 mai 2007, Médiateur chargé de la lutte contre la discrimination 

ethnique c. Laika film & amp. 

17 

 
 
 
 
 
 
 
 
 
                                                 
La définition de la discrimination indirecte contenue dans la nouvelle loi antidiscrimination 
est  largement  conforme  aux  directives  «article 13»  de  l’UE.  Ceci  dit,  étant  donné  la 
jurisprudence  peu  abondante  découlant  des 
loi 
antidiscrimination de 2009, il est trop tôt pour dire en quoi consiste réellement «le critère 
à satisfaire» dans ces situations.  

lois  précédentes  et  de 

la 

La  loi  relative  à  la  discrimination  considère  le  harcèlement  et  l’injonction  de  discriminer 
comme des formes interdites de discrimination. En outre, la législation oblige l’employeur 
ou  l’établissement  d’enseignement  qui  a  connaissance  du  fait  qu’un  travailleur  (une 
travailleuse) ou un(e) étudiant(e) estime avoir subi un harcèlement lié à un motif couvert 
par la loi, à enquêter sur l’affaire et, s’il y a lieu, à prendre des mesures pour empêcher 
la persistance du harcèlement en question. La rétorsion est également interdite.  

L’accessibilité  inadéquate  constitue  une  nouvelle  forme  de  discrimination  depuis  2015.36 
Elle s’applique lorsqu’un employeur, un prestataire d’enseignement ou un commerçant ne 
prévoit pas les mesures d’aide et d’adaptation permettant à une personne handicapée  de 
se trouver dans une situation analogue à celle d’une personne ne souffrant pas du même 
handicap;  il  est  également  prévu  que  l’employeur/le  prestataire  d’enseignement/le 
commerçant  puisse  être  raisonnablement  invité  à  implémenter  ces  mesures.  Le  grand 
changement  sur  le  plan  juridique  est  la  possibilité  accrue  d’obtenir  une  indemnisation 
pour  discrimination  fondée  sur  l’absence  d’aménagement  raisonnable  dans  d’autres 
domaines  que  l’enseignement  et  l’emploi,  tel  celui  de  la  fourniture  de  biens  et  de 
services.  

La  loi  suédoise  n’interdit  pas  spécifiquement  la  discrimination  multiple,  alors  que  l’on 
peut  considérer  qu’elle  existe  dans  un  grand  nombre  d’affaires.  La  question  de  la 
discrimination multiple a été abordée dans une certaine mesure par le Tribunal du travail 
dans son arrêt n° 91 de 2010.37 Plusieurs motifs étaient en cause, et il s’agissait donc de 
discrimination  multiple.  Le  Tribunal  a  dit  pour  droit  que  lorsqu’un  même  acte  peut  être 
présumé discriminatoire par rapport à plusieurs motifs, il reste considéré comme un fait 
unique  de  discrimination,  et  que  le  montant  de  l’indemnité  n’est  pas  affecté  par  le 
nombre de motifs invoqués. Ceci dit, et même si le Tribunal n’y a pas fait référence, les 
conclusions  indiquent  selon  l’auteur  qu’il  a  fait  appel  à  une  certaine  forme  d’analyse  de 
discrimination  multiple  ou  croisée.  Cette  affaire  et  d’autres  ont  donné  lieu  en  Suède  à 
divers débats concernant le rôle de l’intersectionnalité et de la discrimination multiple.38 

4. Champ d’application matériel 

Le champ d’application matériel de la loi antidiscrimination répond aux normes minimales 
instaurées par le droit de l’UE et va même à plusieurs égards au-delà des exigences qu’il 
contient.39  

La  loi  antidiscrimination  définit  le  champ  d’application  matériel  en  énumérant  les 
rubriques  suivantes:  vie  professionnelle  et  enseignement;  activités  relatives  au  marché 
du  travail  et  services  de  l’emploi  ne  relevant  pas  d’un  contrat  public;  démarrage  ou 
exploitation  d’une  entreprise  et  reconnaissance  professionnelle;  affiliation  à  certaines 
organisations;  biens,  services  et  logement,  etc.;  soins  médicaux  et  de  santé,  services 

36   Loi 2014:958 portant modification de la loi antidiscrimination 2008:567. 
37   Tribunal du travail, arrêt n° 91 du 15 décembre 2010, Médiateur pour l’égalité contre Direction des services 

employeurs de l’administration de l’État (Statens arbetsgivarverk). 

38   Voir notamment Schömer, E. (2012) Multiple discrimination: A smokescreen over differences, RETFÆRD 

ÅRGANG 35 2012 n° 3/138, disponible sur: http://retfaerd.org/wp-
content/uploads/2014/08/Retfaerd_3_2012_3.pdf.  

39   Ainsi par exemple, la loi antidiscrimination satisfait déjà essentiellement à la norme minimale qui serait 

d’application dans l’éventualité et au moment de l’adoption de la proposition de directive du Conseil relative 
à la mise en œuvre du principe de l'égalité de traitement entre les personnes sans distinction de religion ou 
de convictions, de handicap, d'âge ou d'orientation sexuelle [COM (2008) 426 final]. 

18 

 
 
 
 
 
 
 
                                                 
sociaux,  etc.;  système  d’assurances  sociales,  assurance-chômage  et  aide  financière  aux 
études; service militaire et service civil nationaux; et fonction publique. 

La  loi  antidiscrimination  s’applique  à  tous  les  aspects  de  la  relation  entre  employeur  et 
salarié,  à  la  fois  dans  le  secteur  public  et  dans  le  secteur  privé.  Les  travailleurs 
indépendants ne sont en revanche pas  couverts par l’interdiction de discrimination dans 
la vie professionnelle, ce qui pourrait poser problème quant au champ d’application de la 
loi.  Les  travailleurs  indépendants  peuvent  néanmoins  jouir  d’une  protection  en  tant  que 
personnes  physiques,  par  exemple  pour  la  création  ou  la  gestion  d’une  entreprise,  et 
pour  ce  qui  concerne  la  reconnaissance  professionnelle  (chapitre 2,  article 10).  Les 
organisations  professionnelles  ne  peuvent  pratiquer  de  discrimination  à  l’encontre  des 
travailleurs  indépendants,  ni  à  l’encontre  des  salariés  (chapitre 2,  article 11).  Un  autre 
point  pertinent  pourrait  être  soulevé,  à  savoir  que  la  loi  antidiscrimination  ne  protège 
pas, en règle générale, les personnes morales. 

5. Mise en application de la loi 

Les  procédures  civiles  engagées  en  matière  de  vie  professionnelle  en  vertu  de  la  loi 
antidiscrimination  doivent  se  dérouler  conformément  à  la  loi  sur  les  conflits  du  travail, 
supposant que la partie requérante est représentée par un syndicat ou par le médiateur 
pour  l’égalité  (le  DO  –  organisme  chargé  des  questions  d’égalité  en  Suède).40  Si  la 
personne  concernée  est  affiliée  à  un  syndicat,  le  droit  de  ce  dernier  de  représenter  la 
victime  (voir  également  le  point 6  ci-après)  est  subordonné  à  celui  d’un  syndicat  de 
représenter  l’un  de  ses  membres.  Que  l’affaire  concerne  un  travailleur  du  secteur  privé 
ou du secteur public, les procédures sont les mêmes. Il peut néanmoins exister pour les 
fonctionnaires,  en  raison  de  règles  constitutionnelles  en  matière  de  motifs  objectifs 
d’embauche,  une  voie  complémentaire  permettant  de  faire  appel  d’une  décision  via  des 
procédures administratives. Lorsqu’une personne engage individuellement une action une 
affaire en matière d’emploi sans le soutien du DO ou d’un syndicat, le dossier est d’abord 
introduit  auprès  d’un  tribunal  de  district  de  première  instance,  le  Tribunal  du  travail 
fonctionnant  comme  une  juridiction  d’appel.  Le  Tribunal  du  travail  est  une  juridiction 
spéciale et ses arrêts sont définitifs. 

Les  affaires  qui  n’ont  pas  trait  à  la  vie  professionnelle  relèvent  du  système  judiciaire 
ordinaire,  à  savoir  le  tribunal  de  première  instance  compétent  –  les  appels  étant 
interjetés  ensuite  auprès  d’une  cour  d’appel  et  de  la  Cour  suprême.  Ainsi  les  affaires 
relatives  à  une  discrimination  en  matière  de  sécurité  sociale  (domaine  relevant 
généralement  du  droit  administratif)  sont-elles  instruites  par  le  système  judiciaire  civil 
ordinaire et les règles ordinaires de procédure civile s’y appliquent.41  

Outre  le  droit  du  DO  et  des  syndicats  d’engager  des  actions,  la  loi  antidiscrimination 
confère  aux  organisations  à  but  non  lucratif,  dont  les  statuts  stipulent  qu’elles  ont  pour 
objet  de  défendre  les  intérêts  de  leurs  membres,  le  droit  d’intenter  des  actions  en  leur 
nom  propre,  en  tant  que  partie.  Il  apparaît  toutefois  que  l’engagement  de  poursuites, 
judiciaires notamment,  ne fait pas partie de la culture de défense des intérêts telle que 
pratiquée par la plupart des ONG qui représentent des groupes victimes de discrimination 
– bien que certains signes donnent à penser que la situation connaît une évolution à cet 
égard.  

Un intérêt croissant semble se manifester parmi les ONG quant à la possibilité d’engager 
des  actions  au  nom  de  leurs  membres.  Les  projets  «La  loi comme  instrument  de 
changement social» et «De la parole à l’action» offrent deux exemples de cette tendance, 

40   Loi 1974:371 sur les contentieux du travail (procédures judiciaires). 
41   Certaines affaires relatives à l’enseignement universitaire ou supérieur peuvent également être portées 

devant la Commission d’appel de l’enseignement supérieur. 

19 

 
 
 
 
 
 
 
                                                 
à  tout  le  moins  dans  le  domaine  de  la  discrimination  fondée  sur  le  handicap.42  Après 
avoir conclu à la défaillance du régime actuel de mise en application, les ONG concernées 
ont décidé que les groupes visés par des discriminations devaient se charger eux-mêmes 
de la question du renforcement de son efficacité. Elles ont également pris conscience de 
la forme majeure de défense des intérêts que cette problématique peut constituer.43 Ces 
ONG  n’ont  pas  pour  objectif  de  remplacer  les  bureaux  anti-discrimination  décrits  ci-
après: elles visent à ce que leurs actions respectives soient complémentaires. 

La règle générale veut que ce soit, en Suède, la partie perdante qui assume les frais de 
justice de la partie gagnante. L’un des avantages de la représentation par le DO ou par 
un  syndicat  est  donc  le  fait  que  ce  soit  lui  qui  prenne  le  risque  économique  si  l’affaire 
devait être perdue. Une personne individuelle peut engager son propre avocat, mais elle 
prend  alors  le  risque  de  devoir  payer  non  seulement  les  honoraires  de  celui-ci,  mais 
également  les  frais  de  procédure  de  la  partie  adverse  lorsque  celle-ci  obtient  gain  de 
cause.  Ce  risque  économique  s’avère  souvent  prohibitif  pour  la  plupart  des  victimes  de 
discrimination. 

Des procédures pénales peuvent également être engagées par le procureur général  (ou, 
beaucoup  plus  rarement,  la  partie  privée  elle-même).  Le  DO  et  les  organisations  à  but 
non lucratif ne sont pas habilités à ester en justice dans le cadre de procédures pénales.  

Les lois antérieures avaient déjà introduit un renversement de la charge de la preuve de 
discrimination, lequel  est  précisé  dans  la  loi  de  2009.  Très  peu  de  plaignants  invoquant 
une discrimination ont cependant eu gain de cause à ce jour, et il semblerait que l’un des 
problèmes  soit  la  manière  dont  le  Tribunal  du  travail  applique la  charge  de  la  preuve.44 
Les  statistiques  publiées  par  le  DO  montrent  dans  le  même  temps  qu’un  nombre 
considérable de litiges font l’objet d’un règlement extrajudiciaire. Il en va  sans doute de 
même pour les syndicats. 

Il  y  a  également  lieu  de  souligner  qu’il  semble  plus  aisé  d’établir  une  présomption  de 
discrimination et d’avoir gain de cause dans le cadre du système judiciaire ordinaire que 
devant  le  Tribunal  du  travail.  Et  qu’il  semble  particulièrement  difficile  de  remporter  une 
affaire  devant  ce  Tribunal  lorsqu’il  s’agit  de  discrimination  ethnique.  L’une  des 
explications  serait  que  le  Tribunal  du  travail  applique  de  façon  plus  restrictive  que  les 
juridictions  ordinaires  les  règles  en  matière  de  renversement  de  la  charge  de  la  preuve 
prévues par la loi suédoise antidiscrimination et par la législation de l’UE. Cette situation 
est illustrée par une affaire dont le tribunal de district de Stockholm a été saisi en 201645 
et par une affaire très similaire dans laquelle le Tribunal du travail a statué en 201746 en 
matière  de  religion  et  de  discrimination.  Les  circonstances  étaient  fondamentalement 
identiques  dans  les  deux  cas,  tout  comme  l’appréciation  de  la  preuve.  Les  deux 
juridictions étaient d’accord pour affirmer que les faits demeuraient incertains, mais leurs 
points de vue ont divergé quant à savoir qui devait assumer la charge de la preuve face à 
cette  incertitude.  La  partie  visée  par  la  discrimination  a  eu  gain  de  cause  devant  le 
tribunal de district, étant donné que l’auteur présumé de la discrimination n’a pu assumer 
la charge de la preuve qui lui incombait. Le Tribunal du travail a estimé pour sa part que 

42   Lagen som verktyg (La loi comme instrument de changement social), disponible sur: 

https://lagensomverktyg.se; et Från snack till verkstad (De la parole à l’action), disponible sur: 
https://funktionsrattskonventionen.se/om-projektet/. 

43   Un exemple à suivre serait celui des Défenseurs des droits des personnes handicapées (Disability Rights 

Advocates), dont les bureaux sont situés à New York et en Californie. Voir leur site web sur: 
https://dralegal.org.  

44   Farkas, L. & O’Farrell, O. (2014), Reversing the burden of proof: Practical dilemmas at the European and 

national level, p. 76. 

45   Tribunal de district de Stockholm, arrêt du 16 novembre 2016 dans l’affaire T 3905-15, Médiateur pour 

l’égalité c. État suédois via le Karolinska institutet. 

46   Tribunal du travail, arrêt n° 65 du 20 décembre 2017 dans l’affaire Médiateur pour l’égalité c. dentistes du 

secteur public du comté de Stockholm. 

20 

 
 
 
 
 
                                                 
la  partie  visée  par  la  discrimination  n’était  pas  parvenue  à  assumer  la  charge  de  la 
preuve qui lui incombait. 

Un  contrat  (collectif  ou  individuel)  n’est  pas  valide  s’il  prescrit  ou  autorise  une 
discrimination,  et  une  disposition  ou  un  acte  juridique  discriminatoire  peut  être  déclaré 
invalide si la demande en est faite.  

Il existe également un droit à réparation lorsqu’une infraction à caractère discriminatoire 
est  commise  et  –  dans  les  affaires  d’emploi  non  liées  à  une  embauche  ou  à  une 
promotion  –  pour  la  perte  économique  qui  en  résulte.  Les  indemnités  sont  réputées 
faibles  en  Suède.  La  loi  antidiscrimination  de  2009  introduit  une  nouvelle  forme  de 
réparation  civile,  à  savoir  l’indemnité  pour  discrimination.  Outre  leur  obligation 
d’indemniser les victimes, les juridictions sont désormais tenues par la loi d’accorder une 
attention  toute  particulière  à  l’objectif  de  dissuasion  des  infractions.  On  pouvait 
s’attendre dès lors à ce que le niveau des réparations allouées augmente par rapport à ce 
qui était alloué au titre d’indemnités avant 2009.  

De  manière  générale,  les  sanctions  sont  censées  être  proportionnées,  effectives  et 
dissuasives. 

Il  ressort  toutefois  de  la  jurisprudence  limitée  existante  que  l’indemnisation  pour 
discrimination  ne  soit  pas  très  différente  des  réparations  allouées  par  les  juridictions 
ordinaires ou le Tribunal du travail en vertu des anciennes lois. Un espoir de changement 
à  cet  égard,  du  moins  au  niveau  des  juridictions  ordinaires,  était  né  lorsque  la  Cour 
suprême a clarifié dans deux arrêts prononcés en juin 2014 son raisonnement concernant 
l’indemnisation pour discrimination en rapport avec des biens et services.47 Elle y insistait 
sur  le  double  but  de  l’indemnisation,  à  savoir  la  réparation  allouée  à  la  victime  et  une 
prévention efficace. La Cour semble avoir conclu que, dans un cas relativement  normal, 
une  indemnisation  de  base  de  15 000 SEK  constitue  un  montant  raisonnable.  Elle  a 
également déclaré que le montant à vocation préventive pouvait, dans un cas individuel, 
être fixé à un niveau équivalent à celui de la réparation, soit 15 000 SEK supplémentaires 
ou  un  montant  total  de  30 000 SEK  (3 300 EUR).  Ceci  semble  principalement  concerner 
des  affaires  dans  lesquelles  le  prestataire  de  service  n’a  jamais  eu  l’intention  d’une 
discrimination,  agit  avec  diligence,  donne  un  avertissement  au  salarié  fautif  et  présente 
ses excuses aux victimes. L’auteur estime que ces affaires définissent des orientations de 
base en matière d’indemnisation. Il s’agit d’une évolution positive, mais l’argumentation 
de la décision reste davantage focalisée sur l’indemnité (ou réparation) plutôt que sur la 
question de la prévention (ou dissuasion). Il semblerait que les affaires de discrimination 
offrent  une  plus  grande  possibilité  de  mettre  l’accent  sur  l’élément  «prévention»  de 
l’indemnisation  lorsque  les  faits  discriminatoires  revêtent  un  caractère  davantage 
délibéré.  Il  s’avère  néanmoins  difficile,  étant  donné  le  faible  nombre  d’affaires  et  leur 
diversité  dans  le  cadre  du  système  judiciaire  ordinaire,  de  cerner  une  tendance  plus 
particulière.  

Une récente étude s’est récemment penchée sur les indemnités allouées sur une longue 
période  par  le  Tribunal  du  travail.  Il  ressort  de  l’analyse  de  Laura  Carlson  que  les 
montants  octroyés  dans  les  affaires  de  discrimination  sont  actuellement  supérieurs  de 
4,5 % environ à ce qu’ils étaient en 1980, après correction pour l’inflation. Elle en conclut 
que  cette  évolution  n’a  apparemment  pas  suffi  à  atteindre  le  seuil  d’indemnisation 
renforcée qui avait été envisagé avec le changement de terminologie accompagnant la loi 
antidiscrimination de 2009. Laura Carlson souligne également que cette hausse modeste 
de l’indemnisation doit être comparée à l’augmentation de 170 % des frais et honoraires 
de  justice  depuis  les  années  1980.  Et  elle  conclut  que  les  tendances  au  niveau  des 

47   Cour suprême, arrêt du 26 juin 2014 dans l’affaire T 3592-13 Médiateur pour l’égalité c. Veolia; et Cour 

suprême, arrêt du 26 juin 2014 dans l’affaire T 5507-12 Médiateur pour l’égalité c. Comté de Stockholm, 
NJA 2014, p. 499. 

21 

 
 
 
 
 
 
                                                 
indemnités  allouées  et  au  niveau  des  frais  et  honoraires  d’avocats,  conjuguées  aux 
faibles  taux  de  réussite,  dissuadent  fortement  les  plaignants  d’engager  des  poursuites 
pour  discrimination.48  Elle  fait  donc  valoir  en  conclusion  la  nécessité  d’une  plus  grande 
efficacité en termes d’application comme en termes de sanctions. 

Le  Tribunal  du  travail  semble  accorder  beaucoup  moins  d’attention  que  les  juridictions 
ordinaires  à  la  question  de  la  prévention  –  ce  qui  pourrait  être  source  de  confusion  à 
l’avenir,  étant  donné  que  certaines  affaires  de  discrimination  débutent  devant  des 
tribunaux de district avant un éventuel appel auprès du Tribunal du travail. 

Un  outil  complémentaire  pourrait  permettre  d’augmenter  en  Suède  les  coûts  que  peut 
engendrer une discrimination dans le chef de ceux qui sont en position de la pratiquer, et 
pourrait  conduire  à  son  tour  à  une  mise  en  œuvre  plus  efficace  de  la  loi 
antidiscrimination:  on  le  trouve  dans  le  règlement  2006:260  relatif  aux  conditions 
antidiscrimination dans les contrats,49 lequel exige des 28 principaux organismes officiels 
suédois d’inclure une condition antidiscrimination dans tous leurs grands marchés publics 
de construction et de services. Dans un cas ordinaire de discrimination, même si la partie 
visée  par  la  discrimination  surmonte  tous  les  obstacles  pour  saisir  la  justice  et  obtient 
effectivement gain de cause, le risque encouru par l’auteur des faits discriminatoires est 
le  versement  d’une 
indemnisation  représentant  probablement  un  maximum  de 
14 000 EUR  (150 000 SEK).  De  l’avis  de  l’auteur,  en  supposant  que  la  condition  en 
question soit formulée de manière adéquate et qu’il existe une possibilité raisonnable de 
suivi  –  si  par  exemple  l’organisme  officiel  se  réserve  le  droit  d’annuler  la  totalité  du 
contrat  en  cas  de  non-respect  de  la  loi  antidiscrimination  –  on  peut  raisonnablement 
supposer  que  les  entreprises  obtenant  ce  type  de  marchés  veilleront  davantage  à 
respecter la loi antidiscrimination, à la fois au titre de mesure préventive impliquant des 
mesures  actives  et  au  cas  où  elles  sont  accusées  discrimination.  En  termes  de  coûts, 
perdre une affaire valant 14 000 euros est une chose; perdre un contrat d’une valeur de 
140 000, voire de 1 400 000 euros en est une autre. Les infractions de ce type peuvent 
en  outre  compromettre  l’autorisation  de  soumissionner  en  vue  d’obtenir  de  futurs 
marchés publics.50 Or l’ensemble des marchés passés chaque année par le secteur public 
en Suède représente une valeur supérieure à 56 milliards d’euros (600 milliards SEK).51 

6. Organismes de promotion de l’égalité de traitement 

Le Médiateur pour l’égalité (DO) est la principale institution publique en charge de la lutte 
contre  la  discrimination  et  de  la  promotion  de  l’égalité  des  droits.  Il  est  habilité  à 
enquêter sur des plaintes pour des faits discriminatoires fondés sur tous les motifs ainsi 
qu’à engager une action en justice au nom d’une personne individuelle.  

Le DO peut en outre fournir des conseils, une assistance indépendante et un soutien aux 
particuliers  et  aux  institutions  de  façon  plus  générale;  il  peut  mener  des  actions 
d’éducation,  d’information  et  de 
la 
discrimination;  il  peut  proposer  au  gouvernement  des  mesures  juridiques  et  autres 
pouvant servir à lutter contre la discrimination; il peut suivre les développements au plan 
international;  et  il  peut  s’engager  dans  d’autres  mesures  adéquates  en  vue  de 
promouvoir  l’égalité  et  de  lutter  contre  la  discrimination.  Les  études  et  rapports 
indépendants constituent des volets importants de sa mission. Le DO est désigné par le 

formation  d’opinion  en  vue  de  combattre 

48   Carlson, L. (2017), Comparative Discrimination Law: Historical and Theoretical Frameworks, Brill, p. 79-80. 
49   Règlement 2006:260 relatif aux conditions antidiscrimination dans les contrats (Förordning (2006:260) om 

antidiskrimineringsvillkor i upphandlingskontrakt), disponible sur: 
http://rkrattsbaser.gov.se/sfst?bet=2006:260.  

50   Bien qu’elle ait subi d’importantes modifications, la proposition initiale de règlement en tant qu’outil 

complémentaire aux lois antidiscrimination et ses effets potentiels peut être consultée dans le livre blanc 
2005:56 du gouvernement intitulé The Blue and Yellow Glass House: Structural Discrimination in Sweden, 
p. 579-584. 

51   Gouvernement suédois (2016), Varför behövs en nationell upphandlingsstrategi? (Pourquoi une stratégie 

nationale est-elle nécessaire en matière de marchés publics?), p. 4.  

22 

 
 
 
 
 
 
                                                 
gouvernement,  comme  d’autres  responsables  d’organismes  officiels.  Comme  d’autres 
organismes  officiels  également,  le  DO  a  un  statut  indépendant  pour  les  questions 
relatives à des cas individuels. Le DO est financé par l’État, les décisions relatives à son 
financement  étant  prises  annuellement  par  le  Parlement  suédois  sur  la  base  des 
recommandations  du  gouvernement.  Le  financement  du  DO  émarge  au  budget  général 
de l’État. 

Comme déjà indiqué, le rôle joué par les ONG en dehors des organisations syndicales et 
patronales est notoirement assez peu développé en Suède. Le DO entretient un dialogue 
permanent avec les ONG lorsqu’elles existent. Il convient de citer plus particulièrement à 
cet égard les bureaux locaux d’action contre la discrimination, qui commencent à intenter 
des actions en justice. Ils ont principalement limité leurs risques jusqu’ici en se chargeant 
d’affaires  portant  sur  des  revendications  modestes,  ce  qui 
leur  évite  d’être 
éventuellement  appelés  à  prendre  en  charge  l’intégralité  des  frais  judiciaires  s’ils 
perdent. Ceci dit, étant donné qu’une moindre priorité a été donnée par le DO à des cas 
individuels, une pression croissante s’exerce sur les bureaux pour qu’ils interviennent en 
fournissant davantage d’assistance, y compris l’engagement d’actions en justice.  

7. Points essentiels 

Le  Médiateur  pour  l’égalité  (DO)  réoriente  ses  priorités.  On  observe  une  moindre 
focalisation  sur  l’examen  des  plaintes  et  l’engagement  de  poursuites  en  justice  ou  les 
règlements à l’amiable au profit d’un accent plus marqué sur la publication d’évaluations 
de  faits  discriminatoires,  lesquelles  ne  sont  pas  juridiquement  contraignantes  et  dont  il 
ne peut être fait appel. Il arrive que des plaintes individuelles soient mutées en enquêtes 
de  surveillance  à  caractère  plus  général  ou  en  suivi  d’obligations  actives.  De  l’avis  de 
l’auteur, la priorité va donc davantage à l’information en tant que moyen d’améliorer les 
mentalités  et,  peut-on  espérer,  les  comportements  futurs,  plutôt  qu’à  une  mise  en 
application  efficace  de  la  loi  en  tant  que  moyen  plus  direct  de  modifier  les 
comportements  et,  partant,  les  mentalités  sous-jacentes.  Le  DO  s’attache  également  à 
suivre  l’obligation  de  procéder  à  des  mesures  actives  telles  que  l’exécution  d’enquêtes 
salariales  et  de  diverses  activités  de  promotion.  De  l’avis  de  l’auteur,  ces  actions 
comportent le risque d’une focalisation tout aussi inefficace car elles se fondent sur l’idée 
que  l’information  –  par  opposition  à  la  mise  en  œuvre  de  la  loi  –  est  la  clé  du 
changement social.  

Les  victimes  de  discrimination  ont  besoin,  selon  l’auteur,  de  meilleurs  moyens  de  faire 
valoir  leurs  cas  –  faute  de  quoi,  seules  celles  qui  disposent  de  ressources  financières 
suffisantes  pour  saisir  les  tribunaux  peuvent  espérer  que  justice  leur  soit  rendue.  Une 
personne  pratiquant  une  discrimination  envers  des  Roms  ou  envers  des  personnes 
d’origine  ethnique  africaine,  par  exemple,  ne  court  pratiquement  aucun  risque  de 
poursuites  judiciaires,  à  plus  forte  raison  au  vu  du  nombre  décroissant  d’enquêtes 
menées par le DO et du mandat limité des organisations syndicales. Une étude officielle a 
été  réalisée  sur  cette  question,  et  les  résultats  ont  été  présentés  en  2016.52  La  seule 
mesure  relativement  concrète  proposée  a  été  l’augmentation  du  financement  des 
bureaux de lutte contre la discrimination gérés par des ONG. 

Étant  donné  la  moindre  priorité  conférée  à  l’accès  à  la  justice,  les  perspectives  de 
développement  d’une 
jurisprudence  relative  au  volet  «prévention  efficace»  de 
l’indemnisation pour discrimination tendent, elles aussi, à se restreindre. 

Outre  le  manque  d’accès  à  la  justice,  c’est  sans  doute  la  question  de  la  charge  de  la 
preuve qui constitue le principal problème juridique sur le plan du principe. Un système 
dans  lequel  il  est  plus  facile  de  prouver  une  discrimination  devant  des  juridictions 
ordinaires  que  devant  le  Tribunal  du  travail  n’est  pas  viable  à  long  terme.  L’étude 

52   Livre blanc 2016:87 du gouvernement. 

23 

 
 
 
 
 
 
 
                                                 
susmentionnée  a  suggéré  un  nouveau  libellé  pour  les  règles  relatives  à  la  charge  de  la 
preuve,  bien  qu’elle  n’ait  constaté  aucun  problème  d’application  de  la  règle  actuelle  au 
Tribunal du travail.  

L’auteur estime pour sa part que le libellé légèrement différent n’offre probablement pas 
une  bonne  solution  à  moins  que  le  problème  en  cause  soit  éclairci.  Telle  est  la  raison 
pour  laquelle  il  convient  d’accorder  davantage  d’attention  à  la  question  de  l’accès  à  la 
justice. Il ne s’agit pas simplement de pouvoir traiter un plus grand nombre d’affaires au 
nom  de  particuliers.  Ce  point  est  important,  mais  il  est  plus  important  encore  de 
développer  la  jurisprudence  en  menant  une  action  de  plaidoyer  à  la  fois  soutenue  et 
engagée. Tout comme ceux qui sont en position de pratiquer une discrimination doivent 
voir leurs actions mises en cause, ceux qui sont en position de statuer dans des affaires 
de  discrimination  doivent  pouvoir  être  eux  aussi  contestés  afin  qu’ils  apprennent  à 
comprendre et à reconnaître la discrimination.  

L’auteur considère que ce n’est pas la loi elle-même qui modifie les normes, mais sa mise 
en  œuvre,  y  compris  au  travers  de  la  jurisprudence.  Il  faut  d’ailleurs  davantage  qu’une 
jurisprudence:  il  faut  une  masse  critique  de  cas  qui  traduisent  une  meilleure 
compréhension des mots utilisés dans la législation (ce qui augmente à son tour les coûts 
susceptibles  d’être  engendrés  par  une  discrimination)  et  qui  conduisent  à  un  véritable 
changement au niveau des comportements et des normes, en particulier parmi ceux qui 
sont  en  position  de  pratiquer  une  discrimination.  Une  telle  évolution  contribuerait  à 
réaliser l’objectif principal de la législation antidiscrimination, qui n’est pas d’obtenir une 
forme  ou  une  autre  de  réparation  pour  les  victimes,  mais  de  faire  en  sorte  qu’il  n’y  ait 
plus de discrimination à leur égard pour commencer.  

24 

 
 
 
 
 
ZUSAMMENFASSUNG 

1. Einleitung 

Schweden  hat  seit  langem  verschiedene  Minderheiten,  darunter  die  Roma,  die  Finnen 
und  die  jüdische  Gemeinschaft.  Die  Samen  waren  schon  immer  eine  indigene 
Bevölkerungsgruppe.  Dennoch  wurde  Schweden  bis  vor  kurzem  als  homogenes  Land 
gesehen  und  hat  sich  lange  Zeit  auch  selbst  so  gesehen.  2017  hatte  das  Land 
10,1 Millionen Einwohner. Der Anteil der im Ausland geborenen Einwohner ist von 6,7 % 
im Jahr 1970 auf 18,5 % im Jahr 2017 gestiegen und nimmt weiter zu.53 Schweden gilt 
als  ausgeprägt  säkulares  Land;  gleichzeitig  gehört  jedoch  die  Mehrheit  der  Bevölkerung 
nach  wie  vor  der  evangelisch-lutherischen  Kirche,  der  ehemaligen  Staatskirche,  an.  Es 
gibt  traditionell  kein  Monitoring  der  ethnischen  Zugehörigkeit  innerhalb  der  Gesellschaft 
und auch keine lange Tradition der Antidiskriminierungsgesetzgebung. 

Um das Antidiskriminierungsrecht und seine Durchsetzung in Schweden zu verstehen, ist 
es  unerlässlich,  die  Funktionsweise  des  schwedischen  Arbeitsrechts  und  die  besondere, 
dominierende  Rolle  der  Sozialpartner  zu  begreifen.  Der  Arbeitsmarkt  ist  durch  einen 
hohen Organisationsgrad – sowohl auf Seiten der Gewerkschaften als auch auf Seiten der 
Arbeitgeberverbände –  gekennzeichnet,  der  rund  70  %  beträgt,  und  zwar  sowohl  im 
privaten als auch im öffentlichen Sektor. Diese organisatorische Struktur spiegelt sich in 
den  Tarifverhandlungen  wider  und  in  der  Tatsache,  dass  sich  einige  wichtige  Themen, 
z.B.  Löhne  und  Gehälter,  nach  wie  vor  im  rechtsfreien  Raum  befinden.  Die  Arbeit  der 
Staatsbediensteten  wird  im  Allgemeinen  durch  Verträge  und  Kollektivvereinbarungen 
geregelt,  weitgehend  ebenso  wie  die  Arbeit  im  Privatsektor.  Bis  auf  wenige  Ausnahmen 
gelten dieselben Regeln.  

Schweden,  das  im  vergangenen  Jahrhundert  überwiegend  sozialdemokratisch  regiert 
wurde,  hat  einen  recht  umfassenden  Wohlfahrtsstaat  entwickelt.  Soziale  und 
wirtschaftliche Vergünstigungen wurden nur in begrenztem Umfang als Rechte formuliert, 
die  gesetzliche  Ansprüche  begründen.  Auch  die  verfassungsmäßige  Tradition  der 
Grundrechte  ist  eher  schwach  entwickelt.  Dank  der  wachsenden  Bedeutung  der 
Europäischen  Menschenrechtskonvention,  des  Unionsrechts  und  der  schwedischen 
Verfassung hat sich dies jedoch zu ändern begonnen.  

Aufgrund  ihrer  besonderen  Rolle  hatten  die  Gewerkschaften  und  Arbeitgeberverbände, 
kurz:  die  Sozialpartner,  Einfluss  auf  die  Entwicklung  des  Antidiskriminierungsrechts,  die 
sie  zumindest  anfänglich  behinderten,  und  danach  auf  seine  Formulierung  und 
Durchsetzung.  Andere  Akteure,  z.B.  NROs,  die  diskriminierte  Gruppen  vertreten,  haben 
bei der Entwicklung und insbesondere der Durchsetzung der Antidiskriminierungsgesetze 
bislang eine sehr begrenzte Rolle gespielt.  

Bis  in  die  1990er  Jahre  gab  es  kaum  antidiskriminierungsrechtliche  Bestimmungen,  die 
andere Gründe oder Bereiche als geschlechtsspezifische Diskriminierung am Arbeitsplatz 
regelten. Seit 1999 setzt sich die schwedische Regierung jedoch aktiv für die Einführung 
relativ  moderner  Antidiskriminierungsvorschriften  ein.  Dies  war  sowohl  auf  nationale 
Erfordernisse  als  auch  auf  die  Antizipation  und  Umsetzung  des  Unionsrechts 
zurückzuführen. 
unterschiedliche 
Diskriminierungsgründe und Bereiche (Bildung, Erwerbsleben usw.) abdeckten, in einem 
einzigen 
sämtliche 
Diskriminierungsgründe und einen Großteil der Gesellschaft abdeckt. Ein weiterer Schritt 
auf  diesem  Weg  wurde  am  1. Januar 2015  vollzogen,54  als  eine  neue  Form  von 

Antidiskriminierungsgesetz 

zusammengefasst, 

2009  wurden 

Zivilgesetze, 

sieben 

das 

die 

53   Statistisches Zentralbüro, Zusammenfassung der Bevölkerungsstatistik 1960–2017, 

https://www.scb.se/en/finding-statistics/statistics-by-subject-area/population/population-
composition/population-statistics/pong/tables-and-graphs/yearly-statistics--the-whole-country/summary-of-
population-statistics/ (letzter Zugriff am 10.05.2018). 

54   Gesetz (2014:958) zur Änderung des Antidiskriminierungsgesetzes. 

25 

 
 
 
 
 
 
  
                                                 
Diskriminierung  eingeführt  wurde:  unzureichende  Zugänglichkeit.  Für  Menschen  mit 
Behinderungen  war  es  nun  einfacher,  eine  Diskriminierungsentschädigung  zu  erhalten, 
wenn  keine  angemessenen  Vorkehrungen  getroffen  wurden,  um  ihnen  den  Zugang  zu 
Bereichen  der  Gesellschaft  zu  ermöglichen,  die  von  der  Rahmenrichtlinie  Beschäftigung 
und Beruf (2000/78/EG) nicht erfasst wurden. 

ihres  Rechts  auf  Aufenthalt 

Die  Roma-Bevölkerung  ist,  sowohl  auf  offizieller  als  auch  auf  inoffizieller  Ebene, 
Rassismus  und  Diskriminierung  ausgesetzt.  Erst  Ende  der  1950er  Jahre  wurde  der 
in  einer  Gemeinde  eine  gewisse 
Anerkennung 
Aufmerksamkeit zuteil. Bis zu diesem Zeitpunkt hatten viele Gemeinden unterschiedliche 
Mittel  eingesetzt,  um  die  Roma  von  einer  Ansiedlung  abzuhalten  oder  sie  an  einer 
Ansiedlung  zu  hindern.  Vorschriften,  die  das  Recht  der  Roma,  sich  länger  als  ein  paar 
Tage aufzuhalten, einschränkten, waren üblich. Auf diese Weise entzogen sich die lokalen 
Behörden der Verantwortung für die schulische Betreuung der Kinder und diverse soziale 
Rechte.  Im  Vergleich  zu  anderen  ethnischen  Gruppen  sind  die  Roma  immer  noch 
offeneren Formen von Rassismus und Diskriminierung ausgesetzt; die Regierung scheint 
im  Umgang  mit  dieser  Situation  inzwischen  jedoch  etwas  sensibler  und  proaktiver  zu 
sein.55  

2. Wichtigste Rechtsvorschriften 

(Teil  der 

schwedischen  Verfassung) 

„Instrument  der  Regierung“ 

sind 
Im 
Verfassungsbestimmungen  zum  Thema  Diskriminierung  enthalten.  Nach  Kapitel 1,  das 
nicht  als  Grundlage  für  einen  Rechtsanspruch  herangezogen  werden  kann,  sind  die 
staatlichen  Einrichtungen  verpflichtet,  jeglicher  Diskriminierung  von  Menschen  aufgrund 
von  Geschlecht,  Hautfarbe,  nationaler  oder  ethnischer  Herkunft,  sprachlicher  oder 
religiöser  Zugehörigkeit,  Behinderung,  sexueller  Orientierung,  Alter  oder  anderen 
individuellen  Umständen  entgegenzutreten.  Mit  diesem  Grundsatz  sind  keinerlei 
einklagbare  Rechte  verbunden.  Kapitel 2  enthält  zwei  Artikel,  die  Grundlage  für  einen 
Rechtsanspruch sein können: Artikel 12 regelt den Schutz vor Gesetzen und Vorschriften, 
die  aufgrund  der  ethnischen  Herkunft,  der  Hautfarbe  oder  ähnlicher  Merkmale  bzw. 
aufgrund  der  sexuellen  Orientierung  diskriminieren.  Artikel  13  verbietet  Gesetze  und 
Vorschriften,  die  eine  Diskriminierung  aufgrund  des  Geschlechts  beinhalten.  Das 
Verhältnis  zur  Europäischen  Union  und  zum  Unionsrecht  wird  im  Instrument  der 
Regierung (1:10 und 10:6) und in anderen Gesetzen geregelt. 

Die  Europäische  Menschenrechtskonvention  (EMRK)  wurde  1995  nach  dem  Erfordernis 
des  Dualismus  in  die  nationale  Gesetzgebung  aufgenommen  und  erhielt  im  Zuge  von 
Kapitel  2  § 19  des  Instruments  der  Regierung  einen  verfassungsähnlichen  Status. 
Grundsätzlich  ist  jedes  Gesetz,  das  den  in  der  Konvention  festgeschriebenen  Rechten 
widerspricht,  nichtig  und  darf  nicht  angewendet  werden.  Schweden  hat  auch 
verschiedene  andere  Menschenrechtsinstrumente  unterzeichnet  und  ratifiziert,  darunter 
den Internationalen Pakt über bürgerliche und politische Rechte, den Internationalen Pakt 
über  wirtschaftliche,  soziale  und  kulturelle  Rechte,  das  Übereinkommen  zur  Beseitigung 
jeder Form  von Rassendiskriminierung, das Übereinkommen zur Beseitigung jeder Form 
von  Diskriminierung  der  Frau,  das  Übereinkommen  über  die  Rechte  von  Menschen  mit 
Behinderungen  und  eine  Reihe  einschlägiger  Übereinkommen  der  IAO.  Nach  dem 
Erfordernis  des  Dualismus  sind  internationale  Abkommen,  die  nicht  in  schwedisches 
Recht  übernommen  wurden,  nicht  Teil  der 
schwedischen 
Gesetzeshierarchie im eigentlichen Sinne und können daher vor Gericht nicht unmittelbar 
geltend gemacht werden. Die innerstaatlichen Gesetze sind von den Gerichten jedoch so 
auszulegen, dass sie mit diesen internationalen Vereinbarungen übereinstimmen. 

innerstaatlichen 

55   Vgl. z.B. Den mörka och okända historien: VITBOK OM ÖVERGREPP OCH KRÄNKNINGAR AV ROMER UNDER 
1900-TALET (Die dunkle, unbekannte Geschichte – Weißbuch über Missbräuche und Verstöße gegen die 
Rechte von Roma im 20. Jahrhundert), Ds 2014:8. 

26 

 
 
 
 
 
 
                                                 
Schweden  war  auf  dem  Gebiet  des  Antidiskriminierungsrechts  ein  Spätstarter  (trotz 
seines  Renommees  in  puncto  Menschenrechte).  Bis  2008  wurden  jedoch  die  nach 
Unionsrecht erforderlichen Vorkehrungen zum Schutz vor Diskriminierung, mit Ausnahme 
des  Diskriminierungsgrunds  Alter,  im  schwedischen  Zivilrecht  verankert,  und  zwar  in 
sieben  Einzelgesetzen.56  Im  Bereich  des  Berufslebens  bezogen  sich  diese  auf  einzelne 
Diskriminierungsgründe.  In  anderen  Bereichen  der  Gesellschaft  (z.B.  Güter  und 
Dienstleistungen  bzw.  Bildung)  deckten  sie  mehrere  Diskriminierungsgründe  gleichzeitig 
ab.  Es  gab  auch  vier  unabhängige  Ombudspersonen  für  Antidiskriminierung,  die  für 
unterschiedliche  Merkmale  zuständig  waren.  Am  1.  Januar  2009  wurden  die  sieben 
Gesetze  aufgehoben  und  durch  das  Antidiskriminierungsgesetz  Nr.  2008:567  ersetzt57. 
Liste  der 
Alter 
Diskriminierungsgründe  hinzugefügt.  Die  vier  Ombudspersonen  wurden 
im  neu 
geschaffenen  Amt  der  Ombudsperson  für  Diskriminierungsfragen  zusammengeführt. 
2015 wurde unter anderem eine neue Form von Diskriminierung, nämlich unzureichende 
Zugänglichkeit  (außerhalb  des  Bereichs  der  Beschäftigung),  aufgenommen,58  und  2016 
wurde  das  Gesetz  in  Bezug  auf  aktive  Pflichten  geändert.  Die  allgemeinen  aktiven 
Pflichten  gelten  heute 
für  alle  Diskriminierungsgründe,  wohingegen  bestimmte 
für  Geschlecht  gelten.59  Das 
spezifischere 
Antidiskriminierungsgesetz  geht  in  verschiedener  Hinsicht  über  die  im  Unionsrecht 
festgelegten Mindestanforderungen hinaus. 

Transgender-Identität  und 

-Ausdruck  wurden  der 

Pflichten  nach  wie 

vor  nur 

sowie 

Es gibt strafrechtliche Bestimmungen, darunter auch eine Bestimmung, die rechtswidrige 
Diskriminierung durch Gewerbetreibende aufgrund von ethnischer Zugehörigkeit, Religion 
und  sexueller  Orientierung  bei  der  Bereitstellung  von  Waren  und  Dienstleistungen 
verbietet.  Strafverfahren  auf  der  Grundlage  dieser  Bestimmungen  sind  selten.  Es  gibt 
außerdem eine Bestimmung über Hassrede, die die Verbreitung von Äußerungen, die für 
eine Gruppe von Personen bedrohlich oder erniedrigend sind, unter Strafe stellt. 

Im Großen und Ganzen entspricht das schwedische Recht den Mindestanforderungen der 
Artikel-13-Richtlinien.  Außerdem  geht  es,  insbesondere  in  Bezug  auf  Religion  und 
Weltanschauung,  sexuelle  Orientierung,  Alter60  und  Behinderung,  insofern  über  die 
Anforderungen  des  Unionsrechts  hinaus,  als  es  –  neben  dem  sachlichen 
Anwendungsbereich,  der  sich  auf  sämtliche  Diskriminierungsgründe  erstreckt – 
bestimmte zusätzliche Gründe (Transgender-Identität und -Ausdruck) abdeckt.  

56   Gesetz Nr. 1991:433 über die Chancengleichheit, Diskriminierung wegen des Geschlechts am Arbeitsplatz 
(jämställdhetslagen); Gesetz Nr. 1999:130 über Maßnahmen gegen Diskriminierung im Erwerbsleben 
aufgrund der ethnischen Herkunft, der Religion oder der Weltanschauung (lagen om åtgärder mot etnisk 
diskriminering i arbetslivet); Gesetz Nr. 1999:132 über das Verbot von Diskriminierung im Erwerbsleben 
aufgrund von Behinderung (lagen om förbud mot diskriminering i arbetslivet av personer med 
funktionshinder); Gesetz Nr. 1999:133 über das Verbot von Diskriminierung im Erwerbsleben aufgrund der 
sexuellen Orientierung (lagen om förbud mot diskriminering i arbetslivet på grund av sexuell läggning); 
Gesetz Nr. 2001:1286 über die Gleichbehandlung von Studierenden an Universitäten (lagen om 
likabehandling av studenter i högskolan); Gesetz Nr. 2003:307 über das Verbot von Diskriminierung 
(außerhalb des Erwerbslebens und des Bildungsbereichs) (lagen om förbud mot diskriminering); Gesetz 
Nr. 2006:67 über das Verbot von Diskriminierung von Schülerinnen und Schülern (lag om förbud mot 
diskriminering och annan kränkande behandling av barn och elever). 

57   Schutzvorschriften für Teilzeitarbeit und Elternurlaub sind in separaten Rechtsvorschriften enthalten. 
58   Gesetz Nr. 2014:958 zur Änderung des Antidiskriminierungsgesetzes Nr. 2008:567. 
59   Gesetz Nr. 2016:828 zur Änderung des Antidiskriminierungsgesetzes Nr. 2008:567, verabschiedet am 

12.07.2016. Die neuen Vorschriften über aktive Maßnahmen sind prozessorientiert und decken alle sieben 
Diskriminierungsgründe ab. Bestimmte Sonderregelungen in Bezug auf Geschlecht wurden jedoch 
beibehalten. Arbeitgeber und Bildungsträger müssen ihre Arbeit mit aktiven Maßnahmen dokumentieren, 
sind jedoch nicht verpflichtet, jährliche Pläne zu erstellen. Abgesehen davon, dass ein System für die 
Meldung und Bearbeitung von Belästigungsbeschwerden vorhanden sein muss, gibt es bezüglich der im 
vorliegenden Bericht behandelten Diskriminierungsgründe keine speziellen Anforderungen. Darüber hinaus 
wurden keine Verbesserungen in Bezug auf Durchsetzung oder Überwachung vorgenommen.  

60   Der Schutz vor Altersdiskriminierung wurde zum 01.01.2013 auf viele neue Bereiche ausgedehnt; siehe das 

Gesetz Nr. 2012:673 zur Änderung des Antidiskriminierungsgesetzes sowie den Regierungsentwurf 
2011/12:159. 

27 

 
 
 
 
                                                 
Was  die  vollständige  Umsetzung  der  Richtlinien  im  Antidiskriminierungsgesetz  betrifft, 
gibt es jedoch noch einige Fragen: 

1. 

2. 
3. 

Der  Schutz  vor  Diskriminierung  bzw.  Viktimisierung  erfasst  selbständig 
Erwerbstätige nicht vollständig; 
die Diskriminierung juristischer Personen ist nicht verboten; 
Diskriminierung und Belästigung durch Kolleginnen oder Kollegen bzw. durch Dritte 
ist als solche nicht verboten. 

an 

sich 

lässt 

Der  mangelnde  Wille,  Belästigungen  durch  Kolleginnen  oder  Kollegen  als  solche  zu 
verbieten,  hängt  damit  zusammen,  dass  die  Haftung  des  Arbeitgebers  für  fremdes 
Verschulden  generell  eher  restriktiv  gehandhabt  wird,  zumindest  seitens  des 
Arbeitsgerichts.  Dies 
der  Arbeitsgerichtssache 2007  Nr. 45 
veranschaulichen.61  Alle  Parteien  akzeptierten  die  Tatsache,  dass  der 
iranische 
Stellenbewerber  diskriminiert  worden  war,  allerdings  konnte  nach  Ansicht  des  Gerichts 
niemand  zur  Verantwortung  gezogen  werden,  da  der  verantwortliche  Mitarbeiter  nicht 
befugt  war,  die  Bewerbung  abzulehnen.  Es  handelt  sich  also  um  einen  Fall,  in  dem 
dem 
jemand 
Antidiskriminierungsgesetz nicht haftbar ist. Die beschwerdeführende Partei muss, so das 
Gericht,  nachweisen  können,  dass  der  Arbeitgeber  für  das  Handeln  des  Arbeitnehmers 
haftbar  ist,  und  der  Arbeitgeber  kann  nur  dann  haftbar  gemacht  werden,  wenn  er 
fahrlässig handelt, indem  er zum Beispiel bei Kenntnis eines Falls von Belästigung nicht 
sofort  reagiert  oder  indem  er  einen  Mitarbeiter  mit  schlechtem  Urteilsvermögen 
beauftragt,  ihn  zu  vertreten.  Die  beschränkte  Anwendung  der  Haftung  für  fremdes 
Verschulden im Antidiskriminierungsrecht beschränkt die Haftung des Arbeitgebers, wenn 
Arbeitnehmer  außerhalb  ihrer  Befugnisse  handeln.  Im  Hinblick  auf  eine  wirksame 
Umsetzung der Rechtsvorschriften ist dies problematisch. 

diskriminiert  wird, 

Arbeitnehmer 

einem 

nach 

von 

der 

3. Wichtigste Grundsätze und Begriffe 

Der  Begriff  „unmittelbare  Diskriminierung“  wird 
Antidiskriminierungsgesetz wie folgt definiert: 

in  Kapitel 1  Artikel 4  Absatz 1 

Unmittelbare  Diskriminierung:  Wenn  eine  Person  benachteiligt  wird,  indem  sie  eine 
weniger  günstige  Behandlung  erfährt,  als  eine  andere  Person  in  einer  vergleichbaren 
Situation  erfährt,  erfahren  hat  oder  erfahren  würde,  und  diese  Benachteiligung  mit 
Geschlecht,  Transgender-Identität  oder  -Ausdruck,  ethnischer  Zugehörigkeit,  Religion 
oder  Weltanschauung,  Behinderung,  sexueller  Orientierung  oder  Alter  in  Verbindung 
steht. 

Nach  dieser  Definition  ist  es  erforderlich,  dass  eine  Person  benachteiligt  wird.  Eine 
diskriminierende  Äußerung  gegenüber  der  Öffentlichkeit  stellt  somit  keine  unmittelbare 
Diskriminierung dar. 

Arbeitgeber,  Bildungseinrichtungen  oder  Anbieter  von  Waren  und  Dienstleistungen  usw. 
dürfen  eine  Person,  die  zu  einer  der  geschützten  Gruppen  gehört,  nicht  benachteiligen, 
indem  sie  sie  schlechter  behandeln,  als  sie  eine  andere  Person  in  einer  vergleichbaren 
Situation behandeln, behandelt haben oder behandeln würden, wenn die Benachteiligung 
mit dem geschützten Grund in Verbindung steht. Der Schutz bezieht sich somit auch auf 
Diskriminierung durch Assoziierung. 

Das  Verbot  der  unmittelbaren  Diskriminierung  wird  durch  die  Möglichkeit  einer 
Rechtfertigung eingeschränkt. Das neue Antidiskriminierungsgesetz sieht im Vergleich zu 

61   Arbeitsgericht, 2007, Urteil Nr. 45 vom 16.05.2007, Die schwedische Ombudsperson gegen ethnische 

Diskriminierung gg. Laika film & amp. 

28 

 
 
 
 
 
 
 
 
 
                                                 
den  alten  Gesetzen  jedoch  weniger  Möglichkeiten  vor,  unmittelbare  Diskriminierung  zu 
rechtfertigen. Abgesehen von Altersdiskriminierung gibt es im schwedischen Recht keine 
Beispiele  mehr  für  Rechtfertigungen,  die  zu  großzügig  sein  könnten,  um  nach  Maßgabe 
des Unionsrechts zulässig zu sein. 

Die  Definition  von  „mittelbarer  Diskriminierung“  im  neuen  Antidiskriminierungsgesetz 
orientiert  sich  streng  an  den  Artikel-13-Richtlinien.  Da  zu  den  alten  Gesetzen  und  zum 
Antidiskriminierungsgesetz von 2009 relativ wenig Rechtsprechung existiert, ist es jedoch 
noch zu früh, um sagen zu können, was in diesen Situationen wirklich das entscheidende 
Kriterium ist. 

betrachtet  Belästigung 

Das  Antidiskriminierungsgesetz 
zur 
Diskriminierung  als  Formen  rechtswidriger  Diskriminierung.  Nach  dem  Gesetz  sind 
Arbeitgeber und Bildungseinrichtungen, denen bekannt ist, dass Mitarbeiter oder Schüler 
sich  im  Zusammenhang  mit  einem  geschützten  Merkmal  für  belästigt  halten,  außerdem 
verpflichtet,  die  Angelegenheit  zu  untersuchen  und  gegebenenfalls  Maßnahmen  zu 
ergreifen,  um  derartige  Belästigungen  zu  unterbinden.  Viktimisierung  ist  ebenfalls 
verboten. 

und  Anweisung 

Behinderung 

Unzureichende  Zugänglichkeit  gilt  seit  2015  ebenfalls  als  eine  Form  von 
Diskriminierung.62  Sie 
liegt  vor,  wenn  ein  Arbeitgeber,  Bildungsträger  oder 
Gewerbetreibender es unterlässt, Hilfsmaßnahmen oder Vorkehrungen zu treffen, die für 
eine Person mit Behinderung eine Situation schaffen, die mit der Situation von Personen 
ohne 
dem 
Arbeitgeber/Bildungsträger/Gewerbetreibenden vernünftigerweise verlangt werden kann, 
solche  Maßnahmen  und  Vorkehrungen  zu  treffen.  Die  wichtigste  rechtliche  Änderung 
bestand  in  der  Ausweitung  der  Möglichkeit,  in  Bereichen  außerhalb  von  Bildung  und 
Beschäftigung –  etwa  bei  der  Bereitstellung  von  Gütern  und  Dienstleistungen –  eine 
Entschädigung  wegen  Diskriminierung 
angemessener 
Vorkehrungen zu erhalten. 

aufgrund  mangelnder 

vergleichbar 

wenn 

und 

von 

ist, 

waren  mehrere 

Diskriminierungsgründe 

Das  schwedische  Recht  enthält  kein  spezifisches  Verbot  von  Mehrfachdiskriminierung. 
Trotzdem  kann  in  vielen  Fälle  davon  ausgegangen  werden,  dass  es  sich  um 
in  der 
Mehrfachdiskriminierung  handelt.  Bis  zu  einem  gewissen  Grad  wurde 
Arbeitsgerichtssache 2010 Nr. 91 auf das Thema Mehrfachdiskriminierung eingegangen.63 
Es 
lag 
Mehrfachdiskriminierung  vor.  Das  Gericht  kam  zu  dem  Ergebnis,  dass,  wenn  ein  und 
dieselbe  Handlung  in  Bezug  auf  mehrere  Gründe  als  diskriminierend  angesehen  werden 
kann,  sie  dennoch  als  ein  einziger  Fall  von  Diskriminierung  gilt  und  die  Höhe  der 
Entschädigung  von  der  Anzahl  der  involvierten  Diskriminierungsgründe  nicht  beeinflusst 
wird. Nach Meinung des Verfassers deuten die Schlussfolgerungen gleichwohl darauf hin, 
dass in gewisser Weise auf Mehrfachdiskriminierung bzw. Intersektionalität hin analysiert 
wurde, und auch wenn das Gericht dies nicht erwähnte. Dieser und andere Fälle haben in 
Schweden  diverse  Diskussionen  über  die  Rolle  von 
Intersektionalität  und 
Mehrfachdiskriminierung ausgelöst.64 

involviert 

somit 

und 

62   Gesetz Nr. 2014:958 zur Änderung des Antidiskriminierungsgesetzes Nr. 2008:567. 
63   Arbeitsgericht, Urteil Nr. 91 vom 15.12.2010, Die Ombudsperson für Diskriminierungsfragen / Statens 

arbetsgivarverk. 

64   Siehe z.B. Schömer, E. (2012) Multiple discrimination: A smokescreen over differences, RETFÆRD ARGANG 

35 2012 Nr. 3/138, abrufbar unter: http://retfaerd.org/wp-
content/uploads/2014/08/Retfaerd_3_2012_3.pdf.  

29 

 
 
 
 
 
 
                                                 
4. Sachlicher Geltungsbereich 

sachliche  Geltungsbereich 

Der 
die 
Mindeststandards  des  Unionsrechts  und  geht  in  mancherlei  Hinsicht  über  den  vom 
Unionsrecht verlangten sachlichen Geltungsbereich hinaus.65  

des  Antidiskriminierungsgesetzes 

erfüllt 

Das  Antidiskriminierungsgesetz  definiert  den  sachlichen  Geltungsbereich  durch 
Aufzählung 
folgender  Rubriken:  Berufsleben  und  Bildung;  arbeitsmarktpolitische 
Aktivitäten  und  Arbeitsvermittlungsdienste,  die  nicht  im  Rahmen  eines  öffentlichen 
Vertrags  geleistet  werden;  Gründung  oder  Führung  eines  Unternehmens  und  berufliche 
Anerkennung;  Mitgliedschaft  in  bestimmten  Organisationen;  Güter,  Dienstleistungen, 
Wohnraumversorgung  usw.;  gesundheitliche  und  medizinische  Versorgung,  soziale 
Dienste usw.; Sozialversicherungssystem, Arbeitslosenversicherung und Studienbeihilfen; 
Wehr- und Zivildienst; öffentlicher Dienst. 

Das  Antidiskriminierungsgesetz  gilt  für  alle  Aspekte  des  Arbeitgeber-Arbeitnehmer-
Verhältnisses,  sowohl  im  öffentlichen  als  auch  im  privaten  Sektor.  Selbständig 
Erwerbstätige fallen jedoch nicht unter das Verbot der Diskriminierung im Erwerbsleben, 
was  bedeuten  kann,  dass  ein  Problem  mit  dem  Geltungsbereich  des  Gesetzes  besteht. 
Selbständig  Erwerbstätige  können  jedoch  als  natürliche  Personen  Schutz  genießen, 
beispielsweise  bei  der  Gründung  oder  Führung  eines  Unternehmens  oder  bezüglich  der 
beruflichen  Anerkennung  (Kap. 2  Art. 10).  Berufsverbände  dürfen  weder  selbständig 
Erwerbstätige  noch  abhängig  Beschäftigte  diskriminieren  (Kap. 2  Art. 11).  Ein  weiterer, 
potenziell  wichtiger  Punkt  ist,  dass  das  Antidiskriminierungsgesetz  juristische  Personen 
grundsätzlich nicht schützt. 

5. Rechtsdurchsetzung 

Zivilverfahren  in  Beschäftigungsfragen  nach  dem  Antidiskriminierungsgesetz  sind  im 
Einklang  mit  dem  Gesetz  über  Arbeitsstreitigkeiten  zu  behandeln,  sofern  die 
beschwerdeführende  Person  durch  eine  Gewerkschaft  oder  durch  die  Ombudsperson  für 
Diskriminierungsfragen  (die  DO,  die  schwedische  Gleichbehandlungsstelle)  vertreten 
wird.66 Ist die betroffene Person Mitglied in einer Gewerkschaft, so ist das Recht der DO, 
die  Person  zu  vertreten  (siehe  auch  Abschnitt  6  weiter  unten),  subsidiär  zu  dem  Recht 
der  Gewerkschaft,  ihr  Mitglied  zu  vertreten.  Die  Verfahren  sind  dieselben,  unabhängig 
davon,  ob  die  betroffene  Person  im  privaten  oder  im  öffentlichen  Sektor  beschäftigt ist. 
Für Staatsbedienstete kann es, aufgrund der verfassungsrechtlichen Bestimmungen über 
objektive  Einstellungsgründe,  manchmal  jedoch  auch  den  zusätzlichen  Weg  geben, 
Entscheidungen  im  Zuge  von  Verwaltungsverfahren  anzufechten.  Klagt  eine  Person  in 
einer  Sache,  die  Beschäftigung  betrifft,  ohne  Unterstützung  der  DO  oder  einer 
Gewerkschaft,  so  wird  die  Klage  zuerst  bei  einem  Amtsgericht  eingereicht  und 
verhandelt;  das  Arbeitsgericht  fungiert  als  Berufungsinstanz.  Das  Arbeitsgericht  ist  ein 
Sondergericht und seine Entscheidungen sind endgültig. 

Fälle außerhalb des Erwerbslebens werden vor den ordentlichen Gerichten verhandelt. In 
ist  das  Amtsgericht  zuständig,  Berufungen  gehen  danach  zum 
erster  Instanz 
Berufungsgericht  und  zum  Obersten  Gerichtshof.  Diskriminierung  beispielsweise  im 
Bereich  der  sozialen  Sicherheit 
(ein  Bereich,  der  normalerweise  unter  das 
Verwaltungsrecht fällt) wird entsprechend vor den ordentlichen Zivilgerichten verhandelt, 
und es kommen die normalen Vorschriften des Zivilprozessrechts zur Anwendung.67  

65   Beispielsweise erfüllt das Antidiskriminierungsgesetz im Wesentlichen bereits den Mindeststandard, der 

gelten würde, falls der Vorschlag (KOM(2008) 426 endg.) für eine Richtlinie des Rates zur Anwendung des 
Grundsatzes der Gleichbehandlung ungeachtet der Religion oder der Weltanschauung, einer Behinderung, 
des Alters oder der sexuellen Orientierung angenommen wird. 

66   Gesetz Nr. 1974:371 über Gerichtsverfahren in Arbeitsstreitigkeiten. 
67   Bestimmte Fälle, die sich auf Hochschulbildung beziehen, können auch vor die Beschwerdekammer für 

Hochschulbildung gebracht werden. 

30 

 
 
 
 
 
 
 
                                                 
räumt  das 
Abgesehen  vom  Klagerecht  der  DO  und  der  Gewerkschaften 
Antidiskriminierungsgesetz  auch  gemeinnützigen  Organisationen,  die  aufgrund  ihrer 
Satzung  zur  Wahrnehmung  der  Interessen  ihrer  Mitglieder  verpflichtet  sind,  das  Recht 
ein,  im  eigenen  Namen  als  Prozesspartei  zu  klagen.  Für  die  meisten  NROs,  die 
diskriminierte Gruppen vertreten, gehört es jedoch nicht zu ihrer Lobbykultur, rechtliche 
Schritte  zu  unternehmen,  etwa  vor  Gericht  zu  ziehen –  es  gibt  jedoch  Anzeichen  dafür, 
dass sich dies ändert.  

NROs  scheinen  sich  zunehmend  für  die  Möglichkeit  zu  interessieren,  im  Namen  ihrer 
Mitglieder  zu  klagen.  Die  Projekte  „Das  Recht  als  Instrument  für  sozialen  Wandel“  und 
„Vom  Reden  zum  Handeln“  stehen  beispielhaft  für  diese  Entwicklung,  zumindest  im 
Bereich  der  Diskriminierung  aufgrund  von  Behinderung.68  Nachdem  sie  zu  dem  Schluss 
gekommen  waren,  dass  das  derzeitige  Durchsetzungssystem  unbefriedigend  ist, 
beschlossen die projekttragenden NROs, dass diskriminierte Gruppen sich selbst um eine 
wirksamere  Durchsetzung  kümmern  mussten.  Sie  wurden  sich  auch  bewusst,  dass  dies 
eine  wichtige  Form  der  Interessenvertretung  ist.69  Ihr  Ziel  ist  es  nicht,  die  lokalen 
Antidiskriminierungsbüros  zu  ersetzen,  auf  die  weiter  unten  eingegangen  wird;  es  geht 
ihnen darum sicherzustellen, dass sich ihre jeweilige Arbeit ergänzt. 

In  Schweden  gilt  allgemein,  dass  die  unterlegene  Partei  die  Prozesskosten  der 
obsiegenden Partei trägt. Ein Vorteil der Vertretung durch die DO oder eine Gewerkschaft 
besteht  darin,  dass  diese  das  finanzielle  Risiko  übernehmen,  falls  der  Prozess  verloren 
wird.  Betroffene  können  einen  eigenen  Anwalt  beauftragen,  laufen  dann  aber  Gefahr, 
nicht  nur  die  eigenen  Anwaltskosten,  sondern  auch  die  Prozesskosten  der  obsiegenden 
Partei 
für  die  meisten 
Diskriminierungsopfer oft nicht tragbar. 

zu  müssen.  Dieses 

finanzielle  Risiko 

tragen 

ist 

Strafverfahren  können  von  der  Staatsanwaltschaft  (in  seltenen  Fällen  auch  von  der 
privaten  Partei  selbst)  angestrengt  werden.  Weder  die  DO  noch  gemeinnützige 
Organisationen sind in Strafverfahren vor Gerichten nicht klagebefugt. 

Eine  verlagerte  Beweislast  in  Diskriminierungsfällen  existierte  bereits  nach  den  alten 
Gesetzen und ist im Gesetz von 2009 festgeschrieben. Trotzdem wurden bisher nur sehr 
wenige  Diskriminierungsverfahren  gewonnen.  Ein  Hauptproblem  scheint  darin  zu  liegen, 
wie  das  Arbeitsgericht  die  Beweislast  anwendet.70  Aus  Statistiken  der  DO  geht 
andererseits hervor, dass einige Fälle außergerichtlich beigelegt werden. Das Gleiche gilt 
wahrscheinlich auch für die Gewerkschaften. 

Erwähnenswert  ist  auch,  dass  es  einfacher  zu  sein  scheint,  vor  den  ordentlichen 
Gerichten  eine  Diskriminierung  glaubhaft  zu  machen  und  Diskriminierungsverfahren  zu 
gewinnen als vor dem  Arbeitsgericht. Besonders  schwierig scheint es  zu sein, Verfahren 
vor dem Arbeitsgericht zu gewinnen, in denen es um ethnische Diskriminierung geht. Ein 
möglicher 
schwedischen 
Antidiskriminierungsgesetz  und  im  Unionsrecht  vorgegebenen  Regeln  zur  Verlagerung 
der  Beweislast  restriktiver  anwendet  als  die  ordentlichen  Gerichte.  Zwei  Fälle,  in  denen 
es um Religion und Diskriminierung ging – einer aus dem Jahr 2016 vor dem Amtsgericht 
Stockholm71  und  ein  zweiter,  sehr  ähnlicher,  aus  dem  Jahr  2017  vor  dem 

Arbeitsgericht 

Grund 

dass 

das 

ist, 

die 

im 

68   Lagen som verktyg (Das Recht als Instrument für sozialen Wandel), abrufbar unter: 

https://lagensomverktyg.se, und Från snack till verkstad (Vom Reden zum Handeln), abrufbar unter: 
https://funktionsrattskonventionen.se/om-projektet/. 

69   Ein inspirierendes Beispiel ist das der Disability Rights Advocates (Verteidiger der Rechte von Menschen mit 

Behinderungen), deren Büros sich in New York und Kalifornien befinden. Siehe die Webseite der 
Organisation unter: https://dralegal.org.  

70   Farkas, L. und O’Farrell, O. (2014), Reversing the burden of proof: Practical dilemmas at the European and 

national level, S. 76. 

71   Amtsgericht Stockholm, Urteil vom 16.11.2016 in der Rechtssache T 3905-15, Ombudsperson für 

Diskriminierungsfragen gg. den schwedischen Staat, vertreten durch Karolinska institutet. 

31 

 
 
 
 
 
 
                                                 
Arbeitsgericht72 –  veranschaulichen  dies.  In  beiden  Fällen  waren  die  Umstände  im 
Wesentlichen  identisch,  ebenso  die  Bewertung  der  Beweise.  Beide  Gerichte  waren  sich 
hinsichtlich  der  noch  zweifelhaften  Sachverhalte  einig,  unterschieden  sich  jedoch  in  der 
Frage,  wer  die  Beweislast  für  die  Beseitigung  dieser  Zweifel  tragen  sollte.  Die 
diskriminierte  Partei  gewann  vor  dem  Amtsgericht,  da  die  mutmaßlich  diskriminierende 
Partei  der  ihr  obliegenden  Beweispflicht  nicht  nachkam.  Das  Arbeitsgericht  hingegen 
befand,  dass  die  diskriminierte  Partei  der 
ihr  obliegenden  Beweispflicht  nicht 
nachgekommen war. 

Ein  Vertrag  (ob  kollektiv  oder  individuell)  ist  ungültig,  wenn  er  Diskriminierung 
vorschreibt  oder  zulässt;  eine  diskriminierende  Bestimmung  oder  ein  diskriminierender 
Rechtsakt kann auf Antrag für ungültig erklärt werden.  

Es  gibt  auch  ein  Recht  auf  Wiedergutmachung  für  diskriminierende  Verstöße  und –  in 
Beschäftigungssachen,  die  nichts  mit  Einstellung  oder  Beförderung  zu  tun  haben –  für 
den erlittenen Vermögensschaden. Entschädigungen fallen in Schweden bekanntermaßen 
gering  aus.  Mit  dem  Antidiskriminierungsgesetz  von  2009  wurde  eine  neue  Form  der 
zivilrechtlichen  Entschädigung  eingeführt:  die  Diskriminierungsentschädigung.  Über  ihre 
Pflicht,  dem  Opfer  eine  Wiedergutmachung  zu  verschaffen,  hinaus  sind  die  Gerichte 
seitdem  gesetzlich  angehalten,  dem  Ziel  der  Abschreckung  von  Verstößen  besondere 
Aufmerksamkeit zu widmen. Es war daher zu erwarten, dass die zugesprochenen Beträge 
im  Vergleich  zu  dem,  was  vor  2009  als  Entschädigung  gewährt  wurde,  künftig  höher 
ausfallen würden.  

Generell sollen die Sanktionen verhältnismäßig, wirksam und abschreckend sein. 

Die  vorhandene,  beschränkte  Rechtsprechung  deutet  jedoch  darauf  hin,  dass  der 
Unterschied  zwischen  den  zugesprochenen  Diskriminierungsentschädigungen  und  den 
Entschädigungen, die nach den alten Gesetzen von den ordentlichen Gerichten bzw. vom 
Arbeitsgericht  gewährt  wurden,  gering  ist.  Es  besteht  die  Hoffnung,  dass  sich  dies, 
zumindest  bei  den  ordentlichen  Gerichten,  ändern  könnte,  nachdem  der  Oberste 
Gerichtshof  in  zwei  Entscheidungen  vom  Juni  2014  seine  Erwägungen  betreffend 
Diskriminierungsentschädigungen im  Bereich  Güter  und  Dienstleistungen  darlegte.73  Der 
Fokus lag dabei auf dem doppelten Zweck der Entschädigung als Wiedergutmachung für 
das  Opfer  einerseits  und  als  wirksame  Prävention  andererseits.  Der  Gerichtshof  scheint 
zu  dem  Schluss  gekommen  zu  sein,  dass,  in  einem  relativ  normal  gelagerten  Fall,  eine 
Grundentschädigung  von  15 000 SEK  angemessen  ist.  Er  stellte  des  Weiteren  fest,  dass 
der  Betrag,  der  präventiv  zugesprochen  wird,  im  Einzelfall  auf  eine  Höhe  festgesetzt 
werden  könnte,  die  dem  Betrag  der  Grundentschädigung  entspricht –  was  bedeutet: 
zusätzliche  15 000 SEK,  insgesamt  also  30 000 SEK  (3300  Euro).  In  erster  Linie  scheint 
sich  dies  auf  Fälle  zu  beziehen,  in  denen  der  Dienstleistende  nie  eine  Diskriminierung 
beabsichtigt  hat,  umsichtig  handelt,  den  verantwortlichen  Mitarbeiter  abmahnt  und  sich 
bei  den  Opfern  entschuldigt.  Nach  Ansicht  des  Verfassers  definieren  diese  Fälle  im 
Grunde  gewisse  Leitlinien  für  Entschädigungen.  Das  ist  positiv;  die  Begründung  der 
Entscheidung  legt  den  Schwerpunkt  jedoch  immer  noch  mehr  auf  Entschädigung  (im 
Sinne  von  Wiedergutmachung)  als  auf  Prävention  (im  Sinne  von  Abschreckung).  Das 
Potenzial  solcher  Fälle,  den  präventiven  Aspekt  der  Diskriminierungsentschädigung 
stärker  zu  betonen,  scheint  größer  zu  sein,  wenn  die  diskriminierende  Handlung  einen 
vorsätzlicheren Charakter hat. Angesichts der geringen Zahl und der Verschiedenheit der 
Fälle,  die  von  ordentlichen  Gerichten  entschieden  werden,  ist  es  jedoch  schwierig,  eine 
bestimmte Tendenz zu benennen.  

72   Arbeitsgericht, Urteil Nr. 65 vom 20.12.2017, Ombudsperson für Diskriminierungsfragen gg. staatliche 

Zahnärzte der Provinz Stockholm. 

73   Oberster Gerichtshof, Urteil vom 26.06.2014 in der Rechtssache T 3592-13, Ombudsperson für 

Diskriminierungsfragen gg. Veolia; Oberster Gerichtshof, Urteil vom 26.06.2014 in der Rechtssache 
T 5507-12, Ombudsperson für Diskriminierungsfragen gg. Provinz Stockholm, NJA 2014, S. 499. 

32 

 
 
 
 
 
 
                                                 
Eine  aktuelle  Studie  hat  die  vom  Arbeitsgericht  gewährten  Entschädigungen  über  einen 
langen  Zeitraum  hinweg  untersucht.  Aus  der  von  Laura  Carlson  durchgeführten  Analyse 
geht  hervor,  dass  die  in  Diskriminierungsfällen  zugesprochenen  Beträge  heute – 
inflationsbereinigt –  etwa  4,5 %  höher  sind  als  1980.  Nach  Meinung  der 
Wissenschaftlerin  wird  die  Schwelle  der  erweiterten  Entschädigung,  wie  sie  mit  der  im 
Zuge  des  Antidiskriminierungsgesetzes  von  2009  geänderten  Terminologie  angestrebt 
wurde,  damit  nicht  erreicht.  Der  moderate  Zuwachs  bei  den  Entschädigungen  müsse 
außerdem  mit  dem  Anstieg  der  Gerichtskosten  und  -gebühren  um  170 %  seit  den  80er 
Jahren  ins  Verhältnis  gesetzt  werden.  Die  Wissenschaftlerin  kommt  zu  dem  Ergebnis, 
dass  die  Entwicklung  der  zugesprochenen  Entschädigungen  und  der  Anstieg  der 
Anwaltskosten und Gebühren,  kombiniert mit niedrigen Erfolgsraten,  auf Betroffene, die 
wegen  Diskriminierung  vor  Gericht  ziehen  wollen,  eine  sehr  abschreckende  Wirkung 
hat.74  Sie  zieht  daraus  die  Schlussfolgerung,  dass  es  einer  wirksameren  Durchsetzung 
und wirkungsvollerer Sanktionen bedarf. 

Das  Arbeitsgericht  scheint  dem  Thema  Prävention  viel  weniger  Beachtung  zu  schenken 
als  die  ordentlichen  Gerichte.  Dies  könnte  in  der  Zukunft  zu  einer  gewissen  Verwirrung 
führen,  da  manche  Verfahren  wegen  Diskriminierung  am  Arbeitsplatz  vor  den 
Amtsgerichten  beginnen  und  dann  beim  Arbeitsgericht  gegebenenfalls 
in  die 
Berufungsinstanz gehen. 

Schweden  verfügt  über  ein  weiteres  Instrument,  das  potenziell  in  der  Lage  ist,  die  mit 
Diskriminierung  verbundenen  Kostenrisiken  für  diejenigen,  die  die  Macht  haben  zu 
diskriminieren,  zu  erhöhen,  was  wiederum  zu  einer  wirksameren  Umsetzung  des 
Antidiskriminierungsgesetzes führen würde: Es ist in der Verordnung Nr. 2006:260 über 
Antidiskriminierungsbedingungen  in  Verträgen  zu  finden,75  die  von  den  28  wichtigsten 
schwedischen Regierungsbehörden verlangt, eine Nichtdiskriminierungsbedingung in ihre 
großen  öffentlichen  Bau-  und  Dienstleistungsaufträge  aufzunehmen.  In  einem  normalen 
Diskriminierungsfall – selbst wenn die diskriminierte Partei alle Hindernisse, ihren Fall vor 
Gericht  zu  bringen,  überwindet  und  tatsächlich  gewinnt –  besteht  das  Risiko  für  die 
diskriminierende  Partei  darin,  eine  Entschädigung  von  wahrscheinlich  höchstens 
14 000 Euro (150 000 SEK) zu bezahlen. Wenn die fragliche Bedingung richtig formuliert 
ist  und  eine  vernünftige  Möglichkeit  des  Follow-ups  besteht –  indem  sich  die  Behörde 
das 
beispielsweise 
Antidiskriminierungsgesetz  den  gesamten  Vertrag  zu  kündigen –  kann  nach  Ansicht  des 
Verfassers  vernünftigerweise  davon  ausgegangen  werden,  dass  Unternehmen,  die  einen 
solchen  Vertrag  abschließen,  der  Einhaltung  des  Antidiskriminierungsgesetzes  größere 
Aufmerksamkeit  schenken  werden,  sowohl  präventiv  durch  aktive  Maßnahmen  als  auch 
dann,  wenn  sie  der  Diskriminierung  beschuldigt  werden.  Das  finanzielle  Risiko,  ein 
Verfahren im Wert von 14 000 Euro zu verlieren, ist eine Sache, das Risiko, einen Auftrag 
im  Wert  von  140 000  Euro  oder  sogar  1 400 000  Euro  zu  verlieren,  eine  ganz  andere. 
Verstöße dieser Art könnten auch zu Problemen hinsichtlich der Berechtigung führen, sich 
künftig  um  öffentliche  Aufträge  zu  bewerben.76  Der  Gesamtwert  aller  öffentlichen 
Aufträge,  die 
in  Schweden  vergeben  werden,  beläuft  sich  auf  über 
56 Milliarden Euro (600 Mrd. SEK).77 

vorbehält, 

Verstoß 

jährlich 

gegen 

einem 

Recht 

das 

bei 

74   Carlson, L. (2017), Comparative Discrimination Law: Historical and Theoretical Frameworks, Brill, S. 79-80. 
75   Verordnung Nr. 2006:260 über Antidiskriminierungsbedingungen in Verträgen (Förordning (2006:260) om 

antidiskrimineringsvillkor i upphandlingskontrakt), abrufbar unter: 
http://rkrattsbaser.gov.se/sfst?bet=2006:260.  

76   Der ursprüngliche – inzwischen allerdings stark abgeänderte – Vorschlag für eine Verordnung als 

ergänzendes Instrument zu den Antidiskriminierungsgesetzen und ihre möglichen Auswirkungen ist im 
Weißbuch 2005:56 der Regierung The Blue and Yellow Glass House: Structural Discrimination in Sweden, 
S. 579-584, zu finden. 

77   Schwedische Regierung (2016), Varför behövs en nationell upphandlingsstrategi? (Warum braucht es eine 

nationale Vergabestrategie für öffentliche Aufträge?), S. 4.  

33 

 
 
 
 
                                                 
6. Gleichbehandlungsstellen 

Die  Ombudsperson  für  Diskriminierungsfragen  (DO)  ist  die  wichtigste  staatliche 
Institution  zur  Bekämpfung  von  Diskriminierung  und  Förderung  von  Gleichberechtigung. 
Sie  ist  befugt,  Beschwerden  über  Diskriminierung  im  Zusammenhang  mit  allen 
Merkmalen  zu  untersuchen.  Sie  ist  auch  befugt,  im  Namen  von  Betroffenen  vor  Gericht 
zu ziehen.  

Darüber hinaus kann die DO generell Personen und Institutionen unabhängig beraten und 
unterstützen,  sie  kann  Bildungs-,  Aufklärungs-  und  Meinungsbildungsarbeit  zur 
Bekämpfung  von  Diskriminierung  leisten,  sie  kann  der  Regierung  rechtliche  und  andere 
Maßnahmen  vorschlagen,  die  bei  der  Bekämpfung  von  Diskriminierung  von  Nutzen  sein 
können,  sie  kann  internationale  Entwicklungen  kontrollierend  begleiten  und  sie  kann 
andere  geeignete  Maßnahmen  zur  Förderung  von  Gleichstellung  und  Bekämpfung  von 
Diskriminierung  ergreifen.  Unabhängige  Umfragen  und  Berichte  sind  wichtige 
Bestandteile  dieser  Arbeit.  Die  DO  wird,  wie  die  Spitzen  anderer  Regierungsbehörden 
auch, von der Regierung ernannt. Ebenfalls wie andere Regierungsbehörden auch hat die 
DO  in  Fragen,  die  Einzelfälle  betreffen,  einen  unabhängigen  Status.  Die  DO  wird  vom 
Staat  finanziert,  wobei  die  Finanzierungsentscheidungen  jährlich  vom  schwedischen 
Parlament aufgrund von Empfehlungen der Regierung getroffen werden. Die Finanzierung 
der DO erfolgt aus dem allgemeinen Staatshaushalt. 

Wie bereits erwähnt, spielen NROs, anders als Gewerkschaften und Arbeitgeberverbände, 
in  Schweden  eine  ziemlich  untergeordnete  Rolle.  Soweit  NROs  existieren,  führt  die  DO 
einen  kontinuierlichen  Dialog  mit  ihnen.  Besonders  hervorzuheben  sind  in  diesem 
Zusammenhang  die  lokalen  NROs,  die  als  Antidiskriminierungsbüros  bekannt  sind  und 
begonnen  haben,  Fälle  vor  Gericht  zu  bringen.  Bislang  haben  sie  ihr  Risiko  vor  allem 
dadurch begrenzt, dass sie Bagatellsachen vor Gericht gebracht haben und so der Gefahr 
aus  dem  Weg  gegangen  sind,  im  Falle  eines  Unterliegens  die  vollen  Rechtskosten  der 
gegnerischen  Parteien  tragen  zu  müssen.  Da  die  DO  Einzelfällen  jedoch  eine  geringere 
Priorität  einräumt,  steigt  der  Druck  auf  die  Büros,  einzugreifen  und  zusätzliche 
Unterstützung zu leisten, auch durch Anrufung der Gerichte. 

7. Zentrale Punkte 

Die  Ombudsperson  für  Diskriminierungsfragen  ändert  ihre  Prioritäten.  Sie  konzentriert 
sich  weniger  darauf,  Beschwerden  zu  untersuchen,  vor  Gericht  zu  ziehen  oder 
außergerichtliche  Einigungen  auszuhandeln;  mehr  Gewicht  wird  stattdessen  darauf 
gelegt, Gutachten über Diskriminierung zu erstellen, die nicht rechtsverbindlich sind und 
nicht  angefochten  werden  können.  Einzelbeschwerden  werden  bisweilen  in  allgemeinere 
Aufsichtsuntersuchungen  oder  ein  Follow-up  aktiver  Pflichten  umgewandelt.  Nach 
Einschätzung des Verfassers liegt der Schwerpunkt somit mehr auf Information als Mittel 
zur Verbesserung von Einstellungen und – hoffentlich – künftigem Verhalten als auf einer 
wirksameren  Durchsetzung  der  Rechtsvorschriften  als  direkterem  Mittel  zur 
Beeinflussung  von  Verhaltensweisen  und  der  zugrunde  liegenden  Einstellungen.  Die  DO 
widmet  sich  auch  der  Aufgabe,  die  Pflicht  zur  Umsetzung  aktiver  Maßnahmen  zu 
überwachen,  was  die  Durchführung  von  Lohn-  und  Gehaltsumfragen  und  diversen 
unterstützenden  Aktionen  beinhaltet.  Nach  Ansicht  des  Verfassers  bergen  diese 
Aktivitäten  die  Gefahr  eines  ähnlich  wirkungslosen  Fokus,  mit  der  Vorstellung,  dass 
Informationen –  im  Gegensatz  zur  Durchsetzung  von  Rechtsvorschriften –  der  Schlüssel 
zum sozialen Wandel sind.  

Die Opfer von Diskriminierung brauchen nach Meinung des Verfassers bessere Mittel, um 
sicherzustellen, dass ihre Fälle vor Gericht kommen. Andernfalls können nur diejenigen, 
die  über  ausreichende  finanzielle  Mittel  verfügen,  um  vor  Gericht  zu  ziehen,  darauf 
hoffen,  Gerechtigkeit  zu  erlangen.  Für  eine  Person,  die  beispielsweise  Roma  oder 
Menschen  afrikanischer  Herkunft  diskriminiert,  ist  das  Risiko,  vor  Gericht  gestellt  zu 

34 

 
 
 
 
 
 
 
werden,  äußerst  gering,  vor  allem  angesichts  der  sinkenden  Zahl  der  von  der  DO 
durchgeführten  Untersuchungen  und  des  begrenzten  Mandats  der  Gewerkschaften. 
Dieses Thema war Gegenstand einer offiziellen Studie, deren Ergebnisse 2016 vorgestellt 
wurden.78  Die  einzige  relativ  konkrete  Maßnahme,  die  vorgeschlagen  wurde,  war  eine 
Aufstockung der Mittel für die von NROs geführten Antidiskriminierungsbüros. 

Angesichts  der  geringeren  Priorität,  die  dem  Zugang  zur  Justiz  eingeräumt  wird, 
verringern sich auch die Aussichten für die Entwicklung von Rechtsprechung zu dem Teil 
der Diskriminierungsentschädigung, der auf wirksame Abschreckung abzielt. 

Neben  dem  mangelnden  Zugang  zur  Justiz  ist  die  Frage  der  Beweislast  wohl  das 
wichtigste grundsätzliche Rechtsproblem. Langfristig ist ein System, in dem es einfacher 
ist,  Diskriminierung  vor  den  allgemeinen  oder  ordentlichen  Gerichten  nachzuweisen  als 
vor  dem  Arbeitsgericht,  nicht  tragfähig.  Die  oben  erwähnte  Studie  schlug  eine 
Neuformulierung  der  Beweislastregeln  vor,  stellte  bei  der  Anwendung  der  derzeitigen 
Regel seitens des Arbeitsgerichts jedoch kein Problem fest.  

Nach  Ansicht  des  Verfassers  ist  ein  leicht  veränderter  Wortlaut  vermutlich  keine 
wirksame Lösung, solange das eigentliche Problem nicht geklärt wird. Aus diesem Grund 
muss  der  Frage  des  Zugangs  zur  Justiz  mehr  Aufmerksamkeit  gewidmet  werden.  Dabei 
geht  es  nicht  einfach  darum,  mehr  Einzelfälle  zu  bearbeiten.  Dies  ist  zwar  ein  wichtiger 
ist  es,  durch  kontinuierliche  und  engagierte 
Punkt,  noch  wichtiger  aber 
Interessenvertretung Rechtsprechung zu entwickeln. So wie jene, die die Macht haben zu 
diskriminieren,  für  ihr  Handeln  zur  Rechenschaft  gezogen  werden  müssen,  so  müssen 
auch  diejenigen,  die  die  Macht  haben,  über  Diskriminierungsfälle  zu  entscheiden, 
gefordert  werden,  damit  sie  lernen  können,  Diskriminierung  zu  verstehen  und  zu 
erkennen.  

Nach  Meinung  des  Verfassers  ist  es  nicht  das  Recht  an  sich,  das  Normen  verändert, 
sondern  die  Umsetzung  des  Rechts,  auch  im  Zuge  der  Rechtsprechung.  Es  bedarf  aber 
mehr  als  nur  Rechtsprechung:  Es  bedarf  einer  kritischen  Masse  von  Fällen,  die  ein 
tieferes  Verständnis  der  in  der  Gesetzgebung  verwendeten  Worte  widerspiegeln,  was 
wiederum die Kostenrisiken von Diskriminierung erhöht und zu tatsächlichen Änderungen 
des  Verhaltens  und  der  Normen  führt,  insbesondere  bei  denen,  die  die  Macht  haben  zu 
diskriminieren. Dies würde dazu beitragen, das Hauptziel des Antidiskriminierungsrechts 
zu  erreichen,  das  nicht  darin  besteht,  Diskriminierungsopfern  irgendeine  Art  von 
Wiedergutmachung  zukommen  zu  lassen,  sondern  darin,  dass  erst  gar  niemand  Opfer 
von Diskriminierung wird. 

78   Regierungsweißbuch 2016:87. 

35 

 
 
 
 
 
 
 
                                                 
INTRODUCTION 

The national legal system 

The power to enact laws is vested in the Swedish Parliament (the Riksdag). Authorities at 
the  regional  and  local  levels  have  no  competence  to  enact  legislation  and  do  not  issue 
local ordinances with regard to the two directives. However, they can undertake actions 
that  promote  equality  and  counteract  discrimination  within  the  framework  of  their 
mandates. 

One key feature of Swedish law is that it is based to a great extent on written law, while 
case law plays a smaller, albeit important, role.  

In  practice,  the  right  to  initiate  legislation  lies  predominantly  with  the  Government.  Its 
right to make legislative proposals to Parliament is guaranteed by the Constitution.79 The 
process  starts  with  a  legal  inquiry,  and  the  results  are  sent  out  to  interested  parties 
including relevant NGOs with an invitation to comment on the proposed legislation. The 
Government gives answers to the comments regarding its bill and explains the proposed 
new  legislation,  and  the  report  from  the  Parliament’s  standing  committee  is  debated  in 
the Parliament. If there are political differences, the two sides normally suggest different 
wordings concerning the proposed legislation. Formally, there is the main proposal in the 
standing committee and a reservation or reservations by the minority in the committee. 
The various formulations are put to a vote. The majority side’s arguments in the standing 
committee and the Government bill (if the Government wins the vote) are thus regarded 
as  ‘approved’80  by  the  Parliament.  Therefore,  these  two  documents  have  considerable 
importance when interpreting the law. 

The  application  of  the  Discrimination  Act  is  divided  between  the  Labour  Court  and  the 
general  court  system  (district  courts,  courts  of  appeal  and  the  Supreme  Court).  The 
Labour Court deals with all aspects of the employer-employee relationship. It is a single-
instance  system  in  cases  where  the  worker  is  supported  by  his  or  her  trade  union  and 
the employer has a collective agreement with that union or, in certain cases, where the 
Equality Ombudsman (DO) brings the case in accordance with Chapter 6, Sections 1-2 of 
the  Discrimination  Act.  Otherwise,  it  is  a  two-instance  system,  with  the  district  courts 
constituting the first instance with a right of appeal to the Labour Court.  

Collective agreements cover 90 % of workers on the Swedish labour market and are very 
important in setting the rules.81 There is no national minimum wage. Generally, work as 
a  civil  servant  is  governed  by  contracts  and  collective  agreements  in  largely  the  same 
way  as  applies  regarding  private  employment.  Certain  special  rules  apply  to  public 
employment,  especially  in  the  state  sector.  These  mainly  concern  the  recruitment 
process, where some constitutional rules on objectivity apply. 

The general court system deals with everything that is not dealt with by a special court. 
Discrimination  in  all  areas  except  the  labour  market  is  thus  dealt  with  in  the  general 
court system. It is a three-instance system, starting with the district court. In civil cases, 
the  court  of  appeal  must  permit  the  appeal,  and  the  Supreme  Court  has  to  permit  a 
further appeal to it in both criminal and civil cases.  

79   Chapter 4, Article 4 of the Swedish Instrument of Government (Regeringsformen 1974:152), adopted 

28.02.1975. Sometimes the opposition parties agree on a piece of legislation that the Government does not 
want. 

80   Formally, it is only the report of the standing committee that is being debated but, as the Government 
almost always repeats what is said in the Government bill and most often wins, in practice it is the 
Government bill that is used as the main interpretation source, as it is much more detailed. 

81   See Eurofound, Living and working in Sweden, 18.10.2017, available at: 

https://www.eurofound.europa.eu/country/sweden#collective-bargaining. 

36 

 
 
 
 
 
 
 
 
 
                                                 
List of main legislation transposing and implementing the directives 

The main act is the 2008 Discrimination Act (2008:567). The Swedish abbreviation is DL 
–  there  is  no  common  English  abbreviation.  It  covers  seven  grounds:  sex,  ethnicity, 
religion  and  belief,  sexual  orientation,  disability,  age  and  transgender  identity  and 
expression.  The  most  recent  amendment,  enacted  on  23  November  2017,82  concerned 
some details that are not relevant to this report.  

Two other minor changes occurred in 2017. Firstly, the exemption of businesses with less 
than 10 employees from the rules on inadequate accessibility (which is linked to the duty 
of  reasonable  accommodation)  was  repealed.83  Secondly,  it  is  now  possible  to  appeal 
certain  decisions  by  a  university  to  the  Higher  Education  Appeals  Board,  based  on  an 
assertion  that  they  are  a  violation  of  the  Discrimination  Act.  The  board  can  declare  the 
university’s  decision  void,  send  it  back  and  request  a  new  decision.  However,  this  does 
not  include  any  possibility  of  getting  a  discrimination  compensation  award;  the  new 
arrangements only create the possibility of correcting a discriminatory act or omission.84 

The Discrimination Act  is comprehensive.  It covers all the grounds of  the two directives 
as  well  as  discrimination  due  to  sex  or  transgender  identity  and  expression.  The  areas 
covered by the act are: 

1.  Working life;  
2. 
3. 
4. 
5.  Membership of certain organisations;  
6. 
7. 
8. 
9. 
10.  Public employment.  

Education; 
Labour market policy activities and employment services not under public contract;  
Starting or running a business and professional recognition; 

Goods, services, housing and meetings or public events; 
Health and medical care and social services; 
The social insurance system, unemployment insurance and financial aid for studies; 
National military service and civilian service; 

The  main  idea  with  the  2009  Act  was  to  replace  the  seven  previous  acts  with  one 
comprehensive  act  regulating  all  aspects  of  discrimination  falling  under  civil  law  as  well 
as full compliance with the EU anti-discrimination directives. Much of its content is based 
on  the  seven  older  discrimination  acts,85  which  were  limited  to  certain  grounds  and 
certain  areas.  Case  law  regarding  these  previous  acts,  and  the  relevant  legislative 
materials, particularly the Government bills and the standing committee reports referring 
to these older acts, are thus still important tools for understanding the law. 

The Penal Code has two sections of relevance.86 The crime of unlawful discrimination by 
merchants  concerning  the  provision  of  goods  and  services  covers  race,  skin  colour, 

82   Act 2017:1128 Changing the Discrimination Act, adopted 23.11.2017.  
83   Act 2017:1081 Changing the Discrimination Act, adopted 16.11.2017. This act comes into effect on 

01.05.2018.  

84   Act 2017:282 Changing the Discrimination Act, adopted 13.04.2017.  
85   The Equal Opportunities Act (jämställdhetslagen 1991:433), adopted on 30.03.1991.  

The Act on Measures against Discrimination in Working Life on Grounds of Ethnicity, Religion or other Belief 
(Lag om åtgärder mot etnisk diskriminering i arbetslivet 1999:130), adopted on 11.03.1999.  
The Prohibition of Discrimination in Working Life of People with Disability Act (Lag om förbud mot 
diskriminering i arbetslivet av personer med funktionshinder 1999:132), adopted on 11.03.1999.  
The Act on a Ban against Discrimination in Working Life on Grounds of Sexual Orientation (Lag om förbud 
mot diskriminering i arbetslivet på grund av sexuell läggning 1999:133), adopted on 11.03.1999. 
The Equal Treatment of Students at Universities Act (Lag om likabehandling av studenter i högskolan 
2001:1286), adopted on 20.12.2001.  
The 2003 Prohibition of Discrimination Act (Lag om förbud mot diskriminering 2003:307), adopted on 
05.06.2003. 

86   The Penal Code (1962:700) – the Swedish abbreviation is BrB. The two relevant sections are Chapter 16 
Sections 8 (hate speech) and 9 (unlawful discrimination). The latest important change of the relevant 

37 

 
 
 
 
 
 
 
                                                 
 
national or ethnic origin, religious belief and sexual orientation. It is seldom used today. 
One reason for this is that it may be preferable, due to the burden of proof rules and the 
issue  of  discrimination  compensation,  for  victims  to  use  the  Discrimination  Act  as 
opposed  to  Penal  Code  16:9.  However,  the  crime  of  unlawful  agitation  or  hate-speech 
under  Penal  Code  16:8  (which  basically  covers  the  same  grounds)  can  still  have  an 
important function in that it covers matters that do not fall under the Discrimination Act. 

sections was adopted on 25.06.2008 and entered into force on 01.01.2008. The term ‘sexual orientation’ 
was then added to replace ‘homosexual orientation’ as a protected ground. Act (2008:569) Changing the 
Penal Code (1962:700).  

38 

 
 
                                                                                                                                                         
1 

GENERAL LEGAL FRAMEWORK  

Constitutional  provisions  on  protection  against  discrimination  and  the 
promotion of equality  

The  constitution  of  Sweden 
following  articles  dealing  with  non-
discrimination:  the  1975  Instrument  of  Government,  Chapter  1  Section  2,  Chapter  2 
Sections  12-13  and  Chapter  12  Section  5.  Chapter  2  Section  19  should  also  be 
mentioned, as it incorporates the European Convention on Human Rights (ECHR) and its 
discrimination rules. 

includes  the 

Chapter  1  Section  2  of  the  Instrument  of  Government  contains  generally  formulated 
goals  concerning  equal  opportunity  and  non-discrimination.87  All  the  grounds  of  the 
directives are  covered,  but as these are only policy goals they are not considered to be 
directly applicable in any sense. 

Instrument  of  Government  Chapter  2  Section  12  prohibits  laws  or  other  provisions  that 
entail discrimination in relation to those who belong to a minority group due to ethnicity, 
colour  or  other  similar  circumstances  or  due  to  sexual  orientation.  Section  13  prohibits 
laws  or  other  provisions  that  entail  discrimination  due  to  sex,  while  at  the  same  time 
creating  an  exception  for  positive  action  and  for  military  service.  It  is  not  possible  to 
obtain damages based on a violation of these two articles alone. Their importance lies in 
the  fact  that  any  form  of  legislation  that  is  discriminatory  could  be  set  aside  by  the 
courts. 

Chapter  12  Section  5  is  an  instruction  to  the  state  to  use  only  objective  criteria  when 
hiring employees. The same provision is set out in Section 4 of the Public Employee Act 
(1974:269).  Some  state  appointments  may  be  appealed  to  a  board,  in  which  case 
discrimination can be addressed on the basis of these two pieces of legislation. This part 
of  the  Instrument  of  Government  has  not  been  applied  without  Section  4  of  the  Public 
Employee  Act  being  applied  as  well.  This  rule  thus  effectively  covers  only  some  state 
employment relations, but it applies to all grounds in the directive. 

Questions of direct applicability are hard to answer, but if an answer must be given the 
author  would  say  that  there  is  potential  for  the  Constitution  to  be  considered  as  being 
directly applicable. The traditional answer within Swedish legal culture has been that the 
Constitution  is  unimportant  and  not  directly  applicable.  In  1974  a  new  Constitution 
replaced  the  Constitution  of  1809.  However,  judicial  review  by  the  courts  of  acts  of 
Parliament was extremely limited. Only if an act of Parliament was manifestly contrary to 
the  Constitution  could  it  be  set  aside.  Gradually,  the  Constitution  has  become  more 
important.  The  most  important  changes  are  the  rule  (created  in  1994)  in  Chapter  2 
Section 19 that courts should set aside parliamentary acts that violate the ECHR, and the 
reform  in  2010  that  abolished  the  restriction  to  set  aside  acts  of  Parliament  only  if  the 
violation  of  the  Constitution  was  manifest.  Thus  far,  it  is  hard  to  say  that  the  2010 
changes have made a major difference in how the courts apply the Constitution. 

The protection from discrimination that stems from the Instrument of Government alone 
is clearly not sufficient for fulfilling the requirements of the directives – regarding either 
the  areas  covered  or  the  grounds  protected.  In  relation  to  the  implementation  of  the 
directives, it is the Discrimination Act that is important. 

87   Paragraph 5 sentence 2 states: ‘The public institutions shall combat discrimination of persons on grounds of 

gender, colour, national or ethnic origin, linguistic or religious affiliation, functional disability, sexual 
orientation, age or other circumstance affecting the individual’. 

39 

 
 
 
 
 
 
 
 
 
 
                                                 
2 

THE DEFINITION OF DISCRIMINATION  

2.1  Grounds of unlawful discrimination explicitly covered  

The following grounds of discrimination are explicitly prohibited by national law: 

1. 
2. 
3. 
4. 
5. 
6. 
7. 

Sex; 
Transgender identity or expression; 
Ethnicity; 
Religion or other belief; 
Disability; 
Sexual orientation; 
Age. 

Within  special  labour  market  legislation  the  following  categories  of  workers  are 
protected:88 

Part-time workers; 

1. 
2.  Workers on fixed-term contracts; 
3.  Workers taking parental leave. 

The rules in the Constitution are not currently important in reaching the protection level 
required by the directives – mainly due to their limited applicability.89 

2.1.1  Definition of the grounds of unlawful discrimination within the directives 

a) 

Racial or ethnic origin 

In the 2009 Discrimination Act, the concept of  ethnicity is defined as ‘national or ethnic 
origin, skin colour or other similar circumstance’ (Chapter 1 Section 5, p. 3).  

Although,  the  word  ‘race’  was  removed  in  the  2009  Act,  the  definition  in  the  law  is 
nevertheless  supposed  to  cover  the  term  ‘race’.  Discrimination  due  to  ethnicity  and 
religion  were  considered  fairly  interchangeable  until  the  1999  Act  on  Measures  against 
Discrimination in  Working  Life  on  Grounds  of  Ethnicity,  Religion  or  other  Belief  (Lag  om 
åtgärder  mot  etnisk  diskriminering  i  arbetslivet  1999:130).  At  the  same  time,  the 
delineation  between  discriminatory  acts  related  to  ethnicity  as  opposed  to  religion  (or 
being a combination of both) is often unclear  – both for those  who discriminate and for 
those who are the victims.90  

There  is  case  law  that  provides  some  clarity  concerning  the  concepts  of  race  or  ethnic 
origin.  One  case  in  this  area  involved  a  landlord  taking  higher  rent  from  refugees.  The 
trial  court,  based  on  a  restrictive  view  of  the  term  ‘ethnic  origin’,  determined  that 
refugees  were  not  protected  by  the  prohibition  against  ethnic  discrimination  –  refugees 
were  not  an  ethnicity.  In  2010,  the  court  of  appeal  reversed  the  judgment  of  the  trial 
court.  The  court  held  that  the  term  ethnic  origin  had  to  be  interpreted  more  broadly, 
given the intent of the act. This meant that refugees fell within the protection of the law, 
which  also  meant  that  the  landlord’s  actions  violated  the  law.91  Discrimination  against 

88   The author believes that this protection is somewhat related to the directives; other protected groups exist, 

for example trade union representatives. 

89   There is a legal development towards the possibility of increased direct applicability. See Section 1 of this 

report.  

13   See: Equality Ombudsman, Chains of Events (Kedjor av Händelser) Report 2016:2. The majority of the 217 
complaints from Muslims in 2014 came from persons who could not distinguish whether the treatment was 
related to their religion or to their ethnicity, and invoked both grounds. 

91   Göta Court of Appeal, case T 1666-09, Equality Ombudsman v. Skärets fastigheter AB, (Judgment of 
25.02.2010). http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-skaret-
fastighetsbolag-omed-20068982.pdf. 

40 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
refugees,  foreigners,  immigrants  or  any  other  mixed  group  defined  as  being  ‘non-
Swedish’  in  the  eyes  of  the  discriminator  can  generally  be  regarded  as  ethnic 
discrimination.  Since  the  concept  of  discrimination  relates  to  the  ground  and  not  to  the 
person,  it  is  not  necessary  to  determine  whether  or  not  the  victim  of  discrimination 
actually belongs to a specific ethnic group.  

Sweden  has  for  a  number  of  years  been  working  towards  the  elimination  of  the  word 
‘race’  from  Swedish  law.  According  to  the  Government’s  assessment,  neither  Directive 
2000/43  nor  Directive  2000/78  requires  the  word  ‘race’  to  be  used.  Directive  2000/43 
requires  effective  protection  against  race  discrimination,  which,  according  to  the 
Government, is achieved under the Discrimination Act as currently written.92 The author 
of this report contends that this assessment is correct, in that it is likely that the Court of 
Justice of the European Union (CJEU) would come to the same conclusion. The directives 
require  the  establishment  of  certain  minimum  standards,  but  implementation  differs 
according  to  national  traditions  and  allows  for  some  flexibility.  The  directives  do  not 
necessarily  require  specific  words  to  be  used  in  achieving  those  goals.  However,  in  the 
author’s  opinion,  there  are  certain  policy  and  implementation  risks  involved,  even  if 
removing the word ‘race’ would not necessarily violate the directives. Due to a denial of 
race discrimination as a problem in Sweden, Swedish policymakers were slow in adopting 
modern  legislation  in  this  regard.  Symbolic  laws  –  at  best  –  were  adopted  to  change 
attitudes  rather  than  behaviour.  Removal  of  the  word  ‘race’  may  in  turn  feed  into  the 
more  general  denial  of  racism  as  a  Swedish  problem  and  thus  confuse  judges,  lawyers 
and  others  in  implementing  the  Discrimination  Act.  As  far  as  terminology  related  to 
discrimination  is  concerned,  policymakers  tend  to  be  sensitive  to  the  interests  of 
discriminated-against  groups.  This  relates  to  empowerment.  However,  there  seems  to 
have been little interest in the opinions of those affected by the term  ‘race’, particularly 
Swedes with an African heritage.93 Furthermore, since policymakers seem to believe that 
such changes are an important step in effective implementation of the Discrimination Act, 
this may in turn be a hindrance to the development of actual improvements in the law. 

b) 

Religion or belief 

There is no definition of religion in the Discrimination Act itself. However, the preparatory 
works regarding the  current act and the  older  acts provide some guidance. This ground 
covers  beliefs  that  emanate  from  or  are  connected  to  religious  beliefs.94  Atheism  and 
agnosticism are related to the existence or non-existence of a God and are thus counted 
as beliefs sufficiently connected to religion to be protected by the Discrimination Act.  

There is no case law where it has been necessary to define religion or belief more deeply. 
In the  case of a woman wearing a burqa or a niqab,  it is probable that  the court  would 
say  that  it  is  not  important  to  investigate  whether  this  practice  in  a  particular  case  is 
rooted  in  religion  or  ethnicity,  as  it  can  obviously  be  rooted  in  either  or  both,  and 
because both ethnic and religious discrimination are prohibited.  

There are situations where the question of definition  may be important. If the members 
of a small group such as the Jehovah’s Witnesses hold a moral conviction (for example, 
that  gambling  is  a  sin),  then  it  is  connected  to  religion,  even  if  most  Christians  believe 
otherwise.95  When  protection  for  a  practice  is  upheld  only  by  a  minority  within  a 
congregation,  the  delimitation  with  individual  philosophical  and  moral  choices  can  be 

92   Government bill 2007/08:95, pp. 118-120. 
93   See e.g. ‘Race to be scrapped from Swedish legislation’, The Local, 31.07.2014. 
94   Government bill 2002/03:65, p. 82. 
95   Stockholm District Court, case T-10264-14, Equality Ombudsman v. Swedish State through the National 
Employment Agency (judgment of 28.12.2015). Svea Court of Appeal upheld the decision of the district 
court. Svea Court of Appeal, case T 777-16, Swedish State through the National Employment Agency v. 
Equality Ombudsman (judgment of 22.03.2017) 
http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovtratt-arbetsformedlingen-anm-
2014-1037.pdf.  

41 

 
 
 
 
 
 
                                                 
problematic.  Nevertheless,  it  seems  that  courts  will  typically  accept  the  claimant’s 
statement that their religious belief is important to him or her in adopting the practice in 
question.96 

c) 

Disability 

According to Chapter 1 Section 5 point 4, disability means:  

‘Permanent97  physical,  mental  or  intellectual  limitation  of  a  person’s  functional 
capacity  that  as  a  consequence  of  an  injury  or  illness  that  existed  at  birth,  has 
arisen since then or can be expected to arise’.  

The definition is thus stated in general terms, one requirement being that the limitation is 
‘permanent’, i.e. the limitations in functional capacity must be long-lasting. For example, 
a person with a broken arm will not be covered by the law, since the disability caused is 
of a temporary nature.  There is no threshold of ‘severity’,  nor is there any  reference to 
the  ability  to  engage  in  ‘normal  life  activities’  or  ‘professional  life’,  for  that  matter.  The 
latter forms part of the assessment as regards a ‘similar situation’.98 However, until there 
is clear case law on the point, it will be difficult to define the issues more closely.  

The  law  covers  illnesses  that  can  be  expected  to  limit  functional  capacity  in  the  future. 
This includes HIV, cancer and multiple sclerosis (MS). It is notable that Swedish law does 
not require an impairment that actually hinders the participation of the person concerned 
in professional life.  In  Labour  Court case 2005  No. 32, a person diagnosed with MS but 
not  suffering  any  symptoms  was  awarded  damages  for  disability  discrimination.99  In 
Labour Court case 2003 No. 42, a person applying for a post as a systems operator at an 
oil  refinery  was  denied  employment  with  reference  to  his  diabetes.100  The  employer 
believed  him  to  be  a  security  risk.  This  was  disability  discrimination.  The  diabetes  was 
real, but the employer failed to show that it was a security risk.  

No  Swedish  claimant  has,  to  the  author’s  knowledge,  lost  a  case  because  his  or  her 
disability  issues/medical  problems  were  not  regarded  as  a  disability.  The  focus  on  the 
perception of the discriminator makes it quite immaterial whether or not the disability is 
as  severe  as  the  discriminator  believes.  In  2009,  a  mistaken  assumption  regarding 
someone’s behaviour being caused by their alcohol consumption was regarded as a valid 
defence for a restaurant that had refused entry to a person with a disability.101 The focus 
in  Sweden  is  thus  on  what  the  discriminator  knows,  believes  or  mistakenly  assumes 
about the claimant’s abilities, not the abilities themselves. An appeal court decision from 

96   See for example Appeal Court for Skåne and Blekinge (as well as the trial court decision) case T 1157-15, 

Equality Ombudsman v. Polop AB, judgment of 14.04.2016. 
http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-sjukvard-anm-20131805-
tillganglig.pdf.  

97   The Swedish term varaktig has been translated in the Government’s unofficial translation as ‘permanent’. 

The term ‘permanent’ should here be considered as meaning long-term or durable.  

98   There is no case law in Sweden where the defendant has argued that the claimant is not disabled. The legal 

question has always been whether the claimant would have been productive enough to be in a similar 
situation as a person without disability if accommodation measure X had been adopted, or how much this 
accommodation measure would have cost.  

99   Labour Court, case 2005 No. 32 Sveriges Civilingenjörsförbund and MK v. T&N Management Aktiebolag 

(judgment of 30.03.2005). See also Section 2.1.3. http://www.arbetsdomstolen.se/upload/pdf/32-05.pdf.  

100  Labour Court Case 2003 No. 47, Svenska Metallindustriarbetarförbundet v. Skandinaviska Raffinaderi 

Aktiebolag Scanraff and Kooperationens Förhandlingsorganisation (judgment of 04.06.2003). 
http://www.arbetsdomstolen.se/upload/pdf/47-03.pdf.  

101  Svea Court of Appeal, case T 7752-08, Equality Ombudsman v. Sturehof AB (judgment of 02.06.2009). The 
appeal court went as far as to state that, if it is proven that the defendant did not know about the disability, 
it does not matter if the defendant ought to have done so (obiter dicta). This case is also problematic with 
regard to the principle that discrimination may be involuntary. The appeal court points out that the material 
of the case shows that persons with this particular disability are sometimes wrongly perceived as drunk. The 
fact that the mistake is easy to make seems to rule out discrimination. 
http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-sturehof-ho-201318302.pdf. 

42 

 
 
 
 
 
 
 
 
                                                 
2014  can  be  given  as  an  additional  example.102  It  concerns  a  child  custody  case  where 
the  municipality  mistakenly  believed  that  the  two  parents  were  unable  to  take  care  of 
their child. The discrimination arose because the municipality took the child into custody 
without objective justification and for a reason connected to the alleged disability of the 
parents.  Irrespective  of  whether  the  parents  had  a  small  cognitive  disability  (as  the 
mother had) or not (as in the case of the father), both the parents and the child received 
discrimination awards of SEK 150 000 (EUR 14 000) each. Here, the key was the reliance 
on  perceived  norms  concerning  cognitive  disabilities,  instead  of  examining  the  persons 
involved as individuals.103  

The area of CJEU case law dealing with the interaction between a person’s limitation and 
barriers at the workplace is not a part of the definition above. In Sweden, barriers in the 
workplace  become  important  when  the  employee  requests  reasonable  accommodation 
measures on the part of the employer. According to the author, the threshold for proving 
a  disability  must  be  considered  slightly lower  in  Sweden  compared  with  the  case  law  of 
the  CJEU,  since  neither  a  connection  to  barriers  in  private  life  nor  one  to  barriers  in 
professional  life  needs  to  be  shown.  In  Swedish  case  law,  the  question  of  whether  the 
claimant actually has a disability is less important than the focus on the perceptions and 
actions  of  the  discriminator.  Sweden  has  moved  away  from  the  medical  model  of 
disability to a social or human rights model, where the focus is on disability being caused 
by  the  way  society  is  organised,  rather  than  by  a  person’s  impairment  or  difference. 
Thus, the focus is not on the medical condition of the claimant.104 

The Swedish definition is therefore in accordance with the decision by the CJEU in joined 
cases  Ring  and  Skouboe  Werge  (335/11  and  337/11).  The  claimant  is  normally105  not 
worse  off,  because  the  Swedish  definition  focuses  on  the  discriminator’s  perception  of 
functional limitations.106 

d) 

Age  

Under Chapter 1 Section 5 point 6 of the Discrimination Act, age is defined as ‘length of 
life to date’. This definition includes all ages and makes it clear that the young as well as 
the  old  are  protected.  There  is  no  case  law  on  the  definition  itself.  All  case  law  deals 
either  with  justifications  provided  by  the  discriminator107  or  with  whether  or  not  two 
persons are in a similar situation.108 In the author’s opinion, Sweden is slowly coming to 
grips  with  the  issue  of  age  discrimination.  This  is  a  complex  process,  since  age 
discrimination has long been such an accepted part of society in terms of laws, collective 
agreements  and  patterns  of  behaviour.  In  turn,  this  is  the  reason  for  the  broader 

102  Svea Court of Appeal case T 5095-13, Equality Ombudsman v. Sigtuna Municipality (judgment of 

11.04.2014). http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-sigtuna-
kommun-anm-2011274.pdf. 

103  The appeal court decision is very short. A comparison may be made with the extensive reasoning in Attunda 

District Court case T5508-12, Equality Ombudsman v. Sigtuna Municipality (judgment of 24.04.2013). 
http://www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingsratt-sigtuna-kommun-anm-
211274.pdf. 

104  Government bill 2007/08:95, p. 123. 
105  The Svea Court of Appeal, case T 7752-08, Equality Ombudsman v. Sturehof AB (judgment of 02.06.2009) 

leads to the following problem. The appeal court went as far as to state that, if it is proven that the 
defendant did not know about the disability, it does not matter whether the defendant should have known. 
The appeal court points out that the material of the case shows that persons with this particular disability 
are sometimes wrongly perceived as drunk. The fact that the mistake is easy to make seems to rule out 
discrimination. http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-sturehof-ho-
201318302.pdf. 

106  Furthermore, there is a long tradition of interpreting the concept of disability in an extensive way so as not 

to exclude any persons. See Fransson–Stüber (2015), Diskrimineringslagen: en kommentar (The 
Discrimination Act: A Commentary), Second edition, p. 111. 

107  See for instance Labour Court 2011 No. 37, Equality Ombudsman v. Aviation Employers (Flygarbetsgivarna) 

and Scandinavian Airlines System (judgment of 04.05.2011). 

108  See for instance Labour Court 2010 No. 91, Equality Ombudsman v. Swedish Agency for Government 
Employers (judgment of 15.12.2010). http://www.arbetsdomstolen.se/upload/pdf/2010/91-10.pdf. 

43 

 
 
 
 
 
                                                 
exceptions allowed by Swedish and EU law. However, one clear change seems to be that 
age  discrimination  is  no  longer  a  generally  accepted  defence  to  assertions  of  sex  or 
ethnic discrimination. Prior to  the adoption of  the 2009 Act, it was difficult to overcome 
an employer’s assertion that an applicant was rejected because  of their age (which was 
legal), and thus not their sex or ethnicity (which was illegal). 

e) 

Sexual orientation 

Under Chapter 1 Section 5 point 5 of the Discrimination Act, sexual orientation is defined 
as  ‘homosexual,  bisexual  or  heterosexual  orientation’.  In  the  preparatory  works,  the 
Government  indicates  that  the  intention  is  to  create  a  legal  protection  that  covers  the 
whole population, as all individuals in principle belong to one of these three categories.  

The  dividing  line  between  sexual  orientation,  which  is  protected  by  the  law,  and  sexual 
behaviour, which is not protected, is made in the preparatory works to the older act. In 
its bill to Parliament proposing the 1999 Sexual Orientation Discrimination in Working Life 
Act, the Government clarified that various types of sexual conduct can involve individuals 
regardless of whether they are homosexual, bisexual or heterosexual – and these types 
of  conduct  are  not  protected  by  the  discrimination  prohibition.109  These  earlier 
preparatory  works  are  extensively  referred  to  in  the  Government  bill  for  the  2009 
Discrimination Act.110 

In 2006 the Supreme Court111 decided a case where a lesbian woman, her girlfriend and 
some other friends from work had been asked to leave a restaurant because the lesbian 
pair  were  kissing  and  hugging  each  other.  It  was  a  ‘he-said,  she-said’  case,  with  the 
restaurant  manager  claiming  that  they  did  not  merely  kiss  and  hug  but  were  also 
involved in heavy petting (hångla). The appeal court and the Supreme Court placed the 
burden of proof upon the restaurant and they failed to prove anything more than kissing 
and hugging, which was permitted according to the restaurant. This case is considered to 
have  provided  important  rules  for  all  grounds  of  discrimination  with  regard  to  the 
distribution  of  the  burden  of  proof.  At  the  same  time,  the  concept  of  discrimination  on 
the ground of sexual orientation has not been perceived as being particularly problematic 
in Sweden.  

2.1.2  Multiple discrimination 

In Sweden, there is no specific prohibition of multiple discrimination included in the law. 

However, many cases can be said to involve multiple discrimination. There are two basic 
types  of  cases.  One  type  can  be  exemplified  by  Labour  Court  case  2010  No  91.112  The 
employer  in  this  case  was  held  to  be  liable  for  both  age  and  sex  discrimination.  The 
discrimination  was  based  on  the  failure  to  call  a  62-year-old  woman  to  a  job  interview, 
and the failure to hire her. Two younger, less qualified women were given the jobs. The 
employer claimed, among other things, that the woman was not suitable for the job, but 
failed  to  demonstrate  this  and  thus  failed  to  overcome  a  presumption  of  both  age 
discrimination and sex discrimination. The Labour Court stated that the practising of two 
types of discrimination committed by the same failure to act was not a reason to increase 
the  level  of  the  discrimination  award.  It  was  treated  as  a  single  infringement.  At  the 
same time, in the author’s opinion, it is interesting that the compensation awarded was a 
relatively  full  amount  of  compensation,  based  on  the  idea  that  the  woman  should  have 
been  given  the  job  –  although  this  is  not  so  easy  to  determine,  as  she  was  never 

109  Government bill 1997/98:180, p. 22. 
110  Government bill 2007/08:95. 
111  The Supreme Court (NJA 2006 p. 170): Ombudsman Against Discrimination due to Sexual Orientation v. 

Restaurang Fridhem Handelsbolag (judgment of 28.03.2006). 

112  Labour Court 2010 No. 91, Equality Ombudsman v. State Employment Board (Statens arbetsgivarverk) 

(judgment of 15.12.2010). http://www.arbetsdomstolen.se/upload/pdf/2010/91-10.pdf. 

44 

 
 
 
 
 
 
 
 
                                                 
interviewed for the position.  Even though the issue was not discussed by the  court, the 
final result seems to have required an intersectionality analysis. 

The  Equality  Ombudsman  receives  several  hundred  complaints  per  year  that  potentially 
cover  more  than  one  ground.113  Most  of  them  are  of  the  type  where  the  complaint 
concerning  discriminatory  treatment  is  asserted  to  involve,  or  can  be  seen  as  referring 
to, two or more grounds of discrimination.114 

The other type of multiple discrimination can be exemplified with Labour Court case 2011 
No. 13.115 The case regarded two different alleged instances of harassment, one involving 
ethnicity  and  the  other  involving  sex.  The  rules  on  the  burden  of  proof  were  applied  to 
each of these two offences separately, and the claimant won. The compensation is higher 
when  there  are  separate  offences  concerning  the  same  individual,  but  the  fact  that  one 
offence concerned ethnicity and the other concerned sex does not seem to have affected 
the  combined  level  awarded  in  Labour  Court  case  2011  No.  13.  The  claimant  would 
probably have received the same amount even if both offences had related to the same 
discrimination ground. 

There is no case where one action/omission has been held to be more severe because it 
has violated a person both as a woman and as an immigrant or any other combination of 
grounds. In that sense there is neither legislation nor case law on multiple discrimination 
in Sweden and no legislation is being planned in this regard. 

There  is  no  legislation  directly  covering  multiple  discrimination  and  there  is  no  such 
legislation  being  planned,  nor  is  there  any  case  law  where  the  issue  has  been  directly 
addressed  by  the  courts.  Nevertheless,  current  case  law  is  being  used,  by  academics 
among  others,  as  the  basis  for  analysing  the  role  of  multiple  discrimination  and 
intersectionality.116  In  the  author’s  opinion,  these  analyses  may  lead  to  improved 
arguments  in  the  courts  in  this  field,  which  in  turn  could  lead  to  pressure  to  establish 
case law or relevant legislation. This seems to have been part of the pattern developed in 
the  US  and  Canada,  where  the  issue  of  intersectionality  was  initially  brought  into  focus 
by academics and in case law.117 

113  See Equality Ombudsman, Annual Report 2012, pp. 13 and 15. The total number of grounds is 1 835 and 
the total number of cases is 1 559. The number of grounds is thus 276 more than the number of cases. 
However, there may be three grounds in some cases, and parental leave is a ground, so a case concerning 
both sex discrimination and parental leave discrimination will show up as concerning two grounds. In 2014, 
1 611 cases were considered in relation to the Discrimination Act, and 1 810 grounds were involved. 
Equality Ombudsman, Annual Report 2014, pp. 45f and 49. In 2016, the way in which the Equality 
Ombudsman handles statistics was changed so that the number of cases and the number of grounds match. 
114  Based on the author’s experience, it is not uncommon for the claimant to refer to a particular discrimination 

ground while the facts indicate that there may also be other grounds involved in the case.  

115  Labour Court 2011 No. 13. Equality Ombudsman v. Municipality of Helsingborg, (Judgment of 16.02.2011). 

http://www.arbetsdomstolen.se/upload/pdf/2011/13-11.pdf. 

116  See for example Schömer, E. (2012), ‘Multiple discrimination: A smokescreen over differences’, RETFÆRD 

ÅRGANG 35 2012 NR. 3/138, available at: http://retfaerd.org/wp-
content/uploads/2014/08/Retfaerd_3_2012_3.pdf.  

117  See for example Crenshaw, K. (1991), ‘Mapping the margins: intersectionality, identity politics, and violence 

against women of color’, Stanford Law Review 43, No. 6, pp. 1241-1299; Crenshaw, K. (1989), 
‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Theory and Antiracist Politics’, The 
University of Chicago Legal Forum, from p. 139; DeGraffenreid v GM, 558 F.2d. 480 (8th Cir. 1977); and 
Ontario Human Rights Commission (2001), An Intersectional approach to discrimination: Addressing 
multiple grounds in Human Rights Claims – Discussion Paper, available at: 
http://www.ohrc.on.ca/sites/default/files/attachments/An_intersectional_approach_to_discrimination%3A_A
ddressing_multiple_grounds_in_human_rights_claims.pdf.  

45 

 
 
 
  
 
 
 
                                                 
2.1.3  Assumed and associated discrimination 

a)  Discrimination by assumption 

In Sweden, the Discrimination Act (including case law) prohibits discrimination based on 
perception or assumption of what a person is.  

The  definition  of  (direct)  discrimination  is  related  to  the  ground  and  not  to  the  person. 
The  wording  of  the  prohibition  in  Chapter  1  Section  4  point  1  of  the  Discrimination  Act 
states  that  it  applies  ‘if  this  disadvantaging  is  associated  with  (har  samband  med)  sex, 
transgender  identity  or  expression,  ethnicity,  religion,  disability,  sexual  orientation  and 
age’.  Any  discrimination  that  relates  to  the  protected  grounds  is  prohibited.  A  mistaken 
assumption regarding a person's religion is clearly associated with the religion ground. 

The  principles  on  mistaken  assumption  can  cut  both  ways  in  Sweden.  A  mistaken 
assumption  regarding  a  behaviour  being  caused  by  alcohol  intoxication  was  a  valid 
defence for a restaurant that had rejected a person with a disability.118 The appeal court 
quoted  the  preparatory  works  on  mistaken  assumptions  and  did  its  best  to  apply  the 
same principle both ways. 

b)  Discrimination by association 

In Sweden, Discrimination Act Chapter 1 Section 4 point 1 (as well as case law) prohibits 
discrimination based on association with persons with particular characteristics.  

Since  the  definition  of  (direct)  discrimination  is  related  to  the  ground  and  not  to  the 
person, the prohibition applies. Treating an ethnic Swede unfavourably because he or she 
has a lot of Muslim friends may be associated with the ground of religion. This applies to 
disability as well. If a person is treated less favourably because he or she is the primary 
carer of a child with a disability, this treatment would be regarded as associated with the 
disability ground. Swedish law is thus in line with the reasoning established in Coleman v. 
Attridge Law and Steve Law.119 

2.2  Direct discrimination (Article 2(2)(a)) 

a) 

Prohibition and definition of direct discrimination 

In Sweden, direct discrimination is prohibited through the Discrimination Act, Chapter 1 
Section 4 point 1, which reads as follows: 

‘Direct  Discrimination:  that  someone120  is  disfavoured  by  being  treated  less  favourably 
than  someone  else  is  treated,  has  been  treated  or  would  have  been  treated  in  a 

118  Svea Court of Appeal, case T 7752-08, Equality Ombudsman v. Sturehof AB (judgment of 02.06.2009). The 
appeal court went as far as to state that, if it is proven that the defendant did not know about the disability, 
it does not matter whether the defendant ought to have known (obiter dicta). This case is also problematic 
with regard to the principle that discrimination may be involuntary. The appeal court points out that the 
material of the case shows that persons with this particular disability are sometimes wrongly perceived as 
drunk. The fact that the mistake is easy to make seems to rule out discrimination. 
http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-sturehof-ho-201318302.pdf. 
119  The Svea Court of Appeal case T 1912-13, seems to confirm this. A mother was refused child insurance for 

a child because the child’s hearing impairment was severe enough to entitle the mother to a care benefit for 
her. This was unlawful discrimination not only against the child but against the mother as well. Both 
received a discrimination compensation award. 

120  If a group has been discriminated against, each person goes to court as an individual or makes an individual 

complaint with the Equality Ombudsman. It is easy to deal with many such cases together in a single 
process if many persons have been discriminated against in the same way by the same discriminator. A 
group of persons cannot be a discriminator. It is only the person (actual or legal) who is legally responsible 
for the activity that is regarded as a discriminator.  

46 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
comparable  situation,  if  this  disadvantaging  is  associated  with  sex,  transgender  identity 
or expression, ethnicity, religion or other belief, disability, sexual orientation or age’.  

The  definition  of  discrimination  requires  that  a  person  has  been  subjected  to  less 
favourable treatment (missgynnande).  

A discriminatory job advertisement does not by itself constitute less favourable treatment 
under  the  Discrimination  Act.121  Some  experts  in  the  field  assert  that  Swedish  law  is 
potentially not in line with the decision made in the Firma Feryn case, where it was held 
that national law, against the background of the EU anti-discrimination directives, did not 
have  to  have  an  identifiable  victim  for  a  discrimination  claim  to  be  brought  against  the 
discriminator.122  Others  go  even  further,  asserting  that  Member  States  must  institute 
discrimination  laws  that  provide  sanctions  even  when  there  is  no  identifiable  victim.123 
However,  notice  needs  to  be  taken  of  the  following  from  Firma  Feryn:  ‘Consequently, 
Article 7  of  Directive 2000/43  does  not  preclude  Member  States  from  laying  down,  in 
their national legislation, the right for associations with a legitimate interest in ensuring 
compliance  with  that  directive,  or  for  the  body  or  bodies  designated  pursuant  to 
Article 13 thereof, to bring legal or administrative proceedings to enforce the obligations 
resulting  therefrom  without  acting  in  the  name  of  a  specific  complainant  or  in  the 
absence  of  an  identifiable  complainant.  It  is,  however,  solely  for  the  national  court  to 
assess whether national legislation allows such a possibility’.124 According to the author's 
interpretation of the case, the court seems to be clearly saying that such a national law 
would be in line with the EU directive, but not that the EU directive requires it. It is even 
possible that such a law is desirable, but it is not required by EU law. 

Nevertheless,  it  is  important  to  note  that  a  job  advertisement  deemed  to  be 
discriminatory because of ethnicity, for example, could in theory be dealt with under the 
rules  on  active  measures  in  the  Discrimination  Act.  Under  Chapter  3  Section  5  point  3, 
the employer shall take active measures with regard to employment and also promotion. 
If  the  employer  is  insufficiently  active  in  ensuring  that  people  have  the  opportunity  to 
apply for jobs without regard to sex, ethnicity, religion or other belief, or one of the other 
grounds, the Equality Ombudsman may, in accordance with Chapter 4 Section 5, ask the 
Board  Against  Discrimination125  to  order  the  employer  to  fulfil  his  or  her  duty  in  the 
future  subject  to  a  financial  penalty  (vite).  Central  employees’  organisations  (labour 
unions) with a collective agreement can ask for such an order if the Ombudsman declines 
to do so. The financial penalty will gain legal force only after a district court has ordered 
the  payment.  The  legality  of  the  order  itself,  as  well  as  the  reasonableness  of  the 
amount,  can  be  decided  upon  by  the  district  court.  The  individual  who  may  have 
abstained  from  seeking  a  job  cannot  initiate  such  a  proceeding  at  the  Board  Against 
Discrimination  on  her  or  his  own.  In  spite  of  its  relatively  long  history,  this  type  of 
financial penalty has never actually been imposed. 

Another  illustrative  example  where  discriminatory  actions  fall  outside  the  scope  of  the 
Discrimination  Act,  in  particular  Chapters  2  (prohibition  of  discrimination)  and  3  (active 
measures)  is  the  Bergsjön  case.  A  major  landlord  required  applicants  to  state  their 

121  This is given as an explicit example of things falling outside the prohibition of direct discrimination, 

Government bill 2007/08:95, p. 499. 

122  See Gambinius Göransson et al (2011), The Discrimination Law 2d ed. (Diskrimineringslagen 2:a upplagan), 

pp. 43-44. 

123  Fransson-Stüber (2015), The Discrimination Law, A Commentary (Diskrimineringslagen, En kommentar), 

pp. 65 and 131. 

124  European Court of Justice, case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. 

Firma Feryn NV (judgment of 10.07.2008), paragraph 27. 

125  The board is an administrative authority. It consists of a chairman and a vice-chairman, who must be 
judges. There are 11 other members. Two are appointed by the Government as neutral members. Six 
members are appointed by the Government on the suggestion of trade unions and employer organisations, 
one member is appointed by the Government as representing ethnic or religious minorities in Sweden, one 
is appointed on the suggestion of the Disabled Associations Cooperation Organisation, and one is appointed 
on the suggestion of the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights. 

47 

 
 
 
 
 
                                                 
citizenship  and  length  of  residence  in  Sweden  in  their  application  form,  and  reportedly 
used  the  information  to  avoid  renting  out  to  certain  groups.  The  Tenant  Union  reported 
the issue to the Equality Ombudsman. This led to an inquiry by the Ombudsman as to the 
landlord’s  information  requirements  and  their  purpose.  The  case  resulted  in  substantial 
media  coverage,  and  the  landlord  changed  its  practices.  The  high  visibility  of  the  case, 
together  with  the  fact  that  a  landlord  with  almost  400  apartments  needed  to  find  new 
tenants regularly, indicated that it was risky to ignore the Equality Ombudsman and the 
Tenant  Union.126  It  is  likely  that  a  prospective  tenant  would  have  eventually  filed  a 
discrimination complaint.127  

It  should  be  pointed  out  that  no  individual  victim  had  submitted  a  complaint,  which 
meant that the prohibition of discrimination in Chapter 2 did not apply. Furthermore, the 
rules  in  Chapter  3  on  the  duty  to  undertake  active  measures  to  prevent  discrimination 
apply only to employers. They were therefore not relevant in this case. Nevertheless, the 
Ombudsman  had  sufficient  powers  through  the  Equality  Ombudsman  Act  to  initiate  a 
supervisory investigation. Combined with the media attention, this was enough to lead to 
positive results. 

The results of this type of case may be given publicity, for example, through publication 
on the Equality Ombudsman’s home page under the heading ‘Supervision and decisions’ 
(Tillsyn och beslut). This is not necessarily effective on its own, however, since the page 
is  not  particularly  visible  to  potential  discriminators  or  discrimination  victims. 
Furthermore,  this  section  of  the  home  page  is  not  designed  to  name  and  shame  –  it  is 
designed to clarify legal positions taken by the Equality Ombudsman.128 

b) 

Justification of direct discrimination 

The  ban  on  direct  discrimination  is  limited  by  the  possibility  of  justification.  In  the 
Discrimination Act the justifications allowed regarding the labour market are regulated in 
Chapter 2 Section 2.  

The  main  justification  relevant  to  this  report  is  found  in  Chapter  2  Section  2  point  1.  It 
concerns differential treatment due to the nature of the work or the context in which the 
work  is  carried  out  if  the  characteristic  constitutes  a  genuine  and  determining 
occupational  requirement  that  has  a  legitimate  purpose  and  the  requirement  is 
appropriate and necessary to achieve that purpose. 

Another important justification is found in Chapter 2 Section 2 point 4, which states that 
differential  treatment  on  the  ground  of  age  is  not  prohibited  if  there  is  a  legitimate 
purpose  and  the  means  that  are  used  are  appropriate  and  necessary  to  achieve  that 
purpose.  

Strong  positive  action  for  one  group  normally  means  direct  discrimination  against 
another group. There is no general provision concerning working life (recruitment etc.) in 
the act that allows for positive action concerning grounds other than sex.  

126  See e.g. ‘Hyresvärden ändrar sig efter SVT:s granskning’ (Landlord changes practices after SVT’s reporting) 

26.04.2016, SVT. Available at: https://www.svt.se/nyheter/lokalt/vast/hyresvarden-andrar-sig-efter-svt-s-
granskning.  

127  The Swedish Tenant Union has for many years worked against discrimination in the housing market. With 

around a third of Swedish tenants as members (calculated on a household basis), it is natural that some of 
their members were discriminated against, and thus the organisation decided to take action. 

128  The decisions on this page range from Roma police registration (possible ethnic profiling, but falling outside 

the Discrimination Act) to employers possibly going too far in their positive actions concerning 
discriminated-against groups.  

48 

 
 
 
 
 
 
 
 
 
 
                                                 
2.2.1  Situation testing 

a) 

Legal framework 

In Sweden, situation testing is accepted by the courts as evidence. 

The principle of freedom of evidence  as a general rule is stated in Chapter 35 Section 1 
of the Swedish Code of Judicial Procedure (1942:740).129 Evidence  must be assessed in 
accordance with the circumstances at issue. As a general rule, evidence that is relevant 
shall be allowed. This principle applies also to illegally obtained evidence.130 The fact that 
the  law  is  silent  on  situation  testing  must,  against  this  background,  be  interpreted  as 
meaning that situation testing is clearly permitted, especially given the cases below. 

b) 

Practice 

In Sweden, situation testing is used in practice. 

The  former  DO  (the  former  Ombudsman  against  Discrimination  due  to  Ethnicity  or 
Religion)  was  involved  in  several  cases  where  situation  testing  was  used  by  potential 
victims  as  a  method  to  counteract  discrimination  and  to  contribute  to  the  evidence. 
Situation  testing  was  also  recommended  to  the  DO  and  civil  society  as  a  tool  following 
the Government inquiry into structural discrimination.131  

Situation testing has been accepted by the courts as evidence of discrimination, and the 
authorities can use public money to act as legal representatives132 of claimants relying on 
evidence  obtained  by  situation  testing  in  the  courts.133  However,  the  authorities  are 
reluctant  to  get  involved  in  carrying  out  situation  testing  themselves  as  a  means  of 
obtaining evidence in individual cases. It is not forbidden, however, and authorities have 
not  been  required  to  refrain  from  doing  this  –  at  least  thus  far  –  but  the  instance  of 
outspoken  encouragement  through  the  Government  inquiry  on  structural  discrimination 
(see above) seems to be an exception.  

Situation testing is close to the idea of crime provocation, which is generally not allowed 
in Sweden. Authorities cannot ask a citizen to commit a crime they would otherwise not 
have  committed.  In  the  discrimination  field,  however,  the  discriminator  is  asked  to  do 
something  legal  –  for  instance  allowing  a  person  to  eat  at  a  restaurant.  The 
documentation of the refusal creates evidence of discrimination. This is more in the realm 
of evidence provocation, which is accepted, although limitations may apply to authorities 
that  do  not  apply  to  private  persons.134  The  unclear  legal  situation  regarding  these 
limitations led the DO to argue that explicit permission for the DO to carry out situation 

129  The rules on evidence are also based on the ‘principle of best possible evidence’. For instance, an affidavit is 

not allowed if the person could have been heard as a witness. 

130  In other words, it is possible for a criminal to be sent to prison on the basis of that illegally obtained 
evidence, while at the same time a police officer can be convicted for collecting evidence in an illegal 
manner.  

131  Lappalainen, P., Government White Paper SOU 2005:56, Det blågula glashuset – strukturell diskriminering i 
Sverige, (The Blue and Yellow Glass House – Structural Discrimination in Sweden – English summary p. 41) 
p. 590. It should be pointed out that Paul Lappalainen is also the expert preparing the present report on 
Sweden. See Government website: https://www.regeringen.se/rattsliga-dokument/statens-offentliga-
utredningar/2005/06/sou-200556/.  

132  Swedish law allows the Equality Ombudsman (DO) to act as the formal claimant or party in civil cases. 

Among other things, this means that the DO takes on the risk of paying the winning party’s legal costs if the 
case is lost. 

133  The Ombudsman Against Ethnic Discrimination represented the four claimants in the Escape case. Malmö 

District Court, judgment 03.05.2006, case T 3562-05. The Appeal Court for Skåne and Blekinge, judgment 
of 24.04.2007, case T 1358-06. The Supreme Court, Escape Bar and Restaurant v. The Ombudsman Against 
Ethnic Discrimination (case T-2224-07 judgment of 01.10.2008).  

134  See Ombudsman Against Ethnic Discrimination Dnr 419-2005, Discrimination Tests as Evidence, p. 2.  

49 

 
 
 
 
 
 
 
 
 
                                                 
testing under the Discrimination Act is necessary if the authorities are to apply situation 
testing as a method of gathering evidence themselves.135  

There is nothing stated on situation testing in the Discrimination Act.  

It should be noted that, until 2005, when the above-mentioned inquiry was carried out, 
situation  testing  had  for  many  years  been  banned  as  a  research  method  for 
demonstrating  the  occurrence  of  discrimination  –  at  least  in  practice.136  However, 
situation testing is now accepted not just as a legal tool for proving discrimination in the 
courts  but  also  as  a  research  tool  that  clearly  demonstrates  the  occurrence  of 
discrimination.137  Situation  testing  has  been  used  in  particular  by  researchers  on  ethnic 
discrimination  in  both  the  housing  market  and  the  labour  market.  However,  it  is  not 
uncontroversial. In a survey commissioned by the Equality Ombudsman, it is stated that 
there  has  been  so  much  research  based  on  ‘applications  from  fictive  applicants’  that 
there is question of whether it is ethically acceptable to subject employers to more such 
research.  Indeed,  it  is  claimed  that  this  has  led  to  increased  difficulties  in  obtaining 
funding for such research.138  

At  the  same  time,  it  is  the  author’s  assessment  that  the  interest  of  funders  and  others 
may also reflect an interest in returning to a period when research using situation testing 
was in practice banned by the Government, or at least government funders of research. 
Situation  testing  is  effective,  yet  it  was  described  as  unethical  for  long  periods  as  a 
research  method  in  Sweden  -  at  the  same  time  that  it  was  a  tool  used  in  research  in 
much of Europe and North America, as well as by the ILO, to demonstrate the occurrence 
of  discrimination.  Other  research  methods  made  it  easier  to  deny  that  this  research 
actually showed the existence of discrimination (for example, the statistical differences in 
employment  rates  between  ‘Swedes’  and  ‘immigrants’  could  be  attributed  to  other  non-
discrimination  factors,  and  interviews  with  immigrants  concerning  their  experiences  of 
discrimination related to ‘their’ feelings, rather than actual discrimination.139  

In the 2011 report ‘Roads to Rights’ by the Equality Ombudsman, which  was directed at 
local  organisations  working  with  anti-discrimination,  the  following  is  said  under  the 
subheading of ‘Ask more persons to apply’: 

‘If  the  landlord  does  not  answer  your  questions  or  if  you  suspect  that  you  do  not 
receive  the  correct  treatment  when  seeking  a  rental  apartment  and  that  this  is 
connected to a discrimination ground, you may ask one or more of your friends to 
apply  for  the  same  apartment.  If  the  other  person  is  offered  a  contract  for  the 
apartment  and  if  you  are  in  a  similar  situation  to  that  person,  there  is  reasonable 

135  The Ombudsman Against Ethnic Discrimination, Diskrimineringstester som bevismedel (Discrimination Tests 

as Means of Evidence), Dnr. 419-2005. 

136  Lappalainen, P. SOU 2005:56, Det blågula glashuset–strukturell diskriminering i Sverige, (The Blue and 

Yellow Glass House – Structural Discrimination in Sweden), pp. 466-468. 

137  See for example Skedinger, P. and Carlsson, M. (2011), ‘Reglering eller diskriminering — vad hindrar 

etablering?’, FORES Studie 2011:4. Here it is pointed out that new research using situation testing in the 
recent past has clearly demonstrated that discrimination contributes to the employment gap between 
‘Swedes’ and ‘immigrants’: http://lnu.diva-portal.org/smash/get/diva2:801233/FULLTEXT01.pdf, accessed 
2 May 2018. 

138  See, for example, Oxford Research (2013), Forskningsöversikt om rekrytering i arbetslivet (Overview of 

Research on Recruitment in Working Life), p. 38.  

139  See e.g. Banton, M. (1997), ‘The ethics of practice-testing’, New Community 23(3): pp. 413-420, July 

1997; Knocke, W. (2000), ‘Integration or Segregation? Immigrant Populations Facing the Labour Market in 
Sweden’, Economic and Industrial Democracy, 1 August 2000, Volume 21, issue 3, pp. 361-380, 372-373; 
Rapport från Integrationsverkets workshop den 14-15 oktober 2004, Tillämpningen av Situation testing – 
metodologi i analysen av arbetsmarknadsdiskriminering, available at: 
http://integrationsrapporter.mkcentrum.se/wp-admin/wp-content/uploads/Situation-Testing.pdf; 
Lappalainen, P. Government White Paper SOU 2005:56, Det blågula glashuset: strukturell diskriminering i 
Sverige (The Blue and Yellow Glass House: Structural Discrimination in Sweden), from p. 577.  

50 

 
 
 
 
 
 
                                                 
ground to  suspect discrimination. The  Equality Ombudsman has won a case based 
on discrimination testing’.140 

In 2014 the Equality Ombudsman reached a settlement with a petrol station that refused 
to  rent  out  cars  to  three  Roma  persons.  The  state  television  company  had  set  up  the 
situation testing scenario as part of a programme on ethnic discrimination.141 

Thus, in the author’s opinion, while situation testing is controversial both as a legal tool 
for proving discrimination and as a research method, if it is carried out properly it can be 
quite effective. 

2.3  Indirect discrimination (Article 2(2)(b)) 

a) 

Prohibition and definition of indirect discrimination 

In Sweden, indirect discrimination is prohibited in national law. It is defined.  

The  definition  of  indirect  discrimination in  the  Discrimination  Act  in  Chapter  1  Section  4 
point 2 reads as follows: 

‘Indirect Discrimination: whereby someone142 is disadvantaged by the application of 
a provision, a criterion or a procedure that appears neutral but that may put people 
of a certain sex, a certain transgender identity or expression, a certain ethnicity, a 
certain religion or other belief, a certain disability, a certain sexual orientation or a 
certain age at a particular disadvantage, unless the provision, criterion or procedure 
has  a  legitimate  purpose  and  the  means  that  are  used  are  appropriate  and 
necessary to achieve that purpose’. 

b) 

Justification test for indirect discrimination 

Guidance  is  given  in  the  preparatory  works  to  both  the  Discrimination  Act  and  the 
previous  acts.  For  instance,  as  regards  the  1999  Act  Prohibiting  Discrimination  in 
Working Life due to Sexual Orientation, the example given of presumed unlawful indirect 
discrimination  is  that  of  a  childcare  centre  requiring  prospective  employees  to  have 
experience  of  raising  biological  children  of  their  own.  As  regards  disability,  according  to 
the former Disability Ombudsman, for example, requiring a driver’s licence can be a form 
of indirect discrimination. A licence is a necessary requirement for a job as a taxi driver, 
but does not have to be essential, for example, for a job as a journalist. The Government 
bill  for  the  Discrimination  Act  uses  language  skills  as  an  example  when  discussing  the 
idea of a legitimate purpose and under what circumstances a criterion can be appropriate 
and necessary in order to achieve such a purpose.143 

The  basic  principle  behind  these  examples  is  that  the  courts  can  accept  any  aim  as 
legitimate  as  long  as it  is  convinced  that it is of  genuine  importance,  and  this  comes  in 
degrees.  The  general  principle  of  equality  is  the  opposing  principle.  It  has  more  or  less 
the same weight in any case. 

In  Sweden,  much  of  the  case  law  on  the  Discrimination  Act  relates  to  direct 
discrimination.  There  are  also  a  number  of  cases  relating  to  indirect  discrimination. 

140  Equality Ombudsman (2011), Roads to Rights, p. 34. 
141  Equality Ombudsman, ANM 2013/828-30 (Statoil AB). 
142  If a group has been discriminated against, each person goes to court as an individual or makes an individual 

complaint with the Equality Ombudsman. It is easy to deal with many such cases together in a single 
process if many persons have been discriminated against in the same way by the same discriminator. A 
group of persons cannot be a discriminator. It is only the person (actual or legal) who is legally responsible 
for the activity that is regarded as a discriminator.  

143  Government bill 2007/08:95, p. 491. 

51 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Chapter 6.3 contains two examples concerning religion and the burden of proof. A further 
example illustrates the influence of relevant evidence from other countries. 

One  individual  case  showing  a  clear  influence  from  another  country  is  that  of  the 
Karolinska institutet.144 A Muslim dental student was required to work with bare forearms 
due  to  a  national  regulation  on  hygiene.  The  court  gave  equal  credibility  to  a  British 
expert’s  opinion  as  to  the  hygienic  acceptability  of  disposable  forearm  protection  in  the 
UK and the Swedish experts’ opinion as to why there was a genuine hygienic concern and 
regulation in Sweden. While the state established legitimate concerns, the state’s expert 
also  admitted  that  the  British  example  showed  that  similar  disposable  protection  had 
been  used  there,  and  no  one  had  been  able  to  show  a  relevant  statistical  increase  in 
infection risk. Thus it was determined that the education provider had not overcome the 
shifted  burden  of  proof,  leading  to  a  decision  on  indirect  discrimination.  It  may  be 
assumed that the case would have been lost without the testimony of the British expert. 

A  similar  situation  arose  a  year  later,  this  time  involving  a  Muslim  dentist.  Based  on 
essentially the same  evidence, and  with a determination of  equal credibility, the  Labour 
Court shifted the burden of proof back to the complainant as the state had a wide margin 
of  appreciation  in  such  cases,  leading  to  a  determination  that  there  was  no  indirect 
discrimination.145  

c) 

Comparison in relation to age discrimination 

The rules on the legal proceedings are the same for all grounds in the Discrimination Act. 
The justification test is also the same, with the important difference that both direct and 
indirect  age-related  differences  in  treatment  can  be  defended  through  the  use  of  a 
proportionality test. 

2.3.1  Statistical evidence 

a) 

Legal framework 

In Sweden, there are national rules permitting data collection. 

These rules are not connected to the Discrimination Act and there is no special legislation 
that is intended to provide statistical data for discrimination cases. 

Since indirect discrimination requires group impact to be compared, statistical evidence is 
of  course  permitted.  The  use  of  statistical  evidence  is  not  regulated in  any  special  way. 
As  Swedish  procedural  rules  are  based  on  the  principle  of  freedom  of  evidence,  such 
evidence  will  –  like  all  other  evidence  –  have  to  be  assessed  according  to  the 
circumstances.  

The Act on Personal Information (Personuppgiftslagen) (1998:204) contains general rules 
on  the  right  to  register  personal  information.  There  is  a  general  prohibition  against 
registering  (among  other  things)  such  ‘sensitive  personal  information’  as  ethnicity, 
religion  or  other  philosophical  conviction  and  information  concerning  health  and  sexual 
life  including  sexual  orientation  (Section 13).  However,  as  regards  employers,  it  is 
permitted to keep a record of these issues ‘only to the extent this is really necessary for 
the employer to meet the requirements of labour law’ (Section 16(a)).  

With  regard  to  health  authorities  there  is  also  a  right  to  register  such  sensitive 
information when necessary for medical reasons, in which case there is a corresponding 

144  Stockholm District Court, case T 3905-15, Equality Ombudsman v. Swedish State through Karolinska 

institutet (judgment of 16.11.2016). 

145  Labour Court 2017 case 65, Equality Ombudsman v. The People’s Dentists of Stockholm County (judgment 

20.12.2017). 

52 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
rule  on  secrecy  (Section 18).  In  Section  16  there  is  also  a  general  exception  whenever 
legal claims make it necessary to keep a record of sensitive information for an individual 
case,  and  this  is  also  the  case  when  the  person  registered  has  explicitly  agreed  to  the 
registration (Section 15).  

Damages  can  be  claimed  in  cases  of  actual  practices  not  complying  with  these  norms. 
Such claims are presented to the ordinary court system and a group claim could thus, at 
least theoretically, be made. Against this background, as a general rule information is not 
kept monitoring ethnicity or religion, sexual orientation and disability. On the other hand, 
the sex and the age of an individual are generally known.  

It  should  also  be  noted  that  the  EU’s  General  Data  Protection  Regulation,  replacing  the 
Act  on  Personal  Information  (Personuppgiftslagen),  will  have  full  effect  as  from  25  May 
2018.  

For  general  statistics  purposes  there  is  the  population  register  (folkbokföringsregistret), 
which is maintained by the tax authorities. This register contains information, inter alia, 
on  the  place  of  birth  and  nationality  of  a  person  as  well  as  the  place  of  birth  of  their 
parents and the date of their taking up residence in Sweden. Religion and belief are not 
registered as such, but church membership may be registered with the tax authorities so 
that they can provide assistance in collecting church membership fees.146  
No information on disability or sexual orientation is included in the population register. 

The general inquiry into living conditions undertaken by Sweden Statistics includes health 
information  on  impaired  vision,  hearing  or  mobility  and  severe  mental  psychical 
problems.  This  information  is  relevant  to  the  discrimination  ground  of  disability.147 
Disability  is  linked  to  a  person’s  health  and  is  therefore  considered  to  be  sensitive 
information. The views of the courts on statistics can be somewhat unclear, nevertheless 
there  seems  to  be  some  basic  expectation  concerning  the  production  of  statistics  or  at 
least some statistical analysis.148  

In  November  2012  the  Equality  Ombudsman  reported  back  its  observations  to  the 
Government.149  The  Ombudsman’s  report  contained  various  important  principles  for 
going  forward.  One  was  that  nobody  should  be  forced  to  provide  sensitive  information 

146  The Swedish State provides assistance to some churches by having the tax authorities assist them by 
collecting ‘church fees’. Today, this is not a church tax as it was prior to the separation between the 
Swedish state and the Swedish church, but an income-related membership fee. If a church wants this 
assistance, its members must be registered with the tax authority. Currently there are 18 churches that 
receive this assistance, of which the largest is the former Swedish state church. The list of other churches 
can be seen at: 
https://www.skatteverket.se/privat/skatter/arbeteochinkomst/skattetabeller/avgifttillandratrossamfund.4.1
8e1b10334ebe8bc80005629.html.  

147  Equality Ombudsman (2012), Statistikens roll i arbetet mot diskriminering – En fråga om strategi och 
trovärdighet (The role of statistics in the work against discrimination – A question of strategy and 
credibility), p. 9, available at: https://www.do.se/globalassets/publikationer/rapport-statistikens-roll-
arbetet-mot-diskriminering2.pdf.  

148  See, for example, Stockholm District Court judgment 28/01-2013, Equality Ombudsman v. If Insurances. 
The company refused to insure children if the parent received a form of child care benefit reserved for 
disabled or long-term sick children. This could not be direct discrimination, as the group of children 
consisted of sick but not necessarily disabled children. It was not indirect discrimination either, as the 
Ombudsman had not shown what proportion of children receiving the benefit were disabled; simply 
asserting that disabled children were typically disadvantaged by the rule that was applied was not enough. 
It is important to note that the appeal court held that there was direct discrimination based on the idea that 
it was enough to show that there was a direct connection (samband med) to two different groups of children 
– those with disabilities and those with illnesses. This was enough to constitute direct discrimination, since 
an individual analysis had not been made concerning access to insurance. See Svea Appeal Court 
08.10.2013 case T 1912-13, at: http://www.do.se/lag-och-ratt/diskrimineringsarenden/if-skadeforsakring-
ab/. 

149  Equality Ombudsman (2012), Statistikens roll i arbetet mot diskriminering – En fråga om strategi och 
trovärdighet (The role of statistics in the work against discrimination – A question of strategy and 
credibility). 

53 

 
 
 
 
 
 
                                                 
regarding  themselves.  Nobody  should  thus  be  forced  to  reveal  their  sexual  orientation, 
religion  etc.  If  they  do  choose  to  reveal  it,  anonymity  must  be  granted.  A  second 
important principle is that of self-categorisation. A person must be allowed to belong to 
the  ethnicity,  religion,  sexual  orientation  etc.  that  he  or  she  feels  part  of.  There  cannot 
be  a  state  classification.  A  third  principle  is  that  the  views  of  groups  who  distrust 
society150  must  be  taken  into  account  in  such  a  manner  as  to  build  up  trust  in  the 
research.  One  approach  can  be  to  make  sure  the  research  is  done  by  people  they  can 
trust. 

The  current  constraints  affect  the  potential  of  various  programmes  that  could  be 
considered positive actions. However, it should be noted that  ‘positive actions’ generally 
means  something  other  than  positive  treatment,  which  may  often  violate  the 
Discrimination  Act.  Age  and  nationality  are  two  discrimination  grounds  covered  by  this 
report  where  the  author  can  imagine  that  it  would  be  possible  to  use  statistical  data 
directly  to  help  construct  positive  measures.  Statistics  can  provide  reasons  for  adopting 
certain measures or for ceasing to apply them. 

In  Sweden,  statistical  evidence  is  permitted  by  national  law  (given  the  freedom  of 
evidence principle) and has been used in order to establish indirect sex discrimination.151 

b) 

Practice 

There  is  no  case  law  in  the  areas  of  discrimination  other  than  sex  discrimination  using 
statistics  concerning  discriminated-against  groups,  to  the  knowledge  of  the  author.  As 
regards  sex  discrimination,  statistics  have  first  and  foremost  been  used  in  cases 
concerning  equal  pay,  but  also  employment  to  some  extent.  Even  in  these  cases,  there 
was no real legal dispute regarding the use of statistics as such.  

2.4  Harassment (Article 2(3)) 

a) 

Prohibition and definition of harassment 

In Sweden, harassment is prohibited by national law. It is defined.  

In Sweden, harassment explicitly constitutes a form of discrimination.  

It is one of the six forms of discrimination enumerated in the Discrimination Act, Chapter 
1. Section 4 point 4 reads as follows: 

‘Harassment:152  conduct  that  violates  a  person’s153  dignity  and  that  is  associated 
with  one  of  the  grounds  of  discrimination,  a  certain  sex,  transgender  identity  or 
expression, a certain ethnicity, a certain religion or other belief, a certain disability, 
a certain sexual orientation or a certain age’. 

150  Representatives of some groups, including the Roma, are worried that research may be used to stigmatise 
the group further. For historical reasons, even in the recent past, these groups have been highly suspicious 
of the uses that such statistics can or will be put to. There are big differences regarding the level of trust 
between the groups and the authorities, which may be relevant. See Equality Ombudsman (2012), 
Statistikens roll i arbetet mot diskriminering, from p. 93. Trust is at the centre of the Equality Ombudsman’s 
preliminary report.  

151  For example, statistics formed an important part of the Labour Court case, Dom nr 87/05 Mål nr A 192/03. 
The court determined that a car manufacturer had violated the prohibition against indirect discrimination by 
imposing certain height requirements for the job, which meant that, statistically, a large number of women 
would be automatically ineligible for the job.  

152  Sexual harassment is an additional form of harassment. 
153  If a group has been discriminated against, each person goes to court as an individual or makes an individual 

complaint with the Equality Ombudsman. It is easy to deal with many such cases together in a single 
process if many persons have been discriminated against (harassed) in the same way by the same 
discriminator. A group of persons cannot be a discriminator. It is only the person (actual or legal) who is 
legally responsible for the activity that is regarded as a discriminator.  

54 

 
 
 
 
 
 
 
 
 
 
 
                                                 
The  material  scope  is  thus  wide.  In  general,  all  six  forms  of  discrimination  apply  in  all 
areas. There is no area where harassment is exempted, which is the case with regard to 
inadequate accessibility. 

b) 

Scope of liability for harassment 

In  Sweden,  where  harassment  is  perpetrated  by  an  employee,  the  employee  is  almost 
never154  liable  and  the  employer  is  not  always  liable.  Sometimes,  no  one  can  be  held 
responsible.  

In  working  life,  the  prohibition  applies  to  the  employer  in  the  employment  context.  The 
employer  may  be  a  natural  or  a  legal  person.  Under  Chapter  2  Section  1  of  the 
Discrimination  Act,  a  person  who  has  the  right  to  make  decisions  on  the  employer’s 
behalf  in  matters  concerning  the  employee  shall  be  equated  with  the  employer.  An 
employer can thus only be made responsible for employees who are given the authority 
to  represent  the  employer  towards  other  employees  –  i.e.  management  at  different 
levels. A fellow worker lacks such authorisation concerning their fellow workers; thus, an 
individual employee cannot sue another employee under the Discrimination Act.  

In  one  interesting  example,  the  employee  who  sent  a  discriminatory  email  to  a  job 
applicant  in  Labour  Court  case  2007  No.  45155  was  not  authorised  to  make  decisions 
regarding  the  job  application  of  the  Iranian  job  applicant  concerned.  The  employee  did 
not represent the employer on this issue, thus the email that was  sent was outside the 
scope  of  their  employment.  The  court  therefore  held  that  there  was  no  violation  of  the 
Discrimination  Act  that  the  employer  was  liable  for.  It  should  be  pointed  out  that  the 
employer never argued or demonstrated that the lack of authorisation was known about 
or  should  have  been  known  about  by  the  Iranian  applicant.  This  restriction  on  the 
vicarious  liability  of  employers  limits  the  scope  of  the  prohibition  on  discrimination  in  a 
way that could be problematic in relation to EU law. In this case, in the author’s opinion, 
there is a question of whether even Swedish law was applied properly.  

Labour  Court  case  2011  No.  19156  is  another  example  of  a  case  where  there  was  a 
question as to the extent of an employer’s liability for employees or others who are said 
to  be  acting  on  behalf  of  their  employer.  Here,  a  trainee  applicant  participated  in  an 
interview  with  S.F.,  an  independent  contractor  in  a  hair  salon.  The  issue  was  whether 
S.F.  represented  herself  or  C.N.,  the  beauty  salon  employer.  The  interview  by  S.F.  and 
C.N.’s  subsequent  refusal  to  offer  a  trainee  position  were  asserted  to  be  discriminatory 
due  to,  among  other  things,  comments  about  the  applicant’s  headscarf  during  the 
interview.  The  court  did  not  find  that  the  applicant,  acting  through  the  DO,  had  shown 
that S.F. was acting on behalf of C.N. as the potential employer of the trainee. Thus, the 
applicant  lost  the  case  based  on  legal  reasoning  regarding  which  employees  or  other 
persons an employer is responsible for.  

Concerning harassment, an employer also has an obligation to investigate and implement 
measures against harassment between employees. Harassment between employees does 
not,  according  to  Swedish  domestic  law,  amount  to  discrimination  per  se,  therefore  the 
employer cannot be held responsible as such. However, an employer who becomes aware 
that an employee considers himself or herself to have been exposed to harassment has a 
duty to investigate the circumstances surrounding the harassment and, in relevant cases, 
implement  measures  that  may  reasonably  be  required  to  prevent  continuance  of  the 

154  Harassment might under some circumstances fall under a section in Chapter 5 of the Penal Code 

(defamation etc.).  

155  Labour Court 2007 No. 45 Ombudsman Against Ethnic Discrimination v. Laika film & amp (Judgment of 

16.05.2007) http://www.arbetsdomstolen.se/upload/pdf/45-07.pdf. 

156  Labour Court 2011 No. 19, Equality Ombudsman v. C.N. and her private business (enskild firma) Bright Hair 

and Beauty Salon and Café Next Door Unlimited Partnership, (judgment of 23.03.2011) 
http://www.arbetsdomstolen.se/upload/pdf/2011/19-11.pdf. 

55 

 
 
 
 
 
 
 
                                                 
harassment. An employer will thus become liable for the damages that result due to the 
employer’s  failure  to  investigate  and  implement  reasonable  measures  to  prevent 
harassment  by  another  employee.  The  latter  indicates  that  this  law  does  not  apply  to 
harassment  by  clients.  However,  it  is  possible  that  this  situation  will  be  covered  by  the 
various  rules  related  to  an  employer’s  responsibility  for  the  work  environment,  which 
includes responsibility for the psycho-social work environment (1977  Work Environment 
Act). 

2.5  Instructions to discriminate (Article 2(4)) 

a) 

Prohibition of instructions to discriminate 

In Sweden, instructions to discriminate are prohibited in national law. The prohibition of 
instructions to discriminate is defined. 

In Sweden, instructions to discriminate constitute an explicit form of discrimination. This 
constitutes  one  of  the  six  forms  of  discrimination  enumerated  in  the Discrimination  Act, 
Chapter 1. Section 4 point 6 defines it as follows: 

‘Instructions  to  discriminate:  orders  or  instructions  to  discriminate  against 
someone157 in a manner referred to in points 1–5 that are given to someone who is 
in a subordinate or dependent position relative to the person who gives the orders 
or instructions or to someone who has  committed herself or himself to performing 
an assignment for that person’. 

The material scope is thus wide. There is no area where instructions to discriminate are 
exempted. 

b) 

Scope of liability for instructions to discriminate 

In  Sweden,  the  person  giving  the  instructions  is  liable  for  issuing  the  instruction  to 
discriminate if, in addition to there being a subordinate, a dependency or an assignment 
relationship, a disadvantageous effect has occurred in regard to one or more persons. If 
such  an  effect  does  not  occur,  then  the  instruction  does  not  violate  the  Discrimination 
Act.  Basically,  this  means  that  the  person  receiving  the  instruction  must  have  acted  in 
accordance  with  the  instruction.  There  is  one  exception  indicated  in  the  legislative 
materials.  If  the  instruction  points  out  a  specific  person  (or  several  specific  persons)  as 
the  target  of  discrimination,  that  person  has  had  his  rights  violated  (blivit  kränkt),  and 
there  is  thus  a  violation  of  the  prohibition  against  discrimination.  This  can  occur  if,  for 
example, gossip develops due to the instruction, even if the instruction was never carried 
out.158 

If an employer instructs an employment agency to discriminate, both will be liable for a 
violation  of  the  law  –  the  employer  for  the  instruction  and  the  employment  agency  for 
the discrimination. However, if the instruction is not carried out there will be no violation 
of the law.  

On  the  other  hand,  if  such  an  instruction  is  given  to  an  employee  and  the  employee 
discriminates, the employer will be responsible for both violations. First, there is liability 
for  the 
for  the  actions  of  employees 
(principalansvar). 

instruction;  secondly,  there 

liability 

is 

157  If a group has been discriminated against, each person goes to court as an individual or makes an individual 

complaint with the Equality Ombudsman. It is easy to deal with many such cases together in a single 
process if many persons have been discriminated against in the same way by the same discriminator. A 
group of persons cannot be a discriminator. It is only the person (actual or legal) who is legally responsible 
for the activity that is regarded as a discriminator.  

158  Government bill 2007/08, pp. 494-495. 

56 

 
 
 
 
 
 
 
 
 
 
 
                                                 
Regarding  health,  social  security,  goods  and  services  and  most  other  areas,  the  service 
provider is responsible for the actions that an employee takes in relation to a customer or 
a client. 

2.6  Reasonable  accommodation  duties  (Article  2(2)(b)(ii)  and  Article  5 

Directive 2000/78) 

a) 

Implementation  of  the  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities in the area of employment 

In Sweden, the duty on employers to provide reasonable accommodation for people with 
disabilities  is  included  in  the  law.  It  is  defined  as  the  concept  of  inadequate 
accessibility.159 

Inadequate  accessibility  has,  from  1  January  2015,  become  a  form  of  discrimination  in 
the  Discrimination  Act  Chapter  1  Section  4  point  3,  and  it  applies  in  most  of  the  areas 
covered by the act.160 Before 2015 – when ‘reasonable accommodation’ was the term – a 
lack  of  reasonable  accommodation  could  result  in  direct  discrimination,  because  the 
comparable  situation  should  be  assessed  as  if  the  worker  or  student  had  been 
accommodated. 

The  new  term  is  written  in  such  a  way  that  it  is  supposed  to  accommodate  every  area 
where the new broadened prohibition applies equally well. 

It is defined as follows: 

‘Inadequate accessibility:161 that a person with disability is disadvantaged through a 
failure  to  take  measures  for  accessibility  to  enable  the  person  to  come  into  a 
situation  comparable  with  that  of  persons  without  this  disability  where  such 
measures  are  reasonable  on  the  basis  of  accessibility  requirements  in  laws  and 
other statutes, and with consideration to  

- 
- 

- 

the financial and practical conditions; 
the  duration  and  nature  of  the  relationship  or  contact  between  the  operator 
and the individual; and  
other circumstances of relevance’. 

This change is of no practical importance in the field of employment as – according to the 
preparatory  works  –  the  old  legal  praxis  shall  remain  unchanged  with  regard  to 
accommodation measures in employment. The protection is, however, extended to cover 
trainees in basic and secondary education.162  

b) 

Practice 

It  is  not  really  possible  to  specify  what  accommodations  are  to  be  classified  as 
‘reasonable  support  and  accommodation  measures’  in  accordance  with  Swedish  law, 

159  ‘Inadequate accessibility’ is the term used in the unofficial translation of the Discrimination Act. See: 

http://www.government.se/information-material/2015/09/discrimination-act-2008567/, accessed 9 May 
2018.  

160  Act (2014:958) on changing the Discrimination Act (2008:567), adopted on 08.07.2014. Government bill 
2013/14:198. Even prior to 2015, a failure by an employer (and in limited cases education providers) to 
provide a reasonable accommodation could lead to a finding of discrimination. The main purpose of the 
inadequate accessibility concept was to expand the duty of reasonable accommodation to others with the 
power to prevent disability discrimination, such as providers of goods and services. 

161  The author refers to the Government’s unofficial translation of the Discrimination Act, available at: 

https://www.government.se/4a788f/contentassets/6732121a2cb54ee3b21da9c628b6bdc7/oversattning-
diskrimineringslagen_eng.pdf.  

162  Government bill 2013/14:198, pp. 74 and 115. 

57 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
since the case law is limited. Nor is it possible to specify what would be recognised as a 
disproportionate  burden  and  thus  be  seen  as  going  beyond  what  is  reasonable  with 
regard  to  support  and  adaptation  measures.163  The  following  accommodation  measures 
were  mentioned  in  the  legislative  materials  accompanying  the  Discrimination  Act  as 
examples  of  requirements  that  could  be  made  concerning  an  employer:  improvements 
related to physical accessibility, the acquisition of technical support, and changes in work 
tasks, time schedules or working methods.164 The reasonableness of requiring measures 
to be undertaken can vary depending on the employer.  

This  determination  must  be  made  from  case  to  case,  depending  on  such  factors  as  the 
company’s  ability  to  bear  the  costs,  the  ability  to  undertake  a  measure,  the  problems 
caused  for  the  employer  by  the  measure  and  the  expected  length  of  the  employment. 
According  to  the  former  Disability  Ombudsman,  the  mere  possibility  of  obtaining  a 
subsidy  will  not  be  taken  into  account  in  assessing  reasonableness.  This  can  be  taken 
into  account,  however,  if  it  becomes  apparent  during  the  recruitment  process  that  a 
subsidy will be received.165 

General  legislation  applying  outside  the  field  of  discrimination  is  important  here, 
especially  the  1977  Working  Environment  Act  and  the  employer’s  duty  of  undertaking 
‘rehabilitation  measures’166  regarding  the  already  employed,  in  combination  with  the 
1982  Employment  Protection  Act,  which  imposes  a  duty  of  fairly  far-reaching 
accommodation.167  These  duties  are  sometimes  more  far  reaching  compared  with  the 
Discrimination Act. However, these far-reaching obligations apply only if the worker has 
a good chance of returning to work for the employer in question.  

One may conclude from case 2013  No. 78 that the Labour Court is  reluctant to ask the 
employer to permanently168 change a fellow worker’s tasks in way that makes his or her 
work worse in order to  provide an accommodation for the sake of the work of a person 
with  a  disability.  The  case  concerned  a  bus  driver  who  −  due  to  a  stroke  −  could  not 
drive during peak hours, early mornings and late evenings. Allowing him to work during 
the  daytime  at  off-peak  hours  would  have  required  someone  else  to  work  the  morning 
and afternoon peak hours with a long break in between. Creating such a schedule could 
not be required of the employer, and the disabled worker was dismissed.169 With regard 
to  dismissals  due  to  sickness  leading  to  disability  resulting  in  an  inability  to  work,  the 
Discrimination Act offers no added protection in comparison with the ordinary labour law 
rules on reasonable accommodation. 

In  a  case  from  2017,  the  Labour  Court  found  that  there  was  no  discrimination  when  a 
university  refused  to  hire  a  lecturer  who  was  deaf.  The  Equality  Ombudsman  and  the 
university  agreed  that  an  interpreter  between  sign-language  and  spoken  language  was 
needed.  The  cost  to  the  employer  was  disputed  with  regard  to,  inter  alia,  how  much 
could  be  financed  with  employment  policy  allowances.  The  Labour  Court  started  by 
assessing the case as if the Equality Ombudsman had done the correct cost assessment 

163  A departmental inquiry (DS 2010:20) which suggested changing the wording of Chapter 1 Section 4 of the 
Discrimination Act and creating a non-exhaustive list of six factors that are relevant when assessing the 
concept of reasonable accommodation (p. 27). 

164  Government bill 2007/08:95 p. 148.  
165  Swedish employers have extensive managerial rights and cannot be forced to seek subsidies. 
166  The goal of rehabilitation is the employee’s return to the workplace or the provision of support for an 

individual in maintaining his position in the workplace. Rehabilitation in relation to working life is further 
regulated by the Social Security Code (Socialförsäkringsbalk 2010:110), adopted on 04.03.2010. 

167  See also, for instance, Inghammar (2001), ‘Discrimination of People with Disabilities. Normative Aspects of 

Disability and Work in a Swedish, English and EC Context’, in: Numhauser-Henning (ed.), Legal Perspectives 
on Equal Treatment and Non-Discrimination, Kluwer Law International, The Hague. 

168  During the period when it was uncertain whether or not the bus driver would become healthy enough to 

drive at peak hours, the employer worked hard to help the driver with job training, for instance allowing him 
to drive buses with a reserve driver present in the bus.  

169  Labour Court 2013 No. 78, Equality Ombudsman v. Veolia and the Swedish Bus and Coach Federation 

(judgment of 23.10.2013). See: http://www.arbetsdomstolen.se/upload/pdf/2013/78-13.pdf. 

58 

 
 
 
 
 
                                                 
of  SEK 520 000  (approximately  EUR 49 000)  per  year  as  a  net  cost  for  the  education 
provider.  That  cost  was  considered  excessive  (unreasonable),  however,  and  the 
Ombudsman lost the case.170 

c) 

Definition of disability and non-discrimination protection 

The definition of disability is the same in all areas of the Discrimination Act. As set out in 
Chapter 1 Section 5 point 4, disability means: 

‘Permanent171  physical,  mental  or  intellectual  limitation  of  a  person’s  functional 
capacity  that  as  a  consequence  of  an  injury  or  illness  that  existed  at  birth,  has 
arisen since then or can be expected to arise’. 

The definition is thus stated in general terms, a requirement being that the limitation is 
‘permanent’, i.e. the limitations in functional capacity must be long-lasting. For example, 
a person with a broken arm will not be covered by the law since the disability caused is 
of  a  passing  nature.  There  is  no  threshold  of  ‘severity’,  or  a  reference  to  the  ability  to 
engage in ‘normal life activities’ or ‘professional life’ for that matter. The latter is part of 
the assessment as regards a ‘similar situation’. However, until there is clear case law on 
the point it will be difficult to define the issues more closely.  

d)  Duties  to  provide  reasonable  accommodation  in  areas  other  than  employment  for 

people with disabilities 

In  Sweden,  there  is  a  duty  to  provide  reasonable  accommodation  for  people  with 
disabilities outside the area of employment. 

There has been a duty, since 2015, to provide reasonable accommodation for people with 
disabilities in most of the areas where the Discrimination Act applies. This duty is related 
to  the  discrimination  form  known  as  inadequate  accessibility.172  The  areas  covered  are 
working  life,  education,  labour  market  policy  activities  and  employment  services  not 
under  public  contract,  starting  or  running  a  business  and  professional  recognition, 
membership  of  certain  organisations,  services,  meetings  or  public  events,  health  and 
medical  care  and  social  services,  the  social  insurance  system,  unemployment  insurance 
and  financial  aid  for  studies,  national  military  service  and  civilian  service,  public 
employment. 

Before  2015  the  prohibition  of  discrimination  by  education  providers  applied  when,  by 
taking  ‘reasonable  measures  regarding  the  accessibility  and  usability  of  the  premises, 
they  can  see  to  it  that  a  person  with  a  disability’  is  put  in  a  comparable  situation  to 
people  without  such  a  disability.173  This  duty  applied  to  higher  education  only.  Today’s 
rules on inadequate accessibility apply throughout the education sector.  

170  Labour Court 2017 No. 51, Equality Ombudsman v. Södertörn University (judgment 11.10.2017). There was 

thus no need for the Labour Court to assess whether or not the true cost was higher, as the university 
claimed. 

171  The Swedish term varaktig has been translated in the Government’s unofficial translation as ‘permanent’. 

The term ‘permanent’ should be considered here as meaning ‘long-term’ or ‘durable’.  

172  Act 2014 (958) on changing the Discrimination Act (2008:567), adopted on 08.07.2014; Government bill 

2013/14:198. According to Chapter 2 Section 12 c, the prohibition of discrimination in the form of a lack of 
reasonable accommodation (inadequate accessibility) does not apply to housing, private persons offering 
services or goods to the general population or services and goods sold by companies with less than 10 
employees (the same exception applies in the healthcare area too, according to Section 13 c) – and if the 
measure in question concerns goods and services and the buildings where they are offered and the claimant 
seeks actions that go beyond what was required when the building was made. The exception for employers 
with less than 10 employees no longer applies as of 1 May 2018, Government bill 2016/17:220, an 
expanded protection against discrimination in the form of inadequate accessibility.  

173  Chapter 2 Section 5 of the Discrimination Act (Diskrimineringslagen 2008:567, adopted on 05.06.2008). 

59 

 
 
 
 
 
 
 
 
 
 
 
                                                 
The School Act (2010:800) contains a duty to accept pupils at the school of their choice 
unless  the  financial  burden  required  is  substantial  according  to  Chapter  9  Section  15. 
With  the  new  rules  from  2015,  a  violation  of  the  School  Act  can  also  result  in 
discrimination according to the rules on inadequate accessibility in the Discrimination Act. 

One example of an area where the new rules do not apply is a landlord having a tenant 
who becomes disabled due to an illness. The landlord might not agree to the installations 
that  would  be  necessary  for  the  tenant  to  remain  in  the  apartment.  The  fact  that  the 
municipality would have been obliged to grant an allowance for the installation, as well as 
paying for their future removal, does not include a duty for the landlord to permit them. 
Discrimination  law  is  based  on  comparisons  between  persons  with  disabilities  and 
persons  without  disabilities,  and  persons  without  disabilities  have  very  limited  rights  to 
make  installations  in  rented  apartments.  If  the  new  rules  from  2015  had  applied  to 
housing,  this  situation  would  have  changed  but,  according  to  Chapter  2  Section  12  c, 
they do not apply to housing. 

There  is  still  little  case  law  on  the  new  rules  on  inadequate  accessibility.  However,  as 
they  rely  heavily  on  laws  and  other  forms  of  legislation  to  provide  the  accommodation 
level that can be required,174 the biggest change is probably that a discrimination award 
as  a  remedy  becomes  possible,  which  is  valuable  for  the  claimant,  especially  if  civil 
damages  were  not  possible  before.  Many  public  law  regulations  have  conditional  fines 
that are payable to the state as the main sanction – i.e. a court order linked to a financial 
penalty if not followed.  

In  the  Discrimination  Act,  the  term  ‘inadequate  accessibility’  basically  assumes  that  the 
accessibility  standards  already  set  in  other  laws  and  statutes  are  reasonable.  For 
instance,  the  School  Act  and  the  Employment  Protection  Act  already  create  a  minimum 
standard  of  reasonable  accommodation  and  a  reasonable  accommodation  duty.  If  that 
standard is fulfilled, there will be no examination of inadequate accessibility based on the 
Discrimination  Act.  Thus,  the  introduction  of  this  new  form  of  discrimination  in  the 
Discrimination Act does not create any new duties in regard to the accessibility standards 
already established in other laws and regulations. 

In  a  situation  such  as  that  of  schools,  where  there  is  a  clear  legal  duty  to  provide 
accommodation through administrative law, the Discrimination Act still helps by providing 
potential sanctions (discrimination compensation) that may be more effective than those 
in  other  laws  and  regulations  which  often  only  provide  for  the  imposition  of  conditional 
fines by a government authority.175 The concept of inadequate accessibility is – in those 
situations – related to accommodations required by other legislation.176  

Inadequate accessibility outside of  working life, and its interplay with other regulations, 
was essentially examined for the first time in a 2017 case concerning a pupil who used a 
wheelchair and who had for three years attended a school with inadequate access ramps. 
In particular, he was required to use ramps that were steep or without railings. On two 
occasions, his wheelchair tipped over as a consequence. The school and the municipality 

174  With regard to costs within the different sectors, the Government repeatedly states that the costs are small 

because new requirements are not being introduced. See Government bill 2013/14:198, Chapter 13. 
175  In December 2017 the Equality Ombudsman filed a lawsuit against a school for trying to convince the 

parents of an autistic child that he would be better off in a special school. The question of whether or not he 
would be better off depended partly on what accommodations could be provided by the ordinary school. In 
the view of the Equality Ombudsman, not providing a clear promise of necessary support amounts to 
discrimination in the form of a lack of reasonable accommodation. The Equality Ombudsman asked for a 
discrimination award of SEK 150 000 (approximately EUR 16 500) for the child, and SEK 50 000 
(approximately EUR 5 500) for each parent. A large part of this case is about the school’s duties under the 
School Act. Equality Ombudsman case ANM 2017/1261. 

176  For more information, see Skaraborg County District Court, 2017-05-24, Equality Ombudsman v. Vara 

Municipality, available on the Ombudsman’s website at: 
http://www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingratten-skola-anm-2016-9402.pdf.   

60 

 
 
 
 
 
 
                                                 
were  aware  of  these  issues  but  failed  to  act  appropriately.  The  district  court  held  that 
this  was  discrimination  in  the  form  of  inadequate  accessibility,  resulting  in  an  award  to 
the  pupil  of  SEK 30 000  (approximately  EUR 2 800)  from  the  municipality.  Due  to  the 
gravity of the circumstances, the Equality Ombudsman has appealed the case in order to 
obtain a higher discrimination compensation award.177 

It  should  be  pointed  out  that  the  idea  was  never  to  create  a  definition  of  inadequate 
accessibility  that  could  be  used  to  impose  high  costs  on  service  providers  when 
accommodation  is  not  required  by  other  legislation.  This  can  be  seen  in  the  wording  of 
the act as well as in the preparatory works.178  

e) 

Failure to meet the duty of reasonable accommodation for people with disabilities 

In  Sweden,  failure  to  meet  the  duty  of  reasonable  accommodation  for  people  with 
disabilities  does  count  as  discrimination,  because  it  amounts  to  inadequate  accessibility 
for an individual, which is a separate form of discrimination – and the third in a list of six 
forms of discrimination under the Discrimination Act.  

The key issue is whether the individual involved can be placed in a similar situation to a 
non-disabled  person.  In  most  cases,  the  required  standard  is  set  by  laws  and  other 
regulations.  Within  the  labour  market,  the  Discrimination  Act  itself  sometimes  sets  out 
the  standard  required,  for  instance  with  regard  to  the  hiring  of  labour.  This  case  law  is 
unaffected by the introduction of the new form of discrimination.  

In dismissal cases and in cases outside the labour market, the new form of discrimination 
is  not  perceived  as  introducing  any  major  new  requirements  compared  with  other 
legislation.  The  minor  changes,  introducing  new  legal  demands  exemplified  in  the 
preparatory works,179 are such that the relevant actions were probably undertaken even 
where there was no legal duty to do so. Before 2015 a restaurant could refuse to have a 
member  of  staff  read  the  menu  to  a  blind  guest  because  a  fully  sighted  guest  did  not 
have this right. However, in acting this way, the management would have been likely to 
offend  not  only  the  blind  guest  but  also  the  majority  of  sighted  people  witnessing  this 
refusal. The new duties created can thus seem relatively minor. 

The  difference  between  the  restaurant  example  and  the  school  example  (above 
under (d))  is  that  the  School  Act  has  for  a  very  long  time  required  all  schools  to  make 
reasonable  accommodations  for  pupils  with  disabilities,  while  there  were  no  such  duties 
for  restaurants.  Therefore,  the  new  form  of  discrimination  creates  new  duties  –  albeit 
minor ones – for restaurants but not for schools. 

177  Skaraborg County District Court, 24.05.2017, Equality Ombudsman v. Vara Municipality, Case T 2447/16 

http://www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingratten-skola-anm-2016-9402.pdf.  
178  This follows from a literal interpretation of the definition in Chapter 1 Section 4 point 3 of the Discrimination 
Act (Diskrimineringslagen 2008:567, adopted on 05.06.2008). If there is no legislation stipulating a duty to 
take on a certain cost, this weighs heavily in favour of the service provider. On the Equality Ombudsman 
home page, many examples are given where there is no express legal duty elsewhere, but where an 
obligation nevertheless may exist under the new rules of inadequate accessibility under the Discrimination 
Act (http://www.do.se/om-diskriminering/vad-ar-diskriminering/bristande-tillganglighet/#1). The first of 
these is that a customer may ask to have the menu read to him or her at a restaurant. The second concerns 
assistance in picking and packing groceries in a grocery store. The Equality Ombudsman has taken these 
two examples from Government bill 2013/14:198, p. 65.  

179  On the Equality Ombudsman home page, many examples are given where there is no express legal duty 

elsewhere, but where an obligation nevertheless may exist under the new rules of inadequate accessibility 
under the Discrimination Act (http://www.do.se/om-diskriminering/vad-ar-diskriminering/bristande-
tillganglighet/#1). The first of these examples is that a customer may ask to have the menu read to him or 
her at a restaurant. The second concerns assistance in picking and packing groceries in a grocery store. The 
Equality Ombudsman has taken these two examples from Government bill 2013/14:198, p. 65.  

61 

 
 
 
 
 
 
 
 
                                                 
lack  of  reasonable 
The  proportionality  test 
accommodation (see (a) above).  Given the examples in the preparatory work, the room 
in which to apply this test is very limited when there is no special legislation to rely on. 

in  the  definition  of 

is  embedded 

The principal sanctions are the discrimination compensation award and the ability of the 
court to declare  contract clauses  and certain actions such as dismissals null and void in 
certain situations. 

With regard to direct discrimination, the claimant must show unfavourable treatment and 
demonstrate a similar situation before the burden of proof shifts. In the author’s opinion 
there  is  some  confusion  here  in  that,  while  the  ‘normal’  rules  on  shifting  the  burden  of 
proof should apply in principle to inadequate accessibility, the burden of proof concerning 
the reasonableness of an accommodation is somewhat unclear. At least in practice, until 
some case law is established, the burden of proof seems to rest with the employee or the 
person who is asserting that a reasonable accommodation should have been in place. The 
preparatory  works  concerning  the  introduction  of  the  new  discrimination  form  of 
inadequate accessibility are  silent on the issue of burden of proof. The legal situation is 
thus  the  same  as  it  was  before.  The  Labour  Court  seems  to  be  experiencing  greater 
difficulties  in  shifting  the  burden  of  proof  in  reasonable  accommodation  cases.180  In  the 
author’s opinion, the Labour Court has in general, at least historically, had a harder time 
with  the  concept  of  shifting  the  burden  of  proof  compared  with  the  ordinary  courts.181 
This is discussed in more detail in Chapter 6.3. 

The  2009  Discrimination  Act  –  although  an  improvement  on  the  previous  acts  –  is  not 
very  clear  on  shifting  the  burden  of  proof 
in  cases  concerning  reasonable 
accommodations. Presumably this will be cleared up as case law develops. 

f) 

Duties to provide reasonable accommodation in respect of other grounds 

There is no requirement in the Discrimination Act to provide reasonable accommodation 
in  relation  to  grounds  of  discrimination  other  than  disability  in  dealing  with  individual 
cases.  

The Discrimination Act contains provisions in Chapter 3 Sections 1-7 requiring employers 
to undertake active measures to counteract discrimination and promote equal rights and 
opportunities  in  relation  to  the  seven  grounds  protected  under  anti-discrimination  law. 
This active duty has a public law character.  

The  new  rules  in  Chapter  3  of  the  Discrimination  Act,  which  entered  into  force  in  2017, 
contain few material requirements, and no material requirement that can be said to have 
a reasonable accommodation character.182  

It  may  be  asserted  that  there  is  an  underlying  reasonable  accommodation  issue 
concerning  proportionality 
indirect 
discrimination cases need to be examined separately.  

indirect  discrimination,  but 

related 

the 

to 

180  The wording of Chapter 6 Section 3 of the 2009 Discrimination Act (Diskrimineringslagen 2008:567, adopted 
on 05.06.2008) should, however, clearly indicate to the Labour Court the importance of the rules on shifting 
the burden of proof. So does the reasoning behind the new formulation – see Government bill 
2007/2008:95, p. 444. The burden was shifted, for example, in Labour Court case 2003 No. 47. 

181  See e.g. the reference in SOU 2016:87 Betänkande av Utredningen om bättre möjligheter att motverka 

diskriminering, Bättre skydd mot diskriminering, pp. 441-442; Sandesjö, H. (2010), DOMAR I 
DISKRIMINERINGSMÅL 1999 – 2009: En förstudie (dnr A2011/188/DISK). 

182  The new rules emphasise the work process and give considerable freedom to employers to choose which 

areas shall be given priority. Therefore, the rules in this chapter are not relevant with regard to reasonable 
accommodation.  

62 

 
 
 
 
 
 
 
 
 
 
                                                 
The  new  discrimination  form  of  inadequate  accessibility  does  not  apply  to  any  ground 
other  than  disability.  With  regard  to  other  grounds,  the  only  viable  option  in  the 
Discrimination Act perhaps involves relying on the concept of indirect discrimination.  

With  regard  to  religion,  it  is  possible  to  assert  that  there  is  an  underlying  element  of 
reasonable accommodation in relation to indirect discrimination in examining  exceptions 
for a legitimate purpose where the means that are used are appropriate and necessary to 
achieve that purpose.  

It  could  be  said  that  the  wearing  of  the  niqab  in  schools  raises  the  issue  of  a  form  of 
reasonable  accommodation.183  In  some  cases,  schools  have  asked  a  person  to  remove 
their niqab. Such demands (not allowing a partial or full face covering in class) formally 
apply  to  everyone,  but  particularly  affect  certain  Muslims.  This  may  involve  indirect 
discrimination,  depending  on  the  proportionality  or  ‘appropriate  and  necessary’  test.  A 
relevant  question  is  whether  the  legitimate  purpose  could  have  been  solved  by  other 
means.  Potentially,  reasonable  accommodation  is  an  underlying  element  in  assessing 
various cases of indirect discrimination.184 

In  the  2017  midwife  case  decided  by  the  Labour  Court,185  the  applicant  was  essentially 
seeking  a  reasonable  accommodation  from  the  employer,  meaning  that  she  would  not 
have to take part in abortions due to her religious beliefs. Applying a proportionality test, 
the  court  found  that  the  demands  made  by  the  employer  were  appropriate  and 
necessary. Thus, there was no indirect discrimination. 

A  somewhat  different  situation  was  featured  in  a  2017  appeal  court  case,186  where  a 
Jehovah’s  witness  in  a  public  unemployment  programme  who  was  receiving  an  activity 
grant  was  asked  to  apply  for  a  job  at  the  Swedish  National  Lottery  and  Gambling 
Monopoly. His job would have involved selling companies packages of lottery tickets with 
the  customer’s  logo  on  so  that  they  could  give  them  out  to  employees  or  customers  or 
use them for other promotional purposes. His job would thus not involve selling tickets to 
individuals.  Given  his  religious  convictions  against  gambling,  he  refused  to  go  to  the 
interview. He thus lost his place in the programme, including the activity grant. The court 
concluded  that  elements  of  indirect  discrimination  were  present,  but  that  the  actions  of 
the  Government  were  disproportionate  in  relation  to  the  negative  consequences  for  the 
complainant.  The  state,  given  its  evidence,  failed  to  overcome  the  presumption  of 
indirect discrimination.  

In the author’s opinion, while these cases do not necessarily clearly establish the idea of 
a reasonable accommodation duty outside the field of disability, the idea can be said to 
form part of the proportionality test that is to be applied in various indirect discrimination 
cases.  These  cases  involved  religion,  which  may  be  somewhat  special  due  to  its 
connection  to  freedom  of  religion.  Nevertheless,  it  can  also  be  asserted  that,  given  the 
right cases, the idea could arguably apply to other grounds as well.  

183  Equality Ombudsman, Case 2009/103. 
184  Equality Ombudsman Case 2009/103 involved a school where these circumstances applied. In the end, the 

Ombudsman decided not to pursue the case because the school found alternative solutions, and allowed the 
woman to wear her niqab if such a solution did not work, for instance if the men could not be seated behind 
her. 

185  See Chapter 12.2. Labour Court, 12.04.2017, E.G. v. Jönköping County, Case 23/2017, available at: 

http://www.arbetsdomstolen.se/upload/pdf/2017/23-17.pdf.  

186  See Chapter 12.2. Svea Court of Appeal, 22.03.2017, Swedish State Through the National Employment 

Agency v. Equality Ombudsman, Case T 777-16, available at: 
http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovtratt-arbetsformedlingen-anm-
2014-1037.pdf.  

63 

 
 
 
 
 
 
 
 
                                                 
g) 

Accessibility of services, buildings and infrastructure  

In Sweden, national law requires accessibility of services available to the public, and also 
requires  buildings  and  infrastructure  to  be  designed  and  built  in  a  disability-accessible 
way.187 As regards public authorities, there is a general duty to assess accessibility in all 
their  activities  and  to  develop  accessibility  plans  to  this  end.188  The  new  discrimination 
ground  of  inadequate  accessibility,  which  has  applied  from  2015,  does  not  apply  to 
homes,  nor  to  buildings  where  goods  are  sold  or  services  provided.  This  is  one  of  the 
areas in which case law must be developed, as there is a lack of clarity, or at least a gap 
in the law, concerning the common situation where a merchant of goods and services is 
renting premises from a building owner and the building itself is inaccessible. 

As far as the author knows, there is no case law on this issue – nor is there on a number 
of others. 

In  Sweden,  national  law  does  not  contain  a  general  duty  to  provide  accessibility  by 
anticipation189 for people with disabilities. 

h) 

Accessibility of public documents 

There  are  no  rules  requiring  certain  specific  documents  to  be  translated  unless  this  is 
necessary for the individual.  

There  is  a  Braille  Board.  This  is  a  state  authority,  and  its  task  is  to  develop  national 
guidelines  for  the  use  of  Braille  in  Sweden.190  It  is  a  part  of  the  Authority  of  Accessible 
Medias.  According  to  an  ordinance  from  2010191  it  shall,  among  other  things,  translate 
literature, newspapers and societal information into audio books and Braille. This service 
concerns  the  individual  sphere.  A  person  may  ask  for  a  private  letter,  a  book,  study 
material  or  anything  else  to  be  translated.  If,  for  instance,  a  student  needs  his  or  her 
literature translated, this is the proper authority to turn to. 

Since 2012, the board  has also been assisting persons with problems holding a book or 
who have dyslexia.  

One cannot say that there is a general practice with regard to Braille. The Tax Authority 
has information in sign language, as well as in some foreign languages, but not in Braille. 
The  National  Social  Insurance  Board  has  information  in  Braille.192  Each  authority  is 
required to translate information into Braille even if it is only one person that needs the 
information.193  The  authorities  are  free  to  choose  which  information  is  to  be  translated 
even  before  someone  asks  for  it.  The  instruction  given  in  Ordinance  2001:526  of  the 
state authorities’ responsibility towards realising the state disability policy is of a general 
character. 

187  The Planning and Building Act (Plan- och bygglagen 2010:900), adopted on 01.07.2010. 
188  Regulation on State Authorities’ Responsibilities Regarding Implementation of the Policies on Disabilities 

(Förordning om de statliga myndigheternas ansvar för genomförande av funktionshinderspolitiken 
2001:526), adopted on 26.06.2001. 

189  If the building permit has been adhered to and a healthcare provider cannot accept a patient with a 

disability, the discrimination ground of inadequate accessibility applies. Adherence to the building permit is 
to the healthcare provider’s benefit. The most important factor will be the assessment of economic and 
practical difficulties. If this is too costly, the patient can be asked to turn to another provider. The fact that a 
cheap solution was missed when the building was constructed will not be taken into account. There is no 
duty of anticipation outside the normal building regulations.  

190  The Braille Board – see: http://www.mtm.se/punktskriftsnamnden.  
191  Ordinance with Instructions for the Authority for Accessible Media (Förordning med instruktion för 

Myndigheten för tillgängliga medier 2010:769), adopted on 23.06.2010. 

192  See: http://www.mtm.se/punktskriftsnamnden/namnden/. 
193  The difference between translating in advance and when somebody needs something is that the civil servant 
can discuss what documents are needed and translate only these. During this discussion, it might become 
clear that a certain document is not needed. 

64 

 
 
 
 
 
 
 
 
 
                                                 
3 

PERSONAL AND MATERIAL SCOPE  

3.1  Personal scope 

3.1.1  EU  and  non-EU  nationals  (Recital  13  and  Article  3(2)  Directive  2000/43 

and Recital 12 and Article 3(2) Directive 2000/78) 

In Sweden, there are no  residence or  citizenship/nationality requirements for protection 
under the relevant national laws transposing the directives. 

3.1.2  Natural and legal persons (Recital 16 Directive 2000/43) 

a) 

Protection against discrimination 

In  Sweden,  the  personal  scope  of  anti-discrimination  covers  all  natural  persons  but  in 
general does not cover legal persons for the purpose of protection against discrimination. 
This  does  not  follow  from  a  specific  article.  Some  Sections  of  Chapter  2  of  the 
Discrimination  Act  contain  wording  such  as  ‘the  job  seeker’,  ‘the  child,  pupil  or  student’ 
and  so  on,  where  it  is  obvious  that  a  legal  person  cannot  fall  under  the  protected 
category. In other cases where the wording is unclear there is a general statement in the 
preparatory works that legal persons are not protected.194 

The  Discrimination  Act  thus  generally  protects  natural  persons.195  Nevertheless,  as 
regards the act’s applicability to working life, the general ‘concept of employee’ is in the 
background  –  a  compulsory  concept,  which  is  not  for  the  parties  concerned  to  decide 
upon.  Within  this  concept  it  is  perfectly  possible  for  the  Labour  Court,  in  the  last 
instance,  to  look  beyond  or  ignore  the  fact  that  a  contract  may  be  agreed  between  the 
employer and a legal entity run by the ‘employee’ alone.  

The former four Ombudsmen against discrimination have unanimously criticised the fact 
that no explicit protection against discrimination is provided for legal persons, something 
that  they  concluded  is  required  by  the  directive.196  In  2006,  the  Discrimination  Inquiry 
Commission  proposed  a  protection  also  for  legal  persons  in  a  number  of  (but  not  all) 
areas  covered  by  non-discrimination  legislation.197  However,  legal  persons  still  have  no 
explicit protection – which is potentially a problem in relation to the directive. 

b) 

Liability for discrimination 

In  Sweden,  the  personal  scope  of  anti-discrimination  law  covers  natural  and  legal 
persons for the purpose of liability for discrimination. The different Sections of Chapter 2 
of  the  Discrimination  Act  refer  to  the  ‘employer’,  the  ‘service  provider’  and  so  on.  It  is 
clear from the wording that both natural and legal persons are covered. 

194  Government bill 2007/08:95, p. 91. 
195  Government bill 2007/08:95, p. 90. 
196  The Ombudsman against discrimination due to sexual orientation, Hans Ytterberg, argues in the following 

way: ‘First of all, we have pointed to the fact that Art. 3(1) of the Directive provides that the Directive shall 
apply to all persons and that recital 12 states that any direct or indirect discrimination as regards the areas 
covered by the Directive should be prohibited throughout the Community. Furthermore, membership in 
employers’ associations (which is one area explicitly covered by the Directive) is almost exclusively relevant 
to legal persons, at least in Sweden. It would therefore make little sense to prohibit discrimination with 
respect to such membership but at the same time exclude legal persons from that protection’. 

197  SOU 2006:22, from p. 332. 

65 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.1.3  Private and public sector including public bodies (Article 3(1)) 

a) 

Protection against discrimination 

In  Sweden,  the  Discrimination  Act  does  not  cover  legal  persons  in  relation  to  the 
protection  against  discrimination.  Only  natural  persons  are  covered.  However,  in  the 
author’s  opinion,  if  the  matter  is  tested,  it  is  not  impossible  that  a  court  might  find  a 
sufficient  nexus  between  a  natural  person  and  a  legal  person,  given  the  right 
circumstances.  This  could  be  done  by  interpreting  Swedish  law  in  conformity  with  the 
directive so that some protection is provided in the private sector. 

b) 

Liability for discrimination 

In  Sweden,  the  personal  scope  of  anti-discrimination  law  covers  the  private  sector  and 
the public sector, including public bodies, for the purpose of liability for discrimination. 

The prohibitions for different areas in Chapter 2 of the Discrimination Act are applicable 
to  both  the  private  and  public  sectors,  including  public  bodies.  The  limitation  on  the 
applicability  of  the  Discrimination  Act  relates  to  activity  areas  and  not  to  the  public  or 
private sector or to who is responsible for the activity.  

A  police  officer  arresting  a  criminal is  a  situation  where  the  Discrimination  Act  does  not 
apply. However, if the same police officer gives advice to an ordinary citizen an hour later 
and treats this citizen unfavourably for a reason connected to a ground of discrimination, 
this  activity  may  fall  under  the  Discrimination  Act  (Chapter  2,  Section  17).  In  such  a 
case, it will be the Police Authority (at the appropriate level) that will be held responsible 
under  the  Discrimination  Act.  It  is  the  employer,  the  service  provider  etc.  that  are  held 
responsible under Chapter 2 of the Discrimination Act: it does not matter whether it is a 
natural or legal person, nor whether it is a public or a private body. 

3.2  Material scope 

3.2.1  Employment, self-employment and occupation  

In  Sweden,  the  Discrimination  Act  applies  to  all  sectors  of  private  and  public 
employment,  self-employment  and  occupation, 
including  contract  work,  self-
employment,  military  service  (not  age)  and  holding  statutory  office.  The  Discrimination 
Act  is  comprehensive.  With  regard  to  employment,  Chapter  2  Sections  1-4  and  –  with 
regard to self-employment – Chapter 2 Sections 10-11 are the most important. 

Within  the  employment  and  self-employment  sector,  the 
implementation issues should be mentioned.  

following  problematic 

1. 

The  principle  of  vicarious  liability  in  relation  to  discrimination  law  is  restricted  by 
case  law  when  employees  act  outside  their  authority  to  an  extent  that  is 
problematic. Furthermore, the legal concept of employer may be too narrow, as the 
employer  is  regarded  as  the  legal  person  itself  or  the  natural  person  who  as  a 
representative  of  this  legal  person  makes  decisions  regarding  the  employees.  The 
employer is thus directly responsible only when an employee discriminates against 
another  employee  and  the  latter  is  subordinated  to  or  dependent  upon  the 
former.198 

198  There is a general line of thinking on vicarious liability that is problematic, and Chapter 1 Section 4 point 5 

and Chapter 2 Section 1 of the Discrimination Act (Diskrimineringslagen 2008:567, adopted on 05.06.2008) 
provide two examples of this general thinking. See Labour Court 2007 No. 45 and 2011 No. 19. In these 
two cases, it is obvious that the applicant/trainee had reason to believe that the person who was allegedly 
behaving in a discriminatory manner was acting on behalf of the employer, but there was no protection for 
persons acting under such a belief, however well founded that belief may have been. 

66 

 
 
 
 
 
  
 
 
 
 
 
 
                                                 
2. 

3. 

4. 

Discrimination  and  harassment  by  fellow  workers  or  third  parties  is  not  directly 
prohibited. 
The  protection  against  discrimination  or  victimisation  does  not  fully  cover  self-
employed  persons  (see  below  Section  3.2.2  –  two  self-employed  workers  working 
together are not protected from discrimination by the other).199 
Discrimination against legal persons is not prohibited in working life. 

3.2.2  Conditions  for  access  to  employment,  to  self-employment  or  to 
occupation,  including  selection  criteria,  recruitment  conditions  and 
promotion,  whatever  the  branch  of  activity  and  at  all  levels  of  the 
professional hierarchy (Article 3(1)(a))  

In  Sweden,  national legislation  prohibits  discrimination in  the  following  areas:  access  to 
including  selection  criteria, 
employment,  to  self-employment  or  to  occupation, 
recruitment conditions and promotion, whatever the branch of activity and at all levels of 
the  professional  hierarchy,  in  both  private  and  public  sectors  as  described  in  the 
directives. 

The  Discrimination  Act  covers  the  self-employed  with  regard  to  starting  or  running  a 
business and professional recognition (Chapter 2, Section 10). Professional organisations 
are  prohibited  from  discriminating  against  the  self-employed  as  well  as  the  employed 
(Chapter 2,  Section 11).  Permits,  certification  and  financial  support  are  examples  of 
areas  covered  by  these  two  provisions.  There  are  other  provisions  in the  Discrimination 
Act which apply to self-employed persons as well as to employed persons and that offer 
both  groups  the  same  protection.  A  self-employed  person  can  also  be  discriminated 
against  by  a  service  provider  if  he  or  she  needs  a  service  as  a  customer  or  client 
(Chapter 2 Section 12), for instance if a painter buys a car for his firm. 

However, no prohibition in the Discrimination Act is applicable between two or more self-
employed business partners. Suppose that a private company needs a big paint job done. 
They  want  to  hire  four  different  persons.  Three  of  them  raise  objections  against  the 
fourth  because  of  her  religion  or  sex.  They  convince  the  company  not  to  give  her  a 
contract and to give the job to someone else – or, if she gets the contract, they harass 
her.  There  is  no  specific  prohibition  that  covers  this  scenario.  In  his  Sexual  Orientation 
report of 28 July 2004, the Ombudsman Against Discrimination on the Ground of Sexual 
Orientation, Hans Ytterberg, made the following remark: 

‘With  respect  to  self-employment,  the  [now  repealed  1999  Sexual  Orientation 
Discrimination  Act]  does  not  seem  to  fully  implement  the  directive.  Self-employed 
business partners, for example, apparently are not protected against harassment or 
other  forms  of  discrimination  from  one  another,  a  situation  which  to  me  clearly 
seems  to  be  covered  by  the  directive  (see  Arts.  2(3)  and  3  of  the  directive).  It  is 
also a situation which has appeared in the requests for advice and support that the 
Ombudsman’s office has come across since the entering into force of the Act.’200 

This critical remark can be directed at the 2009 Discrimination Act as well.201 

199  Chapter 2 Sections 10 and 11 apply to the legal person that distributes financial support, decides on 
qualifications, issues authorisations or provides other benefits to members or the general public. No 
prohibition in the Discrimination Act (Diskrimineringslagen 2008:567), adopted on 05.06.2008, is applicable 
between two self-employed business partners.  

200  See the quote in REPORT ON MEASURES TO COMBAT DISCRIMINATION, Directives 2000/43/EC and 

2000/78/EC, Numhauser-Henning, A., COUNTRY REPORT Sweden 2005, p. 35. 

201  The reader is invited to reflect on whether or not self-employed persons should be protected against 

discrimination by each other according to the directive. It depends on the interpretation of Articles 3.1(a) 
and 2.3. 

67 

 
 
 
 
 
 
 
 
 
                                                 
3.2.3  Employment  and  working  conditions,  including  pay  and  dismissals 

(Article 3(1)(c)) 

In  Sweden,  national legislation  prohibits  discrimination in  the  following  areas:  access  to 
employment, including selection criteria, recruitment conditions and promotion, whatever 
the branch of activity and at all levels of the professional hierarchy for the five grounds in 
both private and public sectors as described in the directives. 

The  Discrimination  Act  Chapter  2  Section  1  speaks  of  any  discrimination  against  a 
worker, job seeker etc., and therefore applies to all forms of working conditions including 
pay and dismissals.  

3.2.3.1 Occupational pensions constituting part of pay 

Occupational pensions  are, in parallel with the jurisprudence  of the  CJEU, considered  to 
be a form of pay, and are thus covered by the ban on discrimination.202 

3.2.4  Access  to  all  types  and  to  all  levels  of  vocational  guidance,  vocational 
training,  advanced  vocational  training  and  retraining,  including  practical 
work experience (Article 3(1)(b)) 

In  Sweden,  the  Discrimination  Act  prohibits  discrimination  in  the  following  areas: 
vocational  training  outside  the  employment  relationship,  such  as  that  provided  by 
technical  schools  or  universities,  or  such  as  adult lifelong learning  courses  or  vocational 
training provided by technical schools or universities.  

The prohibition of discrimination in the education sector applies to all sorts of education 
providers,  from  those  teaching  small  children  to  those  teaching  university  students.  It 
applies  to  all  forms  of  education  including  vocational  training.  In  Sweden,  the  phrase 
‘vocational  training’  is  not  used  as  an  official  category  when  distinguishing  between 
different forms of education. Chapter 2 Section 1 point 3 of the Discrimination Act clearly 
prohibits  discrimination  when  a  person  applies  for  or  participates  in  training  with  an 
employer,  and  sections  5-8  will  apply  to  the  education  provider  if  responsibility  for  the 
training  is  shared  between  the  employer  and,  for  instance,  a  school.  Those  sections 
should always be read in conjunction with the definition of the six forms of discrimination 
in Chapter 1 Section 4 of the Discrimination Act. 

3.2.5  Membership  of,  and  involvement  in,  an  organisation  of  workers  or 
employers,  or  any  organisation  whose  members  carry  on  a  particular 
profession,  including  the  benefits  provided  for  by  such  organisations 
(Article 3(1)(d)) 

In  Sweden,  national  legislation  prohibits  discrimination  in  the  following  areas: 
membership of and involvement in workers’ or employers’ organisations as formulated in 
the directives for all five grounds and for both private and public employment. 

Chapter 2 Section 11 of the Discrimination Act provides that discrimination on all seven 
grounds  is  forbidden  in  relation  to  membership  or  participation  in  an  association  of 
employees  (i.e.  a  labour  union),  an  association  of  employers  or  a  professional 
organisation, and the benefits awarded by such organisations to their members. 

The  prohibitions  concerning  different  areas  in  Chapter  2  should  always  be  read  in 
conjunction with the definition of the six forms of discrimination in Chapter 1 Section 4 of 
the Discrimination Act. 

202  See, for instance, Labour Court 2009 No. 15, Equality Ombudsman v. Stryker AB (judgment of 28.01.2009) 

http://www.arbetsdomstolen.se/upload/pdf/2009/15-09.pdf. 

68 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.2.6  Social protection, including social security and healthcare (Article 3(1)(e) 

Directive 2000/43) 

In  Sweden,  national  legislation  prohibits  discrimination  in  the  following  areas:  social 
protection,  including  social  security  and  healthcare  as  formulated  in  the  Racial  Equality 
Directive. 

Health  and  medical  care,  social  services,  state  financial  aid  for  studies,  social insurance 
and related benefit systems are included in the Discrimination Act in Chapter 2 Sections 
13-14. All grounds are covered. With regard to age there is an exemption for age limits 
set  down  in  law  with  regard  to  health  and  social insurance  (including student  benefits), 
and it is generally possible to justify direct age discrimination subject to a proportionality 
test in most areas. 

 3.2.6.1 Article 3.3 exception (Directive 2000/78) 

Sweden does not rely on Article 3.3 of Directive 2000/78. 

3.2.7  Social advantages (Article 3(1)(f) Directive 2000/43) 

In Sweden, national legislation prohibits discrimination in relation to social advantages as 
formulated in the Racial Equality Directive. 

In Sweden, the lack of a definition of social advantages does not raise problems. 

The  Discrimination  Act  should  meet  the  requirement  of  Article  3(1)(f)  of  Directive 
2000/43/EC.  Discounts  on  services  such  as  trains  and  municipal  leisure  facilities  fall 
under  the  provision  on  goods,  services  and  housing  (Chapter 2,  Section 12).  Discounts 
will thus in principle fall under the prohibition. Discounts for persons with disabilities will 
always  be  allowed,  as  the  disadvantaged  group  (persons  without  disabilities)  is  not 
protected by the Discrimination Act. Discounts based on age can be justified on the basis 
of a proportionality test, depending on the circumstances according to Chapter 2 Section 
12 b point 4 of the Discrimination Act. Since the Discrimination Act covers all the areas 
required  by  Directive  2000/43,  there  will  always  be  a  section  applicable  to  a 
discriminatory  discount  excluding  certain  groups.  If  the  discount  concerns  the  health 
sector, Chapter 2 Section 13 applies; if the social advantage is a social security benefit, 
Chapter 2 Section 14 applies. 

The  crime  of  unlawful  discrimination  set  out  in  the  Swedish  Penal  Code  (16:9)  contains 
some  provisions  making  it  a  criminal  offence  for  anyone  running  a  private  business  to 
treat  customers  unfavourably  in  the  provision  of  goods  and  services  because  of  their 
sexual  orientation,  religion  or  ethnicity.  The  provision  also  covers  anyone  employed  in 
such  a  private  enterprise  or  acting  on  behalf  of  it,  as  well  as  anyone  acting  in  their 
capacity of employee within the public administration, when dealing with the public. This 
means  that  discriminatory  treatment  in  areas  such  as  healthcare,  education  and  social 
security can be considered a criminal offence under certain circumstances. 

The  author  cannot  think  of  a  single  example  of  a  social  advantage  under  the  directive 
that does not fall under one of the areas where the Swedish Discrimination Act applies. 

3.2.8  Education (Article 3(1)(g) Directive 2000/43) 

In  Sweden,  national  legislation  prohibits  discrimination  in  relation  to  education  as 
formulated in the Racial Equality Directive. 

69 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
The  relevant  provisions  are  in  Chapter  2  Sections  5-8  of  the  Discrimination  Act.  The 
prohibition  of  discrimination  applies  to  all  grounds,  and  the  forms  of  discrimination  are 
described in Chapter 1 Section 4 of the Discrimination Act. 

Migrants  are  treated  in  the  same  way  as  Swedish  citizens,  provided  that  they  have  a 
right  to  live  in  Sweden.  An  EU  citizen  who  has  no  money  to  live  on  and  no  reasonable 
chance of finding a job, has a right as an EU citizen to visit Sweden for three months but 
no right to settle and to rely on public services there.203  

An asylum seeker, on registering with the Migration Board, may, upon request,204 obtain 
education for his or her children. For parents with a permanent or time-limited residence 
permit, there is a duty to send their children to school between the ages of 6 and 16, just 
like  for  Swedish  parents.  The  Discrimination  Act  provides  protection  for  all  of  these 
groups. 

Today, Sweden has a relatively restrictive refugee policy. Only refugees (those subjected 
to  oppression  directed  at  a  specific  person)  have  a  right  to  family  reunification. 
Alternative  protection  grounds  (alternativt  skyddsbehov)  such  as  the  war  in  Syria  give 
rise  to  a  time-limited  right  of  residence  (in  that  the  war  may  end  and  the  country  may 
become safe – or at least safer). 

In  2017,  25 666  persons  applied  for  asylum  in  Sweden.  Of  these,  8 507  were  children, 
including  1 336  unaccompanied  minors.205  The  Child  Ombudsman  Report  of  2017 
describes  problems  with  entering  education.  Once  those  problems  are  solved  the  main 
obstacles lie within the asylum process. It can take a long time, and the child may have 
to stay at an asylum centre. Uncertainty about their future will affect their studies, and 
this may lead in turn to a decision to reject their application and to their expulsion from 
Sweden.  

An asylum seeker who has been denied a right of residence may contest their expulsion 
(it may be temporarily too risky to perform the expulsion to the country in question, and 
it may therefore be postponed). The child does not lose their right to schooling because 
the  parent  (as  well  as  the  child)  risks  expulsion.  However,  the  parent  may  go 
underground and take the child with them. The biggest problems concern  refugees who 
refuse  to  register  as  asylum  seekers  or  people  who  go  underground  when  their  asylum 
application is denied or their time-limited residence permit is not renewed.  

The  Swedish  Child  Ombudsman  is  critical  towards  Sweden  for  not  addressing  the 
criticism  from  the  UN  Committee  on  the  Rights  of  the  Child.  The  Ombudsman  does  not 
think that Sweden is directly violating the UN Convention on the Rights of the Child, but 
does think that Sweden has serious shortcomings with respect to the convention.206 

The  debate  in  Sweden  is  a  children’s  rights  debate  rather  than  a  discrimination  debate, 
and the national right to decide who stays in Sweden and who is expelled is at the centre 

203  In the public debate in Sweden, they are often called EU migrants.  
204  The child of an asylum seeker has a right, but not a duty, to attend school. The Child Ombudsman has 

issued a critical report concluding that there should be a duty to attend school for these children and a time 
limit of one month from arrival to the start of their education. See: 
https://www.barnombudsmannen.se/barnombudsmannen/vart-arbete/arsrapporteringar/vi-lamnade-allting-
och-kom-hit-2017/. 

205  Swedish Migration Authority (Migrationsverket) (2017), ‘Inkomna ansökningar om asyl’ (Asylum applications 

2017), available at: 
https://www.migrationsverket.se/download/18.4100dc0b159d67dc6146d7/1514898751102/Inkomna%20a
nsökningar%20om%20asyl%202017%20-%20Applications%20for%20asylum%20received%202017.pdf.  

206  Child Ombudsman (2017), Barn på flykt: Barns och ungas röster om mottagandet av ensamkommande 
(Children on the run: Voices of children and young people concerning the reception of unaccompanied 
minors), p. 16, available at: https://www.barnombudsmannen.se/globalassets/dokument-for-
nedladdning/publikationer/barn_pa_flykt_webb.pdf.  

70 

 
 
 
 
 
 
 
 
                                                 
of  it.  The  question  is  to  what  degree  a  child  of  an  illegal  immigrant  has  rights 
independent of the asylum grounds invoked by their parents.  

The Discrimination Act applies to the schooling they get, but not to the immigration law 
that  makes  it  possible  for  the  police  to  pick  up  the  child  when  the  parents  meet  them 
after school and expel the family.  

a) 

Pupils with disabilities 

In  Sweden,  the  general  approach  to  education  for  pupils  with  disabilities  does  not  raise 
problems. 

If  discrimination  occurs,  the  new  form  of  discrimination  as  of  2015,  inadequate 
accessibility, will most likely be effectively applied together with the education legislation. 
If,  for  instance,  a  municipality  does  not  fulfil  its  duties  under  the  School  Act,  the  extra 
sanction of a discrimination compensation award may apply.  

The  Discrimination  Act  applies  to  all  education  providers  and  to  all  forms  of  education, 
from small children to university students. The official policy is to  provide a child with a 
disability with as normal a life as is possible. This means that staying with the parents is 
preferable to living in an institution, and that going to a mainstream school is preferable 
to going to a special school. 

For  the  new  form  of  discrimination  (from  2015),  inadequate  accessibility,  Chapter  1 
Section  4  point  3  of  the  Discrimination  Act  relies  on  other  legislation,  for  example  the 
School Act (2010:800), to formulate the demands that are reasonable. According to the 
School Act, a pupil may only be denied a place at the nearest local school, or the school 
of choice, if entering the school would cause a substantial (betydande) organisational or 
financial  burden  on  the  provider.207  This  provision  applies  to  all  pupils,  but  pupils  with 
disabilities  are  more  likely  than  other  groups  to  be  denied  a  place  at  their  school  of 
choice for this reason. 

When it comes to reasonable accommodation in pedagogical circumstances, the starting 
point consists of conflicts when the child (through its parents) wants to enter an ordinary 
class  and  get  support  to  be  able  to  stay  in  this  class,  but  the  local  authority  wants  to 
place the child in a special class for children with disabilities, and the local authority wins. 
The  motive  is  that  a  local  authority  has  a  duty  under  the  School  Act  to  provide  an 
education according to every child’s needs.  

If the child (through its parents) asks to be placed in a special class and this request is 
denied,  the  new  form  of  discrimination,  inadequate  accessibility,  may  apply.  Failure  to 
fulfil  the  requirements  of  the  School  Act  may,  since  1  January  2015,  result  in  a 
discrimination compensation award.208 

b) 

Trends and patterns regarding Roma pupils 

In Sweden, there is a pattern of discrimination regarding Roma pupils.  

207  School Act (Skollag 2010:800), adopted on 23.06.2010, Chapter 10, Section 30. 
208  The importance of the discrimination award is that it raises the victim’s potential level of compensation. This 
can be illustrated by Appeal Court for Western Sweden case T-2957-15, School Inspectorate v. Municipality 
of Marks (judgment 15-12-22). In this case, a teacher had put Scotch tape over the mouth of a three-year-
old pupil for a short time. This treatment was degrading (but not connected to any discrimination ground). 
The School Inspectorate wanted damages under the School Act at the same level as the discrimination 
awards under the Discrimination Act (Diskrimineringslagen 2008:567, adopted on 05.06.2008). The court of 
appeal disagreed and allowed only the lower level of damages in accordance with normal civil law principles. 
In Sweden, damages of this type are not meant to achieve a preventive effect.  

71 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
In Sweden, Roma pupils encounter severe obstacles in the education system. To a large 
extent, however, intentional segregation is not currently the cause of this. Roma people 
often live in relatively acceptable  housing conditions and go to the  same  schools as the 
children of the majority ‘ethnic Swedes’. If they want to learn Romani Chib (the Romani 
language)  they  are  supposed  to  get  extra  lessons,  like  the  children  of  other  national 
minorities. 

The  specific  situation  of  Roma  in  the  Swedish  schooling  system  with  regard  to 
discrimination  is  described  in  the  former  (ethnic)  Discrimination  Ombudsman’s  report 
‘Discrimination against Roma in Sweden’ from 2004, which was followed up in the 2012 
report by the Equality Ombudsman, ‘Roma rights’ (Romers rättigheter). The work carried 
out on discrimination complaints concerning Roma can be seen in the reports above. The 
subjects  of  these  complaints  cover  public  services,  housing  and  employment.  A  general 
overview  can  be  found  in  a  Report  from  the  Swedish  National  Agency  for  Education, 
‘Roma in School’. (Romer i skolan).209  

It is said to be hard  for Roma  youths to benefit from their  rights to education on  equal 
terms due to structural obstacles. In 2008, the DO produced the report ‘Discrimination of 
National  Minorities  in  the  Education  System’  (2008:2).  One  important  weak  spot  is  the 
construction of the right to education in minority languages.  

Municipalities have a duty to arrange minority language education, although it is difficult 
to  assert  that  people  have  the  right  to  demand  it.  One  pupil  is  enough  to  activate  this 
duty.  However,  when  the  Swedish  National  Agency  for  Education  reported  back  to  the 
Government in November 2013, 6 % of school heads said that the conditions necessary 
to provide language education did not exist.210 As a part of the National Roma Strategy, 
five  municipalities  have  become  pilot  areas  and  received  state  funding  for,  inter  alia, 
improving  education.  In  these  municipalities,  Roma  pupils  were  seldom  encouraged  to 
take  the  minority  language  classes,  and  the  problems  of  finding  qualified  teachers 
sometimes led the municipalities to hope for low attendance.211 

Some  important  legal  background  to  this  discussion  is  provided  by  a  case  that  the 
Equality  Ombudsman  took  to  court,  claiming  that  the  failure  to  provide  language 
education  in  Romani  Chib  violates  the  now  repealed  2006  Act  on  a  Ban  Against 
Discrimination  and  Other  Degrading  Treatment  of  Children  and  Pupils.  The  Equality 
Ombudsman  argued  that,  with  regard  to  national  minorities,  the  treatment  of  children 
with  Swedish  as  their  mother  tongue  is  the  relevant  measurement  of  a  comparable 
situation.212  If  they  actively  seek  such  a  teacher  on  the  national  labour  market,  for 
instance, they should be equally active in finding a teacher in Romani Chib.  

The  Ombudsman  lost  the  case.213  The  district  court  stated  that  the  relevant 
measurement  of  a  comparable  situation  lay  with  other  minorities.  The  municipality  had 
not worked less hard to find teachers of Romani Chib compared with the mother tongues 
of  other  minorities,  including  refugees.  The  judgment  was  appealed,  but  Göta  Court  of 
Appeal  decided  not  to  grant  the  appeals  request.214  From  this  case  it  follows  that,  even 
though  there  is  a  duty  for  the  municipalities  to  provide  minority  language  education, 
there is no effective legal remedy if this does not happen. There is no corresponding right 
on the part of the pupil to require this education. 

209  Swedish National Agency for Education. Report 2007 No. 292. 
210  Swedish National Agency for Education (Skolverket) (2013), Report on Governmental Assignment, 

28.11.2013 Dnr 2012:518, p. 3. More than 50 school heads out of 886 gave this answer. 

211  Swedish National Agency for Education (Skolverket) (2013), Report on Governmental Assignment, 

28.11.2013 Dnr 2012:518, p. 3. 

212  Equality Ombudsman, 11.11.2010 OMED 2007/1109 Act 116, p. 4. 
213  Eksjö District Court, Case T 1395-09, Equality Ombudsman v. Vetlanda Municipality, judgment of 

21.10.2010. http://www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingsratt-vetlanda-
kommun-omed-20071109.pdf. 

214  Göta Court of Appeal, case T 3264-10. 

72 

 
 
 
 
 
 
                                                 
In the 2013 report, a majority of school heads reported that their schools did not teach 
from  a  Swedish  Roma  perspective  with  regard  to  Roma  culture,  language,  history  or 
religion.215  In  2014,  detailed  information  was  produced  in  order  to  assist  schools 
regarding  how  a  Roma  perspective  could  be  introduced  concerning  Swedish  history, 
societal  knowledge  and  so  on.216  Each  school  has  been  given  both  materials  for  pupils 
and guidance for teachers.217 

The  author  thinks  it  is  fair  to  say  that  the  authorities  are  paying  some  attention  to  the 
Roma  situation.  However,  the  individual  rights  approach  of  the  Discrimination  Act  is 
largely absent from this work with regard to education. Furthermore, despite the ongoing 
government  activities,  the  activities  being  carried  out  lack  a  sufficiently  meaningful 
empowerment perspective in the author’s opinion. 

3.2.9  Access  to  and  supply  of  goods  and  services  which  are  available  to  the 

public (Article 3(1)(h) Directive 2000/43) 

In  Sweden,  national  legislation  includes  access  to  and  supply  of  goods  and  services  as 
formulated  in  the  Racial  Equality  Directive.  The  prohibition  of  discrimination  concerning 
goods, services and housing in Chapter 2 Section 12 of the Discrimination Act applies to 
all grounds, and to all forms of discrimination as described in Chapter 1 Section 4 of the 
Discrimination Act. 

When  age  was  included  in  the  prohibition  on  discrimination  in  goods,  services  and 
housing  in  Chapter  2  Section  12  of  the  Discrimination  Act  in  2013,  a  set  of  special 
exemptions was needed. These are in new Section 12 b. Any age limit set by law is legal. 
The  prohibition  of  age  discrimination  does  not  apply  in  the  insurance  sector. 
Establishments  serving  alcoholic  beverages  may  freely  set  a  minimum  drinking  age 
above  the  national  mandatory  minimum  age  of  18  years,  and  it  is  generally  possible  to 
defend other rules on age subject to a proportionality test.  

The prohibition of all forms of discrimination applies to the disability ground with regard 
to  goods,  services  and  housing  (although  inadequate  accessibility  is  sometimes 
exempted).218  This  has  been  the  case  since  the  2003  Act  on  Goods  and  Services. 
Insurance companies frequently use medical conditions for risk assessments, and there is 
no need for a legal exemption. In 2011 Stockholm District Court stated:219 

‘Discrimination  is  when  a  person  has  had  a  disfavoured  treatment  compared  to 
other persons in the same  risk group.  The  equal treatment  requirement shall thus 
not  be  interpreted  as  meaning  that  persons  with  different  risks  of  for  instance 
developing a medical problem shall be granted insurance on the same terms’.  

Therefore, it was correct of the insurance company to deny sickness insurance to a child 
with  a  hearing  problem.  The  company  could  not  establish  whether  or  not  the  hearing 

215  Swedish National Agency for Education (Skolverket) (2013), Report on Governmental Assignment, 

28.11.2013 Dnr 2012:518 p. 3. 

216  The material can be found at: https://www.skolverket.se/skolutveckling/inspiration-och-stod-i-arbetet/stod-

i-arbetet/kampanj-stodpaket-undervisa-om-romer and 
https://www.skolverket.se/skolutveckling/inspiration-och-stod-i-arbetet/stod-i-arbetet/material-for-att-
undervisa-om-nationella-minoriteter/undervisa-om-den-nationella-minoriteten-romer. The Equality 
Ombudsman has a role in promoting the use of this material. Equality Ombudsman Annual Report 2015, p. 
22 (Ds 2014:8). 

217  Government White Paper 2016:44, from p. 66. 
218  See Discrimination Act Chapter 2 Section 12 c. Exemptions apply to housing (for private persons) and to 

requirements to adapt buildings unless the requirements are specified either in the building permit or in the 
formal notice permitting the building work to start. As of 01.05.2018, the exemption for companies with less 
than 10 employees will no longer be in force. 

219  Stockholm District Court, case T 20377-09, Equality Ombudsman v. Trygg Hansa (judgment of 08.03.2011), 
p. 11, available at: www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingsratt-trygg-hansa-
ho-2007371.pdf. 

73 

 
 
 
 
 
 
 
 
                                                 
problem had a root cause that made other sicknesses more likely. Until this information 
was  available  they  could  not  design  an  individualised  contract  with  higher  fees  or 
exemptions.  Since  this  was  impossible,  it  was  not  discriminatory  to  deny  insurance 
altogether. The Equality Ombudsman did not appeal this verdict.  

According  to  the  author,  the  situation  with  regard  to  disability  is  problematic.  An 
exemption is necessary with regard to age and the insurance sector, because actuarially 
correct  assessments  would,  if  applied,  amount  to  statistical  discrimination  if  age  was  a 
covered area. With regard to disability, the concept of statistical discrimination as a form 
of  direct  discrimination  does  not  seem  to  apply.  Had  it  done  so,  the  Trygg  Hansa  case 
would potentially have been decided differently. 

In  2013  another  case  following  the  same  line  of  reasoning  was  decided.  Svea  Court  of 
Appeal  found  discrimination  because  the  insurance  company  had  denied  insurance 
without  assessing  a  child  with  a  hearing  impairment  with  enough  consideration  to  the 
medical condition of this particular child. If the statistics are accurate enough with regard 
to  the  individual,  statistical  discrimination  is  not  considered  to  be  a  form  of  direct 
discrimination with regard to insurance and disability.220 

All of this leads to the question of whether or not a country that extends the prohibition 
of  discrimination  to  areas  outside  the  directives  is  free  to  define  the  concept  of  direct 
discrimination more narrowly compared with the directive within those areas.221 

3.2.9.1 Distinction between goods and services available publicly or privately 

In Sweden, national law distinguishes goods and services that are available to the public 
(e.g. in shops, restaurants, banks) and those that are only available privately. 

The Discrimination Act applies to: 

‘persons  who  outside  the  private  or  family  sphere  are  offering  goods,  services  or 
housing to the public’.222 

Directing an offer to the general public is a necessary requirement for the Discrimination 
Act  to  apply.  A  private  person  can  sell  or  rent  out  anything  without  regard  to  the 
Discrimination Act, as long as the offer stays within a small group of people. 

If  an  item  is  offered  to  the  general  public  through  a  newspaper  advertisement  or  on  a 
sales  website,  it  may  be  regarded  as  being  outside  of  the  private  or  family  sphere. 
Selling  a  car  or  renting  out  a  room  can  fall  within  the  family  sphere  if  it  happens  only 
occasionally.  However,  if  someone  rents  out  a  room  regularly  and  advertises  it  as  soon 

220  Svea Court of Appeal, Equality Ombudsman v. If Insurances, case T 1912-13 (judgment of 08.10.2013), at: 

http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-if-skadeforsakring-anm-
20111922.pdf. 

221  The European Court of Justice regards statistical discrimination as a form of direct discrimination. Case C-
236/09 (Test Achats), where the insurance providers were not allowed to use the sex of the customer in 
order to determine insurance fees, is a prime example of that. The fact that men statistically have more 
accidents than women is not a valid defence for directly using a person’s sex to determine the insurance 
fees for cars. However, with regard to disability and insurance, statistical differences between persons with 
a disability and persons without makes them not comparable, and thus a presumption of discrimination 
cannot arise. Note that the fact that the concept of direct discrimination covers statistical discrimination is 
so strong that the directive in question (2004/113) contained a clause exempting the insurance sector, and 
it was this clause that got struck down by the CJEU. The Swedish Discrimination Act could have extended 
the protection for disability to services and then exempted the insurance sector, as in Directive 2004/113. 
However, extending the protection for disability to the insurance sector and then defining a comparable 
situation as if statistical discrimination is not a form of direct discrimination would have been confusing. If 
an EU concept such as direct discrimination is used, then it should (according to the author) be used 
correctly.  

222  Discrimination Act (Diskrimineringslagen 2008:567 adopted on 05.06.2008), Chapter 2, Section 12, point 1. 

74 

 
 
 
 
 
 
 
 
 
 
 
                                                 
as it is free, that may be regarded as falling within the public sphere. A private person’s 
pursuit of an extra income may be considered to be within the public sphere.223 

3.2.10  Housing (Article 3(1)(h) Directive 2000/43) 

In  Sweden,  national  legislation  prohibits  discrimination  in  relation  to  housing  as 
formulated in the Racial Equality Directive. 

Migrants  are  treated  like  everybody  else,  provided  that  they  have  a  right  to  take  up 
residence  in  Sweden.  A  landlord  taking  higher  rent  from  refugees  due  to  their  refugee 
status violated the prohibition concerning ethnic discrimination in 2010.224 

permit 

An asylum seeker is the responsibility of the Migration Board. If they receive a temporary 
Register 
registered 
residence 
(Folkbokföringsregistret)225  or 
residence  permit, 
responsibility is transferred to a municipality and they are then treated in the same way 
as other residents.  

they  receive  a  permanent 

Population 

are 
if 

and 

the 

in 

When  a  refugee  family  applies  for  a  normal  municipal  apartment,  they  shall  have  the 
same social priority as Swedish families in similar situations – i.e. the worse their current 
housing  situation  is,  the  higher  the  social  priority.  Sweden  has  a  severe  housing 
shortage, and young Swedes with moderate incomes have problems entering the housing 
market.  The  same  applies  to  adult  migrants.  They  have  to  remain  with  their  parents, 
sleep  on  friends’  couches  or  share  small  apartments  with  others  in  order  to  be  able  to 
pay  high  black-market  rents.  The  municipalities  have  thus  been  forced  to  think  outside 
the box to accommodate newly-arrived immigrants.226 

A migrant thus has the same right as anyone else to move, to apply for rental contracts 
or to buy housing on the open market. If they are not wealthy or well-connected,227 the 
only  realistic  option  is  to  stay  in  their  municipality.  There,  they  can  be  on  the  waiting 
list228 for municipal housing, and they  should at  least  be able to  get temporary housing 
there.  

The  Discrimination  Act  prohibits  preferential  treatment  and  discrimination  concerning 
housing,  regardless  of  which  group  gets  the  preferential  treatment.  Newly  constructed 
municipal  houses  and  apartments  for  families  to  rent  are  by  and  large  distributed  on  a 
needs  basis,  and  migrants’  needs  are  regarded  equally  alongside  those  of  ‘ethnic 
Swedes’.  Temporary  housing  has  so  far  been  of  such  a  low  standard  and  has  attracted 
such  a  high  level  of  stigma  (in  particular,  it  is  a  prime  target  for  racist  violence)  that 
young Swedish people have not applied for it. 

223  Compare Government bill 2007/08:95, p. 247 and Fransson-Stüber (2015), Diskrimineringslagen: en 

kommentar (The Discrimination Act: A Commentary), p. 314. 

224  Göta Court of Appeal, case T 1666-09, Equality Ombudsman v. Skärets fastigheter AB, (Judgment of 

25.02.2010), available at: http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-
skaret-fastighetsbolag-omed-20068982.pdf. 

225  Some persons with a temporary residence permit may remain the responsibility of the Migration Board if 
they are not registered in the population register. If so, they have no right to demand housing or housing 
benefits from the municipality (a change in 2017). The issuance of a temporary residence permit thus does 
not automatically give a person a right to enter the housing market with the same support as nationals. 

226  See: https://www.hemhyra.se/nyheter/desperat-jakt-pa-flyktingbostader/. This is a link to the Tenant 

Unions members’ paper, which gives a reliable overview of the temporary solutions currently used by the 
municipalities. Some are similar to what ethnic Swedes must do; others, such as temporary housing, are 
immigrant specific. Many immigrants enter the black market and end up in overcrowded conditions.  
227  It is not uncommon to have friends or family who arrived in Sweden earlier, who have a dwelling and who 
are willing to live in overcrowded conditions rather than forcing others to live alone in temporary housing 
conditions. 

228  Many municipalities own larger housing companies, and these companies provide a great deal of the rental 
housing on the market. There is no rule requiring municipal housing companies to having a waiting list, but 
most do and complement it with social priority rules. 

75 

 
 
 
 
 
 
 
 
 
                                                 
There is no case law in relation to the recent migration crisis and the Discrimination Act. 
So  far,  migrants  have  accepted  the  solutions  offered,  perhaps  because  they  know  that 
young  ‘ethnic  Swedes’  cannot  find  permanent  housing  either  unless  they  are  from  a 
privileged  background.  This  is  also  the  way  that  political  discussions  and  public  policies 
are  framed.  The  focus  is  on  the  severe  housing  shortage  affecting  all  Swedes,  not  on 
immigration,  discrimination  or  any  other  policy  directed  at  a  certain  group.  In  general, 
politicians tend to avoid deliberately framing the question in an anti-immigrant manner.  

The prohibition on housing discrimination covers all grounds but does not apply to private 
persons who sell or rent out their property ‘on sporadic occasions’.  

Housing  falls  under  Chapter  2  Sections  12-12  c  of  the  Discrimination  Act.  The 
Government bill229 to the Discrimination Act states that ‘occasional instances’230 (enstaka) 
of selling or renting out a dwelling should be regarded as being within the private/family 
sphere. Selling an apartment or a house will thus often be exempted from the law. 231 A 
realistic  scenario  is  that  an  estate  agent  presents  two  possible  buyers  to  the  seller  and 
the  seller  chooses  the  lower  bid  due  to  ethnic  reasons.  As  long  as  it  is  the  seller’s 
decision  and  the  estate  agent  treats  both  buyers  equally,  there  is  no  unlawful 
discrimination under the act. 

Situation testing in different forms has been undertaken by, among others, the Tenants 
Association and researchers at Linnaeus University.232 When the researchers sent out 500 
identical applications signed with a name indicating a Swedish female, she got to see the 
apartment in 20 % of the cases. When the name signalled a Muslim man, only 4 % of the 
applications  led  to  him  being  shown  the  apartment.233  Neither  example  could  lead  to  a 
discrimination  case,  since  no  physical  person  had  suffered  less  favourable  treatment 
(missgynnande). There was no one who could go to court or to the Ombudsman, and the 
researchers themselves had not been discriminated against. 

3.2.10.1 Trends and patterns regarding housing segregation for Roma 

In Sweden, there is a pattern of housing discrimination against the Roma. 

In  Sweden,  there  is  no  registration  of  people  according  to  their  ethnicity,  which  means 
that  it  is  not  necessarily  easy  to  determine  how  the  Roma  population  lives.  When 
segregation  is  studied  in  statistical  materials,  a  proxy  such  as  the  birthplace  of  the 
individual or the parents can be used under certain circumstances. At the same time, this 
type  of  proxy  provides  no  information  concerning  national  ethnic  minorities  such  as  the 
Roma.  

In  principle,  most  Roma  persons  who  have  housing  live  in  relatively  good  housing 
conditions  in  Sweden.  However,  a  significant  number  of  them  are  poor  and  require 
housing  allowances,  and  they  live  in  accommodation  owned  by  municipal  housing 
companies.  They  encounter  considerable  housing  discrimination  when  they  seek  to  buy 
apartments  or  houses  or  try  to  rent  on  the  private  or  public  market.234  Therefore,  they 

229  The Government bill is the document where the Government describes the new Act to the Parliament. If the 
Act is adopted in accordance with the proposal of the Government – as was the case with the Discrimination 
Act – this bill becomes the most important source for interpreting the wording of the new Act, at least 
before there is any case law. See Section 0.1. 

230  ‘Sporadic occasions’ may be more than one occasion. A person may, for instance, sell their apartment and 

buy a new one with a new partner, separate, sell the apartment and buy another apartment. As long as the 
apartments are bought and sold for housing reasons, as opposed to financial reasons, the sales are sporadic 
occasions. 

231  Government bill 2007/08:95, p. 244. 
232  The Ombudsman Against Ethnic Discrimination, Discrimination on the Swedish Housing Market 2008:3.  
233  Ahmed, A. and Hammarstedt M. (2007), Discrimination on the housing market – a field experiment on the 

internet, Växjö. 

234  There are several studies using situation testing that indicate this, for instance the Ombudsman Against 

Ethnic Discrimination, Discrimination on the Swedish Housing Market 2008:3 and Ahmed, A. and 

76 

 
 
 
 
  
 
 
 
                                                 
 
often  end  up  living  in  municipal  housing  company  accommodation,  where  waiting  lists 
and certain selection criteria can be more objective. It should be pointed out that these 
apartments are generally of a good standard.  

The  Swedish  housing  market  is  highly  segregated  in  the  three  biggest  cities.  This 
segregation is mostly two-dimensional. Some areas are ‘Swedish-dense’. In those areas, 
the  Swedish  ethnic  majority  is  predominant.  Other  areas  are  ‘Swedish-sparse’.  The 
typical  ethnic  neighbourhood  in  Sweden  has  no  dominant  group.  The  municipal  housing 
companies are often the largest or at least among the largest landlords in many areas. It 
may be assumed that the average Roma lives in such a neighbourhood. There have been 
some cases where local politicians have made discriminatory statements like ‘Vänersborg 
cannot  absorb  more  gypsies’.235  Such  comments  have  been  made  by  representatives  of 
public housing companies as well.236  

The  previous  Ombudsman  Against  Ethnic  Discrimination  had  about  50  housing  cases 
each  year.237  Many  landlords  have  no  formal  waiting  list  system  where  prospective 
tenants  can  register  their  interest  in  renting  an  apartment.238  Minorities  suspect 
discrimination  when  a  landlord  prefers  to  let  an  apartment  remain  empty  instead  of 
accepting  them  as  tenants.  Harassment  by  neighbours  or  the  landlord  is  another 
common complaint. Termination of the  rental contract, refusal to allow a trade239 of the 
apartment  or  denial  of  membership  in  a  housing  cooperative  are  also  common 
complaints.240 

Roma people have brought many housing cases to the Ombudsman over the years. One 
case from Lidköping District Court concerned a landlord who changed the lock in order to 
evict a Roma family. When the lease on the apartment was signed, the landlord mistook 
the ethnicity of the family. He thought they were from Thailand.241 There are other cases 
in which landlords specifically refuse to let Roma rent apartments.242 

Disability 

In  Sweden,  general  disability  accessibility  to  buildings  is  primarily  dealt  with  under 
property law. The new form of discrimination, inadequate accessibility, does not apply to 
housing  according  to  Chapter  2  Section  12  c  point  1  of  the  Discrimination  Act.  Every 
alteration to land or a building requires a building permit unless it is a minor change. The 
municipality makes a general plan (översiktsplan), determining which areas shall be used 
for which purposes. Based on that plan, detailed plans covering smaller areas are made. 
These plans are used as a point of reference when individuals apply for building permits. 

When  a  building  permit  is  issued,  the  municipality  must  be  satisfied  that  the  building 
conforms  to  the  required  accessibility  standards  for  persons  with  disabilities.  New 
buildings  should  thus  have  relatively  good  accessibility.  However,  a  property  owner 

Hammarstedt, M. (2007), Discrimination on the housing market – a field experiment on the internet, Växjö. 

235  Ombudsman Against Ethnic Discrimination, Discrimination Against Romanies in Sweden, Report on DO 

project 2002 and 2003, p. 16.  

236  Ombudsman Against Ethnic Discrimination, Discrimination Against Romanies in Sweden, Report on DO 

project 2002 and 2003, p. 18. 

237  There were 55 complaints submitted in 2008. Ombudsman Against Ethnic Discrimination, Annual Report 

2008, p. 18. 

238  Equality Ombudsman (2011), Roma rights (Romers rättigheter), p. 44. This is presented as a factor making 

discrimination harder to address.  

239  The possibility of trading a first-hand contract for an apartment with another person under certain 

circumstances is a valuable legal right in the Swedish rental housing system. 

240  The Ombudsman Against Discrimination, Ethnic Discrimination on the Housing Market (Etnisk diskriminering 

på bostadsmarknaden PM 2006-01-01). 

241  Lidköping District Court, case T-1596-06, Ombudsman Against Ethnic Discrimination v. Jonslundstvätten 

(judgment of 20.05.2008). The tenant was awarded SEK 50 000 (approximately EUR 5 600). Judgment not 
available on the internet. 

242  The Ombudsman Against Discrimination case No. 331-2006. 

77 

 
 
 
 
 
 
 
                                                                                                                                                         
generally  only  comes  in  contact  with  these  regulations  when  applying  for  a  building 
permit. 

to  public  spaces,  social  security  offices, 

The  National  Board  of  Housing,  Building  and  Planning  (Boverket)  has  issued  rules 
(föreskrifter)  regarding  easily  removable  obstacles  (enkelt  avhjälpta  hinder).243  These 
rules  apply 
the  healthcare  sector, 
infrastructure244 and services made available to the general public. A house, however, is 
not an area  open to the general public, so a landlord owning a house consisting only of 
residential  apartments  cannot  be  ordered  to  improve  accessibility  under  the  threat  of  a 
conditional  penalty.245  They  can  only  be  made  to  do  such  things  when  they  need  a 
building permit. 

If a person with a disability needs an adaptation to their home, the person  can apply to 
the municipality for a housing adaptation grant. This applies to rental property as well as 
to  property  owned  by  the  person  with  a  disability.246  A  tenant  cannot  make  such 
alterations  to  the  apartment  without  the  landlord’s  permission.  The  municipality  checks 
that permission has been given and that the landlord does not require the adaptations to 
be removed if the tenant leaves the apartment. The most likely reason for a landlord to 
refuse is the cost of removing adaptations, which can be a nuisance for persons without a 
disability. There is also a removal allowance that can be applied for. 

As  inadequate  accessibility  does  not  apply  to  housing  as  a  form  of  discrimination,  a 
landlord  is  free  to  say  no  to  any  accommodation  that  falls  outside  what  a  non-disabled 
tenant is allowed to do under the Tenancy Act, even if all the costs are covered by grants 
or by the tenant on their own.  

The  freedom  to  continue  to  apply  norms  for  people  without  disabilities,  and  hence 
without  accommodations,  to  persons  with  disabilities  (apart  from  instances  where  the 
Discrimination  Act  or  some  other  statute  clearly  prohibits  it)  is  a  problematic  area  in 
Sweden. In a case where a building permit was denied to a person with a disability who 
needed  a  pool  for  medical  reasons,  this  appeared  to  be  viewed  as  discrimination  in  the 
form  of  failure  to  make  a  reasonable  accommodation247  by  the  CRPD  monitoring 
committee.248  

243  The details are published in a book from 2005 by the National Housing and Planning Authority called Enklare 

utan hinder (‘Easier without obstacles’).  

244  The legislation applies to airports, bus stations and so on. There is special legislation on accessibility 

concerning public transportation that does not involve the use of land or buildings.  

245  Government White Paper SOU 2015:85 has proposed new legislation extending this duty to the commonly 
shared areas of a multi-apartment housing unit, but not to the apartments themselves. No legal changes 
have been adopted yet. 

246  Section 4, Law on Housing Adaptation Allowances. 
247  Sweden was found to have violated many articles, one of them being on discrimination. The decision does 
not specify that the discrimination was indirect. Other articles concerned matters such as the duty to 
provide medical services, which has some similarities with the discrimination form of inadequate 
accessibility. The decision focuses more on active duties to provide for necessary goods and services, rather 
than passive duties such as abstaining from discrimination. 

248  CRPD/C/7/D/3/2011, H.M v. Sweden. 

78 

 
 
 
 
 
 
 
                                                 
4 

EXCEPTIONS 

4.1  Genuine and determining occupational requirements (Article 4) 

In  Sweden,  national  legislation  provides  for  an  exception  for  genuine  and  determining 
occupational requirements. 

Chapter 2 Section 2 of the Discrimination Act is formulated as follows:  

‘The  Prohibition in  Section  1  does  not  prevent  …  differential  treatment  based  on  a 
characteristic  associated  with  one  of  the  grounds  of  discrimination  if,  when  a 
decision  is  made  on  employment  …  the  characteristic  constitutes  a  genuine  and 
determining  occupational  requirement  that  has  legitimate  purpose  and  the 
requirement is appropriate and necessary to achieve that purpose’.  

In  the  preparatory  works,  it  is  made  clear  that  typical  examples  concerning  this  clause 
include those where a  Muslim organisation has the right to demand that an imam be of 
the Muslim faith, or an organisation campaigning for equal rights for gays and lesbians or 
an  interest  organisation  serving  a  certain  immigrant  group  may  have  a  right  to  require 
that,  for  some  ‘core’  positions,  the  employees  themselves  should  be  homosexuals  or 
should have the relevant immigrant background. At the same time, it is emphasised that 
the  prohibition  of  discrimination  must  be  given  a  narrow 
exceptions 
interpretation.249  Concerning  an  organisation,  only  the  positions  that  are  ‘visible’  to  the 
public  or  of  particular  relevance  can  come  into  question,  not  an  entire  organisation  per 
se,  and  not  automatically.  The  employer  must,  furthermore,  have  a  strong  motive  for 
applying  the  exemption,  and  the  position  must  clearly  have  required  the  qualification 
concerned. Religious communities do not have a special status under the Discrimination 
Act,  but  they  are  explicitly  mentioned  in  the  preparatory  work,  along  with  other 
examples. 

from 

4.2  Employers with an ethos based on religion or belief (Article 4(2) Directive 

2000/78) 

In  Sweden,  national law  does  not  provide  for  an  exception  for  employers  with  an  ethos 
based on religion or belief. 

In  Sweden,  all  grounds  of  discrimination  are  in  principle  considered  equal,  and  special 
provisions  would  violate  this  equality.  The  general  rule  on  exceptions  in  the  labour 
market  in  Chapter  2  Section  2  applies  and  there  are  thus  no  special  exceptions  for 
religious organisations/employers. 

4.3  Armed  forces  and  other  specific  occupations  (Article  3(4)  and  Recital  18 

Directive 2000/78) 

In Sweden, national legislation provides for an exception for the armed forces in relation 
to  age  but  only  with  regard  to  conscription  and  military  education  under  Chapter  2 
Sections 15-16 of the Discrimination Act, (Article 3(4), Directive 2000/78).  

For  ordinary  military  employees,  the  employment  rules  of  the  Discrimination  Act  apply 
and there are no special exceptions.  

Chapter 2, Sections 15-16, also covers enrolment procedures, admission tests and other 
examinations  of  personal  circumstances  under  the  National  Total  Defence  Service  Act 

249  Government bill 2002/03:65, pp. 185-187. Government bill 2007/08:95, pp. 155-157. 

79 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
(1994:1809). The act still applies, but nowadays the state does not force any person to 
do military service against their wishes. Conscription will be reintroduced in 2018.250  

4.4  Nationality discrimination (Article 3(2)) 

a)  Discrimination on the ground of nationality 

In Sweden, national law includes exceptions relating to difference of treatment based on 
Swedish citizenship. There are no exceptions relating to aspects of nationality other than 
citizenship.  

In  Sweden,  nationality  (as  in  citizenship)  is  not  explicitly  mentioned  as  a  protected 
ground in national anti-discrimination law. 

In  Sweden,  national  origin  is  explicitly  mentioned  as  part  of  the  protected  ground  of 
ethnicity  in  national  anti-discrimination  law.  Under  Chapter  1  Section  5  point  3  of  the 
Discrimination  Act,  ethnicity is  defined  as  ‘national  or  ethnic  origin,  skin  colour  or  other 
similar  circumstance’.  Citizenship  is  thus  not  explicitly  mentioned,  but  it  falls  under  the 
definition of ethnicity, ‘national origin or other similar circumstance’. 

Under  Chapter  11  Section  11  of  the  Instrument  of  Government,  Swedish  citizenship  is 
required  for  judges.  Chapter  6  Section  2  says  that  Government  ministers  must  have 
Swedish  citizenship.  The  Chancellor  of  Justice,  the  Parliamentary  Ombudsman  and  the 
three Auditors General are the other examples where Swedish Nationality is required by 
Instrument of Government.251  

Positions to which the person is elected by the Parliament require Swedish citizenship, in 
accordance  with  the  Parliament  Act  (1974:153)  Chapter  7  Section  11.  This  act  has  a 
semi-constitutional status. As regards other legislation, there are some (rare)  occasions 
where Swedish citizenship is required.252 

b) 

Relationship between nationality and ‘race or ethnic origin’ 

National  origin  and  citizenship  are  two  of  many  factors  that  can  lie  at  the  heart  of 
ethnicity.253  The  overlap  is  thus  recognised  by  the  law,  and  no  person  can  be  left 
unprotected.  A  stateless  person  will  always  have  an  ethnic/national  origin.  The  word 
‘race’  has  been  deliberately  omitted.  In  Sweden,  discrimination  on  this  basis  will  be 
regarded as ethnic discrimination, being a ground similar to that of skin colour.254 

4.5  Work-related family benefits (Recital 22 Directive 2000/78) 

a) 

Benefits for married employees 

In  Sweden,  it  does  not  constitute  unlawful  discrimination  in  national law  if  an  employer 
provides benefits only to those employees who are married. 

250  In March 2017 the Government decided to reintroduce conscription, starting in 2018. As only 4 000 out of a 

yearly cohort of 100 000 persons shall serve and as their willingness to serve shall be a selection criterion, 
there is a strong possibility of it becoming a reality only for those who want to serve.  

251  Government bill 2009/10:80, p. 333. 
252  See also SOU 2000:106, Medborgarskapskrav i svensk lagstiftning, where an inventory is made of the areas 

where citizenship requirements exist.  

253  According to Chapter 1 Article 5 point 3 of the Discrimination Act (Diskrimineringslagen 2008:567, adopted 

on 05.06.2008), ethnic origin is defined as ‘national or ethnic origin, skin colour or other similar 
circumstance’.  

254  The reasons for omitting the word ‘race’ are discussed in Section 2.1.1 of this report. Although the author 
believes removal of the word ‘race’ does not violate EU law, this is not necessarily a positive development 
with regard to Directive 2000/43. 

80 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Civil status is not in itself a prohibited ground for discrimination. There is no difference in 
the marital status between same-sex spouses and opposite-sex spouses. 

General  employment  protection  rules  against  unfair  dismissals,  for  example,  as  well  as 
principles  of  good  practice  on  the  labour  market  would,  however,  provide  some 
protection  against  discrimination  in  regard  to  married  and  unmarried  partners  in  many 
cases.  In  Sweden,  generally  speaking,  unmarried  couples  are  the  rule  rather  than  the 
exception, and it would make no sense to have benefits only for married people. Swedish 
anti-discrimination legislation contains no exceptions as such for differences in treatment 
based on marital status or civil status. 

b) 

Benefits for employees with opposite-sex partners 

In Sweden, it would constitute unlawful discrimination under national law if an employer 
provided benefits only to employees with opposite-sex partners. 

When  it  comes  to  discrimination  between  married  spouses  and  registered  partners,  as 
was pointed out by Hans Ytterberg in the Sexual Orientation Report of 28 July 2004, ‘the 
whole  raison  d’être  of  the  Swedish  Registered  Partnership  Act255  was  to  create  a  legal 
framework  for  homosexual  couples,  which  corresponds  to  that  of  civil  marriage  for 
heterosexuals’. 

On 1 April 2009 the Swedish Parliament went one step further and decided to amend the 
Marriage  Code  to  allow  two  persons  to  marry  regardless  of  whether  they  are  of  the 
opposite sex or not. This modification entered into force in May 2009. At the same time, 
the Registered Partnership Act was repealed and registered partnerships were converted 
into marriages. This was done in order to emphasise that a homosexual family of parents 
and children is the same as a heterosexual family.  

Swedish law clearly does not permit benefits that are limited to those with opposite-sex 
partners. That would constitute direct discrimination under Chapter 1 Section 4 point 1 of 
the Discrimination Act. 

4.6  Health and safety (Article 7(2) Directive 2000/78) 

In  Sweden,  there  are  no  exceptions  in  relation  to  disability  and  health  and  safety,  as 
permitted under Article 7(2) of the Employment Equality Directive. 

The  ordinary  exception  in  Chapter  2  Section  2  of  the  Discrimination  Act  (genuine  and 
determining occupational requirement)  applies to the employer. Regarding persons with 
disabilities,  it  is  relevant  for  the  employer  to  take  into  consideration  not  only  security 
issues  and  the  health  and  safety  of  others  at  the  workplace,  but  also  the  health  and 
safety  of  the  person  with  a  disability.  However,  the  burden  of  proof  can  sometimes  be 
shifted to the employer, who then has to prove that the contested measure is necessary 
to  protect  health  and  safety.256  In  Labour  Court  case  2003  No.  47,257  the  risks  of  shift 
work for an employee with diabetes were not proven and the refusal to employ him was 
deemed to constitute direct discrimination. 

255  Act on Registered Partnership (Lag om registrerat partnerskap 1994:1117), adopted on 23.06.1994; original 

preparatory work: bet. 1993/94:LU28. Now repealed. 

256  Formally, Chapter 6 Section 3 of the Discrimination Act (Diskrimineringslagen 2008:567 adopted on 
05.06.2008) applies to all forms of discrimination. In practice, a shift of the burden of proof has only 
happened in situations which could easily have occurred regarding other grounds such as sex or ethnicity 
(see for instance footnote below). The author knows of no case where the shift of burden of proof has been 
decisive in a reasonable accommodation case.  

257  Labour Court 2003 No. 47, Swedish Metal Workers Union v. Scandinavian Refinery Ltd (Scanraff) and 

Cooperative Employers Organisation (judgment of 04.06.2003). 

81 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
4.7  Exceptions  related  to  discrimination  on  the  ground  of  age  (Article  6 

Directive 2000/78) 

4.7.1  Direct discrimination 

In Sweden, national law provides an exception to direct discrimination in relation to age 
in Chapter 2 Section 2 points 3 and 4 of the Discrimination Act.  

a) 

Justification of direct discrimination on the ground of age 

In Sweden, it is generally possible to justify direct discrimination on the ground of age. 
Chapter 2 Section 2 point 3 of the Discrimination Act allows age limits without the need 
to justify them with regard to the right to a pension or to survivor’s or invalidity benefits 
in individual contracts or collective agreements. The next point (point 4) allows: 

‘differential  treatment  on  grounds  of  age,  if  there  is  a  legitimate  purpose  and  the 
means that are used are appropriate and necessary to achieve that purpose’. 

On the surface, this test is in compliance with the test in Article 6 of Directive 2000/78. 

There  is  a  general  possibility  to  justify  age  discrimination  with  a  legitimate  aim  if  the 
means  are  appropriate  and  necessary  in  pursuit  of  this  aim.  The  preparatory  works  for 
the Discrimination Act describe the scope for justification as being quite broad. Age limits 
are  common  in  collective  agreements,  and  the  system  as  such  works  well  according  to 
the Government. Therefore, the courts are encouraged to look at a collective agreement 
in  a  holistic  way,  including  its  relationship  to  the  relevant  social  security  provisions, 
rather than singling out individual clauses in a collective agreement for scrutiny.258 At the 
same  time,  the  Government  rejected  demands  for  a  presumption  of  collective 
agreements  being  compatible  with  Directive  2000/78.259  Any  benefit  in  a  collective 
agreement  can  be  seen  as  a  ‘certain  advantage  linked  to  employment’  within  the 
meaning  of  Article  6.1.b.  In  the  author’s  opinion,  the  scope  for  justification  is  likely  to 
become too broad unless the Labour Court makes a narrow interpretation of the law. Two 
examples from the preparatory work concerning conditions fulfilling a legitimate aim and 
normally being both appropriate and necessary are that:260 

- 

- 

Better conditions regarding paid vacation are justified because  older  workers need 
more rest than younger workers in order to be able to work until they retire; 
Better  conditions  regarding  periods  of  notice  for  dismissals  for  older  workers  are 
also justified as an aid to help them work until retirement. 

In Labour Court case 2011 No. 37,261 the Labour Court made a narrow interpretation of 
the  scope  for  different  treatment  with  regard  to  age.  The  case  concerned  a  redundancy 
situation  regarding  an  airline’s  cabin  crew  personnel.  According  to  the  Employment 
Protection  Act,  the  principle  of  seniority  was  to  apply.  Those  persons  who  had  been 
employed for the longest time were to have the highest level of job security. This rule is 
only  semi-mandatory,  however,  and  can  thus  be  modified  by  collective  agreements.  A 
collective agreement in this case permitted the employer to dismiss all persons above the 
age of 60, as they were entitled to a full pension (roughly 70 % of previous pay) under 
the employer’s pension scheme. The case concerned 25 persons.  

258  Government bill 2007/08:95, p. 177. 
259  Government bill 2007/08:95, p. 177. 
260  Government bill 2007/08:95, p. 179. 
261  Labour Court 2011 No. 37, Equality Ombudsman v. Aviation Employers (Flygarbetsgivarna) and 

Scandinavian Airlines System (judgment of 04.05.2011) at 
http://www.arbetsdomstolen.se/upload/pdf/2011/37-11.pdf. 

82 

 
 
 
 
 
 
 
 
 
 
 
                                                 
The  employer argued that there was no direct age discrimination. The company needed 
to reduce the workforce. Being dismissed was less hard on those who had a right to a full 
pension, therefore there were legitimate social reasons to choose those above the age of 
60 for dismissal, and thus no indirect discrimination had occurred either.  

The  Labour  Court  decided  that  there  was  direct  discrimination  because  age  and  the 
pension  rights  were  directly  linked  to  each  other.  The  Labour  Court  said  that  both  the 
desire to distribute employment fairly between generations and the desire to ensure that 
the remaining employees were not all close to pension age were arguments that could be 
valid in defending different treatment according to age under Chapter 2 Section 2 point 4 
of  the  Discrimination  Act.  Voluntary  retirement  schemes  could  thus  be  acceptable. 
However,  it  was  not  deemed  proportionate  to  force  retirement  on  all  those  who  had 
reached the age of 60.  
The dismissals were declared void. The 25 persons thus kept their employment and they 
were  each  awarded  SEK 125 000  (EUR 11 700)  in  a  combination  of  a  discrimination 
compensation  award  and  non-pecuniary  damages  under  the  Employment  Protection  Act 
(Lagen om Anställningsskydd).262 

So  far,  the  interpretation  seems  to  be  in  conformity  with  the  directive  as  far  as 
discrimination against older persons is concerned. 

b) 

Permitted differences of treatment based on age 

In  Sweden,  national  law  permits  differences  of  treatment  based  on  age  for  activities 
within the material scope of Directive 2000/78. 

The general exception in Chapter 2 Section 2 point 4 of The Discrimination Act will allow 
any differential treatment that passes the proportionality test. 

c) 

Fixing  of  ages  for  admission  or  entitlements  to  benefits  of  occupational  pension 
schemes 

In Sweden, national law allows occupational pension schemes to fix ages for admission to 
the  scheme  or  entitlement  to  benefits,  taking  up  the  possibility  provided  for  by 
Article 6(2). 

There is a specific exception in the Discrimination Act for age limits concerning pensions, 
survivor’s  benefits  and  disability  benefits,  in  individual  contracts  and  collective 
agreements.263 

4.7.2  Special  conditions  for  young  people,  older  workers  and  persons  with 

caring responsibilities  

In Sweden, there are special conditions set by law for older and younger workers in order 
to  promote  their  vocational  integration,  and  for  persons  with  caring  responsibilities  to 
ensure their protection.  

Within labour market policy regulations there are a number of rules which expressly refer 
to  age,  aimed  at  promoting  the  vocational  integration  of  young  and  old  people, 
respectively.  Age  limits  are  often  uncontroversial.  There  is,  for  instance,  a  ‘work 
guarantee’  for  people  younger  than  25.  It  was  introduced  as  an  amendment  to  the 
Regulation on a Work Guarantee for Young Persons, and has the aim of ensuring that a 

262  The reform of 2013 extending the protection for age discrimination did not affect the prohibition of 

discrimination in the labour market. 

263  Discrimination Act (Diskrimineringslagen 2008:567 adopted on 05.06.2008) Chapter 2, Section 2 point 3. 

83 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
young  person  gets  a  suitable  place  in  an  education  programme  or  traineeship  within 
three months of registering with the National Employment Agency.264 

There are also a number  of  rights in  labour law relating to parenting  – see in particular 
the Parental Leave Act (1995:584). 

4.7.3  Minimum and maximum age requirements 

In  Sweden,  there  are  no  exceptions  permitting  minimum  and/or  maximum  age 
requirements  in  relation  to  access  to  employment  (notably  in  the  public  sector)  and 
training. 

Minimum or maximum age requirements are dealt with under the proportionality test in 
the Discrimination Act Chapter 2 Section 2 point 4 (See Section 4.7.1.). 

4.7.4  Retirement  

a) 

State pension age 

In Sweden, there is no state pension age at which individuals must begin to collect their 
state  pension.  If  an  individual  wishes  to  work  up  to  a  very  old  age  or  live  on  their 
savings,  the  pension  can  be  postponed  without  any  upper  limit,  with  each  month  of 
postponement resulting in an actuarial increase of the pension level.  

An individual can collect a pension and still work. 

According  to  the  Swedish  statutory  pension  scheme  introduced  in  1998265  there  is  no 
fixed  upper  pension  age.  The  income-related  public  pension  scheme  opens  up  for  part-
time or full-time pensions from the age of 61.266 

People  may  also  postpone  their  pensions,  continue  to  work  for  as  long  as  they  like  and 
continue  to  add  to  their  pension  benefits,  the  scheme  being  based  on  a  principle  of 
lifelong  earnings  and  actuarially  correct  calculations  based  on  their  expected  remaining 
lifetime when they take out the pension. Postponing the pension payments for one month 
raises the pension by approximately 0.6 % around the age of 65. It is possible to collect 
a pension and still work – both the pension and the income are taxable. 

However, the right to the basic pension scheme – the ‘guaranteed pension’ – requires the 
beneficiary  to  be  65267  years  of  age.  Even  this  pension  can  be  postponed  and  thus 
increased in accordance with actuarial principles. 

b)  Occupational pension schemes 

In  Sweden,  there  is  no  normal  age  when  people  can  begin  to  receive  payments  from 
occupational pension schemes and other employer-funded pension arrangements.  

264  Regulation (2007:813) on a work guarantee for young persons, (updated by SFS 2017:1165). The words 
‘work guarantee’ have been put inside quotation marks because the act contains goals and not a legally 
enforceable guarantee. 

265  Chapters 62-67 of the Social Security Code (Socialförsäkringsbalk 2010:110), adopted on 04.03.2010. 
266  There is a political compromise backed by most of the political parties in the Parliament to raise this age to 

62 in 2020 and to 63 and 64 with three-year intervals, but there is no legislation yet. See: 
http://www.regeringen.se/pressmeddelanden/2017/12/blockoverskridande-overenskommelse-for-
langsiktigt-hojda-och-trygga-pensioner/.  

267  There is a political compromise backed by most of the political parties in the Parliament to raise this age to 
66 in 2023 and to 67 in 2026, however a person who has worked for 44 years shall still have a right to take 
it at 65. There is no legislation yet. See: 
http://www.regeringen.se/pressmeddelanden/2017/12/blockoverskridande-overenskommelse-for-
langsiktigt-hojda-och-trygga-pensioner/. 

84 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
If  an  individual  wishes  to  work  for  longer,  payments  from  such  occupational  pension 
schemes can often be deferred.  

An  individual  cannot,  in  many  cases,  collect  an  occupational  pension  and  still  work  full-
time with their employer. 

There are over 300 occupational pension schemes in Sweden.  

Generally  speaking,  occupational  pension  schemes  contain  (mostly  flexible)  rules  on 
pensionable age. Pensions can thus normally be deferred if  an individual wishes to work 
for longer, and they will provide more income in such cases.268 It is possible to collect a 
pension  and  still  work.  The  age  of  55  is  the  earliest  age  at  which  a  pension  fund  can 
allow a person to start withdrawing their pension.269 Many occupational pension schemes 
thus have this age limit; 60 and 65 are other common age limits. 

It is not uncommon for an occupational pension scheme to be related to retirement, and 
thus it is not possible for a person who keeps working full-time for the same employer to 
claim a pension as well. 

c) 

State imposed mandatory retirement ages 

In Sweden, there is no state-imposed mandatory retirement age. 

d) 

Retirement ages imposed by employers 

In  Sweden,  national  law  permits  employers  to  set  the  retirement  age  at  67  years  by 
contract or unilaterally. 

Within  employment  law  there  is  a  right  for  the  employee  to  stay  on  until  he  or  she 
reaches  the  age  of  67,  despite  what  may  have  been  agreed  between  the  parties.270  At 
this  point  it  is  possible  for  the  employer  to  unilaterally  terminate  the  employment  with 
one month’s notice. This was accepted by the CJEU in the Hörnfeldt case.271 On a general 
level,  most  Swedes  accumulate  a  viable  pension  by  the  age  of  67.  This  age  limit  is 
therefore  proportional  and  can  be  defended  as  an  integral  part  of  the  general  labour 
market system. 

However, in the Keolis case,272 the employer legally dismissed bus drivers at the age of 
67. The employer then offered to re-hire the staff on a fixed short-term hourly basis (for 
instance filling in at short notice for permanently employed drivers calling in sick). When 
they reached the age of 70, their employment was not renewed. This was considered  to 
be direct age discrimination. The Labour Court stated that the permission to dismiss with 
regard to the Discrimination Act (or to refuse to prolong temporary employment) without 
an  individual  assessment  exists  only  at  the  age  of  67.  Only  at  this  age  is  there  explicit 
permission in the Employment Protection Act for dismissals without just cause.273 

268  Collective agreements on pensions are very diverse. The normal practice today is that a young person 

belongs to a prefunded system based on actuarial principles. Elderly workers quite often belong to a defined 
benefits system, and some systems have a combination of a defined contribution with guaranteed defined 
benefits for those with many years of participation. Such systems do not always work on actuarial principles 
(with regard to the defined benefit part) if the worker decides to postpone their retirement.  

269  Act on Income Taxation (Inkomstskattelag 1999:1229 adopted on 16.12.1999) Chapter 58 Section 8 sets 

this age as the lowest possible for favourable tax treatment.  

270  The rule also outlaws collective agreements stipulating a lower retirement age, something which has been 
criticised by the ILO, Case No. 2171, GB 286/11 (part II), March 2003. The law (Section 32 a of the 1982 
Employment Protection Act) has not yet been revised.  

271  European Court of Justice, Case 141/11, Torsten Hörnfeldt v. Posten AB, (judgment of 05.07.2012). 
272  Labour Court, Case 2015 No. 51, Equality Ombudsman v. Keolis AB (judgment of 16.09.2015). 
273  In the Employment Protection Act, there is a free choice on fixed-term contracts once the worker is 67 or 
older. However, the Discrimination Act still applies to any refusal to prolong employment that may involve 
discrimination. This is problematic, as a fixed-term contract that expires when the person reaches the age of 

85 

 
 
 
 
 
 
 
 
 
 
 
                                                 
 
e) 

Employment rights applicable to all workers irrespective of age 

The law on protection against dismissal and other laws protecting employment rights do 
not  apply  in  the  same  way  to  all  workers  irrespective  of  age  if  they  remain  in 
employment on attaining pensionable age or another age.  

The  1982  Swedish  Employment  Protection  Act  differentiates  between  dismissal  on 
personal grounds (which requires just cause) and dismissal due to a shortage of work for 
business reasons.  

In the latter case, just cause is considered to exist (the decision as to whether there is a 
shortage of work rests entirely with the employer) but lay-offs have to be carried out in 
accordance with the last-in, first-out principle under Section 22.  
Regardless  of  the  reason  for  the  dismissal,  the  notice  period  (between  1-6  months) 
required relates to the prior period of employment and is thus indirectly related to age. 

At  the  age  of  67,  the  worker  loses  the  right  to  seniority  under  Section  33  of  the 
Employment Protection Act, and can thus be dismissed in a redundancy case. The same 
section also gives the employer the right to dismiss the worker with one month’s notice 
at this age. Should the employer not do this, the old employee cannot be dismissed for 
personal  reasons  without  just  cause  any  more,  but  presumably  the  protection  will  be 
much  weaker.  There  is  no  case  law  on  this.  Employers  normally  dismiss  workers  who 
reach  67  years.  If  they  want  to  keep  the  worker,  they  give  the  worker  a  fixed-term 
contract  -  on  which  there  is  no  restriction  if  the  worker  is  67  years  or  older,  in 
accordance with Section 5 point 4 of the Employment Protection Act.274 The fact that the 
Discrimination Act could be applicable to the refusal to renew such a contract at an age 
significantly  above  67  –  as  was  decided  in  the  Keolis  case275  –  was  a  surprise  to  many 
people. 

Redundancies and collective agreements are problematic in Sweden. It is not unusual for 
central  collective  agreements  to  give  people  over  the  age  of  60  access  to  early 
retirement if there is a  redundancy  situation.276 Such arrangements  encourage the local 
trade  union  to  agree  to  local  collective  agreements  allowing  elderly  workers  to  be 
dismissed  in  redundancy  situations  instead  of  applying  the  last-in,  first-out  principle.  If 
all  those  over  the  age  of  60  are  dismissed,  it  becomes  a  case  of  direct  discrimination, 
which is prohibited.277 However, if 50 % of the employees over 60 whose preference was 
to  work  until  early  retirement  are  dismissed  and  25 %  of  the  younger  workers  are 
dismissed, it would become a case of possible indirect discrimination and, since collective 
agreements have  strong standing in the Swedish labour market model, they are almost 
certain  to  survive  a  proportionality  test.  Facilitating  the  dismissals  of  elderly  persons 
through local collective agreements is an important reason for employers to want central 
collective  agreements  providing  early  retirement  for  workers  over  60  who  are  made 
redundant. 

f) 

Compliance of national law with CJEU case law 

In  Sweden,  the  national  legislation  is  in  line  with  CJEU  case  law  on  age  regarding 
compulsory retirement. At the age of 65 every person who has lived 40 years in Sweden 
gets a liveable pension, and employment protection continues to 67 years for everyone. 

67 can be a valid termination without the need to apply the special exemption for dismissals at 67.  

274  See the Keolis case above (e). 
275  Labour Court, Case 2015 No. 51, Equality Ombudsman v. Keolis AB (judgment of 16.09.2015). 
276  See further discussions in Government White Paper 2012:28, pp. 316-320. The Government inquiry has 

found these collective agreements to be problematic because they encourage early retirement, something 
that the state pension system discourages.  

277  See Labour Court 2011 No. 37, Equality Ombudsman v. Aviation Employers (Flygarbetsgivarna) and 
Scandinavian Airlines System (judgment of 04.05.2011). The case is described in Section 3.9.1. 

86 

 
 
 
 
 
 
 
 
                                                                                                                                                         
4.7.5  Redundancy 

a) 

Age and seniority are taken into account for redundancy selection 

In  Sweden,  national  law  permits  and  requires  seniority  to  be  taken  into  account  in 
selecting workers for redundancy.  

The  Swedish  1982  Employment  Protection  Act  differentiates  between  dismissal  on 
personal grounds (which requires just cause) and dismissal due to a shortage of work.  

In the latter case, just cause is regarded to  exist (the decision as to  whether there is a 
shortage of work rests entirely with the employer) but lay-offs have to be carried out in 
accordance with the last-in, first-out principle under Section 22.  

Moreover,  in  the  event  of  equal  periods  of  employment,  senior  age  priority  applies 
directly. There is also special protection for persons with disabilities (preference, i.e. the 
seniority rule does not necessarily apply). 

Regardless of the reason for the dismissal, the notice period (between 1 and 6 months) 
required relates to the prior period of employment and is thus indirectly related to age. 

b) 

Age taken into account for redundancy compensation 

In Sweden, national law does not provide compensation for redundancy.  

Collective agreements for white-collar workers and for workers in the public/state sector 
sometimes  provide  packages  including  extra  unemployment  benefits,  re-training  on 
favourable terms and even early retirement if the worker being made redundant is over 
60.278 

4.8  Public  security,  public  order,  criminal  offences,  protection  of  health, 
protection  of  the  rights  and  freedoms  of  others  (Article  2(5),  Directive 
2000/78) 

In Sweden, national law does not include exceptions that seek to rely on Article 2(5) of 
the Employment Equality Directive. 

4.9  Any other exceptions 

In  Sweden,  other  exceptions  to  the  prohibition  of  discrimination  (on  any  ground) 
provided in national law are the following:  

- 

- 

- 

- 

- 

- 

Age limits set by law are accepted within  the  social security field under Chapter 2 
Section 14 b point 1 of the Discrimination Act. 
Age limits set in laws for goods and services are permitted under Chapter 2 Section 
12 b point 1 of the Discrimination Act. 
Age limits in the insurance sector are permitted under Chapter 2 Section 12 b point 
2 of the Discrimination Act. 
Minimum age limits for places that are allowed to serve alcohol is permitted  under 
Chapter 2 Section 12 b point 3 of the Discrimination Act. 
Age  limits  set  in  laws  governing  healthcare  and  social  services  are  also  permitted 
under Chapter 2 Section 13 b point 1 of the Discrimination Act. 
The discrimination form of inadequate accessibility does not apply to housing under 
Chapter 2 Section 12 c point 1 of the Discrimination Act. 

278  See further descriptions and discussions of such collective agreements in relation to the sustainability of the 

Swedish pension system in Government White Paper 2012:28, pp. 316-320. 

87 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
- 

- 

- 

Inadequate  accessibility  as  a  form  of  discrimination  does  not  apply  to  private 
persons under Chapter 2 Section 12 c point 2 of the Discrimination Act. 
A  seller  of  goods  or  provider  of  services  who  has  fulfilled  the  accessibility 
requirements in the building regulations at the time the premises were built cannot 
be  required  to  undertake  any  further  accessibility  measures.  This  is  stated  in 
Chapter 2 Section 12 c point 4 of the Discrimination Act. 
Harassment with regard to age need not be investigated with regard to  conscripts 
and  persons  in  military  education  programmes  under  Chapter  2  Section  16  of  the 
Discrimination Act. If they are employed by the military, normal rules apply. 

88 

 
 
5 

POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 
2000/78) 

a) 

Scope for positive action measures 

In Sweden, the extent to which positive action is allowed depends on the ground (racial 
or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual  orientation)  and  the  area  of 
prohibition. There is no general clause allowing  positive action. Concerning working life, 
there is a clause that allows positive action concerning sex. 

Positive  action  in  relation  to  persons  with  disabilities  is  generally  allowed.  Measures 
benefiting  this  group  may  disfavour  persons  with  no  disabilities,  but  that  group  is  not 
protected by the Discrimination Act and thus the discrimination is lawful. The  protection 
provided for disability is ‘asymmetric’ as compared with, for example, the protection for 
ethnicity,  which  protects  ‘Swedes’  and  ‘non-Swedes’,  the  protection  for  the  ground  of 
sex,  which  protects  men  and  women,  and  the  protection  for  sexual  orientation,  which 
protects heterosexuals, homosexuals and bisexuals. 

In  other  areas  of  labour  law  as  well  as  labour  market  policy  regulations,  a  number  of 
special measures are available in relation to persons with disabilities with regard to their 
working  life.  Their  purpose  is  to  directly  or  indirectly  compensate  for  disadvantages 
linked  to  disability.  In  some  cases,  for  example,  wage  subsidies  are  available.  An 
individual may also have a right to certain support measures in order to regain or retain 
his/her  work  capacity.  These  measures  are  regulated  in  the  Social  Insurance  Code 
(2010:110 Socialförsäkringsbalk) Chapters 29-31. Employers are required to maintain a 
good  work  environment,  which  means  not  only  the  physical  aspects  but  the  psycho-
social  aspects  as  well.  This  also  means  that  certain  types  of  accommodation  should  be 
made  for  employees  with  disabilities.  This  can  relate  to  the  physical  accessibility  of  the 
workplace.  These  issues  are  regulated  in  the  Work  Environment  Act  (Arbetsmiljölagen, 
(Arbetsmiljöförordningen, 
1977:1160)  and 
1977:1166), as well as by the Discrimination Act. 

the  Work  Environment  Regulation 

With  regard  to  age,  direct  discrimination  can  in  almost  all  areas  be  justified  by  a 
proportionality test. Positive action measures would normally pass such a test. 

Ethnicity has an exception from the prohibition of discrimination regarding labour market 
policy  activities  and  for  starting  or  running  a  business  (Chapter 2,  Sections 39  and  10). 
Ethnicity and religion or other belief have an exception in the context of folk high schools 
and study associations (Chapter 2 Section 6). A right for members of certain religions to 
refuse military service is also specified (Chapter 2, Section 15). 

There are no exceptions in the act concerning sexual orientation. 

The  Discrimination  Act  also  contains  rules  on  ‘active  measures’.  From  an  EU  law 
perspective,  such  measures  are  within  the  realm  of  positive  action  in  a  more  general 
meaning.  The  act  requires  that  employers  continuously  carry  out  goal-oriented  work 
concerning all discrimination grounds so as to actively promote equality in working life.279 
Education  providers  are  also  required  to  undertake  continuous  goal-oriented  work  with 
regard to all grounds (Chapter 3 Sections 1-3).  

Both employers and education providers need to have a ready-made procedure in place 
to  handle  instances  of  sexual280  harassment  and  other  harassment  on  any  ground  that 
may be reported by students/pupils/employees (Chapter 3 Sections 6 and 18).281 

279  Chapter 3 Sections 1-3 of the Discrimination Act (Diskrimineringslagen 2008:567), adopted on 05.06.2008. 
280  Sexual harassment is harassment connected to sexual desire, and can happen between persons of the same 

sex as well as between persons of the opposite sex. In Sweden this is so uncontroversial that it would have 
been very strange to mention it in the law. There is at least one same-sex harassment case in the courts 

89 

 
 
 
 
 
 
 
 
  
 
                                                 
 
If  there  is  no  exception,  positive  action  must  not  lead  to  direct  discrimination.  Positive 
actions  required  by  law  and  leading  to  indirect  discrimination  have  a  good  chance  of 
passing the proportionality test. 

b)  Main positive action measures in place at the national level 

Positive  actions  are  mostly  decided  upon  locally,  i.e.  by  an  individual  employer  or  a 
university, and frequently concern advertising practices and the like.282 A list of the most 
commonly  used  positive  action  measures  would  thus  require  extensive  research, 
especially  if  they  are  to  be  used  as  a  basis  for  classifying  Swedish  positive  action 
measures as  mostly broad, social policy based or narrowly tailored, or as being quotas. 
The  classifications  in  this  report  should  therefore  be  considered  preliminary.  From  the 
text below the reader can safely assume that quotas are very rare. 

National  law  does  not  prescribe  a  quota  system  for  persons  with  disabilities  or  for  any 
other  group.  There  are,  however,  a  number  of  labour-market  policy  measures  such  as 
subsidised  wage  schemes  and  sheltered  employment  targeting  people  with  disabilities. 
They can be classified as broad because every reason for a person being unable to hold a 
normal job in the long term can qualify a person for these measures. 

The inquiry into the rights of Roma people proposes state funding for locally determined 
labour-market  activities  designed  to  meet  the  needs  of  this  group.283  The  inquiry 
estimates that only 10 %  of the Roma people  in Malmö have a normal job on the open 
labour  market.284  As  a  part  of  the  National  Roma  Strategy,  five  municipalities  have 
become test places and have received state funding for, inter alia, making sure that the 
National  Employment  Agency  assists  Roma  persons  in  a  better  way.  This  has  led  to 
broad-based  activities  in  the  five  municipalities.  These  initiatives  have  created  positions 
called  ‘customer  resource  officials  with  a  minority  focus,  who  assist  all  minorities. 
However,  all  of  them  must  either  speak  Romani  or  have  a  good  knowledge  of  Roma 
culture.285 The municipalities have presented figures, for example, that 20 Roma persons 
received  employment  or  10  Roma  persons  received  training  places,  but  no  one  knows 
how  many  of  them  would  have  received  jobs  or  training  places  anyway.286  No 
municipality  reported  training  places  reserved  for  Roma  persons  (which  would  be  legal, 
as  opposed  to  jobs  reserved  for  Roma  persons).  The  author  would  classify  these 
measures as broad because they were implemented in a way that benefited all minorities 
– but with a special focus on Roma. 

There  is  no  longer  a  special  labour  market  programme  for  newly  arrived  immigrants. 
Instead, they shall receive labour-market-based programme activities on terms as similar 
as  possible  to  those  of  other  people  who  are  finding  it  hard  to  establish  themselves  on 

that the author knows of. For reasons of anonymity the author refers here only to the Equality 
Ombudsman’s case number ANM 2015/2431.  

281  With regard to employers, this duty includes victimisation too. As regards active measures, the Ombudsman 
works as a regulatory authority, visiting employers and universities, checking their equality plans and so on. 
If somebody fails to fulfil their duties, the Board Against Discrimination may – on the Ombudsman’s 
application – issue an order to comply with a specific request before a certain date (or for the future), 
subject to a financial penalty under Chapter 4, Section 5 of the Discrimination Act. The financial penalty will 
gain legal force only after a district court has ordered the payment. The legality of the order itself – as well 
as the reasonableness of the amount – can be decided upon by the district court. As far as the author 
knows, a district court has never ordered such a payment, and applications to the Board Against 
Discrimination have been extremely rare. 

282  The Government takes such positive measures as well, for instance with regard to employment decisions 

and the selection of persons to lead government authorities. 

283  Government White Paper 2010:55, p. 363. 
284  Government White Paper 2010:55, p. 367. The estimate is based on a local report from 2008, which in turn 
is based on interviews with Roma representatives. Ethnicity is not registered in Sweden, so all figures for 
ethnic groups need to be based on some other method of assessing the situation. 

285  National Employment Agency, Report on Pilot Activities for Roma Inclusion 2015, p. 10. 
286  National Employment Agency, Report on Pilot Activities for Roma Inclusion 2015, p. 15; example from 

Malmö. 

90 

 
 
 
 
 
 
                                                                                                                                                         
the  labour  market.  The  new  basic  legislation  is  Act  (2017:584)  on  Responsibility  for 
Employment  Promotion  for  Certain  Newly  Arrived  Immigrants.287  Under  this  legislation, 
certain  categories  of  persons  such  as  immigrants,  like  all  other  persons  seeking 
employment,  must  accept  changes  in  their  individual  activity  plans.  They  must  further 
accept  that,  if  they  do  not  follow  the  plan,  they  shall  be  subjected  to  the  same 
consequences  as  other  job  seekers.  Where  the  old  legislation  described  a  right  to 
Swedish  language  education,  the  new  act  emphasises  the  duty  to  do  what  the 
Employment Agency believes would facilitate the individual’s potential to enter the labour 
market, for instance learning Swedish. If such duties are not fulfilled, financial support in 
the form of an activity grant may be reduced – or, if offences are repeated many times, 
they may be revoked altogether.  

The  Entry  Recruitment  Incentive  (instegsjob)  is  a  narrowly  tailored  programme,  which 
supports  newly  arrived  immigrants  by  providing  a  wage  subsidy  of  up  to  80 %  to  an 
employer  who  employs  an  immigrant  who  is  learning  Swedish  and  has  received  a 
residence permit within the previous 36 months.288  

With regard to dismissals on grounds of redundancy, there is a provision in Section 23 of 
the  1982  Employment  Protection  Act  that  a  person  with  a  disability,  having  been 
accommodated  at  the  workplace,  may  stay  on  despite  the  last-in,  first-out  principle,  if 
this can be done without serious inconvenience to the employer.  

As regards national minorities289 such as the Sami and the Roma, there are special rights 
and supportive measures regarding the use of their native languages as well as access to 
media290 – and, as regards the Sami, measures on land rights and reindeer management. 
From  2011  the  Sami  people  have  had  their  reindeer  management  rights  recognised  in 
the  Constitution.291  These  are  also  examples  of  narrowly  tailored  positive  action 
measures. 

In education, stronger forms of positive action are allowed only at the folk high schools, a 
form  of  education  designed  to  admit  students  who  have  little  or  no  academic 
background.  Folk  high  schools  are  free  to  design  their  own  courses  and  programmes. 
They  are  not  bound  by  the  normal  educational  hierarchy.  Some  programmes  result  in 
professional qualifications (for instance as journalists or drama teachers). Admittance to 
such  programmes  often  requires  the  same  level  of  secondary  education  as  mainstream 
universities.  

Some folk high schools cooperate with normal universities and let the university do part 
of  the  examination,  and  part  of  the  programme  can  then  be  counted  as  an  ordinary 
academic  course,  giving  the  student  ordinary  academic  points.  Other  programmes  are 
directed at people with very little educational background and, when admitting students 
to basic general courses, older students are often given preferential treatment by the folk 
high schools. The majority of folk high schools (104) are connected to an NGO. The rest 
(44) are operated by municipalities or regions. Many of them have their students living at 
the campus. There is a Roma Folk High School, and other folk high schools that can (and 
sometimes  do)  give  courses  aimed  at  and  reserved  for  the  Roma  population.  Creating 
educational  programmes  reserved  for  special  groups  such  as  immigrants,  persons  with 
disabilities or women is considered normal in this form of education. 

287  Passed by the Parliament on 22.06.2017, entering into force on 01.01.2018. 
288  Regulation (2015:503) on Special Employment Promotion. Passed on 25.06.2015, entering into force on 

03.08.2015. 

289  Sweden has five national minorities: the Sami, Swedish Finns, Tornedalians, Roma and Jews. See the Act on 

National Minorities and National Minority Languages, which entered into force in 2010. 

290  See Government bill 2005/06:112 on public television and radio. 
291  Swedish Instrument of Government (Regeringsformen 1974:152), adopted on 28.02.1975, Chapter 2, 

Section 17. 

91 

 
 
 
 
 
 
 
                                                 
The distinction between narrowly tailored measures and quotas is debatable. A Sami with 
a reindeer right cannot sell this right unless the buyer is approved as a member by the 
Sami village. Not everybody who is registered as a Sami with a voting right in the Sami 
Parliament  will  be  recognised  by  a  Sami  village  as  a  true  Sami.  With  regard  to  Roma 
people there is no official register to guide the folk high schools; they have to rely on the 
information given by the student. Since no law prohibits a Sami village from admitting a 
non-Sami  as  a  member,  and  since  a  non-Roma  person  with  a  deep  interest  in  Roma 
culture would have a good chance of being admitted to the Roma  Folk High School or a 
Roma class at another folk high school, the author views these forms of positive action as 
narrowly tailored measures rather than quotas.  

There is no new latest  form  of positive action. Politically, the  work guarantee  for  young 
people is important to the Government. So far, it has only resulted in regulations making 
adjustments  to  complement  the  original  10-year-old  regulation.292  The  changes  come 
from a Government bill on better adapting employment support to individual needs, with 
immigrants  as  the  target  group.293  The  question  that  arises  when  helping  immigrants is 
thus which adjustments need to be made through ordinary legislative acts (including the 
work guarantee for young persons), while not creating a new form of positive action for 
this  group  alone.  The  adjustments  take  the  form  of  additions  allowing  extra  time  or 
consideration of the activities that newly arrived immigrants need to engage in as falling 
within their work requirement under the regulation. 

One of the main goals of the educational changes was to make courses in Swedish a form 
of  municipal  adult  education  (kommunal  vuxenutbildning).  An  immigrant  learning 
Swedish should thus be in the same school class as a young native Swede catching up in 
any subject that he or she missed during secondary education. The present Government 
is  in  theory  striving  to  make  the  ordinary  wage  guarantee  system  and  the  ordinary 
municipal  adult  education  system  –  as  well  as  all  other  general  systems  –  work  for 
immigrants as well. 

292  Regulations 2015:148 and 2015:512. 
293  Regulation 2016:819 and 2017:108 changing Regulation 2007:813 on the Work Guarantee for Young 

Persons (Förordning om jobbgaranti för ungdomar); Government bill 2014/15:85 on Increased Individual 
Adaptation – More Effective Education in Swedish for Immigrants and Adult Education (Ökad 
individanpassning – en effektivare sfi och vuxenutbildning). 

92 

 
 
 
 
 
                                                 
6 

REMEDIES AND ENFORCEMENT  

6.1  Judicial  and/or  administrative  procedures  (Article  7  Directive  2000/43, 

Article 9 Directive 2000/78) 

a) 

Available procedures for enforcing the principle of equal treatment 

In Sweden, the following procedures exist for enforcing the principle of equal treatment: 

a. 

b. 
c. 

d. 

Judicial proceedings in the Labour  Court (starting in the civil court if the worker is 
represented by someone other than a trade union with a collective agreement or by 
the Equality Ombudsman). 
Judicial proceedings in the general court system. 
If  a  trade  union  with  a  collective  agreement  represents  a  member,  there  must  be 
negotiations with a view to settling the conflict, which must take place before going 
to  the  Labour  Court,  according  to  Section  11  of  the  Co-Determination  Act  in 
conjunction  with  Chapter  4  Section  7  of  the  Labour  Procedure  Act  (1974:371). 
Cases are often settled at this stage. 
The Equality Ombudsman negotiates with the employer before going to the Labour 
Court.294 There are more settlements than cases that go to court. 

It  is  not  possible,  as  a  general  rule,  to  use  the  administrative  courts  or  procedures  to 
address  discrimination  under  the  Discrimination  Act.  No  administrative  body  can  apply 
the  Discrimination  Act  directly.  However,  there  are  examples  where  a  discriminatory 
situation can be resolved by an administrative body and through the application of other 
laws  and  regulations.  If,  for  instance,  a  parent  gets  a  decision  from  the  School  Appeal 
Board  concluding  that  the  accommodation  costs  necessary  for  accepting  their  child  to  a 
school  are  not  substantial,295  the  school  must  take  on  those  costs.  This  means  that  the 
discrimination issue has been resolved, but at the same time the decision does not lead 
to  an  award  of  discrimination  compensation.  Some  state  employment  decisions  can  be 
appealed as well, and the claimant may obtain the job if they prove that they are better 
qualified. This means that the discrimination issue can be dealt with in this framework as 
well,  although  this  type  of  proceeding  cannot  lead  to  a  discrimination  compensation 
award.  

Along  the  same  lines,  on  1  July  2017  a  mechanism  was  introduced  in  the  education 
sector  to  bring  an  alleged  violation  of  the  Discrimination  Act  to  the  Higher  Education 
Appeals  Board  in  some  situations.  However,  this  does  not  include  any  possibility  of 
obtaining  a  discrimination  award;  it  is  possible  only  to  correct  the  discriminatory  act  or 
omission, for instance by replacing a tutor who has discriminated against a student.296  

In the Labour Court, a trade union or the Equality Ombudsman can act on behalf of  the 
worker;  in  the  general  court  system,  the  Equality  Ombudsman  can  act  on  behalf  the 
claimant. 

One  of  the  tasks  of  the  Ombudsman  to  investigate  complaints  of  discrimination.  This 
includes the provision of advice, but also the task – at the Ombudsman’s discretion – of 
representing  the  victim  of  discrimination  in  settlement  proceedings  or,  ultimately,  in  a 
court of law. Should the individual concerned be a member of a trade union, the right of 
the Ombudsman is subsidiary to the right of the trade union to represent its member. 

294  The law does not order this, but having the Labour Court as the only instance presupposes well-prepared 

cases, and that includes these negotiations. Chapter 4 Section 3 of the Discrimination Act gives the Equality 
Ombudsman the ability to decide on a financial penalty (which can be appealed to the administrative court) 
if the employer does not show up.  

295  Chapter 9 Section 15 of the School Act (Skollag 2010:800 adopted on 23.06.2010), in conjunction with 

Chapter 28 Section 12 point 6. 

296  Act 2017:282 Changing the Discrimination Act, adopted 13.04.2017.  

93 

 
 
 
 
 
 
 
 
 
                                                 
Civil proceedings regarding working life under the Discrimination Act are to be dealt with 
in  accordance  with  the  Labour  Disputes  Act.297  Depending  on  whether  the  employer  is 
bound by a collective agreement, whether the person who alleges discrimination is or is 
not  a  member  of  the  trade  union  with  the  collective  agreement,  and  whether  the  trade 
union is willing to take up the claim, the case may be heard in the first instance either by 
the  district  court  (tingsrätt)  with  ordinary  judges  as  in  other  civil  cases,  or  the  Labour 
Court (Arbetsdomstolen), in a special composition comprised of a majority of judges with 
a  judicial  background  and  a  minority  of  members  with  a  background  in  labour  market 
organisations.298  Whereas  it is  the  injured  individual  who  has  standing  (locus  standi)  as 
the  claimant  at  the  district  court,  it  is  the  trade  union  which  has  that  position  when 
claims are dealt with at the Labour Court  at first (and last) instance. A lawsuit taken to 
the district court in accordance with the described rules may always be appealed to the 
Labour  Court,  whereas  a  decision  of  the  Labour  Court  –  whether  at  first  or  second 
instance  –  is  not  subject  to  further  appeal.  As  has  already  been  indicated,  the 
Ombudsman  can  also  bring  a  case  directly  to  the  Labour  Court,  with  the  individual’s 
consent, if the Ombudsman considers that the case is important in relation to case law or 
for other reasons. When the DO takes on a claimant’s case, the DO becomes the party to 
the case, assuming the claimant has provided a power of attorney. 

Concerning  state  employees,  there  are  constitutional  rules  regarding  objective  grounds 
on  hiring.  If  the  claimant  is  better  qualified,  he  or  she  is  entitled  to  get  the  position  of 
employment  (which  they  cannot  get  under  the  Discrimination  Act;  they  may  only  be 
granted  a  discrimination  compensation  award).  Using  the  administrative  procedures 
relating  to  these  rules  is  sometimes  an  alternative  or  complementary  way  to  appeal 
against a discriminatory decision. 

The Equality Ombudsman may represent victims of discrimination in all areas covered by 
the Discrimination Act. Cases outside working life will be dealt with by the ordinary court 
system,  i.e.  the  relevant  district  court  in  the  first  instance.  Discrimination in  connection 
with  social  security,  for  instance,  (an  example  of  an  area  that  normally  falls  under 
administrative  law) is  thus  dealt  with  under  the  general  court  system,  and  the  ordinary 
rules on civil procedure apply.299 

The  relatively  few  cases  that  end  up  in  the  court  system  should  not  be  taken  as  proof 
that action is not taken in cases  of discrimination. A number of cases  are  settled out of 
court.  The  same  is  probably  true  concerning  the  trade  unions.  Most  complaints  are 
settled during the mandatory negotiations prior to a claim being presented to the Labour 
Court.  In  cases  that  are  settled,  the  remedies  are  pretty  much  the  same  as  those  that 
apply in the case law of the Labour Court –  or even better, since the  parties concerned 
will lower their costs through an early settlement. It is also worth noting that settlements 
in  discrimination  cases  can  lead  to  other  remedies  beyond  economic  compensation.  For 
example,  compensation  can  be  combined  with  employment,  which  is  something  a  court 
could not order.  

b) 

Barriers and other deterrents faced by litigants seeking redress 

With  regard  to  discrimination  cases,  inside  but  particularly  outside  the  labour  market, 
there  are  various  obstacles  for  potential  discrimination  litigants,  such  as  low  levels  of 
rights  awareness,  low  levels  of  trust  in  the  legal  system,  and  the  substantial  economic 
risks related to litigation. As regards the general time limit under the Discrimination Act, 
a claim must be presented within two years  of when the alleged discriminatory act took 

297  Act (1974:371) on Labour Law Procedure. 
298  As regards the Swedish Labour Court, see, for instance, the European Court of Human Rights judgment of 

26.10.2004 in the case of AB Kurt Kellermann v. Sweden. 

299  Some university or higher education cases may also be brought before the Board of Appeal for Higher 

Education. 

94 

 
 
 
 
 
 
                                                 
place.300 Individuals can (but do not have to) rely on private attorneys, but this means an 
increase  in  the  cost  risks  should  the  case  be  lost.  The  procedures  are  the  same 
regardless of whether the case concerns a private sector or public sector employee. If the 
claimant asks for less than SEK 22 000 (EUR 2 060), a simplified small claims procedure 
may be used. This procedure is tailored so that a normal person in theory does not need 
an  attorney.  The  right  of  the  winning  party  to  recover  legal  costs  is  limited  in  small 
claims cases.301 For many people, the cost of going to court is a major hurdle, especially 
considering the cost risks of losing. Sweden has a loser pays system, meaning that, if the 
claimant  loses  they  will  be  liable  not  only  for  their  own  lawyer’s  fees,  but  also  for  the 
winning party’s lawyer’s fees. There is no situation in which an enforceable decision can 
be made free of charge. Therefore, the ability of the Ombudsman or the trade unions to 
go to court on behalf of victims is very important for persons with limited means. When 
the  Ombudsman  or  a  trade  union  take  on  a  case,  it  is  as  the  named  party,  which  also 
means that they are taking on the economic risk of losing the case. 

A  complex  system  of  rather  short  time  limits  applies  in  working life.302  Dismissal  claims 
are regulated by the 1982 Employment Protection Act, which also sets out the applicable 
time  limits.  If  the  claim  seeks  to  declare  a  dismissal  null  and  void,  the  procedure  could 
take place weeks from the occurrence of the act or – in certain cases – one month after 
the end of the employment. If the claim concerns only indemnification, it can take about 
four  months.  The  1976  Co-Determination  Act  applies  to  cases  concerning  wage 
compensation. Here, the general time limit is four months from gaining knowledge of the 
act,  with  a  maximum  of  two  years  from  its  occurrence.303  Within  these  time limits,  it is 
possible to bring a discrimination suit after the employment relationship has ended.  

The  labour  market  litigation  rules  are  based  on  an  assumption  that  the  worker  is 
represented by his or her trade union.  If the union does not  represent the worker, or if 
the worker is not a union member, the time limits can be a real barrier when it comes to 
access to justice. 

As  regards  the  costs  of  litigation  etc.,  both  when  the  trade  union  takes  on  a  claim  and 
when  this is  done  by  the  Ombudsman,  they  will  cover  the  costs  if  the  case  is  lost.  This 
can be very important for the individual concerned. If the individual brings a claim to the 
court  on  their  own,  he  or  she  risks  having  to  pay  the  costs  of  the  trial,  including  the 
winning party’s lawyer’s fees, should the case be lost.  

If a person is poor and is not represented by the Equality Ombudsman or a trade union, 
it is possible to ask for legal aid in employment cases to help with the costs of going to 
court. In cases going to the general courts (usually non-employment cases), it is possible 
for the court to rule that both parties shall bear their own costs if the claimant loses but 
had good reasons (skälig anledning) to go to court in accordance with Chapter 6 Section 

300  Chapter 6 Section 6 of the Discrimination Act (Diskrimineringslagen 2008:567), adopted on 05.06.2008. 
301  There is a list of permitted expenses: one hour of legal aid at the current rate, a small claims fee, travel 

costs, costs for witnesses and translation costs.  

302  Chapter 6 Sections 4 and 5 of the Discrimination Act (Diskrimineringslagen 2008:567), adopted on 

05.06.2008.  

303  If someone brings an action as a result of a notice of termination or summary dismissal, the rules in the 

1982 Employment Protection Act (LAS) apply. To have a dismissal declared null and void, the employer shall 
be notified about the claim within two weeks of the dismissal. A lawsuit shall be presented within two weeks 
thereafter or, if conciliation negotiations have taken place, within two weeks of the termination of such 
negotiations (Section 40 LAS). As regards damage claims, the employer shall be notified about the claim 
within four months after the damaging activity occurred, and a lawsuit shall be presented within four 
months after that or, should conciliation negotiations have taken place, within four months of terminating 
such negotiations (Section 41 LAS). With regard to any other action, the rules in the Co-Determination Act 
(MBL) apply. Conciliation negotiations must be demanded by the relevant trade union within four months of 
becoming aware of the damaging act and within two years of the act itself (Section 64 MBL). A lawsuit shall 
be presented within three months after terminating such negotiations (Section 65). If an employee cannot 
be represented by a trade union, he or she must present the claim to the court within four months of 
becoming aware of the damaging act and within two years of the act itself (Section 66 MBL). 

95 

 
 
 
 
 
                                                 
7 of the Discrimination Act.304 In the author’s opinion, this possibility is seldom used, as 
there is little clarity about the how the courts will apply this exception to the loser pays 
rule. Rather than addressing what is an important issue concerning access to justice, the 
courts seem to more concerned about ensuring a restrictive application of this exception 
to the general rule, particularly the Labour Court.305 

Relevant  criminal  procedures  may  be  initiated  by  a  public  prosecutor  (or  in  very  rare 
cases by the private party herself). The Ombudsman does not have legal standing before 
the courts in criminal procedures. 

c) 

Number of discrimination cases brought to justice 

In  Sweden,  there  are  no  available  statistics  on  the  number  of  cases  related  to 
discrimination brought to justice. 

d) 

Registration of discrimination cases by national courts 

In Sweden, discrimination cases are not registered as such by national courts. 

6.2  Legal  standing  and  associations  (Article  7(2)  Directive  2000/43,  Article 

9(2) Directive 2000/78) 

a) 

Engaging on behalf of victims of discrimination (representing them) 

In  Sweden,  the  trade  unions,  the  Equality  Ombudsman  and  some  non-profit 
organisations are entitled to act on behalf of victims of discrimination. 

Labour  unions  have  legal  standing  to  litigate  discrimination  cases  where  one  of  their 
members  is  involved,  in  accordance  with  Chapter  4  Section  5  of  the  Labour  Procedure 
Act.  The  Equality  Ombudsman  can  also  act  on  behalf  of  a  claimant.  The  right  of  the 
Equality  Ombudsman  to  represent  a  victim  is  subsidiary  to  a  labour  organisation’s  right 
to represent its members under Chapter 6 Section 2 point 3 of the Discrimination Act.  

Chapter  6  Section  2  of  the  Discrimination  Act  gives  non-profit  organisations  whose 
statutes state that they are to protect their members’ interests the right to bring actions 
in  their  own  name  as  a  party  representing  an  individual  person.  The  association  must 
have  the  consent  of  the  individual  and  be  suited  to  representing  the  individual  in  the 
case, taking account of its activities and its interest in the matter, its financial ability to 
bring an action and other circumstances. This right is subsidiary to that of a trade union 
in the employment field.  

This  provision  on  NGOs  acting  as  parties  was  added  to  the  law  because  of  an 
interpretation of the minimum requirements of the EU anti-discrimination directives.306 At 

304  The Equality Ombudsman cannot use this rule. It only applies to private persons. An anti-discrimination 

bureau, as a legal person under private law, would be able to use it. See, for instance, Court of Appeal over 
Scania and Blekinge case FT 1948-12, Forum for Equal Rights v. IKEA (judgment of 18.03.2013). An anti-
discrimination bureau helped a mother to sue IKEA for not letting her disabled daughter play in the 
playroom. She demanded SEK 20 000 (EUR 2 200) as a discrimination award. IKEA admitted that it had 
treated her daughter badly. IKEA accepted SEK 20 000 as fair compensation but did not admit to 
discrimination. The case was tried by both the district court and the appeal court because the classification 
of the decision as discrimination or otherwise was important to both parties. 

305  One significant example can be seen in Labour Court 2015 No. 57 from 2015 (30.09.2015). The claimant 
brought a disability discrimination case before a district court. He lost the case, but the court determined 
that the parties should be liable for their own costs, as the claimant had sufficient reason for at least taking 
the case to court. He appealed the case to the Labour Court, which came to the same judgment as the 
district court: there had been no discrimination. However, the Labour Court ordered the claimant to pay 
SEK 1 663 400 (EUR 156 322) as compensation for the winning party’s legal costs. 

306  See, for example, the reference in the Government bill referring to Article 7.2 in the Race Directive and 

Article 9.2 in the Equal Treatment in Working Life Directive.  

96 

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
the  same  time,  prior  to  the  change  in  the  law,  NGOs  always  had  the  possibility  of 
providing assistance in the form of covering a victim’s potential legal costs. However, this 
type of action was for many years outside of Sweden’s legal and political culture, at least 
if the NGOs did not represent stronger interests in society (such as unions or employers’ 
organisations).  

Anti-discrimination  bureaus307  in  particular  have  been  allowed  to  enter  into  cases  as 
parties. Some have questioned whether the Discrimination Act gives them this right, but 
it now seems clear that they do have it.308  

The reduction in the number of complaints dealt with by the Equality Ombudsman has led 
to  increasing  reliance  by  victims  on  the  bureaus  in  particular,  since  the  Ombudsman 
refers them to the bureaus as a potential source of advice and support. In this regard, it 
may be noted that the 2016 Government White Paper 2016:87, on measures to improve 
the implementation of the anti-discrimination principle, proposed a substantial increase in 
funding to the local anti-discrimination bureaus, given their increasing workloads. 

Even  beyond  the  work  of  the  local  anti-discrimination  bureaus,  civil  society  has  been 
developing an increased awareness of the importance of being more proactive concerning 
the  development  of  case  law  related  to  discrimination.  The  main  LGBT  organisation  in 
Sweden, RFSL, has brought a number of  cases in the administrative  courts that involve 
discriminatory  treatment  (but  not  the  Discrimination  Act),  partly  with  the  help  of  local 
anti-discrimination  bureaus.  In  addition,  two  disability  organisations  have  received 
funding for projects to  raise awareness of the  law and  to increase the potential for civil 
society  to  take  cases  to  court.309  This  is  mentioned  here  since  it  is  only  in  recent  years 
that  civil  society  organisations  representing  discriminated-against  groups  have  seen  the 
advocacy potential in taking on an enforcement role concerning the law. 

that 

idea 

is  developing 

Even if civil society is increasingly realising the need to get  cases to  court, they seldom 
have  the  economic  resources  that  may  be  needed  for  effective  representation.  Thus, 
another 
for  Discrimination  Cases 
(Talerättsfonden),310  which  was  established  in  2017  by  a  number  of  equality  and 
discrimination experts.  The  organisation is still in its initial stages, and its purpose is to 
raise  money  for  a  fund  that  can  provide  economic  support  at  least  for  some  strategic 
discrimination  cases.  It  is  thought  that  this  could  help  encourage  more  private  cases, 
thus providing a healthy ‘competition’ or complement to the work done by the unions and 
the Ombudsman.  

the  Fund 

involves 

It bears repeating that one key issue about the identity of the named party is that, other 
than in small claims cases, they risk being ordered to pay the winning party’s legal costs 
– which can be substantial.  

307  Local anti-discrimination bureaus are non-governmental organisations whose members are other 

organisations and sometimes individuals. The bureaus were created in order to combat discrimination on all 
grounds. They typically provide free legal advice to persons suffering from discrimination. The demands on 
their offices have increased substantially as the DO has increasingly concentrated on ‘strategic’ complaints 
and other means of dealing with discrimination other than through individual complaints, creating an 
increased inflow to the bureaus. They are increasingly looking at ways of taking cases to court. Among other 
things, they take part in public debate, arrange seminars for the general public and provide anti-
discrimination training for the private and public sectors. The inspiration for their work came from similar 
bureaus in the Netherlands and the UK, and more indirectly from public interest law firms in the United 
States. 

308  See, for example, Göta Court of Appeal, Judgment of 30.09.2011, Örebro Rättighetscenter v. Götavi Invest 

AB, Case No. FT 198-11, and Malmö mot diskriminering, the bureau that has been the most active in 
actually taking cases to court. Available at: https://malmomotdiskriminering.se, accessed 2 May 2018. 
309  For information on the ‘Law as a tool for social change’ project, run by the Independent Living Institute, 

see: https://lagensomverktyg.se; for information on the ‘From talk to action’ project, run by Funktionsrätt 
Sverige (Disability Rights Federation), see: http://funktionsratt.se/projekt/fran-snack-till-verkstad/.  

310  Fund for Discrimination Cases – Talerättsfonden. See: http://talerattsfonden.se.  

97 

 
 
 
 
 
 
 
                                                 
b) 

Engaging in support of victims of discrimination 

In Sweden, any organisation is entitled to act in support of victims of discrimination. 
Assuming  the  victim  has  agreed,  organisations  (or  at  least  individuals  from  such 
organisations)  can  provide  support  concerning  complaints.  According  to  Swedish 
procedural law, anyone can in theory engage in proceedings or support a complaint as a 
legal  representative,  in  accordance  with  the  Swedish  Code  on  Judicial  Procedure 
(1942:740)  Chapter  12  Section  22.  The  person  is  presented  to  the  court  and  the  court 
makes  a  formal  decision  as  to  accepting  that  person  as  a  legal  representative 
(rättegångsbiträde). If the person is law abiding and does not risk becoming involved in 
the  proceedings  as  a  witness  or  something  similar,  there  is  usually no  problem.  A  legal 
representative (rättegångsbiträde) may speak on behalf of the claimant and the claimant 
is  bound  by  what  he  or  she  says  or  does,  unless  the  claimant  immediately  declares  a 
different opinion. However, most legal representatives are jurists with a law degree. They 
will often be members of the Swedish Bar Association (Advokatsamfundet), and the title 
of Advokat (lawyer) is reserved to members  of the Bar.  Unlike in some other countries, 
however,  lawyers  in  Sweden,  as  members  of  the  Bar,  do  not  have  a  monopoly  on  the 
right of representation in civil law cases.  

There  are  no  special  regulations  on  the  rights  of  the  churches  in  this  matter. 
Nonetheless,  some  religious  communities  are  engaged  in  the  work  of  the  private  anti-
discrimination  bureaus  in  the  country,  along  with  other  NGOs  such  as  the  Swedish  Red 
Cross and Save the Children. 

c) 

Actio popularis 

In Sweden, national law does not allow associations / organisations / trade unions to act 
in  the  public  interest  on  their  own  behalf,  without  a  specific  victim  to  support  or 
represent (actio popularis). 

When an organisation goes to court in its own name in Sweden (see above a), this must 
be done in order to support or represent a specific victim. 

d) 

Class action 

There is a facility under Swedish law – outside of labour law – to submit a class action (or 
group  proceeding)  to  a  district  court  for  claims  arising  from  the  same  issue.311  Such 
cases are to be dealt with according to the rules on civil disputes. However, class actions 
are  not  allowed  if  the  case  can  be  appealed  to,  for  example,  the  Labour  Court.  Thus, 
labour  law  cases  fall  outside  the  scope  of  the  act,  but  discrimination  in  other  fields  can 
result in class actions.312 

This  means  that  a  person  can  pursue  a  lawsuit  on  their  own  behalf,  but  with  legal 
consequences for other persons, even though they are not parties to the case.313  

There  are  various  types  of  difficulties  related  to  the  use  of  class  actions,  which  is 
probably why there have been so few since the law came into effect in 2003. 

Nevertheless,  there  is  one  class  action  that  the  author  knows  of  that  concerned  sex 
discrimination.  In  this  case,  R  brought  a  class  action  on  behalf  of  44  women  who 
asserted that they had been passed over in favour of less qualified men in the admissions 
process  at  a  university  for  veterinarians.  The  appeal  court,  in  agreeing  with  the  district 

311  Group Proceedings Act (Lag [2002:599] om grupprättegång). 
312  Government bill 2001/02:107, p. 139.  
313  Even if each member of the group must be treated as a party by the court, the court must know all the 
members of the group. The judgment will be legally binding on all the members of the group. However, 
important developments in the case need to be communicated by the court to all of the group members. 

98 

 
 
 
 
 
 
 
 
 
 
 
                                                 
court,  concluded  that  the  admissions  system  was  disproportionate  with  regard  to  its 
goals, and that this constituted discrimination.314  

This case shows that, under the right circumstances, it is possible to bring an action for 
discrimination in fields other than working life. Even though there are various questions 
and  difficulties  related  to  the  use  of  class  actions,  they  can  have  significant  potential in 
the  right  circumstances.  They  also  provide  NGOs  in  particular  with  the  potential  to 
combine  situation  testing  with  a  class  action,  for  example  in  the  case  of  inadequate 
accessibility.  

6.3  Burden of proof (Article 8 Directive 2000/43, Article 10 Directive 2000/78) 

In Sweden, national law requires a shifting of the burden of proof from the complainant 
to the respondent. 

This is stated in Chapter 6 Section 3 of the Discrimination Act:  

‘If  a  person  …  demonstrates  reason  to  presume  that  he  or  she  has  been 
discriminated  against  …  the  defendant  is  required  to  show  that  discrimination  or 
reprisals have not occurred’. 

This  section  applies  to  all  six  forms  of  discrimination including  harassment  and  the  new 
form of discrimination, inadequate accessibility. The victim of discrimination must be able 
to  present  facts  that  make  it  possible  to  presume  that  discrimination  has  occurred  (a 
similar situation and unfavourable treatment). Thereafter the burden of proof is shifted to 
the  other  party  who  must  show  that  one  of  the  requirements  is  not  fulfilled  or  that  the 
unfavourable  treatment  was  not  associated  with  the  ground  in  question.  No  intent  to 
discriminate is required.  

It  could  be  asserted  that  it  is  hard  to  prove  a  prima  facie  case  of  discrimination  in  the 
Labour  Court.  At  the  same  time,  the  problem  may  simply  lie  with  the  Labour  Court’s 
difficulties in properly applying the rules on shifting the burden of proof. It does not seem 
to  be  as  difficult  to  establish  a  prima  facie  case  in  the  general  court  system.  Håkan 
Sandesjö (the temporary Equality Ombudsman for most  of 2011)315 made a preliminary 
study  for  the  Ministry  of  Integration  and  Equality  on  judgments  in  discrimination  cases 
between  1999  and  2009  involving  the  four  former  discrimination  Ombudsmen.  The 
success rate in the general court system was 70.8 %. In the Labour Court, the rate was 
19.5 %  and,  if  the  discrimination  was  on  the  ground  of  ethnicity,  the  rate  of  success 
dropped to 4.3 %.316 

In their commentary explaining the  2009 Discrimination Act, Fransson  and Stüber point 
out  a  possible  difference  in  the  handling  of  the  burden  of  proof.317  The  Supreme  Court 
treats  the  less  favourable  treatment  in  a  similar  situation  as  the  fact  that  makes  the 
presumption  apply.  The  eased  level  of  proof  thus  sometimes  applies  when  the  claimant 
proves a similar situation and the less favourable treatment.318 The Labour Court applies 

314  Svea Court of Appeal, dom 21.12.2009, T-3552-09. At: http://centrumforrattvisa.se/wp-

content/uploads/2010/10/Svea-hovrätts-dom.pdf.  

315  The removal of the former Ombudsman Katri Linna took place in February 2011. Agneta Broberg started on 
1 October 2011. Sandesjö was not involved with the Equality Ombudsman when the report was made in 
2010.  

316  Sandesjö 2010 (Jurcom AB), Domar i diskrimineringsmål 1999-2009, p. 11.  
317  Fransson–Stüber (2015), Diskrimineringslagen: en kommentar (The Discrimination Act: A Commentary), 

second edition, Chapter 6 Section 3. See Sandesjö (2010), p. 14. In cases where the rule on the burden of 
proof has been decisive, the success rate in the general court system was 90 % against 19 % in the Labour 
Court.  

318  See Supreme Court (NJA 2006 p. 170): Ombudsman Against Discrimination due to Sexual Orientation v. 

Restaurang Fridhem Handelsbolag (judgment of 28.03.2006). The main question was whether the same-sex 
couple had engaged in heavy petting or merely shown affection, which was allowed in the restaurant. The 
restaurant owner failed to prove they had engaged in anything beyond the normal kissing and hugging that 

99 

 
 
 
 
 
 
 
 
 
 
                                                 
 
the  presumption  more  narrowly.  The  claimant  must  always  prove  the  similar  situation 
and  the  less  favourable  treatment  according  to  normal  standards  of  proof.  The 
presumption  applies  only  to  the  causal  link  between  these  two  facts  and  the 
discrimination  ground.  That  being  so,  the  Labour  Court  perhaps  applies  the  rules  on  a 
shifted  burden  of  proof  in  a  manner  that  is  too  restrictive,  especially  with  regard  to 
ethnicity.319  
The difference between the general courts and the Labour Court was also taken up in a 
Government White Paper. The inquiry report stated that it seemed to be accepted by the 
Labour  Court  and  the  general  courts  that  the  rule  now  involves  a  presumption  (en 
presumtionsregel) and is not a shared burden of proof rule. At the same time, the report 
seemed to be asserting that the big difference was that the general courts used the rule, 
while  the  Labour  Court  tended  not  to.  The  inquiry  thus  appeared  to  conclude  that  an 
even clearer wording of the rule in the act would help.320 However, no change in the law 
has yet been proposed. 

In 2017, the Labour Court dealt for the first time with a case that was fairly similar to a 
case that had been dealt with in the general court system one year earlier. In both cases, 
the focus was on implementation of the burden of proof. 

These  cases  turned  on  whether  there  is  an  alternative  to  bare  lower  arms  for  a  Muslim 
dental student (district court) or a Muslim dentist (Labour Court). The focus was on the 
application of health and safety regulations, the desire of those involved not to work with 
their  lower  arms  exposed  due  to  religious  reasons  and  whether  or  not  an  application  of 
this rule constituted indirect discrimination.  

The  2016  district  court  case  involved  a  female  Muslim  dental  student  at  Karolinska 
institutet.321  In  accordance  with  the  dental  programme,  she  was  required  to  perform 
clinical tasks with bare forearms. She asked if she could wear special disposable forearm 
protection instead of having bare forearms, because she did not want to show this part of 
her body to strangers. 

The  institute,  drawing  on  National  Health  and  Welfare  Board  Regulation  (2007:19),322 
made a formal decision denying this request. The state, in defending the content of the 
rules,  said  that  simple  rules  such  as  having  bare  forearms  were  easier  to  follow  in 
everyday  situations  than  complex  rules  with  alternatives,  and  that  simplicity  was 
important for rules that need to be followed every day and for every patient. It also said 
that, as the arms are harder to clean if they are covered, a disposable forearm protection 
could  contaminate  the  person’s  work  clothes  when  taken  off,  as  well  as  increasing  the 
amount of waste produced. The  state had experts from the institute itself and from the 
Public  Health  Authority  testifying  that  having  bare  arms  was  necessary  to  achieve  the 
hygienic standards required by the regulation. 

The  Equality Ombudsman brought in a British expert describing the reasons why British 
authorities believe that there is no hygienic problem with disposable forearm protection. 

was allowed. 

319  There are other possible explanations for the difference in the claimants’ success rates. One possible 
explanation is that obvious cases of discrimination are often settled in the negotiations between the 
employer and the trade union at a local or central level, which must take place before going to the Labour 
Court if a trade union is representing one of its members. There is also an ongoing discussion, however, on 
whether judges appointed by trade unions and employer organisations are neutral, if important parts of the 
collective bargaining system are affected by the outcome. See Sandesjö (2010), p. 18. 

320  Government White Paper 2016:87, pp. 462-463. 
321  Stockholms tingsrätt (Stockholm District Court), judgment 2016-11-16, case number T 3905-15, available 

at: http://www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingsratt-karolniska-2014-
1987.pdf.  

322  Now Regulation (2015:10). 

100 

 
 
  
 
 
 
 
                                                                                                                                                         
The  court  decided  that  both  the  British  expert’s  reason  as  to  why  disposable  forearm 
protection  was  acceptable  and  the  Swedish  experts’  statements  on  why  there  were 
genuine hygienic reasons against their use seemed scientific and credible, and that it was 
not possible to believe one more than the other. However, it was the education provider 
(as  the  alleged  discriminator),  which  bore  the  burden  of  proof  with  regard  to  the 
justification of possible indirect discrimination once the prima facie case was established. 
The district court applied the rules of burden of proof in accordance with the established 
practice in the general courts. Therefore, the state lost the case. The state had legitimate 
concerns, but even the state’s expert admitted that the British example showed that such 
disposable protection had been used in the UK, and no one had been able to demonstrate 
a relevant increase of infection risk there.  

The  woman  was  awarded  SEK 5 000  (EUR 468)  as  a  discrimination  award.  Normally, 
SEK 10 000 (EUR 936) is a minimum award (SEK 5 000 for the injury and SEK 5 000 as a 
prevention  award).  In  this  case,  the  injury  was  small  (måttlig).  The  denial  of  the 
woman’s demand was based on a serious evaluation of the situation and was addressed 
in  a  formal  decision  –  that  is,  it  was  not  arbitrary.  In  future,  every  Muslim  will 
presumably  be  correctly  treated  by  this  education  provider  in  such  situations.  A 
prevention award was therefore deemed unnecessary. 

The  state  did  not  appeal  the  decision.  It  accepted  the  district  court’s  decision  that  the 
rule in the regulation was disproportionate.  

The Karolinska case was followed by one in the Labour Court in 2017, in which the court 
came  to  the  opposite  conclusion,  even  though  it  was  deciding  a  case  based  on  the 
essentially the same evidence.323 The Labour Court case arose in an employment setting 
during  the  claimant’s  clinical  work  as  a  dentist.  The  hygiene  standards  were  thus  the 
same  in  both  cases,  as  they  stemmed  from  the  same  National  Health  and  Welfare 
regulation.  

The reasoning of the Labour Court was very similar to that of the district court up to the 
point  when  the  employer  presented  the  objective  justification.  Like  the  district  court  in 
the  previous  case,  it  considered  that  the  experts  on  both  sides  were  credible.  The 
employer showed  reasons why it was genuinely (albeit theoretically) possible that there 
could be a hygienic problem. The expert for the Equality Ombudsman showed that it was 
not  possible  to  detect  increased  infections  in  Britain  connected  to  permitting  the  use  of 
disposable lower arm protection there.  

The case was thus decided on the basis of how the rules on the burden of proof were to 
be  applied,  just  like  in  the  district  court.  However,  while  the  district  court  placed  the 
burden  of  proof  on  the  discriminator,  because  it  is  the  discriminator  who  shall  be 
responsible for proving an objective justification, the Labour Court did the opposite. 

The  Labour  Court  said  that,  when  the  employer  presented  the  genuinely  objective 
theoretical hygienic reasons, the burden of proof shifted back to the claimant. Since the 
Equality  Ombudsman  failed  to  disprove  the  assertions  of  the  employer’s  expert,  the 
Equality Ombudsman lost the case. The main argument for this outcome was that, when 
patient  safety  is  at  risk,  the  employer  must  be  allowed  a  wide  margin  of  appreciation 
when setting hygienic rules (försiktighetsprincipen – the duty-of-care principle) and thus 
any remaining doubt must fall on the claimant. 

To the author it seems as if, in this case, the Labour Court chose to add a footnote to the 
burden  of  proof  rules,  a  footnote  that  is  not  easy  to  find  in  the  directives,  the 
Discrimination  Act  or  the  preparatory  works.  The  case  illustrates  the  disparity  between 

323  Labour Court 2017 case 65, Equality Ombudsman v. The People’s Dentists of Stockholm County (Judgment 

20.12.2017). 

101 

 
 
 
 
 
 
 
 
                                                 
two court systems when they have a different approach to the EU rules on the burden of 
proof  and  where  no  one  can  demand  that  the  Labour  Court  ask  for  a  preliminary  ruling 
from  the  CJEU,  even  when  there  is  an  obvious  need  for  one.324  At  the  same  time,  the 
Swedish  Supreme  Court  was  reluctant  to  send  questions  to  the  CJEU  in  previous  years. 
This in turn resulted in the so-called revolt of the lower courts, which ended up bypassing 
the Swedish Supreme Court by sending questions directly to the CJEU.325 

The  two  cases  discussed  above  are  quite  controversial.  Many  people  are  against  any 
‘concessions’  at  all  concerning  Muslims,  and  thus  applaud  the  Labour  Court  for  its 
application on the rules of burden of proof. 

Today,  Karolinska  Institutet  applies  the  ruling  from  the  district  court  by  allowing 
disposable lower-arm protection, while dental clinics do not need to do so with regard to 
employees.326  At  some  point  or  another,  an  education  provider  is  likely  to  follow  the 
practice  of  the  Labour  Court  and,  when  that  happens,  the  general  court  system  will 
presumably have to decide whether or not to ask for a preliminary ruling from the CJEU. 

In the author’s opinion, one of the difficulties for the Labour Court in applying the burden 
of proof may relate to certain broader legal and cultural factors concerning the court. The 
Labour  Court  was  created  mainly  as  a  special  arena  where  the  unions  and  employers’ 
organisations  could  settle  disputes  concerning  rights  and  duties  under  collective 
bargaining  agreements.  They  still  appoint  the  majority  of  the  judges.  It  is  only  in 
discrimination  cases  that  the  majority  of  judges  are  made  up  of  the  ‘law’  judges.  The 
main  original  issue  was  –  and  still  is  –  collective  rights.  At  the  same  time,  individual 
rights  have  increasingly  become  part  of  Swedish  law,  including  labour  law,  particularly 
since the country joined the EU. To a large extent, discrimination law concerns individual 
rights. For a long time, the social partners jointly opposed the adoption of such laws. This 
history  forms  part  of  the  environment  within  which  the  Labour  Court  functions  even 
today,  i.e.  the  world  of  the  social  partners,  rather  than  the  world  of  the  individual.  The 
general courts perhaps find themselves a little closer to the idea of individual rights. This 
background provides at least some additional explanation of how two court systems can 
seemingly implement the same rule in very different ways. 

6.4  Victimisation (Article 9 Directive 2000/43, Article 11 Directive 2000/78) 

In Sweden, there are legal measures that provide protection against victimisation. 
Victimisation is forbidden in Chapter 2 Sections 18 and 19 of the Discrimination Act. 

324  If both Sweden and Britain take patient security seriously and still decide on different policies with regard to 

disposable lower arm protection, it is perfectly possible that the CJEU would have decided to allow the 
Member States a wide margin of appreciation and that the Labour Court would have been allowed to decide 
the case as it did. It is also possible, however, that the CJEU would have said that, if the claimant showed 
that an alternative solution had been applied in another country without any indications of increased 
infections, then any remaining uncertainty should fall on the employer, as they bore the burden of proof for 
the objective justification in an indirect discrimination case as a matter of principle. In the author’s view, the 
latter reasoning seems to be the most rational. This was possibly a reason for the Labour Court not to send 
the issue to the CJEU – or at least they did not want to take that chance.  

325  The key issue was that of ne bis idem (no one shall be tried twice for the same offence) in relation to EU 
law. The lower court’s action led to a judgment in the Åkerberg Fransson case (Case C-617/10 Fransson 
[2013]), which forced the Supreme Court to change its recently established case law. This also led to the 
re-examination of a large number of cases. See, for example, Fast, Katarina, Juridisk Tidskrift 2013-14 nr 1, 
s. 24-44, Tusen skäl att förekomma istället för att förekommas – en kommentar till 
dubbelbestraffningsfallen i EU-domstolen och Högsta domstolen 2013 (A thousand reasons to act rather 
than being required to react – a commentary on the double jeopardy cases in the CJEU and the Swedish 
Supreme Court). 

326  Radio interview on 8 December 2016 with Mats Trulsson, Head of Odontology Department, Karolinska 
Institutet, available at: http://sverigesradio.se/sida/artikel.aspx?programid=128&artikel=6582632.  

102 

 
 
 
 
 
 
 
                                                 
Victimisation  (repressalier)  is  defined  in  the  preparatory  work  as  acts,  statements  and 
omissions  to  act  which  lead  to  a  disadvantage  or  a  sense  of  discomfort  for  the 
individual.327  

The prohibition protects all persons involved in an investigation, including witnesses and 
persons  reporting  discrimination  or  those  who  have  helped  the  victim  in  other  ways. 
According  to  Chapter  6  Section  3,  the  shifted  burden  of  proof  applies  in  victimisation 
cases. 

6.5  Sanctions and remedies (Article 15 Directive 2000/43, Article 17 Directive 

2000/78) 

a) 

Applicable sanctions in cases of discrimination – in law and in practice 

The  basic  sanction  in  the  Discrimination  Act  is  the  discrimination  compensation  award, 
which  is  regulated  in  Chapter  5  Section  1.  This  is  complemented  by  the  possibility  to 
declare certain acts like termination of contracts or discriminatory contract clauses void, 
which  is  regulated  in  Chapter  5  Section  3.  There  are  no  other  remedies  open  to  the 
individual who has been the target of discrimination.328 

The  concept  of  discrimination  compensation  (diskrimineringsersättning)  was  created,  at 
least  in  theory,  in  order  to  make  it  easier  for  the  courts  to  provide  higher  amounts  of 
compensation  than  was  previously  the  case  in  relation  to  damages.  Discrimination 
compensation  awards  are  not  supposed  to  be  in  line  with  the  low  general  levels  of  civil 
damages  in  other  legal  areas.  The  award  includes  a  right  to  compensation  or  damages 
for  the  violation  caused  by  the  discrimination.  Chapter  5  Section  1  also  requires  the 
courts  to  give  particular  attention  to  the  purpose  of  discouraging  future  infringements. 
There is a compensatory goal as well as a preventive goal. 

In working life there is also a basic right to economic damages. However, in recruitment 
and  promotion  cases,  the  individual  is  not  considered  to  have  a  right  to  obtain  the 
employment  or  promotion  in  question.329  Economic  injuries  are  thus  not  compensated 
for. The violation still leads to a non-economic injury, which is compensated. As is usually 
the case in Swedish labour law, if it is reasonable, damages can  occasionally be reduced 
or removed completely. Depending on the discriminatory act, other labour law provisions 
may  apply  in  parallel,  such  as  the  rules  of  the  Employment  Protection  Act  in  cases  of 
dismissal or those of the Co-Determination Act in cases where a collective agreement is 
violated.  

Invalidity of provisions in collective agreements and in individual contracts is possible in 
all areas of the law under Chapter 5 Section 3. 

Injunctions have a very limited use in Sweden. Although the possibility exists, the author 
knows of no previous cases related to discrimination where an injunction has been used.  

Violations  of  the  penal  provision  on  unlawful  discrimination  are  punished  by  a  fine  or 
imprisonment for a period not exceeding one year and can result in an obligation to pay 
financial compensation in accordance with Chapter 16 Section 9 of the Penal Code.330 The 

327  Government bill 2007/08 p. 531-532. 
328  With regard to breaches of active duties, a court order involving a financial penalty can in theory be issued.  
329  In the state sector, however, a consequence of the public law character of the constitutional provisions as 

regards objective grounds on hiring is that a discriminatory decision may be appealed through 
administrative procedures, with the discriminated-against person actually being given the position in 
question. 

330  See Stockholm District Court, case B-16349-13, Public Prosecutor v. Jonas Taipani Thesén (judgment of 

18.02.2015). The three victims were each awarded SEK 5 000 (EUR 550) in a case of refused admittance to 
a shop. The owner was fined the same amount (100 income-related units). If the case had been considered 
under the Discrimination Act, the discrimination award could possibly have been higher, and the rules on a 

103 

 
 
 
 
 
 
 
 
 
 
                                                 
 
maximum  prison  sentence  for  hate  speech,  as  set  out  in  Chapter  16  Section  8,  is  two 
years. 

Sanctions  are  normally  applied  to  the  employer,  university,  labour  union  or  employers’ 
association, for example. This follows from expressions such as ‘employer’ or ‘university’ 
in  the  provisions  on  financial  compensation.  Harassment  by  fellow  workers  or  students 
may, however, also come under general criminal law provisions on such behaviour, e.g. 
as harassment, verbal abuse, threats or assault. 

In  such  cases,  a  complaint  may  also  result  in  sanctions  against  the  individual  directly 
responsible for the actions. 

With  regard  to  the  sanctions  under  the  Discrimination  Act,  there  is  no  differentiation 
between the public sector and the private sector.331 

b) 

Ceiling and amount of compensation 

Swedish  law  currently  provides  no  ceiling  on  compensation  in  discrimination  cases. 
Nevertheless, compensation levels are low.  The record  for the amount awarded  was  set 
in 2014 by Svea Court of Appeal in a child custody case. Having a child taken away from 
its  parents  was  seen  as  the  worst  injury  that  could  be  suffered,  and  therefore  the 
discrimination  award  was  set  at  SEK 150 000  (EUR 14 040)  for  each  of  the  parties 
involved (both parents and the child).332 

There are no statistics on the average amount of compensation to victims. 

In  2012,  the  Equality  Ombudsman  pointed  out  that,  although  it  was  too  early  to  make 
definitive  conclusions,  the  introduction  of  the  term  ‘discrimination  compensation’ 
(diskrimineringsersättning) in 2009 to replace  the term ‘damages’ (skadestånd) had not 
thus  far  resulted  in  any  significant  (nämnvärd)  increase  in  the  amounts  awarded.333  In 
2014,  the  Equality  Ombudsman  concluded  that  various  judgments  indicated  that  the 
compensation levels for less severe violation  would in many cases be  too low to have a 
dissuasive  effect.  This  was  considered  by  the  DO  to  be  a  problem  in  relation  to  the  EU 
requirement  concerning  dissuasive  sanctions:  ‘Ineffective  sanctions  actually  means  the 
anti-discrimination  legislation  will  not  live  up  to  the  goal  of  protecting  those  who  most 
need  it’.334  In  its  2017  Annual  Report,  the  DO  highlighted  the  need  for  more  effective 
sanctions  for  counteracting  discrimination,  particularly  concerning  violations  of  the 
Discrimination Act.335 

The need for more effective sanctions seems to be in line with the conclusions drawn by 
Laura Carlson in her analysis of compensation paid in  employment discrimination cases. 
According  to  her  calculations,  the  amounts  that  are  currently  being  awarded  by  the 
Labour Court, adjusting for inflation, are about 4.5 % higher than they were in 1980. She 
points out that this does not appear to reach the threshold of enhanced compensation, as 
was  envisaged  by  the  change  in  terminology  that  came  with  the  Discrimination  Act  in 
2009. She also points out that this modest increase in compensation should be compared 
with the 170 % increase in trial costs and fees since the 1980s. She  concludes that the 
trends concerning compensation awarded and increasing  legal costs and fees, combined 

shifted burden of proof would have applied.  

331  With regard to alternative procedures for public employees, see Section 6.1(a) above. 
332  Svea Court of Appeal case T 5096, Equality Ombudsman v. Sigtuna Municipality (judgment of 11.04.2014). 
Available at: http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-hovratt-sigtuna-kommun-
anm-2011274.pdf. 

333  Equality Ombudsman, Annual Report 2012, p. 24. 
334  Equality Ombudsman, Annual Report 2014, p. 60. 
335  Equality Ombudsman, Annual Report 2017, pp. 2, 34 and 35. 

104 

 
 
 
 
 
 
 
 
 
                                                                                                                                                         
low  success  rates, 

with 
discrimination claims’.336  

‘create  a  significant  deterrent 

for  claimants  bringing 

The  Equality  Ombudsman  previously  decided  to  proceed  with  a  number  of  cases 
regarding  the  labour  market,  asking  for  SEK 75 000  to  SEK 400 000  (EUR 7 021  to 
EUR 37 500).  The  Labour  Court  has  previously  awarded  between  SEK 30 000  and 
SEK 50 000  (EUR 2800  to  EUR 4 700)  in  similar  cases.  The  Ombudsman  has  further 
settled several cases at the level of SEK 100 000 (EUR 9 362), with one record-breaking 
case  of  SEK 200 000  (EUR 18 724).337  This  settlement  is  impressive  in  relation  to  the 
discrimination  awards  in  AD  2010  No. 91338  (SEK 75 000  or  approximately  EUR 7 021); 
AD  2011  No.  37339  (SEK 125 000  or  EUR 11 700).  In  the  former  case,  the  Equality 
Ombudsman  asked  for  SEK 300 000  (EUR 28 100);  in  the  latter  case  the  Ombudsman 
asked  for  SEK 400 000  (EUR 37 440)  as  a  discrimination  award  and  SEK 100 000 
(EUR 9 360)  for  the  violation  of  the  Employment  Protection  Act.  An  amount  of 
SEK 125 000 (approximately EUR 11 700) was awarded in a one-for-all compensation for 
the violation of both acts.   

However,  since  the  preparatory  work  on  which  the  Discrimination  Act is  based  is  vague 
regarding  the  expected  new  levels  of  compensation,  there  is  a  large  amount  of  legal 
uncertainty on the matter. The Supreme Court  helped clarify some of the uncertainty in 
two  cases  decided  on  the  same  day  in  2014.340  In  the  Veolia  case,  a  bus  driver  had 
problems closing the doors of the bus. Two immigrants were sitting together, and one of 
them had her knee close to the stop request button. The bus driver walked over to them 
and  removed  her  knee  from  the  vicinity  of  the  button  (in  a  non-discriminatory  way 
according  to  the  courts).  He  also  said  that  they  should  return  to  Taliban  country  and 
made  a  rude  gesture.  The  discrimination  award  was  set  by  the  appeal  court  at 
SEK 20 000  (EUR 1 870)  each.341  The  Supreme  Court  increased  the  amount  to 
SEK 25 000  (EUR 2 340)  on  the  basis  that  this  violation  was  as  severe  as  a  violation 
through  words  without  threats  can  be.  The  violation  award  was  set  at  SEK 15 000 
(EUR 1 400)  each.  Furthermore,  SEK 20 000  (EUR 1 870)  was  to  be  added  as  a 
prevention award. Normally a prevention award is the same amount as the award for the 
violation.  

If  only  one  person  had  been  discriminated  against,  that  person  would  have  received 
SEK 15 000  plus  the  full  prevention  award  (SEK 15 000  plus  SEK 15 000).  Since  two 
persons  were  to  share  the  prevention  amount,  the  court  set  the  amount  at  a  total  of 
SEK 20 000, to be divided between the two persons involved, as the court concluded that 
SEK 30 000 (EUR 2 800) would have been too harsh for the perpetrator. 

There  are  some  situations  where  one  may  be  able  to  identify  a  standard  level  of 
compensation,  for  instance  in  the  case  of  a  person  not  being  allowed  to  eat  at  a 
(EUR 1 400)  under  normal 
restaurant, 
circumstances.  It  is  unclear  what  will  happen  to  these  levels.  The  author  believes  that 
violations  concerning  a  restaurant  or  nightclub  are  probably  less  severe  compared  with 

in  damages  of  SEK 15 000 

resulting 

336  Carlson, L. (2017), Comparative Discrimination Law: Historical and Theoretical Frameworks, Brill, pp. 79-80. 
337  Case 2009/1640 (Telenor). The case concerned parental leave but, as it is a record sum, it should be 

reported even if it involves discrimination outside the grounds covered by this report. 

338  Equality Ombudsman v. Swedish Agency for Government Employers (judgment of 15.12.2010). A.H., a 62-
year-old woman, applied for a position as a job coach with the Public Employment Service. She was not 
called to an interview, and two women aged 27 and 36 were hired. A.H. was at least as qualified as one of 
the persons hired and was better qualified than the other. Thus, a presumption of age discrimination arose. 
She was also better qualified compared with a man who got an interview, and therefore a presumption of 
sex discrimination arose as well. 

339  Collective agreement permitting the employer to dismiss all employees above the age of 60 in a redundancy 

case (described in Section 4.7.1).  

340  Supreme Court case T 3592-13, Equality Ombudsman v. Veolia (judgment of 26.06.2014). The second case 
was Supreme Court case T 5507-12, Equality Ombudsman v. Stockholm County (judgment of 26.06.2014), 
NJA 2014, p. 499. 

341  In Sweden, the ground of ethnicity also covers race.  

105 

 
 
 
 
 
                                                 
the bus case. At the same time, some restaurants seem to encourage discrimination if for 
no  other  reason  than  that  they  think  it  will  be  more  lucrative  for  them.  Potentially,  the 
prevention  award  should  be  much  higher  here  compared  with  the  bus  case,  where  the 
employer presumably had a substantial interest in their bus driver behaving properly.  

As  to  sanctions,  Swedish  law  generally  provides  for  low  levels  of  compensation  or 
damages.  For  example,  a  discrimination  compensation  award  of  even  SEK 80 000 
(EUR 7 487) will hardly deter a larger  employer. For large employers  or businesses, the 
threat of publicity is real and  probably much more  significant.342 For small employers or 
small businesses, the sanctions may be said to be a deterrent. 

There is an important potential sanction that, even though there seems to be little follow-
up  concerning  implementation,  has  substantial  potential  as  a  complementary  tool  in 
relation  to  the  Discrimination  Act.  Under  Regulation  (2006:260)  on  Anti-Discrimination 
Conditions in Contracts, Sweden’s 28 largest national government agencies shall include 
an  anti-discrimination  condition  in  their  larger  public  procurement  service  and  building 
contracts. The purpose of the regulation is to increase awareness of and compliance with 
the Discrimination Act (2008:567).343  

It  is  hard  to  say  very  much  about  the  effects  of  this  regulation  or  those  used  by  some 
local  authorities  (e.g.  Stockholm,  Malmö  and  Botkyrka).  The  total  value  of  all  public 
sector  contracts  in  Sweden  is  over  SEK 600 billion  (EUR 56.1 billion)  annually.344  The 
national  Government’s  contracts  are  valued  at  about  SEK 200 billion  (EUR 18.7 billion). 
There  have  been  no  evaluations  or  follow-up  of  the  clauses  used  by  the  different 
agencies. Nevertheless, in the author’s opinion, if the anti-discrimination conditions have 
been  formulated  in  such  a  manner  that  serious  potential  sanctions  such  as  cancellation 
are  included  as  a  part  of  the  contract,  their  preventive  potential is  substantial.  There  is 
currently little risk in violations of the Discrimination  Act, given the limited risks  around 
detection,  enforcement  and  economic  sanctions,  and  particularly  in  relation  to  active 
measures.  Even  if  the  detection  risks  are  minimal,  however,  if  a  business  risks  losing  a 
contract  worth  SEK 50 million  (EUR 4.7 million),  for  instance,  due  to  a  violation  of  the 
Discrimination Act, this probably means that the company has a much greater incentive 
to deal with active measures in a more serious manner than has been the case hitherto. 
This would also be an important factor concerning individual complaints.  

c) 

Assessment of the sanctions 

An  economic  efficiency  analysis  of  discrimination  awards  has  been  undertaken  by  a 
professor  of  national  economics,  paid  for  by  the  Equality  Ombudsman.345  From  an 
economic standpoint, there are clear deficiencies. Discrimination awards are divided into 

342  See, for instance, Court of Appeal on Scania and Blekinge case FT 1948-12, Forum for Equal Rights v. IKEA 
(judgment of 18.03.2013). An anti-discrimination bureau helped a mother to sue IKEA for not letting her 
disabled daughter play in the playroom. She demanded SEK 20 000 (EUR 2 200) as a discrimination award. 
IKEA admitted that it had treated her daughter badly. IKEA accepted SEK 20 000 as fair compensation but 
would not admit to discrimination. The case was tried by both the district court and the appeal court 
because the classification of the decision as discrimination or otherwise was important to both parties. The 
author knows of an employment case regarding promotion, where an anti-discrimination bureau sued for 
SEK 20 000 and settled for SEK 70 000. The settlement included a secrecy clause of high value to the 
discriminator. 

343  Regulation (2006:260) On Anti-Discrimination Conditions In Contracts (Förordning (2006:260) om 

antidiskrimineringsvillkor i upphandlingskontrakt), available at: 
http://rkrattsbaser.gov.se/sfst?bet=2006:260. There is an unofficial translation at: https://www.global-
regulation.com/translation/sweden/2988722/ordinance-%25282006%253a-260%2529-on-anti-
discrimination-clauses-in-procurement-contracts.html.  

344  ‘Varför behövs en nationell upphandlingsstrategi?’ (Why is a national public procurement strategy needed?) 

p. 4. 
http://www.regeringen.se/49eaf7/globalassets/regeringen/dokument/finansdepartementet/pdf/2016/uppha
ndlingsstrategin/nationella-upphandlingsstrategin.pdf.  

345  Stenek, J. (2015), En Samhällsekonomisk analys av discrimineringsersättningen (17.12.2015), available 

from the Equality Ombudsman – document LED 2015/299 17. 

106 

 
 
 
 
 
 
                                                 
two parts. One portion is intended to compensate the victim for the violation of his or her 
integrity.  The  other  portion,  the  prevention  portion,  is  intended  to  dissuade  the 
discriminator  in  relation  to  future  violations.  The  most  basic  deficiency  according  to  the 
report  is  that  the  prevention  portions  of  discrimination  awards  seem  to  be  too  low  to 
the 
prevent 
discrimination  award  would  need  to  be  extremely  high  on  some  occasions  if  the  low 
detection risk in many areas is to be properly taken into account.  

infringements.  From  an  econometric  efficiency  standpoint, 

future 

In the author’s opinion, it should be obvious that it is highly doubtful that Sweden, due to 
its  legal,  social  and  political  culture,  will  ever  develop  extremely  high  discrimination 
compensation  awards.  This  issue  was  also  discussed  by  the  writer  of  the  report  for  the 
Equality  Ombudsman.346  It  should  nevertheless  be  obvious  that  higher  awards  are 
necessary if the law is to become more effective. Greater justification for this could come 
from  understanding  the  substantial  damage  arising  in  various  situations,  as  well  as  the 
damage  caused  to  third  parties,  as  was  pointed  out  in  the  above-mentioned  report. 
These  issues  have  been  missing  from  the  discussion  of  the  preventive  potential  of 
discrimination  awards,  just  as  a  serious  discussion,  in  the  author’s  opinion,  has  been 
missing concerning the sanctioning and remedies system under the Discrimination Act, as 
well as other potential sanctioning or support  measures  in the public sector  with regard 
to counteracting discrimination.  

Concerning  the  labour  market,  in  the  author’s  opinion,  the  sanctions  would  be  more 
effective  if  there  was  a  right  to  damages  for  economic  loss  in  cases  of  recruitment  and 
promotions,  at  least  in  regard  to  the  most  qualified  applicant.  The  most  qualified 
applicant, if he or she can prove that discrimination occurred, would not have a right to 
the job, but the right to damages as if they had been hired and fired. This type of change 
would  raise  the  cost  risks  associated  with  discrimination  without  radically  changing  the 
system of damages in Sweden. 

Outside  the  labour  market,  the  sharply  reduced  level  of  civil  damages  in  cases  where 
discrimination  is  proved  by  situation  testing  may  violate  the  principle  of  effectiveness, 
according to the author, at least with regard to night clubs.347 But this legal situation may 
change  with  the  Discrimination  Act,  when  the  Supreme  Court  by  law  will  have  to  give 
particular  attention  to  the  purpose  of  discouraging  future  infringements.  The  author 
believes  that  the  Supreme  Court  case  from  2014348  is  well  reasoned,  which  makes  it 
possible to state that the damage to the individual in a case where the individual willingly 
participates  in  situation  testing  is  small,  although  the  importance  of  stopping  an 
economically  profitable  discriminatory  behaviour  by  a  club  owner  should  lead  to  a  high 
prevention award as a part of the discrimination award. 

The Equality Ombudsman is of the opinion that the low level of awards made to persons 
suffering  from  discrimination  with  regard  to  goods  and  services  is  a  real  problem 
(SEK 20 000 or EUR 1 872 being a typical award).349  

As  to  the  overall  question  of  whether  the  available  sanctions  are,  or  are  likely  to  be, 

346  See Stenek, J. (above) p. 21. He cites an example of employment discrimination where the detection risk is 
probably below 0.1 % and where a EUR 2 000 evaluation of the damage to the individual would result in a 
EUR 2 million prevention award. He concludes that such high sums would be seen as unfair lottery winnings 
for the individuals receiving them, and that such a system would lose public support in the long run. 

347  The Supreme Court, Escape Bar and Restaurant v. Ombudsman Against Ethnic Discrimination (case T-2224-
07 judgment of 01.10.2008). Nightclubs have strong economic incentives to give preference to high-status 
persons and exclude low-status persons when admitting guests. Sharply reducing the civil damages for the 
only effective and available means to prove such discrimination will probably lead to continued 
discrimination based on a cost-benefit analysis by the nightclub owner.  

348  Supreme Court case T 3592-13, Equality Ombudsman v. Veolia (judgment of 26.06.2014). The second case 
was Supreme Court case T 5507-12, Equality Ombudsman v. Stockholm County (judgment of 26.06.2014), 
together known as NJA 2014 – p. 499. See above (b). 

349  Equality Ombudsman Annual Report 2014, p. 54. 

107 

 
 
 
 
 
 
                                                 
effective, proportionate and dissuasive, there are two basic issues.  

The  first  issue  would  arise  if  Sweden  were  to  be  found  to  be  non-compliant  with  the 
directives  regarding  the  sanctions  available  in  Sweden.  In  the  author’s  opinion  this  is 
unlikely, since Sweden can be considered as more effective than many other countries in 
this regard. 

However,  the  more  important  issue  is  whether  the  current  system  for  sanctions  is 
sufficiently  effective,  proportionate  and  dissuasive  to  bring  about  the  goals  of  the 
directives and thus the goals of the Discrimination Act. In the author’s opinion, given the 
current state of the legislation and the case law, this is doubtful. The potential sanctions 
are not the only issue, but they are an important one. 

As was pointed out in the 2005 inquiry into structural discrimination, the overall system 
for promoting equality and counteracting discrimination needs to concentrate on the idea 
that if discrimination costs, or carries with it substantial cost risks, most people with the 
power  to  discriminate  can  refrain  from  their  discriminatory  tendencies.  The  key  is  not 
necessarily  sanctions,  but  convincing  those  with  the  power  to  discriminate  to  work 
seriously on preventing discrimination. The end goal is not compensation for victims, but 
rather that potential victims are not subjected to discrimination in the first place. 

Some  changes  in  the  law  could  and  should  be  made,  including  in  regard  to  economic 
damages relating to recruitment and promotion.  

At  the  same  time,  policymakers  need  to  take  a  more  holistic  view,  by  examining  other 
legal tools that can help to ensure the effectiveness of the principle of equality.  

One  idea  is  a  review  of  the  rules  on  class  actions,  so  that  they  become  more  effective, 
especially in discrimination cases. This should also mean that class actions are available 
in labour law as well.  

Concerning restaurant and nightclub discrimination, almost all such establishments have 
liquor service licences, granted by their local authority. These licences are a privilege and 
not a right. The licences may be tied, through the Alcohol Act, to the idea that the licence 
holder is put on notice that discrimination is a violation of the trust granted to them by 
the public, and that discrimination can lead to revocation of the licence. 

Another  idea  takes  the  form  of  a  revised  regulation  on  anti-discrimination  conditions  in 
public  contracts,  which  clearly  indicates  that  the  contractor  shall  agree  to  abide  by  the 
Discrimination Act, as well as making a written report about the fulfilment of their duties 
under  the  Discrimination  Act  at  the  request  of  the  contracting  entity,  and  that  the 
contracting entity retains the right to cancel the contract if these conditions are violated. 

In the author’s opinion, this type of broader approach to the issue of what policymakers 
can  do  concerning  sanctions  in  a  broad  sense  can  help  to  ensure  that  they  actually 
become effective, proportionate and dissuasive. 

108 

 
 
 
 
 
 
 
 
 
 
 
7 

a) 

BODIES FOR THE PROMOTION OF EQUAL TREATMENT (Article 13 Directive 
2000/43) 

Body/bodies  designated  for  the  promotion  of  equal  treatment  irrespective  of 
racial/ethnic origin according to Article 13 of the Racial Equality Directive 

Sweden  has  a  specialised  body  designated  for  the  promotion  of  equal  treatment 
irrespective  of  racial/ethnic  origin,  in  accordance  with  Article  13  of  the  Racial  Equality 
Directive:  the  Equality  Ombudsman  (DO).  The  DO  has  a  broad  anti-discrimination  and 
equality  promotion  mandate  established  by  law  (the  Equality  Ombudsman  Act).  The 
grounds  covered  by  the  DO’s  mandate  are  sex,  transgender  identity  or  expression, 
ethnicity, religion and other belief, disability, sexual orientation, and age. The DO’s scope 
of  action  includes  but  is  not  limited  to  working  life,  education,  labour  market  policy 
activities  and  employment  services,  starting  or  running  a  business  and  professional 
recognition,  membership  of  certain  organisations,  goods,  services  and  housing,  health 
and medical care and social services, national military service and civilian service and, to 
a limited extent, public sector employment. 

The head of the DO is appointed by the Government. It is the type of government agency 
where  all  responsibility  for  the  agency  lies  with  the  head  of  the  agency.  There  is  no 
governing board or anything similar.  

b) 

Political, economic and social context for the designated body 

In 2009 and 2010, there was extensive public criticism of the Equality Ombudsman (DO). 
Much of this had its beginnings in a case taken to court concerning discrimination against 
a Muslim man. His labour market subsidy was withdrawn for failing to shake hands in an 
interview for an apprentice position with a potential employer who was a woman. The DO 
won the case in February 2010 (Mål nr: T 7324-08). This resulted in massive and almost 
unanimous  criticism  of  the  DO  in  editorials.  Feminists  and  politicians  were  especially 
critical.  Few  seemed  to  have  read  the  actual  judgment,  and  it  was  the  DO  that  was 
criticised,  but  in  general  there  was  essentially  no  criticism  of  the  court.  On  top  of  the 
media  criticism  of  the  DO,  there  were  also  problems  concerning  the  administrative 
management  of  the  DO.  In  February  2011,  the  head  of  the  office  was  removed.  News 
reports  at  the  time  stated  that  the  Government  acted,  among  other  things,  due  to  a 
slowness of decision-making.350 

While  it  may  be  asserted  that  there  is  broad  political  support  for  the  Equality 
Ombudsman, this seems to be dependent on the DO being relatively uncontroversial and 
unchallenging. It seems to the author that the victims of discrimination have been having 
less  and  less  trust  in  the  DO,  at  least  since  2011.  The  DO  asserts  that  it  has  become 
more  strategic.  According  to  a  former  gender  equality  ombudsman,  the  DO  has  moved 
from a situation of trying to use the law to promote equality through taking on cases and 
assisting  victims 
information  concerning 
discrimination.351  Among  NGOs  and  various  experts  in  the  field  outside  of  the  DO, 
support can be found for this criticism.  

to  a  position  of  merely  providing 

This development is taking place in an environment where, even though there has been 
increased  funding  for  certain  equality  issues  (including  for  the  DO  and  the  new  Gender 
Equality Agency), the political debate is becoming increasingly focused on law and order 
issues  –  largely  in  response  to  fears  of  increasing  support  for  Sweden’s  far-right-wing 
party. There are elections coming up in September 2018, and the only party that seems 

350  See, for example, ‘Regeringen sparkar DO Katri Linna’ (The government fires DO Katri Linna), Expressen, 
1 February 2011, available at: https://www.expressen.se/nyheter/regeringen-sparkar-do-katri-linna/. 

351  Lena Svenaeus, ‘Amnesti råder för brott mot diskrimineringslagen’ (There is an ongoing amnesty for 

violations of the Discrimination Act) 30.02.2018, available at: https://www.svd.se/amnesti-rader-for-brott-
mot-diskrimineringslagen.  

109 

 
 
 
 
 
 
 
 
                                                 
poised for substantial gains compared with the last election in 2014 is the far-right-wing 
party. 

Discussion  is  ongoing  in  Sweden  concerning  the  creation  of  a  National  Human  Rights 
Institute  (NHRI).  Although  there  is  broad  support  for  such  a  body,  it  seems  thin.  The 
issue  has  been  on  the  table  since  at  least  2010.  Recently,  a  new  inquiry  was  started 
concerning  the  potential  placement  of  such  an  institution  under  the  Government,  since 
the  Parliament  decided  that  it  does  not  want  an  NHRI  established  as  a  parliamentary 
agency, even though the Parliament has agreed to its establishment.  

The Swedish Gender Equality Agency352 was opened on 1 January 2018. The task of the 
agency  is  to  coordinate,  follow  up  and  in  different  ways  support  the  effective 
implementation  of  the  Government’s  gender  equality  policy.  This  is  to  be  done  in 
cooperation with other government authorities, as well as municipalities, county councils, 
regions, civil society and industry. There may potentially be some overlap with the work 
of the Equality Ombudsman, but this is not yet clear.  

The  income  and  expenses  for  the  Equality  Ombudsman  were  about  SEK 103 million 
(approximately  EUR 9 640 000)  during  each  year  from  2014  to  2016.  There  have  been 
no dramatic increases or reductions since the Equality Ombudsman was created in 2009. 
In 2017, the budget was SEK 112 million (approximately EUR 10 482 000) and in 2018 it 
is  SEK 124 million  (approximately  EUR 11 605 000).  The  latest  increase  consists  of 
compensation  for  inflation  of  SEK 2 million  and  a  further  SEK 10 million  for  various 
activities.  The  budget  has  thus  increased  over  the  last  two  years.353  The  funding  for 
equality  promotion  other  than  through  the  Equality  Ombudsman  increased  from 
(approximately 
SEK 62 million 
EUR 7.4 million) in 2018.  

(approximately  EUR 5.8 million) 

to  SEK 79 million 

It is not easy to assess the balance between supportive and hostile news coverage in the 
popular  press.  However,  in  the  view  of  the  author,  the  press  coverage  of  the  Equality 
Ombudsman seems to be decreasing in general. The only party that seems interested in 
a debate concerning the Equality Ombudsman is the  far-right-wing party – which wants 
the  DO  to  be  defunded.  Some  topics  such  as  the  matter  of  the  handshake  and  other 
issues  related  to  Muslims  give  rise  to  debate,  sometimes  heated.  Although  there  is  no 
active  political  campaign  against  the  Equality  Ombudsman  except  from  the  extreme 
right, there is no active support  either. Various civil society  organisations  seem to have 
realised that they themselves must become more active in taking cases to court. At the 
same  time,  the  former  gender  equality  ombudsman  has  severely  criticised  the  Equality 
Ombudsman’s strategy and current approach to handling complaints. She points out that 
the Ombudsman is moving its focus from legal strategy and the tools provided by law to 
an  information  strategy  that  will  convince  those  with  the  power  to  discriminate  to 
voluntarily refrain from discrimination. Her criticism relates to all discrimination grounds, 
and not just gender.354  

352  See Government information available at: http://www.government.se/articles/2018/01/the-new-swedish-

gender-equality-agency-inaugurated-in-gothenburg/ and the agency’s website at: 
https://www.jamstalldhetsmyndigheten.se/en/. 

353  Government bill 2017/18:1, Expenditure Area 13, p. 45. Of that amount, SEK 0.7 million is for the Board 

Against Discrimination, Regulation letter for the Equality Ombudsman 2018. Ku2017/02634/DISK.  

354  Some examples where the author of this report has translated the headlines into English: Lena Svenaeus, 

‘There is an amnesty today for violations of the Discrimination Act’, 30.02.2018, available at: 
https://www.svd.se/amnesti-rader-for-brott-mot-diskrimineringslagen; ‘Procedural circus when the OD 
handles cases on sexual harassment’, available at: http://www.dagensjuridik.se/2017/11/processrattslig-
cirkus-nar-do-hanterar-mal-om-sexuella-trakasserier-2; Response by the DO, ‘Attempting to get an 
admission of sexual harassment is not a circus. Your criticism is not serious’, available at: 
http://www.dagensjuridik.se/2017/11/inte-cirkus-att-forsoka-fa-sexuella-trakasserier-konstaterade-din-
kritik-ar-oserios-lena-sve; Counter-response by Lena Svenaeus, ‘135 sexual harassment complaints to the 
DO, but few lead to investigations or attempts to find a solution’, at: 
http://www.dagensjuridik.se/2017/11/135-anmalningar-om-sexuella-trakasserier-till-do-men-fa-
utredningar-eller-forsok-till-uppgor.  

110 

 
 
 
 
 
                                                 
While it is true that economic actors fear losing a discrimination case mainly because of 
the public stigma it entails, it is hard to say how important this fear is. If there is little or 
no risk of cases being brought against them, they are not in a difficult position regarding 
discrimination,  in  particular  concerning  active  measures.  In  the  author’s  opinion,  even 
among those victims who are aware of their rights on paper, many seem to conclude that 
there is little point in pursuing such cases, since the help they can get is limited. In spite 
of  receiving  increased  funding,  the  Equality  Ombudsman  is  not  dedicating  these 
resources to increased investigation of complaints or the pursuit of cases in court.  

As  regards  another  important  actor,  the  unions,  there  is  no  overview  of  the 
discrimination cases they are taking on, so it is hard to know how they are  dealing with 
such cases.  

Very few cases are brought by individual complainants  – the cost risks related to losing 
are  too  high  for  most  people,  perhaps  especially  for  those  who  are  most  likely  to  be 
victims.  Some  of  the  cases  taken  on  by  the  local  anti-discrimination  bureaus  lead  to 
settlements.  If  and  when  a  bureau  brings  a  case  to  court,  it  will  generally  be  a  small 
claims  matter,  which  avoids  the  risk  of  being  required  to  pay  the  winning  party’s  legal 
costs.  

c) 

Institutional architecture 

The  Equality  Ombudsman  does  not  have  a  mandate  as  a  general  human  rights 
institution, in that its mandate is limited to the fundamental human right of equality and 
non-discrimination.355 In theory it cannot deal with an infringement of a human right that 
is totally unconnected to a discrimination ground. However, the Equality Ombudsman has 
a wide scope of appreciation when it decides which areas to give priority to and how to 
interpret  those  areas.  With  regard  to  the  Sami  people,  their  rights  as  an  indigenous 
people  are  not  a  part  of  the  Ombudsman’s  official  mandate,  but  their  rights  are  so 
interlinked  with  their  ethnic  background  that  the  Ombudsman  can  work  on  that  basis 
anyway with regard to the Sami. 

The mandate of the Ombudsman is set out in the Equality Ombudsman Act. The annual 
regulation  letter,356  which  requires  the  Ombudsman  to  report  back  to  the  Government 
regarding  specific  tasks,  can  have  some  effect  on  the  agency’s  priorities.  The  DO’s 
mandate covers equality and non-discrimination, thus all of its resources are dedicated to 
the equality mandate. 

The  author  has  some  questions  about  the  effectiveness  of  the  nature  and  level  of 
attention  accorded  to  the  equality/anti-discrimination  mandate.  The  author  is  unsure 
about  the  DO’s  understanding  of  how  equality  and  non-discrimination  can  be  achieved, 
especially in connection with the idea of promoting social and political change concerning 
equal rights and opportunities. Among various other factors, in the author’s opinion, the 
DO seems to lack an understanding of the idea that an essential key to effective work in 
this  field  is  an  understanding  of  and  cooperation  with  the  victims  of  discrimination. 
Without  this  understanding,  much  of  the  work  being  done,  while  well-intentioned,  risks 
becoming one more means of maintaining rather than changing the status quo. 

355  The Equality Ombudsman (DO) applied to the UN a number of years ago as an ‘A’ status national human 

rights institution. The UN determined that the DO did not fulfil the requirement of independence (given the 
background of how the head of the agency was removed by the Government) and has a mandate that was 
too limited, as it related only to equality and non-discrimination.  

356  Every year, the Equality Ombudsman receives a regulation letter from the Government setting out tasks on 
which the DO shall report back to the Government, usually in its annual report. Occasionally the DO can be 
assigned special tasks that are to be reported back to the Government in some other manner. Regulation 
letters are given to all government agencies. From 2009 to 2012, the DO would get a ‘blank’ regulation 
letter to ensure its independence. Since 2013 these letters have included various tasks to be reported back 
to the Government. 

111 

 
 
  
 
 
 
 
 
                                                 
The  author’s  professional  assessment  concerning  the  level  of  visibility  of  the  equality 
mandate and the DO is that, in spite of its broad mandate and increasing resources,  its 
level  of  visibility  has  been  fading  for  a  number  of  years,  particularly  concerning 
discriminated-against groups.  

d) 

Status of the designated body/bodies – general independence 

i) 

Status of the body  

The  Equality  Ombudsman  is  a  government  authority  and  is  thus  a  separate 
legal person.  

The  DO  is  currently  placed  under  the  Government’s  Ministry  for  Culture  and 
Democracy,  and  is  appointed  by  the  Government.  The  person  appointed  as 
the  DO 
(en 
the 
is 
enrådighetsmyndighet).  

responsible 

agency 

actions 

the 

for 

of 

There  is  no  governing  body.  Such  a  body  would  have  made  the  Equality 
Ombudsman  less  independent.  Neither  the  Government  nor  any  other 
organisation  has  a  formal  influence  on  the  DO’s  decision-making.  Instead, 
there  is  an  advisory  board  regulated  under  Section  5  of  Regulation 
(2008:1401)  with  Instructions  for  the  Equality  Ombudsman.  This  board  is 
chaired  by  the  Ombudsman  and  has  up  to  10  members  appointed  by  the 
Ombudsman for a term of two years.357  

The  Equality  Ombudsman  gets  its  annual  funding  from  the  Government, 
based on a budget approved by the Parliament.  

The Equality Ombudsman recruits and manages its own staff. 

In  Sweden,  all  governmental  authorities  are  independent  when  deciding 
individual  cases, 
in  accordance  with  the  Instrument  of  Government 
Chapter 12 Section 2.  Trying to influence any  governmental authority on the 
handling of an individual case is one of the worst things a minister can do. Not 
even the Parliament is allowed to do that. Instructions, whether issued by the 
Government  or  the  Parliament,  must  consist  of  general  principles  on  how  to 
act.  This  applies  to  staffing  decisions  as  well.  A  general  instruction  may  be 
given,  for  instance  on  trying  to  provide  apprenticeships  for  newly  arrived 
immigrants  with  little  education.  However,  the  Government  cannot  instruct 
any authority to hire a particular individual.  

Instructions can be given by the Government to the Equality Ombudsman by 
regulation  letter.  So  far,  this  has  been  used  for  specialised  requests  such  as 
surveys  on  different  topics  or  reporting  on  certain  issues.  When  the  Equality 
Ombudsman  was  created  in  2009,  there  was  an  understanding  that  the 
Ombudsman would receive only a blank regulation letter. This was one way of 
indicating  the  particular  independence  of  the  Ombudsman,  with  reference, 
inter  alia,  to  the  Paris  Principles.  This  was  adhered  to  through  2012.  Since 
then,  the  regulation  letters  have  included  various  reporting  demands.  Based 
on the regulation letter currently in force, the Ombudsman has a special duty, 

357  This board first met on 09.02.2010. Its members are highly qualified and have a range of academic and 

professional experience. The composition of the board is diverse with regard to sex and ethnic background, 
and its members are paid. There is absolutely no other rule regarding the board’s composition than the rule 
stating that the number of members shall not exceed 10. No NGO can claim a right to a seat, nor can the 
DO be required to appoint a certain number of members representing NGOs, employers, trade unions or any 
other group. However, there are usually NGOs and academics and others appointed to the board, who 
presumably have a considerable amount of expertise in the field. 

112 

 
 
 
 
 
 
 
 
 
 
                                                 
among other things, to report its work on wage surveys to the Government.358 
The regulation letter has now clearly become a means of influencing the work 
of the Equality Ombudsman.  

All governmental authorities (including the Equality Ombudsman) report back 
to  the  Government  on  the  basis  of  their  regulation  letter.  Even  though  the 
regulation letter for the Equality Ombudsman contains fewer detailed requests 
compared  with  the  regulation  letters  of  other  government  authorities,  the 
requests necessarily affect the independence of the office. 

The  Equality  Ombudsman  is  accountable  to  the  Government.  Usually,  this 
takes the form of annual reports, in addition to separate special reporting that 
may be required in accordance with the regulation letter. 

ii) 

Independence of the Body 

The word ‘independent’ is not stipulated in the Equality Ombudsman Act, but 
the  body  is  nevertheless  independent.  At  least  initially,  based  on  the 
legislative materials and their references to the Paris Principles, certain special 
measures  were  taken  to  underline  the  DO’s  independence.  In  addition, 
Sweden  has  a  long  theoretical  tradition  of  a  wall  of  separation  between  the 
Government and all governmental authorities. The Instrument of Government 
Chapter 12 Section 2 (which is part of the Swedish Constitution) prohibits the 
Government  (and  all  other  public  actors  including  the  Parliament)  from 
interfering in any individual case of any governmental authority. It would thus 
not be possible for the Government to interfere in an individual case without a 
change in the Constitution.  

However, if the issue of actions in individual cases is disregarded, it is obvious 
that  the  Government  can  control  the  actions  of  an  independent  government 
authority in other ways. This can include removal of the head of the authority, 
as  well  as  the  use  of  a  regulation  letter  or  possibly  changing  the  mandate  if 
the  authority  was  established  by  Government  regulation.  One  of  the  reasons 
for  establishing  the  Equality  Ombudsman  through  the  Equality  Ombudsman 
Act was that a change in the law, and thus the DO’s mandate, would require 
approval  by  Parliament.  Several  of 
the  previous  anti-discrimination 
ombudsmen  were  created  on  the  basis  of  a  Government  regulation,  not  an 
act. The act thus added an extra measure of independence.  

Normally,  if  a  governmental  authority  is  to  have  a  supervisory  board,  the 
Government  appoints  the  board.  The  rule  laid  down  in  Section  5  of  the 
Equality  Ombudsman  regulation  (2008:1401)  clearly  states  that  the  Equality 
Ombudsman  selects  her  own  advisory  board.  This  is  an  example  of  the  high 
degree of independence given to the Equality Ombudsman. Even this measure 
was adopted, at least in part, with reference to the Paris Principles. It should 
be  noted,  though,  that  the  Government  can  basically  revoke  a  regulation  at 
any time. 

The Equality Ombudsman has independence mainly based on the general and 
constitutionally  protected  tradition  of  independent  authorities  in  Sweden,  as 
independence  was 
well  as  being  established  by 
complemented by some special independence-enhancing measures. However, 
in  practice,  it  should  be  pointed  out  that  one  of  the  major  reasons  why  the 
Equality  Ombudsman’s  application  to  the  UN  for  status  as  a  national  human 

law.  Initially,  this 

358  Equality Ombudsman, 2018 regulation letter, available at: 

https://www.esv.se/statsliggaren/regleringsbrev/?RBID=18906.  

113 

 
 
 
 
 
 
 
 
                                                 
rights institution was rejected was the lack of independence demonstrated by 
the  manner  in  which  the  Swedish  Government  was  able  to  remove  the  head 
of the Equality Ombudsman so easily in 2011. 

Even  though  the  DO  is  established  by  law,  and  even  though  the  legislative 
materials  for  that  law  refer,  inter  alia,  to  the  Paris  Principles,  the  removal  of 
the  agency  head  in  2011  and  the  increasingly  detailed  regulation  letters 
clearly indicate that the DO is accountable to the Government. 

e)  Grounds covered by the designated body/bodies 

The  Equality  Ombudsman  covers  seven  grounds  of  discrimination:  sex,  sexual 
orientation,  ethnicity,  religion  and  belief,  disability,  age  and  transgender  identity  or 
expression.  In  addition,  the  DO,  in  accordance  with  the  Parental  Leave  Act  (1995:584) 
has  the  right  to  bring  cases  on  behalf  of  individuals  regarding  the  prohibition  against 
unfavourable treatment related to parental leave.  

The  Swedish  Discrimination  Act  is  to  a  large  extent  built  upon  the  idea  that  all  seven 
grounds are equal. Therefore, none of its staff only deal with a single ground, and there 
is no specified budget for specific grounds. When a priority is decided on, for example the 
issue of harassment, it can often transcend the various grounds, or it can be only a part 
of a ground, for instance Islamophobia or Afrophobia. The priorities are not based on the 
grounds, but rather on a determination of which issues need an increased focus. 

In  Sweden,  intersectional  cases  can  be  a  problem.  One  benefit  of  the  Equality 
Ombudsman’s  mandate  concerning  all  grounds  has  been  the  increased  understanding 
that  quite  a  few  complaints  can  involve  multiple  grounds,  even  if  the  individual  did  not 
realise this in the beginning. If they had approached a single-ground authority, the other 
ground or grounds might have been missed. 

Migrants  are  protected  by  the  prohibition  against  ethnic  discrimination  in  the 
Discrimination Act. Basically, such cases are dealt with like all other cases, and they are 
not  a  special  priority  for  the  DO.  There  is  presumably  a  high  level  of  discrimination 
against  undocumented  migrants  or  those  who  are  to  be  expelled,  but  complaints  will 
probably not be made to the DO very often, since such complaints are generally publicly 
accessible  documents.  Persons  living  under  the  threat  of  expulsion  often  avoid  contacts 
that  they  believe  might  make  the  police  aware  of  their  whereabouts.  It  may  be  noted 
that the Equality Ombudsman was highly critical of Sweden’s reform of its asylum rules, 
which sought to move towards the lowest level permitted by international rules.359  

The  level  of  attention  given  to  the  various  grounds  seems  unsatisfactory  –  or  at  least 
there is an increasing lack of clarity as to the attention given to any ground. On the one 
hand,  there  are  short-term  political  issues  receiving  attention,  ranging  from  gender 
equality  and  active  measures  to  gender  mainstreaming  (not  equality  mainstreaming)  in 
government  agencies  to  sexual  harassment,  and  others  concerning  LGBT  issues, 
disability  issues,  anti-Roma  issues,  Islamophobia  and  Afrophobia.  On  the  other  hand, 
there seems to be  a  shifting away from  using the law as a tool for  change to using the 
law as an informational tool.360  

The  level  of  attention  given  to  the  various  grounds  could  equally  be  described  as 
unsatisfactory  in  that  the  NGOs  related  to  these  different  grounds  seem  to  be  equally 
dissatisfied with the work of the DO on ‘their’ ground, particularly concerning complaints. 

359  DO Begränsningar av möjligheten att få uppehållstillstånd i Sverige (Limitations on the possibility to receive 

a residence permit in Sweden), Diarienummer LED 2016/57, Remissvar på Lagrådsremiss 
Ju2016/01307/L7, 10.03.2016, available at: http://www.do.se/om-do/vad-gor-do/remissvar/remissvar-
under-2016/begransningar-av-mojligheten-att-fa-uppehallstillstand-i-sverige/.  

360  DO Annual Report 2017, p. 15.  

114 

 
 
 
 
 
 
 
 
 
                                                 
The author tends to agree with the NGOs in that there has been a pullback from the use 
of  complaints,  but  this  does  not  seem  to  be  aimed  at  favouring  some  other  ground; 
rather,  all  grounds  are  disfavoured,  which  is  connected  with  the  implementation  of  the 
DO’s strategy in general. 

To  the  extent  that  there  is  a  focus  on  enforcement  of  the  Discrimination  Act,  the  DO’s 
strategy  is  to  concentrate  to  a  large  extent  on  the  development  of  case  law  and  other 
tools that benefit all grounds. This approach makes sense if it is actually put into practice 
as  well  as  being  effectively  communicated  to  discriminated-against  groups.  If  a  higher 
court applies the burden of proof rules or increases the general level of compensation in 
an  advantageous  manner  in  a  sex  or  ethnic  discrimination  case,  for  instance,  this  will 
usually be of benefit for all grounds. However, to find these types of strategic cases, it is 
presumably  important  for  the  Ombudsman  to  have  a  reserve  of  trust  and  respect  from 
the  relevant  NGOs.  Those  most  likely  to  first  hear  of  cases  are  probably  NGOs.  If  they 
have trust in and respect the DO, they will see to it that such cases are sent to the DO. 
They may even go further and actively look for or even generate cases, if they think that 
their efforts can lead to concrete results. The opposite is also true. Without some level of 
trust  and  respect,  they  may  even  actively  discourage  people  from  relying  on  the  DO. 
Thus, the bigger issue is probably the effectiveness of the level of attention that is paid, 
and not the level of attention itself.  

One  of  the  problems  in  Sweden,  in  the  author’s  opinion,  is  that  there  are  insufficient 
resources dedicated to the reported complaints, and not much of a Government strategy 
in  this  regard  beyond  the  establishment  of  the  DO  (and  some  support  to  local  anti-
discrimination bureaus). Thus, there is little risk that a discriminator will end up in court. 
This is particularly true if an individual attempts to go to court without the assistance of 
the  DO  or  a  union.  Given  Sweden’s  loser  pays  system,  there  are  not  many  individuals 
who want to take on the risks involved. Also, although the law in theory allows a court to 
say that a losing party shall pay only  their own costs, if they brought the claim in good 
faith, the courts seem to be reluctant in applying this exception. Thus, there seems to be 
a decreasing number of effective investigations and court cases being brought by the DO, 
an unclear number of cases brought by the unions and only a handful of individual cases, 
where the economic odds, if not the legal odds, are skewed from the beginning.  

At the same time, in the author’s opinion, if the available funds were  actually used in a 
more strategic manner by the Equality Ombudsman (and the unions), the lack of funding 
would probably be less of a problem.  

f) 

Competences of the designated body/bodies  – and their independent and effective 
exercise 

i) 

Independent assistance to victims 

In Sweden, the designated body has the competence to provide independent 
assistance  to  victims.  The  Equality  Ombudsman  has  the  right  to  investigate 
complaints  concerning  discrimination  as  well  as  the  right  to  represent 
individuals  in  cases  that  are  of  importance  in  terms  of  case  law  or 
otherwise.361  

• 

Independence 

The  competences  are  exercised  independently.  Once  the  decision  has 
been  made  to  take  on  a  case,  including  the  willingness  to  take  it  to 
court, one indication of independence is the willingness to take on cases 
of  a  controversial  nature,  such  as  the  handshake  or  headscarf  cases. 

361  Equality Ombudsman Act Section 2 and Discrimination Act Chapter 6 Section 2. 

115 

 
 
 
 
 
 
 
 
 
                                                 
Such  cases  are  still,  on  occasion,  taken  to  court  by  the  Equality 
Ombudsman. 

• 

Effectiveness 

Concerning the cases that are actually taken to court, the DO seems to 
be  committing  the  personnel  and  other  resources  that  are  needed  in 
order  to  be  effective,  and  it  appears  that  a  high  level  of  courtroom 
advocacy is being provided.  

As  for  the  cases  that  are  settled,  the  DO  has  a  basic  policy  against 
settlements  unless  the  opposing  party  admits  to  discrimination  as  part 
of  the  settlement.  While  the  author  understands  the  thinking  here 
concerning an admission of wrongdoing, this approach is not as effective 
as  it  could  be,  in  the  author’s  view.  One  reason  is  that,  given  such  an 
admission,  the  settlement  will  presumably  focus  on  the  compensation 
paid.  This  potentially  limits  the  possibilities  with  regard  to  more  far-
reaching  settlements.  For  example,  if  someone  applies  for  a  job  with  a 
large employer, a settlement including a different but similar job, some 
compensation,  and  possibly  a  requirement  of  equality  training  for  the 
employer’s  upper  level  management  could  be  more  attractive,  both  for 
society and  for the individual involved. This could be particularly true if 
the  individual  is  unemployed  and  is  offered  a  job  that  fits  their 
educational background and experience. The Government inquiry tasked 
with  investigating  how  more  people  can  receive  help  in  pursuing 
discrimination complaints recommended that the DO develop a broader 
policy on potentially adopting a more creative  approach to settlements. 
The inquiry report stated that ‘The Equality Ombudsman’s primary task, 
also  in  the  future,  should  be  to  help  the  parties  reach  agreement. 
However,  in  our  opinion  the  Equality  Ombudsman  should  broaden  its 
work  involving  consensual  solutions,  and  examine  the  possibility  for 
parties to reach agreement in more cases’.362  

It  is  interesting  to  note  the  inquiry’s  reference  to  the  DO’s  expressed 
views  on  settlements:  ‘Due  to  the  imbalance  in  the  power  relations 
between  the  DO  and  the  party  accused  of  discrimination,  it  is  also 
problematical  that  the  DO  works  towards  a  settlement  in  cases  where 
the  legal  situation  is  unclear  or  there  is  a  dispute  on  the  issue  of 
guilt’.363 Naturally, it is important to be concerned that this imbalance in 
power  is  not  used  improperly.  It  would  probably  be  equally  or  more 
important  if  there  was  also  an  understanding  of  the  substantial 
imbalance of power between those  who  have the power to  discriminate 
and the victims of discrimination.  

In the author’s view, providing a counterweight to those with the power 
to  discriminate  was  the  primary  reason  for  the  development  and 
establishment of equality bodies in the first place. Policymakers and civil 
society  organisations  recognised  that,  otherwise,  little  would  change, 
regardless of what the law said. This is of particular relevance when civil 
laws  are  used  by  the  state  to  contribute  to  substantive  change;  civil 
laws  here  have  a  twofold  purpose:  redress  for  the  victims  and  social 
change so that there is less need for redress. 

362  Government White Paper 2016:87, p. 34. 
363  Government White Paper 2016:87, p. 160. 

116 

 
 
 
 
 
 
 
                                                 
It is difficult to say much about the effectiveness of those cases that are 
investigated.  During  2017,  204  decisions  to  investigate  (tillsynsbeslut) 
were  taken.  The  complaints  that  are  to  be  investigated  are  those  that 
the  DO  has  in  theory  determined  can  have  a  great  impact,  can  affect 
societal development and can promote equal rights and opportunities.364 
These investigations are said to be neutral up until the time that the DO 
expresses  a  willingness  to  take  them  to  court.  Some  then  lead  to 
settlements,  some  to  court  cases  and  some  to  other  measures.  The 
inquiry  nevertheless  recommended  that  the  DO  look  for  alternative 
resolution  measures,  even  if  going  to  court  is  not  possible  or  is 
undesirable.  The 
to 
communications  with  the  person  submitting  the  complaint  as  well  as 
with  the  person  complained  against.  As  one  alternative,  the  inquiry 
recommended  that  the  DO  should  provide  clearer  motivations  when  it 
decides not to take particular cases to court. 

improvements 

recommended 

inquiry  also 

There  were  2 475  complaints  submitted  in  2017.365  According  to  the 
Government  inquiry,  only  a  small  number  of  these  complaints  are 
investigated. Although it may vary from year to year, the percentage  of 
complaints  that  are  investigated  is  about  15-20 %,  according  to  the 
inquiry report.  In  other words, most complaints are not investigated.366 
Although the inquiry pointed out that it is not reasonable to require the 
DO  to  investigate  all  complaints,  it  recommended  that  more  of  them 
should  be  investigated.367  It  is  hard  to  conclude  that  the  DO  is  being 
particularly  effective  with  regard  to  complaints  in  cases  where  the 
decision  to  send  a  form  letter  in  response  is  based  solely  on  the 
complaint.  It  is  certainly  possible  that  a  number  of  complaints  may  be 
rejected  on  the  basis  of  the  complaint  itself,  especially  if  the  person 
reading  the  complaint  has  substantial  experience  in  dealing  with 
discrimination and discrimination law – but presumably the most skilled 
and experienced are not involved at this stage. It is also obvious that, if 
80-85 % of the complaints are rejected, some of them will involve cases 
that fit the categories given priority by the DO.  

One problem concerning effectiveness is the decreasing number of cases 
taken  on  by  the  Ombudsman  that  lead  to  settlements  or  a  decision  by 
the courts. Individuals who have a case run substantial economic risks if 
they  go  to  court  without  the  support  of  the  Equality  Ombudsman  (or 
their  union).  For  a  number  of  years,  individual  complainants  seem  to 
have  found  it  increasingly  hard  to  get  their  cases  investigated  by  the 
Equality  Ombudsman,  with  even  less  chance  of  obtaining  support  in 
taking  a  case  to  court,  particularly  given  the  Ombudsman’s  purported 
focus  on  cases  of  principal  importance.  Effectively  protecting  victims  of 
discrimination  was 
inquiry,  which 
recommended that the Ombudsman investigate more cases.368 Since the 
proposals  were  merely  recommendations,  however,  they  will  be  given 
little  weight  by  the  DO,  as  is  indicated  by  the  DO’s  response  to  the 
inquiry, in which the DO basically rejected the recommendations for it to 
investigate more cases and pursue more settlements.369  

focus  of  a  Government 

the 

364  Government White Paper 2016:87, p. 164. 
365  Equality Ombudsman 2017 Annual Report, p. 57. 
366  Government White Paper 2016:87, p. 186. 
367  Government White Paper 2016:87, p. 33-34 (in English). 
368  See Committee Directives 2014:10 and 2014:79 and Government White Paper 2016:87, p. 25. A case taken 

to the point where the alleged discriminator is asked to reply creates a basic investigation even if the 
Ombudsman decides not to go to court. This may cause the alleged discriminator to change their practice, 
and it may be helpful should the individual decide to go to court. 

369  See the DO response at: http://www.do.se/om-do/vad-gor-do/remissvar/remissvar-under-2017/battre-

117 

 
 
 
                                                 
 
In  the  assessment  of  the  author,  the  factors  in  the  next  section 
concerning the resources of the DO for providing independent assistance 
to victims, particularly concerning the level and quality of the staff, are 
relevant. The limited experience of the senior staff in understanding law, 
social change, those with the power to discriminate and the state seems 
to have led to a strategy that places a greater emphasis on information 
and  to  a  focus  on  changing  attitudes,  presumably  hoping  that  changed 
attitudes  lead  to  behavioural  change.  There  is  thus  less  focus  on  legal 
tools,  other  than  as  a  persuasive  measure  in  relation  to  attitudes  (and 
hopefully behaviour). At the same time that the  DO is  in theory  asking 
for  additional  remedies  or  sanctions  that  will  hopefully  be  more 
effective,  the  DO  does  not  seem  to  be  choosing  to  use  the  tools  it 
already has concerning legal proceedings and case law. This applies both 
to  independent  assistance  to  victims  and  to  active  measures.  There 
seems  to  be  a  lack  of  understanding  of  how  individual  complaints  and 
case law need to provide a key basis for equality promotion information, 
and  how  equality  promotion  information  (reports  etc.)  can  be  used  to 
inform  the  handling  of  individual  complaints  and  cases.  One  of  the 
problems with this type of strategy is that, in Sweden, people in general 
and  particularly  those  with  the  power  to  discriminate  already  tend  to 
have good attitudes – the problem is behaviour. 

According  to  the  DO’s  annual  reports,  about  7 800  discrimination 
complaints  were  submitted  to  the  DO  during  the  years  2013-2016.  Of 
these,  according  to  the  Government  inquiry,  between  15-20 %  became 
the  subject  of  an  investigation.  Most  persons  submitting  a  complaint 
received  a  form  letter  stating  that  the  DO  itself  determined  which 
complaints  would lead  to  an  investigation.  A  relatively  small  number  of 
the cases investigated led to a lawsuit or a settlement.  

In the author’s  opinion, it would be difficult to  conclude that Sweden is 
not in formal compliance with Article 13 RED, particularly in comparison 
with  other  countries.  However,  it  is  also  apparent  that  Sweden  has  a 
long  way  to  go  before  it  can  be  concluded  that  the  country  is  in 
compliance  with  Article  13  RED  on  providing  independent  assistance  to 
victims. 

• 

Resources 

While the provision of independent assistance to victims  falls within the 
mandate  of  the  DO,  there  is  no  specific  staff  or  budget  dedicated  to 
independent assistance to victims.  

The  general  level  and  quality  of  funding  has  stayed  fairly  steady  since 
2009,  and  has  been  increasing  somewhat  in  2017  and  2018.  The 
amount  of  funding  makes  the  office  one  of  the  best-financed  equality 
bodies  in  Europe.  The  level  of  funding  is  relatively  adequate,  although 
more funding is always needed – or at least could always be used. 

Issues with the level and quality of the staff are harder to assess. Of the 
100  or  so  employees  in  2009,  most  came  from  the  previous  four  anti-
discrimination  ombudsmen.  At  the  end  of  2017  there  were  95 
employees. Of these 95, perhaps  six had experience with the DO at its 
inception,  together  with  experience  from  working  for  the  previous 
ombudsmen.  This  means  that  there  are  very  few  staff  members  who 

skydd-mot-diskriminering/.  

118 

 
 
 
 
 
 
 
                                                                                                                                                         
have more than 10 years’ experience. The head of the office recruited in 
2011  came  from  another  state  agency.  She  had  no  knowledge  of 
discrimination  or  discrimination  law,  and  this  was  not  considered  a 
requirement.  All  the  heads  of  units  have  been  external  recruitments 
since her recruitment in 2011. Except for the head of the litigation unit, 
who  had  previously  worked  on  some  cases  as  outside  counsel  for  the 
Equality  Ombudsman,  the  rest  of  the  senior  staff  in  place  today  have 
come  from  other  state  agencies  –  with  basically  no  knowledge  of  the 
field  of  discrimination/equality  or  discrimination  law.  Thus,  while  the 
level  of  staffing  has  stayed  relatively  stable,  questions  may  be  asked 
about the quality. In the author’s opinion, the reason for this is that the 
denial of discrimination as a key socio-political issue in Sweden is still a 
dominant one. The international reputation of Sweden is as a champion 
of  human  rights.  This  applies  to  the  internal  view  of  Sweden  as  well. 
This  means  that,  without  at  least  some  institutional  history  concerning 
discrimination  or  some  other  assistance  in  developing  a  deeper 
understanding of the issues, state employees, especially at management 
level  –  and  for  the  most  part  based  on  good  intentions  –  will  have  a 
hard  time  dealing  with  issues  of  discrimination  and  equality  and 
understanding  that  those  with  power  in  Sweden  need  to  change  their 
behaviour. Since the senior staff basically lacked experience in the field 
of discrimination or equality law, and as much of the rest of the staff has 
been  recruited  since  2011,  the  entire  staff  is  basically  on  a  steep 
learning  curve  in  the  field  of  discrimination  law  –  which  is  presumably 
meant  to  change  the  status  quo  in  society.  This  in  turn  requires  a 
willingness  to  challenge  those  with  the  power  to  discriminate  –  e.g. 
business  owners,  unions,  government  agencies,  politicians  and  fellow 
civil  servants.  This  is  not  an  easy  task  for  civil  servants,  particularly 
when there is little in the way of effective pressure emanating from civil 
society and thus from policymakers, including politicians. 

ii) 

Independent surveys and reports 

• 

Independence  

In  Sweden,  the  Equality  Ombudsman  has  the  competence  to  conduct 
independent surveys and publish independent reports.  

One  or  two  reports  will  be  produced  during  a  typical  year,  although 
there may be anything between no reports and five reports published in 
individual years. The reports are generally of a high quality, in that they 
are produced by professionals in the field, quite often  external experts. 
Normally, these reports describe the facts, and they are not designed to 
advocate a change to legal rules and so on.  

• 

Effectiveness  

The  effectiveness  with  which  the  DO  exercises  its  competence  to 
conduct  reports  and  surveys  is  hard  to  assess,  since  it  is  hard  to 
understand  the  strategy  behind  them.  They  mainly  seem  to  be 
informational  tools  that  could  just  as  well  be  produced  by  other 
authorities, research institutes or NGOs. 

• 

Resources 

The  mandate  of  the  DO  includes  conducting  inquiries  and  publishing 
independent  reports.  However,  there  is  no  specific  staff  or  budget 

119 

 
 
 
 
 
 
 
 
 
dedicated  to  independent  assistance  to  victims,  and  the  extent  of  this 
work varies, based at least to some extent on the DO’s own priorities. 

iii) 

Independent recommendations 

• 

Independence  

In  Sweden,  the  Equality  Ombudsman  has  the  competence  to  issue 
independent recommendations on discrimination issues.  

In  the  legislative  process,  the  Equality  Ombudsman  always  gives  an 
opinion  on  new  legislation  that  is  relevant  to  the  equality  field.  The 
adoption  of  the  new  and  very  restrictive  asylum  legislation  and  the 
the  Equality 
Roma  registration  scandal  are  both  examples  of 
Ombudsman 
the 
Discrimination  Act  but  that  are  still  of  relevance  to  the  field  of 
discrimination.  

taking  positions  on 

fall  outside 

issues 

that 

The  collaboration  between  the  School  Inspectorate  and  the  Equality 
Ombudsman on the guiding principles for schools regarding the wearing 
of  headscarves  and  burkas/niqabs  is  another  example  of  the  Equality 
together  with  another 
Ombudsman  acting 
governmental authority. 

independently  but 

The  Equality  Ombudsman  is  regarded  as  an  expert  in  its  field  when 
dealing with other governmental authorities or commenting on proposed 
legislation. 

• 

Effectiveness 

Even though the Equality Ombudsman is considered to be an expert, in 
the  author’s  opinion  it  is  difficult  to  conclude  that  the  independent 
recommendations  are  particularly  effective.  In  general,  they  do  not 
seem to be particularly challenging. And even when they are, as long as 
the  trust  from  the  victims  of  discrimination  is  weak  or  is  lacking,  the 
recommendations will not be as influential as they otherwise could be.  

• 

Resources 

The  mandate  of  the  DO  includes  the  issuance  of  independent 
recommendations.  However,  there  is  no  specific  staff  or  budget 
dedicated to  this area,  and the  staff and budget  vary, at least to some 
extent, on the basis of the DO’s own priorities. 

iv)  Other competences 

Under  Section  1  of  the  Equality  Ombudsman  Act  (2008:568),  in  addition  to 
the duties described in the Discrimination Act (2008:567), the DO shall work 
to  counteract  discrimination  and  promote  equality  concerning  sex, 
transgender  identity  or  expression,  ethnicity,  religion  or  other  belief, 
disability, sexual orientation or age. Section 3 exemplifies the broad mandate 
by  specifying  that,  within  her  or  his  sphere  of  activities,  the  Equality 
Ombudsman  shall  inform,  educate,  discuss  and  have  other  contacts  with 
government  agencies,  enterprises,  individuals  and  organisations;  it  shall 
follow  international  developments  and  have  contacts  with  international 
organisations; it shall follow research and development work; it shall propose 
legislative  amendments  or  other  anti-discrimination  measures  to  the 

120 

 
 
 
 
 
 
 
 
 
 
 
 
 
Government; and it shall initiate other appropriate measures. This last phrase 
was put in to indicate that the DO has a broad and independent mandate that 
is clearly not limited to the issues  set out in the rest of Section 3. These are 
examples of, but not limits on, what the DO may  choose to do to counteract 
discrimination  and  promote  equality.  Thus,  in  the  author’s  opinion,  the 
Ombudsman  has  substantial  freedom  within  its  budgetary  constraints  to 
determine  other  potential  competences  that  may  be  needed  beyond  those 
enumerated in the act. Exactly what those other competencies are or could be 
will  be  unclear  until  the  Ombudsman  decides  to  actually  test  the  limits  of  its 
mandate. 

v) 

Positive duties 

Chapter  3  of  the  Discrimination  Act  imposes  positive  duties  called  active 
measures on employers and education providers. Active measures are defined 
more generally as the preventive and promotional work carried out within an 
organisation  to  counteract  discrimination  and  in  other  ways  work  for  the 
realisation of equal rights and opportunities regardless of sex, gender identity 
or  expression,  ethnicity,  religion  or  other  belief,  disability,  sexual  orientation 
or age.  

Certain more specific active measures in Chapter 3 relate only to sex/gender. 
Section 7 requires the promotion of ‘an even gender balance in different types 
of jobs, in different categories of workers and in senior positions’. Sections 8 
to  10  require  employers  to  carry  out  compensation  or  pay  gap  surveys  in 
order  to  detect,  remedy  and  prevent  unreasonable  differences  in  pay  and 
other terms of employment between men and women.  

The  active  measures  undertaken  by  larger  employers  require  to  be 
documented in writing annually.  

According  to  Chapter  4  of  the  Discrimination  Act,  the  DO  is  to  supervise 
compliance with the act, including concerning active measures. Under Chapter 
4,  Section 5,  a  ‘person  who  does  not  fulfil  his  or  her  obligations  concerning 
active  measures,  or  to  provide  information  under  Chapter  3,  Section  12  or 
document  the  work  with  active  measures’  can  be  ordered  to  fulfil  those 
obligations. ‘Such orders shall be issued under penalty of a fine by the Board 
against Discrimination after an application by the Equality Ombudsman. Such 
orders can also be directed towards the State as an employer or as the entity 
responsible for the  educational activities’. If the Ombudsman decides  against 
applying  to  the  board  for  a  financial  penalty  order,  a  central  employees’ 
organisation  to  which  the  employer  is  bound  by  a  collective  agreement  may 
make an application concerning active measures in working life. 

The  application  submitted  to  the  board  states  the  measures  that  should  be 
required of the party that the application concerns, the grounds referred to in 
support of the application and the contents of the investigation of the matter. 

to 

the  website  of 

According 
the  Board  against  Discrimination 
(https://namndenmotdiskriminering.se), only two decisions have been issued 
since  2009,  one  in  2010  brought  by  the  DO  and  one  in  2015  brought  by  a 
union. The board denied the DO’s application. 

Thus, while the work of the DO concerning active measures is often discussed, 
enforcement  work  does  not  seem  to  be  very  apparent.  This  could  be,  as  the 
DO  asserts,  because  increased  sanctioning  powers  need  to  be  added  to  the 

121 

 
 
 
 
 
 
 
 
 
act.370  At  the  same  time,  given  the  low level  of  activity  at  the  Board  against 
Discrimination,  it  is  difficult  to  assert  that  the  limits  of  the  current  law  have 
even been tested.  

g) 

Legal standing of the designated body/bodies 

In  Sweden,  the  Equality  Ombudsman  has  legal  standing  to  bring  discrimination 
complaints on behalf of identified victims who provide a power of attorney to the DO. The 
DO  then  becomes  the  party  in  the  case,  which  means  that  the  DO  will  pay  the  other 
party’s legal costs if the case is lost. 

Chapter 4 of the Discrimination Act sets out the tasks of the Equality Ombudsman under 
the  act,  and  Section  2  refers  to  its  right  under  Chapter  6  Section  2  to  go  to  court  on 
behalf of an individual who has suffered discrimination. The Equality Ombudsman needs 
the permission of the victim if a case is taken to court - but no other permission. 

The Equality Ombudsman cannot act as amicus curiae.  

The  Equality  Ombudsman  cannot  bring  discrimination  complaints  on  behalf  of  non-
identified victims to court. Some would assert that the limitation of the DO’s mandate to 
identified victims is problematic, and that Swedish law is not in line with the first point of 
the  operative  part  of  the  Firma  Feryn  case.371  372  On  the  other  hand,  in  the  author’s 
opinion the CJEU was quite clear in stating: ‘Consequently, Article 7 of Directive 2000/43 
does not preclude Member States from laying down, in their national legislation, the right 
for  associations  with  a  legitimate  interest  in  ensuring  compliance  with  that  directive,  or 
for  the  body  or  bodies  designated  pursuant  to  Article  13  thereof,  to  bring  legal  or 
administrative  proceedings  to  enforce  the  obligations  resulting  therefrom  without  acting 
in the name of a specific complainant or in the absence of an identifiable complainant. It 
is,  however,  solely  for  the  national  court  to  assess  whether  national  legislation  allows 
such a possibility’. While national legislation can allow for such a power when the Court 
states that the directive does not preclude Member States, the Court did not say that the 
directive  requires  it.  It  can  also  be  pointed  out  that,  if  Feryn  was  to  be  interpreted  in 
such a way as to indicate that the directive requires national legislation that allows court 
proceedings on behalf of unidentified victims, the laws of many Member States would be 
in violation of the minimum standards set by the directive.  

h)  Quasi-judicial competences 

Generally speaking, the Swedish  Equality Ombudsman is not a quasi-judicial institution. 
It  is  more  of  an  equality  promotion  body  that  can,  among  other  things,  take  cases  to 
court. However, it does have some formal quasi-judicial aspects.  

In  certain  situations  the  Ombudsman  may,  under  Chapter  4  Section  3  of  the 
Discrimination Act, order the suspected discriminator to provide information, allow access 
to the workplace and enter into discussions. Such an order can be subject to a financial 
penalty.373 The financial penalty will gain legal force only after a district court has ordered 
the  payment.  The  legality  of  the  order  itself,  as  well  as  the  reasonableness  of  the 

370  See DO consultation response to Government White Paper SOU 2016:87, 15.09.2017, at: 

http://www.do.se/om-do/vad-gor-do/remissvar/remissvar-under-2017/battre-skydd-mot-diskriminering/ 
and DO press release of 14.02.2018, ‘Is an expansion of the sanctions in the Discrimination Act needed?’ at: 
http://www.do.se/om-do/pressrum/aktuellt/aktuellt-under-2018/behovs-utokade-sanktionsmojligheter-i-
diskrimineringslagen/. 

371  European Court of Justice, case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. 

Firma Feryn NV (judgment of 10.07.2008). 

372  See Gambinius Göransson et al, The Discrimination Law 2d ed. (Diskrimineringslagen 2:a upplagan), 2011, 

pp. 43-44. 

373  Chapter 4, Section 4. One difference compared with the previous legal situation is that the Ombudsman can 

issue these orders without going through a discrimination board.  

122 

 
 
 
 
 
 
 
 
 
                                                 
amount, can only be decided upon by the district court. The Equality Ombudsman cannot 
impose other sanctions on the discriminator. 

As  regards  active  measures,  the  Ombudsman  works  in  the  same  way  as  a  normal 
authority, visiting employers and universities, checking their equality plans and so on. If 
somebody  fails  to  fulfil  their  duties,  the  Board  Against  Discrimination374  may  –  on  the 
Ombudsman’s  application  –  issue  an  order  to  comply  with  a  specific  request  before  a 
certain date (or in the future), subject to a financial penalty in accordance with Chapter 4 
Section 5 of the Discrimination Act. The financial penalty will gain legal force only after a 
district  court  has  ordered  the  payment.  The  legality  of  the  order  itself,  as  well  as  the 
reasonableness of the amount, can be decided upon by the district court. 

Finally, to the extent that there are quasi-judicial powers or aspects within the mandate 
of the Equality Ombudsman, they have been rarely exercised, at least in formal terms. 

i) 

Registration by the body/bodies of complaints and decisions 

The Equality Ombudsman registers the number of inquiries, complaints and decisions (by 
ground, field, type of discrimination, etc.). These data are available to the public and are 
presented  in  the  Annual  Report.  The  statistics  for  the  previous  year  are  made  available 
around  the  end  of  February.  Thus,  the  figures  for  2017  are  now  official.  Each  Annual 
Report  from  2009  onwards  can  easily  be  downloaded  from  the  Equality  Ombudsman’s 
home page. 

In  total,  2 745  telephone  inquiries  and  1 853  written  inquiries  were  received  in  2017. 
These  mainly  involved  the  areas  of  working  life  and  education.  Ethnicity  and  disability 
issues  tend  to  dominate.  The  numbers  have  been  relatively  similar  for  the  years  2016 
and 2015. 

As to the complaints received by the Equality Ombudsman, 2 475 were submitted during 
2017 (as compared with 2 276 in 2016, 2 382 in 2015 and 1 981 in 2014) in relation to 
the Discrimination Act or the Parental Leave Act.375 In 2017, 204 investigation decisions 
were  made.  Even  in  2016,  204  decisions  to  investigate  were  made.  In  13  of  them,  the 
Ombudsman  initiated  court  proceedings376  (compared  with  16  initiations  of  court 
proceedings in 2015 and 25 in 2014).377 

In 2017 there were 749 disability complaints, 710 regarding ethnic origin, 350 regarding 
sex,  274  regarding  age,  218  regarding  religion,  67  regarding  sexual  orientation,  59 
regarding transgender identity or expression and 83 regarding parental leave.378  

In 2016 there were 674 disability complaints, 695 regarding ethnic origin, 316 regarding 
sex,  238  regarding  age,  152  regarding  religion,  55  regarding  sexual  orientation,  54 
regarding transgender identity or expression and 76 regarding parental leave.379  

374  The board is an administrative authority. It consists of a chairman and a vice-chairman, who must be 
judges. There are 11 other members. Two are appointed by the Government as neutral members. Six 
members are appointed by the Government on the suggestion of trade unions and employer organisations, 
one member is appointed by the Government as representing ethnic or religious minorities in Sweden, one 
is appointed on the suggestion of the Disabled Associations Cooperation Organisation, and one is appointed 
on the suggestion of the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights. 

375  Equality Ombudsman Annual Report 2016, pp. 40 and 42. There were a further 369 cases. In the 2015 

Annual Report, the figure is on p. 43; in the Annual Report for 2014, it is at p. 46. 

376  Equality Ombudsman, Annual Report 2016, p. 42. Four of those cases were related to the ground of sex 

(counting a pregnant transgender man as a sex case like other pregnancy cases). Three cases were ethnic 
cases, and one concerned religion. In the Annual Report for 2015, the figure is on p. 44; in the Annual 
Report for 2014, it is at p. 47. 

377  Equality Ombudsman Annual Report 2015, at: http://www.do.se/globalassets/om-

do/diskrimineringsombudsmannen-arsredovisning-2015.pdf.  

378  Equality Ombudsman, Annual Report 2017, p. 58. 
379  Equality Ombudsman, Annual Report 2017, p. 58. 

123 

 
 
 
 
 
 
 
 
 
                                                 
In  2015  there  were  749380  disability  complaints,  763  regarding  ethnic  origin,  327 
regarding  sex,  319  regarding  age  discrimination,  179  regarding  religion,  78  regarding 
sexual  orientation,  62  regarding  transgender  identity  or  expression  and  58  regarding. 
parental leave.381  

j) 

Planning 

The  Equality  Ombudsman  works  according  to  a  three-year  strategic  plan  called 
Verksamhetsplan  2017-2019  (literally  ‘Activity  Plan’).382  The  plan  is  followed  up  every 
three months and revised every year. After the revision of 2018, it will thus be the plan 
for 2018-2020. 

The revisions that are made annually to the three-year strategic plan as described above 
can be considered as an annual work plan. 

The  Equality  Ombudsman  produces  an  annual  report,  usually  in  the  last  week  of 
February.  A  general  duty  to  report  the  qualitative  aspects  of  its  work  stems,  inter  alia, 
from  the  regulation  letter.383  The  Parliament  does  not  take  a  formal  position  on  the 
annual report. 

There  has  been  no  recent  evaluation  of  the  implementation  of  the  DO’s  strategic  plan 
since it was just put into place. The new strategic plan seems to be the result of the DO’s 
internal  evaluation  of  its  strategic  goals  from  2012  to  2016.  The  internal  results  were 
basically  in  agreement  with  the  two  reports  from  2011  and  2012,  which  are  discussed 
below.384 

In  2011,  the  Swedish  Agency  for  Public  Management  (Statskontoret),  carried  out  an 
evaluation of the Equality Ombudsman at the request of the Government, partly because 
of widespread criticism of its handling of individual cases.385 The key finding was that the 
Ombudsman  had  done  much  to  address  the  problems,  but  that  some  further  steps 
needed  to  be  taken.  In  2012  the  Swedish  National  Audit  Office  finalised  a  similar 
evaluation,  giving  recommendations  to  both  the  Equality  Ombudsman  and  the 
Government concerning the Equality Ombudsman’s work.386 

The key findings in both of the above reports was that the Equality Ombudsman needed 
to  develop  its  strategic  work  with  individual  cases,  and  that  this  work  had  been  driven 
too  much  by  individual  cases,  without  sufficient  attention  to  other  strategic  issues  such 
as equality promotion.  

In addition, it may be noted that effectively protecting victims of discrimination was the 
focus  of  a  governmental  inquiry  that  was  completed  in  2016.  Among  other  things,  the 
inquiry recommended that the Ombudsman investigate more cases.387 At the same time, 
the inquiry report stated that, in general, the Ombudsman should continue working in its 
current  manner.  Aside  from  making  some  recommendations,  the  report  contained  few 
concrete measures or requirements for the Ombudsman to actually take action.  

380  297 of these complaints concern the new discrimination form of lack of accessibility – Equality Ombudsman, 

Annual Report 2015, p. 52. 

381  Equality Ombudsman, Annual Report 2017, p. 58. 
382  DO:s Verksamhetsplan 2017-2019. LED 2017/80 decided 2017-03-22. 
383  Regulation letter for the Equality Ombudsman 2018. Ku2017/02634/DISK. 
384  Equality Ombudsman, Annual Report 2016, pp. 7-8.  
385  Statskontoret, Rapport 2011:26, En myndighetsanalys av Diskrimineringsombudsmannen. 
386  Riksrevisionsverket, Rapport 2012:3, available at: 

https://www.riksrevisionen.se/rapporter/granskningsrapporter/2012/do-och-diskrimineringsfragorna.html.  
387  See Committee Directives 2014:10 and 2014:79 and Government White Paper 2016:87, p. 25. A case taken 

to the point where the alleged discriminator is asked to reply creates a basic investigation even if the 
Ombudsman decides not to go to court. This may cause the alleged discriminator to change their practice, 
and it may be helpful should the individual decide to go to court.  

124 

 
 
 
 
 
 
 
 
 
                                                 
k) 

Stakeholder engagement 

Section  3  of  the  Equality  Ombudsman  Act  indicates  that  the  Ombudsman  shall  have 
various  types  of  contacts  with  stakeholders.  However,  these  are  mentioned  only  in 
general. This means it is basically up to the Ombudsman to determine its priorities even 
here in regard to the various stakeholders. 

In  its  annual  reports,  the  DO  brings  up  the  importance  of  a  continuous  exchange  of 
knowledge  with  civil  society  so  that  the  DO  can  identify  problems  in  society  relating  to 
the  risk  of  discrimination.  ‘Which  actors  the  DO  cooperates  with,  the  purpose  and  the 
form  of  the  cooperation,  depends  on  which  changes  the  DO  wants  to  contribute  to  and 
how  the  cooperation  can  contribute  to  the  work  for  change.  In  addition,  the  DO  has  a 
continuous  exchange  of  knowledge  that  is  connected  to  each  respective  discrimination 
ground’.388 

As  regards  civil  society  and  discriminated-against  groups,  the  Ombudsman  seems  to 
have at least annual information meetings with NGOs representing, for example, women, 
immigrants,  persons  with  disabilities  and  the  LGBT  community.  These  tend  to  be 
grounds-based meetings. However, on specific issues, the meetings can be mixed.  

Other  meetings  can  occur  related  to  specific  issues  such  as  discrimination  against 
Muslims, or Afro-Swedes or the Sami. 

Concerning  Afro-Swedes,  for  example,  as  a  consequence  of  the  Government’s  special 
task on knowledge-increasing measures on Afrophobia, the DO has taken several actions 
on the basis of various meetings with the Afro-Swedish community. One of these actions 
involved  giving  an  assignment  to  the  Institute  for  Future  Studies  concerning  a  pilot 
project  to  develop  one  or  more  methods  to  illustrate  how  discrimination  affects  the 
access of Afro-Swedes to equal rights and opportunities. According to the DO, all of the 
work has been carried out in close cooperation with Afro-Swedes.389 

Some  other  special  government  tasks  in  2017  involved  cooperation  with  civil  society 
organisations  and  other  government  agencies  concerning  LGBT  issues,  disability  and 
racism and xenophobia.390 

Concerning  more  broad-based  civil  society  associations,  there  are 
local  anti-
discrimination  bureaus  run  by  NGOs  in  various  parts  of  Sweden.  One  form  of  co-
operation involves the Equality Ombudsman being present at local educational events on 
non-discrimination  arranged  by  the  local  anti-discrimination  bureau.  The  bureaus,  in 
providing advice and assistance, refer suitable complaints to the DO. 

The DO also takes part in meetings and projects with employers’ associations and unions, 
and  is  involved  in  discussions  with  them  on  the  development  of  an  e-education  project 
concerning active measures focusing on the same target groups. The DO is also engaged 
in  a  Scandinavian  project  to  counteract  sexual  harassment  in  the  restaurant  and  hotel 
industry. This, too, involves discussions with employers’ associations and unions.391  

The DO cooperates with other state agencies, depending on the specific issues involved. 
One example of this is its cooperation with bodies such as the Authority for Participation 
(Myndigheten  för  delaktighet)  concerning  the  changes  in  the  law  on  inaccessibility  as  a 
new form of discrimination. The Ombudsman further cooperates with other authorities as 
an expert or as a member of different official inquiry teams.  

388  Equality Ombudsman, Annual Report 2016, p. 18. 
389  Equality Ombudsman, Annual Report 2017, p. 41. 
390  Equality Ombudsman, Annual Report 2017, from p. 41. 
391  Equality Ombudsman, Annual Report 2017, pp. 21-22. 

125 

 
 
 
 
 
 
 
 
 
 
 
                                                 
As regards local government, the DO will be reporting to the Government on work being 
done by local authorities to counteract racism, including success factors and challenges, 
as  a  part  of  its  task  of  examining  the  situation  of  racism  in  Sweden.392  This  work  is 
obviously based on cooperation with local authorities. 

Cooperation with the unions has been of particular importance in 2017 in relation to work 
on  the  changes  in  the  law  regarding  active  measures  (see  above  concerning  an  e-
education project on active measures). 

Overall, it can be said that the DO engages with a broad variety of stakeholders based on 
its  understanding  of  its  own  priorities  –  or  the  Government’s  priorities.  (It  may  be 
pointed  out  that  the  Government,  in  allocating  certain  special  tasks,  adds  a  budget 
related to those tasks. One example is the Afrophobia project, mentioned above).  

As to the quality of engagement, stakeholders with the power to discriminate or prevent 
discrimination  (businesses,  unions,  local  and  state  agencies,  etc.)  should  be  separated 
from  those  who  represent  discriminated-against  groups.  Concerning  the  first  group,  the 
level and nature of  engagement is satisfactory, in the opinion of the author, in that the 
DO is expected to be and is treated as an expert as well as a normal government agency. 
Referring  to  the  increasingly  positive  media  view  concerning  the  DO,  as  reflected  in  an 
external report, the DO published the following quote: ‘The DO feels serious. It feels like 
they are balancing on some kind of line where you could be either really racist or really 
like  the  politically  correct  left.  But  the  DO  feels  steady  and  stable  in  the  middle’.393 
Presumably  this  reflects  not  just  the  view  of  journalists  but  also  certain  stakeholders, 
particularly those with power.  

At the same time, the picture the author has gathered from discriminated-against groups 
(both individuals and NGOs) is that they are increasingly dissatisfied and less trustful of 
the DO, that their issues are not particularly relevant to the DO’s priorities, that they get 
information at best rather than an exchange concerning priorities, and that the DO is not 
particularly  interested  in  taking  on  cases  involving  ‘their’  ground.  While  the  DO  is  not 
there  just  to  represent  discriminated-against  groups,  if  the  DO  loses  the  trust  of 
discriminated-against  groups  as  stakeholders,  one  might  question  the  actual  value  and 
level of engagement with other stakeholders. 

There  is  a  risk  that  it  could  simply  be  more  comfortable  to  deal  with  those  who  have 
power rather than those who want the Equality Ombudsman to use its power.  

l) 

Accessibility  

A  few  years  ago,  the  Equality  Ombudsman  moved  out  of  a  very  centrally  located  office 
(near the central train station, subway and buses) to a less accessible office in a suburb 
on  the  edge  of  Stockholm.  This  was  basically  a  move  that  the  Government  decided  the 
DO should make. Despite the less central location, the new office is relatively accessible. 

The Equality Ombudsman does not have local or regional offices. There is some hope that 
the NGOs that run local anti-discrimination bureaus can fulfil some of the demand. 

The Equality Ombudsman conducts outreach actions to local areas and regions, often in 
co-operation  with  local  antidiscrimination  bureaus  or  at  public  events  such  as  Sweden’s 
Human Rights Days. 

The Equality Ombudsman has procedures in place to identify and respond to  the access 
needs  of  specific  complainants  such  as  people  with  disabilities,  people  with  caring 

392  Equality Ombudsman, Annual Report 2017, p. 41. 
393  Equality Ombudsman, Annual Report 2017, p. 45. 

126 

 
 
 
 
 
 
 
 
 
 
 
                                                 
responsibilities and people speaking  or using languages other than Swedish. Complaints 
can  be  submitted  in  any  language.  The  office  is  accessible,  and  interpreters  can  be 
brought in. 

The  web  page  complies  with  the  highest  international  standard  for  accessibility  (WCAG 
2.0).394  

The Equality Ombudsman works with accessibility in an adequate manner. 

m)  Roma and Travellers 

There  have  been  many  cases  involving  Roma,  and  the  Ombudsman  will  analyse  these 
cases  and  issue  guidelines  on  how  to  address  Roma  issues  in  the  future.  Although  the 
Roma were a special focus for a number of years, in particular as one of the five national 
minorities, this is no longer the case.  However, since  one of the Equality Ombudsman’s 
main tasks is to combat discrimination in individual cases, and it is likely that there will 
continue be a high number of cases from this ethnic group in the future due to their risk 
of  discrimination,  it  is  likely  that  the  DO  will  continue  some  of  this  work  as  a  practical 
matter.395  

An  important  settlement  reached  in  2017  concerned  a  Roma  woman  whose  child  had 
been  taken  into  custody  and  placed  with  a  non-Roma  family.  The  mother  was  denied 
visiting  rights.  The  municipality  admitted  that  this  decision  had  been  based  on 
stereotypical perceptions of Roma culture and that a further factor in the mistake was the 
fact  that  the  woman  was  not  allowed  to  communicate  in  her  own  language.  The 
municipality agreed to pay compensation.396  

Cases  that  were  investigated  but  not  taken  to  court  in  2016  include  those  of  several 
shops  and  restaurants  that  denied  Roma  customers  service.397  Such  cases  are  hard  to 
prove.  

As a practical matter, it seems that Roma will continue at least  to be a de facto priority 
group.  

394  Equality Ombudsman, Annual Report 2016, p. 27. 
395  Equality Ombudsman Annual Report 2014, from p. 53. Discrimination against the Roma people with regard 
to goods, services and housing is a priority area. The Ombudsman strives to take up some such cases each 
year in order to keep the public aware of the risk of being taken to court. However, the Ombudsman is 
doubtful regarding the effectiveness of this strategy (low amounts of discrimination awards being one 
problem). Compare Equality Ombudsman Annual Report 2016, pp. 9 and 35.  

396  Equality Ombudsman case 2016/1971. This case, settled in March 2017, was highly sensitive. The custody 
decision itself was not discriminatory (the mother could not take care of the child); it was only the decision 
on visitation rights that was discriminatory. Therefore, no further details are given. There are two types of 
settlements. One type is where the perpetrator denies discrimination but accepts that a mistake has been 
made and offers compensation. This settlement was of the other type, whereby the municipality accepted 
that its mistake amounted to discrimination.  
397  Equality Ombudsman Annual Report 2016, p. 35.  

127 

 
 
 
 
 
  
  
  
 
 
                                                 
8 

IMPLEMENTATION ISSUES  

8.1  Dissemination  of  information,  dialogue  with  NGOs  and  between  social 

partners 

a)  Dissemination  of  information  about  legal  protection  against  discrimination  (Article 

10 Directive 2000/43 and Article 12 Directive 2000/78 

Beyond the activities of the Equality Ombudsman involving reports, training programmes 
and dialogue with NGOs and social partners, which are discussed above, further national 
and  local  activities  are  mentioned  below.  Some  of  them  are  connected  with  the  DO’s 
activities already mentioned above.  

The Government has undertaken various initiatives that are worth noting:  

• 
• 

• 

• 

The DO’s task on increasing awareness about Afrophobia.  
The  national  strategy  for  equal  rights  and  opportunities  concerning  sexual 
orientation  and  gender  identity  and  expression  (the  DO  is  specified  as  one  of  five 
strategic government agencies involved).  
A  budget  increase  of  SEK 10 million  (EUR 936 000)  in  2018  for  the  DO  and 
essentially a doubling of the funding for local anti-discrimination bureaus.398  
A  special  task  was  allocated  to  the  Agency  for  Participation  and  the  DO  to  raise 
awareness  about  the  UN  Convention  on  the  Rights  of  Persons  with  Disabilities 
(CRPD) and the changes in the law concerning inadequate accessibility.399 

The Swedish Inheritance Fund provided support to two projects (‘Law as a tool for social 
change’400 and ‘From talk to action’)401 run by different disability organisations aimed at 
spreading information about implementation of the Discrimination Act and counteracting 
discrimination  in  other  ways,  especially  by  raising  awareness  about  the  need  to  take 
cases to court and the process for doing so. 

The work of the Swedish network of cities against racism and discrimination continues to 
be of interest.402 Their work to some extent involves dissemination information about the 
directives  and  the  national  laws  that  stem  from  them.  In  this  connection,  it  is  worth 
mentioning  the  work  of  UNESCO  LUCS  –  a  UNESCO  regional initiative  intended  to  bring 
together  the  initiatives  undertaken  by  local  authorities  along  with  researchers  and  civil 
society, for example on integration and anti-discrimination. One effort by UNESCO  LUCS 
and the Mångkulturellt Centrum in this regard was the 2016 publication  Equality - Local 
demands  you  can  make!  Tools  for  those  who  want  to  counteract  discrimination  and 
promote human rights.403 Among other things, the book takes up the issue of what cities 
can do to promote equality as employers, service providers, public contractors and rule-
makers.  In  practical  terms,  this  deals  with  implementation  of  the  principles  of  the  EU 
anti-discrimination directives. 

398  Government press release, ‘Increased support to the work against discrimination’, 20 September 2017, 
available at: http://www.regeringen.se/artiklar/2017/09/regeringen-foreslar-forstarkt-satsning-mot-
diskriminering/. 

399  Government press release, ‘Communication campaign to counteract disability discrimination’, 1 April 2015, 
available at: http://www.regeringen.se/pressmeddelanden/2015/04/ny-kommunikationssatsning-for-att-
forebygga-diskriminering-av-personer-med-funktionsnedsattning/.  

400  ‘Law as a tool for social change’ – see: https://lagensomverktyg.se.  
401  ‘From talk to action’ – see: http://funktionsratt.se/projekt/fran-snack-till-verkstad/.  
402  See the website of Sweden’s Association of Local and Regional Governments, at: 

https://skl.se/demokratiledningstyrning/manskligarattigheterjamstalldhet/rasismdiskriminering/natverkmotr
asismochdiskriminering.699.html.  

403  UNESCO LUCS, available at: http://unescolucs.se. Mångkulturellt centrum, Lika rätt! Ställ krav på 

kommunen, available at: https://mkc.nordicshops.com/index.html?submenu_id=-1.  

128 

 
 
 
 
 
 
 
 
 
                                                 
b)  Measures to  encourage dialogue with NGOs  with a view to promoting the principle 

of equal treatment (Article 12 Directive 2000/43 and Article 14 Directive 2000/78)  

As has already been indicated, a fairly weak role is played by the discrimination ground-
specific NGOs in Sweden, with the possible exception of  certain organisations within the 
disability  movement  and  the  main  LGBT  organisation  (RFSL).  Concerning  the  DO’s 
dialogue  with  NGOs  related  to  the  grounds,  see  in  particular  Chapter  7(k),  ‘Stakeholder 
Engagement’.  

NGOs  dealing  with  discrimination  are  encouraged  to  be  members  of  and  to  form  local 
anti-discrimination bureaus. Some bureaus, like the one in Malmö, seem to have become 
fairly important voices in counteracting discrimination in their regions, which gives them 
an interesting platform from which to engage with others in dialogue. 

c)  Measures to promote dialogue between social partners to give effect to the principle 
of  equal  treatment  within  workplace  practices,  codes  of  practice,  workforce 
monitoring (Article 11 Directive 2000/43 and Article 13 Directive 2000/78) 

As  has  already  been  indicated,  the  social  partners  traditionally  play  a  key  role  in  the 
Swedish labour market, and a variety of issues are collectively bargained and regulated 
by means of collective agreements. The new rules on active duties that entered into force 
at  the  start  of  2017  have  made  it  necessary  for  the  Ombudsman  to  have  contacts  with 
the  Confederation  of  Swedish  Enterprise.404  In  the  regulation  letter  for  2018  there  is  a 
special  duty  to  report  back  to  the  Government  on  these  activities.405  These  new  rules 
expand the role of the trade unions with regard to active duties. 

d) 

Addressing the situation of Roma and Travellers  

In 2016 to 2018, as part of the  Government’s strategy for Roma inclusion, the National 
Board  of  Housing,  Building  and  Planning  (Boverket)  was  given  the  task  of  raising 
awareness about the situation of Roma and counteracting discrimination against them on 
the housing market.406 

The  Roma  are  one  of  five  national  minorities  in  Sweden.  The  Stockholm  County 
Administrative Board has been given special responsibility for all five national minorities. 
It does so in cooperation with the Sami Parliament. The four other national minorities are 
not  represented  by  an  organisation  that  can  be  described  as  ‘theirs’.  Thus,  there  is  no 
longer  an  organisation  specifically  addressing  all  types  of  problems  affecting  Roma  and 
Travellers. There is, however, a continuing duty for the Administrative Board to continue 
its  coordination  and  follow-up  work  related  to  how  Sweden's  minority  policy  is 
implemented throughout the country.407 

Furthermore,  the  Government  is  continuing  to  work  on  its  National  Strategy  for  Roma 
Inclusion  covering  the  years  2012-2032.  The  goal  is  that,  at  the  end  of  the  period,  the 
Roma  population  shall  have  the  same  living  standards  with  regard  to  housing, 
employment,  education  and  so  on,  as  the  majority.  One  element  of  this  plan  involves 
compiling documentation of violations committed by the state in the last 100 years and 
correcting the effects of those violations where possible.408  

404  Equality Ombudsman Annual Report 2016, p. 1. 
405  Regleringsbrev för budgetåret 2018 avseende DO, available at: 

https://www.esv.se/statsliggaren/regleringsbrev/?RBID=18906.  

406  See the minister’s press release at: http://www.regeringen.se/pressmeddelanden/2016/05/boverket-ska-

motverka-diskriminering-av-romer-pa-bostadsmarknaden/.  

407  Stockholm Administrative County Board and national minorities, available at: 

http://www.minoritet.se/romsk-inkludering.  

408  For more information concerning the Government’s strategy for Roma inclusion, see: 

http://www.regeringen.se/regeringens-politik/regeringens-strategi-for-romsk-inkludering/.  

129 

 
 
 
 
 
 
 
 
 
 
                                                 
The Living History Forum is a Government agency that has been commissioned with the 
task  of  promoting  issues  relating  to  tolerance,  democracy  and  human  rights  –  with  the 
Holocaust as its point of reference. It disseminates information, creating a dialogue with 
society at large on, inter alia, the situation of the Roma people. 

In  2016  the  Equality  Ombudsman  shifted  the  focus  towards  the  Sami  people  and  held 
roundtable  discussions  regarding  possible  future  ‘truth  commissions’.  One  aim  was  to 
integrate  a  historical  perspective 
the  Ombudsman’s  current  work  on 
discrimination.409 Another  important principle is that the Sami’s status as an indigenous 
minority should affect what should be regarded as discrimination.410 

into 

Even  if  there  is  no  specialised  work  by  the  DO  aimed  specifically  at  the  Roma,  some 
activities  like  the  2016  investigation  into  discriminatory  practices  within  social  services 
originate from complaints and are of great relevance to the Roma people.411  

The  Commission  on  Antiziganism  presented  Government  White  Paper  2016:44.  The 
majority  of  the  members  of  the  commission  are  Roma.  Among  the  recommendations 
made to the Government is the creation of a National Roma Centre. It is suggested that 
this should be a governmental board, with a high proportion of Roma members.  

Two  Government  White  Papers  (SOU  2017:60  and  2017:88)  deal,  inter  alia,  with 
improved  status  for  all  five  national  minorities.  Various  proposals  concerning  different 
legislative details have been made where the intention is to improve the situation for all 
five national minority languages, even if it seems clear that Yiddish and Romani are less 
of a priority compared with Sami and the two Finnish languages. One proposal of interest 
concerning  discrimination  is  the  addition  of  language  as  a  protected  ground  in  the 
Discrimination Act.  

At  the  same  time,  it  is  important  to  note  that  these  white  papers  do  not  propose 
anything concerning the lack of enforcement mechanisms in Law (2009:724) on national 
minorities  and  minority  languages  (the  Minorities  Act).  There  is  no  right  of  appeal  for 
individuals, and there is no government body designated as a supervisory authority. This 
criticism was underlined by Civil Rights Defenders and the DO in their responses.412 This 
issue  is  of  particular  interest  since  the  Government  inquiry  itself,  in  White  Paper  SOU 
2017:60,  concludes:  ‘it  must  unfortunately  be  noted  that  minorities  policy  has  almost 
completely  failed  in  terms  of  guaranteeing  the  fundamental  rights  that  all  five  national 
minorities should enjoy in all municipalities in this country. More than seven years after 
the entry into force of the Minorities Act, it remains the case that a large majority of this 
country’s  municipalities  are  barely  or  not  at  all  affected  by  the  Act’s  requirements 
concerning support to the five national minorities and their rights’.413  

Quite simply, the law provides  rights, but no remedies –  which, in the author’s  opinion, 
reflects a legislative technique that needs to be questioned.  

409  Equality Ombudsman Annual Report 2016, p. 3. 
410  Equality Ombudsman Annual Report 2016, p. 16.  
411  Equality Ombudsman Annual Report 2016, p. 50. 
412  Civil Rights Defenders, Responses of 5 October 2017 to SOU 2017:60, available at: 

https://www.regeringen.se/4a9135/contentassets/02f13dcbc4b7401eba0bd2ebc31c406e/civil-right-
defendes.pdf and of 6 March 2018 to SOU 2017:88, available at: 
https://www.regeringen.se/496dd7/contentassets/9d6ff20902c34927b3d9d4cdf2cf3862/civil-rights-
defenders.pdf. DO, Responses of 2 October 2017 to SOU 2017:60, available at: 
https://www.regeringen.se/4a9136/contentassets/02f13dcbc4b7401eba0bd2ebc31c406e/diskrimineringsom
budsmannen.pdf and of 19 March 2018 to SOU 2017:88, available at: 
https://www.regeringen.se/496594/contentassets/9d6ff20902c34927b3d9d4cdf2cf3862/diskrimineringsomb
udsmannen.pdf.  

413  Government White Paper 2017:60 – Summary in English and the National Minority Languages, p. 11, 

available at: 
https://www.regeringen.se/4a8d12/contentassets/f869b8aae642474db1528c4da4d2b19a/sammanfattninge
n-pa-engelska-och-de-nationella-minoritetsspraken.  

130 

 
 
 
 
 
 
 
                                                 
8.2 

  Compliance (Article 14 Directive 2000/43, Article 16 Directive 2000/78) 

a)  Mechanisms 

The  relevant  mechanisms  involve  the  Ombudsman  supervising  the  Discrimination  Act in 
its entirety, taking into account the possibilities that this provides to individual claimants. 
In addition, the role played by the trade unions to  support their members must also be 
mentioned, as well as the work done by the anti-discrimination bureaus. No Swedish act 
allows direct discrimination in areas where the Discrimination Act prohibits it. The author 
has not heard of a conflict of laws with regard to this. Generally, legal principles such as 
good  faith  and  good  practice  on  the  labour  market  can  hopefully  be  said  to  assist  in 
combating discrimination. 

b) 

Rules contrary to the principle of equality 

The  task  of  proposing  legislation  in  order  to  implement  the  directive  into  Swedish 
national law was given to a special investigator, who presented her report in the spring of 
2002.414 However, the investigator did not, as required by Article 16(a) of the directive, 
carry out any general screening of laws and administrative provisions for incompatibilities 
with the requirements of the directive (at least not in any comprehensive way).415 

According  to  Hans  Ytterberg  (the  former  Ombudsman  Against  Discrimination  on  the 
Ground  of  Sexual  Orientation),  there  are  no  discriminatory  laws  and  provisions  with 
respect to sexual orientation discrimination in employment or occupation still in force.416 

This is more problematic in the area of differential treatment due to ethnicity, particularly 
with respect to indirect discrimination. Obvious examples of problematic provisions would 
include  requirements  regarding  Swedish  citizenship  or  the  need  to  hold  a  degree  or 
diploma  from  a  Swedish  educational  institution  in  order  to  be  able  to  exercise  certain 
professions.  These  requirements  have  to  a  large  extent  been  removed.  However, 
according  to  Lappalainen,  the  measures  undertaken  thus  far  seem  to  have  been 
insufficiently  thorough,  at  least  in  terms  of  examining  regulations  or  administrative 
provisions  in  relation  to  ethnic  origin.  One  of  the  examples  pointed  out  by  Lappalainen 
relates  more  to  European  Union  citizenship,  as  opposed  to  non-European  citizenship, 
concerning  voting  in  local  elections.  In  the  1970s,  Sweden  granted  the  right  to  vote  in 
local elections to immigrants who had been residents for at least three years. In the late 
1990s,  the  law  was  changed  so  that  immigrants  who  were  EU  citizens  as  well  as  those 
from Norway and Iceland were given the right to vote locally as soon as they crossed the 
border,  whereas  the  three-year  rule  was  retained  for  all  other  immigrants.  Apparently, 
non-European  immigrants  still  needed  to  develop  an  understanding  of  local  conditions. 
The practical result is that some new immigrants are allowed to vote immediately, while 
a large number must wait. Although this is not a violation of the directives, it makes for 
an  odd  example  of  the  official  acceptance  of  unequal  treatment  on  a  key  democratic 
issue,  essentially  between  European 
to  non-European 
immigrants.417  The  law  on  local  voting  rights  remains  the  same  as  the  2018  election 
approaches. 

immigrants  as  opposed 

414  Government White Paper, 2002:43: An Extended Protection against Discrimination (Ett utvidgat skydd mot 

diskriminering, bet. SOU 2002:43). 

415  Government White Paper, 2002:43: An Extended Protection against Discrimination (Ett utvidgat skydd mot 

diskriminering, bet. SOU 2002:43), p. 143. 

416  Ytterberg, H. (2004), Sexual Orientation report of 28 July 2004. This report still holds, in the sense that 

there is no more recent report that has investigated the issue.  

417  Lappalainen, P. (2005), Government White Paper SOU 2005:56, Det blågula glashuset – strukturell 

diskriminering i Sverige, (The Blue and Yellow Glass House – Structural Discrimination in Sweden), pp. 448, 
471, 597-600. 

131 

 
 
 
 
 
  
 
 
                                                 
A  similar  situation  prevailed  regarding  the  testing  of  language  skills  required  of  doctors 
and nurses trained in the EU as opposed to elsewhere. Much harder language tests were 
given to those who were not from the EU.418  

418  Lappalainen, P. (2005), Government White Paper SOU 2005:56, Det blågula glashuset: strukturell 

diskriminering i Sverige (The Blue and Yellow Glass House: Structural Discrimination in Sweden), p. 559. 

132 

 
 
 
                                                 
9 

COORDINATION AT NATIONAL LEVEL 

A  new  Government  was  formed  in  Sweden  following  the  2014  elections.  The  following 
statement  is  contained  in  the  Government’s  principal  programme  from  3  October  2014 
(regeringsförklaringen): 

‘The idea that a government shall have an integration policy that is separate from 
the ordinary policies of the labour market, education or social welfare is outmoded. 
The post of integration minister is therefore abolished’. 

Thus, there is longer an integration minister. The labour market minister Ylva Johansson 
is responsible for the coordination of integration and diversity issues and heads this work 
unit. The minister for culture and democracy Alice Bah Kuhnke is responsible for the work 
against  discrimination  and  is  the  head  of  the  discrimination  unit.  In  theory,  Alice  Bah 
Kuhnke seems to be the most important minister with regard to this report. If there is a 
problem with the Swedish Discrimination Act, this will be within her mandate rather than 
Ylva  Johansson’s  mandate,  even  if  the  problem  concerns  labour  market  discrimination. 
Active  measures  to  promote  integration  in the  labour  market  fall  within  the  mandate  of 
Ylva  Johansson.  The  same  is  true  of  almost  any  area.  Discrimination  on  the  housing 
market  comes under Alice Bah Kuhnke’s  mandate, but the planning of housing or other 
active measures to avoid segregation falls within the mandate of the housing minister.  

The  current  national  strategy  for  human  rights  takes  effect  from  October  2016.419  It  is 
not  a  plan  with  a  beginning  and  an  end,  and  it  may  be  changed  continuously.  The 
ideology is the same here as for integration policy. The strategy emphasises that it is for 
individual ministries to deal with the particularities.420 Therefore, the strategy is devoid of 
concrete measurable goals like promoting employment for group Y to level X. 

The  Government’s  national  strategy  has  long  included  the  establishment  of  a  national 
institution  for  human  rights  under  the  aegis  of  the  Parliament.421  Apparently,  however, 
this idea has been rejected by the constitutional committee of the Parliament, which sent 
the issue back to the Government. The committee said that an institution should not be 
created  under  the  aegis  of  the  Parliament,  and  that  other  alternatives  needed  further 
inquiry.422  The  Government  has  authorised  a  new  inquiry  to  see  if  the  investigator  can 
come up with a quick alternative by 31 July 2018 that, among other things, 

- 

- 
- 

proposes  the  formation  of  an  NHRI  that  can  fulfil  the  Paris  Principles,  within  the 
framework of e.g. the Instrument of Government (constitution) and the Budget Act 
(2011:203); 
proposes placement of the NHRI within an existing institution; and 
calculates the costs for the proposals provided and a proposal on financing.423 

A Swedish NHRI could potentially play an important role in the field of equality and non-
discrimination. However, in the author’s opinion, policymakers seem quite confused as to 
the  purpose  of  having  an  NHRI.  The  main  stimulus  for  policymakers  seems  to  be  the 

419  Skr 2016/17:29. Strategy for the National Work on Human Rights.  
420  Skr 2016/17:29. Strategy for the National Work on Human Rights, p. 13. 
421  The Government’s power to dismiss and replace the Equality Ombudsman has resulted in it being 

downgraded from A-status according to the Paris Principles. The new institute could avoid this fate by 
operating under the aegis of the Parliament (and having a framework describing the conditions under which 
such dismissals may occur).  

422  Swedish parliamentary committee on the constitution, ‘The issue of a national human rights institution 

needs to be investigated further,’ 30 November 2017, available at: 
http://www.riksdagen.se/sv/aktuellt/2017/nov/30/fragan-om-en-nationell-institution-for-manskliga-
rattigheter-bor-utredas-mer/.  

423  ‘Government inquiry appointed to further investigate the establishment of a Swedish NHRI’, 19.03.2018, 

available at: http://www.regeringen.se/pressmeddelanden/2018/03/lise-bergh-ska-utreda-hur-en-
institution-for-manskliga-rattigheter-ska-inrattas-i-sverige/.  

133 

 
 
 
 
 
 
 
 
                                                 
international criticism directed towards Sweden for failure to have an NHRI. At the same 
time,  civil  society  organisations  representing,  among  others,  discriminated-against 
groups and others are  hoping for an institution that is relevant to  the development and 
analysis of human rights in Sweden. Since 2010, when the issue became more relevant, 
the  author  has  been  asking  both  policymakers  and  NGOs  whether  they  have  seen  any 
models of an effective NHRI, and whether any of them do not have an equality mandate 
as  well.  The  answers  have  thus  far  been  extremely  limited.  Hence,  the  author  has 
concluded  that  the  discussions  concerning  the  establishment  of  a  Swedish  NHRI  will 
continue  for  a  long  while  –  in  spite  of  the  apparently  broad,  albeit  thin,  support  by 
policymakers. 

134 

 
 
 
 
10  CURRENT BEST PRACTICES 

1. 

ESF report concerning discrimination in working life 

The  Swedish  European  Social  Fund  Council  (ESF)  commissioned  a  report  in  2017  on 
Discrimination  in  Working  Life  –  Where  is  it  and  how  do  we  know?  (Diskriminering  i 
arbetslivet: Var den finns – och hur vi vet).424 This constitutes best practice in that it has 
brought  together  important  knowledge  that  cuts  across  discrimination  grounds.  The 
report  underlines  the  cross-cutting  nature  of  discrimination,  the  need  for  improved 
statistics, and the consequences of discrimination for society as well as individuals. In the 
final comments concerning moving forward, the report points out that ensuring equality 
on  the  labour  market  requires  a  focus  on  structural  changes,  and  thus  a  focus  on  the 
institutions and organisations that have the power to contribute to change.  ‘In order for 
this  type  of  shift  in  perspective  to  be  possible,  a  redistribution  of  power  and  room  for 
manoeuvre  is  necessary  –  a  redistribution  that  is  seldom  friction  free’.  (Author’s 
translation). 

The  report,  together  with  its  follow-up,  could  become  particularly  important  if  it  has  a 
major  effect  on  the  manner  in  which  the  Swedish  ESF  Council  carries  out  its  work 
administering the European Social Fund in Sweden.  The fund is relevant to many major 
structures and institutions. In the author’s opinion, much of the work done in Sweden in 
relation  to  ESF  on  discrimination  has  focused  on  ‘improving’  the  individual,  with  little 
focus  on  those  with  the  power  to  discriminate.  If  greater  focus  is  placed  on  institutions 
and structures, this can lead to the substantive changes that are needed to move closer 
to the goal of a labour market that is accessible to everyone on equal terms. 

2. 

Analysis of discrimination complaints 

The DO publication from 2016, Chains of Events (Kedjor av händelser), is based on 217 
complaints  made  by  Muslims  in  2014.425  Here,  the  analysis  is  focused  on  the  victims’ 
perception  of  being  discriminated  against  –  not  on  whether  discrimination  could  be 
proved in a formal legal sense in the cases concerned. One of the situations described in 
this  report  concerns  clothing  used  in  the  healthcare  sector  (p. 41).  Muslim  women 
believed  that  they  were  being  forced  to  show  bare  skin  for  no  good  reason.  The 
institutions believed that the clothing rules were motivated by objective hygienic reasons. 
The report constituted a good example in itself, but also helped to focus on bringing such 
cases to court, as indicated in the next example of best practice. 

3. 

Testing the burden of proof rules 

The  extent  to  which  health  regulations  concerning  clothing  requirements  can  be 
considered  to  be  discriminatory  with  regard  to  religion  ended  up  being  tested  in  the 
general  courts  in  2016  and  in  the  Labour  Court  in  2017.426  Taking  these  very  similar 
cases  into  the  different  Swedish  court  systems  clearly  exposed  a  difference  in  the 
implementation  of  the  burden  of  proof  rules.  By  testing  the  issue  of  clothing  and 
regulations,  as  well  as  exposing  the  difference  in  implementation,  they  constitute  best 
practice. These cases are discussed in more detail in Chapter 6.3 above. 

424  Swedish ESF Council (2017), Discrimination in Working Life – Where is it and how do we know 

(Diskriminering i arbetslivet: Var den finns – och hur vi vet), available at: 
https://www.esf.se/Documents/Våra%20program/Socialfonden%202014-
2020/Programinformation/Diskriminering%20i%20arbetslivet%20version%202.pdf.  

425  Equality Ombudsman, Kedjor av händelser, Report 2016:2, p. 25. These are all complaints submitted in 
2014 by persons who believed that the alleged discriminator perceived them as Muslims or who were 
Muslims and thought that the treatment could equally well be directed at their religion or ethnic 
background. 

426  Stockholm District Court, case T 3905-15, Equality Ombudsman v. Swedish State through Karolinska 

institutet (judgment of 16.11.2016); Labour Court 2017, case 65, Equality Ombudsman v. The People’s 
Dentists of Stockholm County (judgment of 20.12.2017). 

135 

 
 
 
 
 
 
 
 
                                                 
The  Karolinska  institute  case  involved  a  Muslim  dental  student  who  wanted  to  use 
disposable forearm protection instead of having bare forearms, because she did not want 
to  show  this  part  of  her  body  to  strangers.  The  state  refused,  referring  to  a  National 
Health  and  Welfare  Board  Regulation  (2007:19),427  which  allowed  for  covered  forearms 
only  in  special  situations.  The  state’s  experts  underlined  the  need  for  such  rules  due  to 
hygienic  considerations.  The  Equality  Ombudsman’s  British  expert  testified  as  to  the 
reasons why British authorities believe that there is no hygienic problem with disposable 
forearm  protection.  The  court  considered  the  experts  on  both  sides  to  be  scientific  and 
equally credible. However, in applying the burden of proof rules in the general  courts, it 
was the education provider (the alleged discriminator) who bore the burden of proof with 
regard  to  the  justification  of  possible  indirect  discrimination  once  the  prima  facie  case 
was established. Therefore, the state lost the case.  

This case  was followed  by a similar case  in 2017 in the Labour Court, but this time  the 
issue  involved  not  a  student  but  a  Muslim  dentist  working  for  a  county  dental  surgery. 
The demands on hygienic standards stemmed from the same regulation. Essentially, the 
same  evidence  was  presented.  However,  even  though  the  Labour  Court  gave  equal 
weight to the experts on both sides, the court determined that the DO had not fulfilled its 
burden  of  proof.  The  court  stated  that,  as  far  as  patient  health  was  concerned,  the 
employer must be allowed a wide margin  of appreciation in accordance with the duty of 
care  principle  (försiktighetsprincipen);  thus,  any  remaining  doubt  must  fall  on  the 
claimant. 

In  the  author’s  opinion,  exposing  the  different  ways  in  which  the  burden  of  proof  rules 
are being implemented  clearly constitutes good practice. This demonstrates the need to 
ensure that the rules are implemented in a manner that is consistent with EU law and the 
intentions of the Swedish Parliament. While the Labour Court put the burden on proof on 
the  claimant  and  refused  to  ask  the  CJEU  for  a  preliminary  ruling,  the  district  court 
placed the burden on the discriminator. These cases are a problem for those who argue 
that  the  difference  in  success  rates  in  discrimination  cases  in  the  general  courts  as 
opposed to the Labour Court is entirely caused by factors other than the Labour Court’s 
more restrictive application of the rules on the burden of proof.428 

4. 

Awareness raising campaign concerning disability discrimination 

The  Swedish  Agency  for  Participation  (Myndigheten  för  delaktighet),  together  with  the 
Equality  Ombudsman  and  the  Child  Ombudsman,  has  conducted  an  information 
campaign  regarding  the  new  (2015)  discrimination  form  of  inadequate  accessibility  and 
the UN convention on the Rights of Persons with disabilities. Seminars,  an ad-campaign 
and digital information are all important parts of this campaign.429 

5. 

Civil society raising awareness about enforcement 

The  projects  given  support  by  the  National  Inheritance  Fund  could  mark  an  important 
step forward concerning the empowerment of discriminated-against groups. The ‘Law as 
a  tool  for  social  change’  project  and  the  ‘From  talk  to  action’  project  both  concern 
disability, equality and non-discrimination.430 Even though the funding is basically just for 
various  types  of  awareness  raising,  this  is  focused  on  encouraging  the  targets  of 
discrimination  to  realise  that,  if  they  want  the  Discrimination  Act  to  be  applied  in 
practice, they have to part of the process. This means a willingness to actually take cases 

427  Now Regulation (2015:10). 
428  Stockholm District Court, case T 3905-15, Equality Ombudsman v. Swedish State through Karolinska 

institutet (judgment of 16.11.2016); Labour Court 2017, case 65, Equality Ombudsman v. The People’s 
Dentists of Stockholm County (judgment 20.12.2017). 

429  DO Annual Report 2017, pp. 7 and 42.  
430  Lagen som verktyg (‘Law as a tool for social change’) – see https://lagensomverktyg.se; Från snack till 

verkstad (‘From talk to action’) – see: https://funktionsrattskonventionen.se/om-projektet/.  

136 

 
 
  
 
 
 
 
                                                 
to court – a willingness to test the law. If the disability movement as well as other parts 
of society move in this direction, this will provide a healthy  ‘competition’ or complement 
to  the  Equality  Ombudsman.  This is  the  type  of  action  that, in  the long  run,  the  author 
expects will help to transform the law already set out in statute into law in action. 

137 

 
 
 
11  SENSITIVE OR CONTROVERSIAL ISSUES 

11.1 Potential breaches of the directives (if any) 

Generally, Sweden fulfils the requirements set by the directives. The following points are 
problematic in the opinion of the author: 

- 
- 

- 

- 

- 

- 

Discrimination against legal persons is not prohibited in working life (3.1.2.a). 
The principle of vicarious liability in relation to discrimination law is restricted when 
employees act outside their authority to an extent that is problematic. Furthermore, 
the legal concept of ‘employer’ may be too narrow, as the employer is regarded as 
the  legal  person  itself  or  the  natural  person  who,  as  a  representative  of  this  legal 
person,  makes  decisions  regarding  the  employees.  The  employer  is  thus  directly 
responsible  only  when  an  employee  discriminates  against  another  employee  and 
the latter is subordinated to or dependent upon the former (Section 2.4.b).431  
Compared  with  the  general  court  system,  the  Labour  Court  seems  to  apply  the 
rules on burden of proof more restrictively towards the claimant. The 2017 dentist 
case  is  the  first  essentially  similar  case  that  has  been  tried  in  both  systems  and 
clearly demonstrates this difference. The Labour Court’s practice does not seem to 
be in compliance with the directives, while the practice  of the civil courts seems to 
be  compliant.  Furthermore,  it  seems  to  be  very  hard  to  win  cases  of  ethnic 
discrimination in the Labour Court (Section 6.3).  
In  cases  concerning  recruitment,  including  promotion  cases,  there  is  no  right  to 
economic compensation (Section 6.5.a). 
When  implementing  the  prohibition  on  discrimination  with  regard  to  disability 
outside  the  Directive  2000/78,  a  different  concept  of  direct  discrimination,  which 
does  not  conform  to  the  demands  of  the  directive,  is  sometimes  used 
(Section 3.2.9).432  
The Equality Ombudsman is currently working on harassment cases and is trying to 
get a preliminary ruling from the CJEU. In Sweden, the claimant must show either 
that the offending employee has a managerial position or that the employer knows 
about the harassment but has not taken action. The Equality Ombudsman wants an 
answer to the following questions:433 

1. 

Is  the  limitation  of  responsibility  to  employees  with  managerial  positions  in 
accordance with the directives? 

431  The general thinking is that vicarious liability is problematic, and Chapter 1 Section 4 point 5 and Chapter 2 
Section 1 of the Discrimination Act (Diskrimineringslagen 2008:567), adopted on 05.06.2008, are two 
examples of this general thinking. See Labour Court 2007 No. 45 and 2011 No. 19. In these two cases it is 
obvious that the worker/trainee had every reason to believe that the person with the alleged discriminatory 
behaviour was acting on behalf of the employer, but there is no protection for persons acting under such a 
belief, however well founded that belief may have been. 

432  The Court of Justice of the European Union regards statistical discrimination as a form of direct 

discrimination. Case C-236/09 (Test Achats), where the insurance providers were not allowed to use the sex 
of the customer in order to determine insurance fees, is a prime example of this. The fact that men 
statistically have more accidents than women is not a valid defence for directly using a person’s sex to 
determine the insurance fees for cars. However, with regard to disability and insurance, statistical 
differences between persons with a disability and healthy persons makes them non-comparable, and thus a 
presumption of discrimination cannot arise. Please note that the fact that the concept of direct 
discrimination covers statistical discrimination is so strong that the directive in question (2004/113) 
contained a clause exempting the insurance sector, and it was this clause that got struck down by the CJEU. 
The Swedish Discrimination Act could have extended the protection for disability to services and then 
exempted the insurance sector, as per Directive 2004/113. However, extending the protection for disability 
to the insurance sector and then defining a comparable situation as if statistical discrimination is not a form 
of direct discrimination cannot be right. If an EU concept such as direct discrimination is used, then, in the 
view of the author, it must be used correctly.  

433  Two cases regarding sex (therefore not reported here) have been heard by the Labour Court this year (2016 

No. 56 and 2016 No. 38). The Ombudsman won the cases, but failed to get the legal answers (the 
discriminators were found to have managerial positions). There is one pending case in a district court on 
alleged harassment due to sexual orientation by a university teacher towards a student, where the second 
question is asked. 

138 

 
 
 
 
 
                                                 
2. 

If  it  is  in  accordance  with  the  directives,  what  is  the  subjective  requirement 
concerning the knowledge of the employer:  should they know, or is a higher 
barrier for the claimant allowed according to EU law? 

11.2 Other issues of concern  

The independence  of the  Equality Ombudsman is  a concern.  In the author’s  opinion, an 
equality body necessarily needs to be willing to at least occasionally confront those with 
power in society, not just in court but in other forums as well. This applies to employers, 
business owners, unions,  civil servants, researchers, politicians and others. This creates 
an uncomfortable situation for civil servants. This is especially true in a country that has 
an  international  reputation  as  a  champion  of  human  rights,  a  reputation  that  is  also 
believed in by much of the Swedish population, including civil servants themselves. This 
makes it hard to understand the underlying issues related to discrimination, especially in 
relation  to  the  use  of  law  for  social  change.  Regarding  those  who  are  less  powerful  in 
Sweden, there is a legal tradition of adopting laws that state principles but lack remedies. 
Basically, all of the key elements of Swedish discrimination law have been inspired by or 
transplanted  from  the  EU  or  other  countries.  This  applies  to  a  civil  law  ban  on 
discrimination, an equality body, a shifted burden of proof, indirect discrimination, sexual 
harassment and active measures.  

However, in the author’s opinion, moving from law on paper to law in action requires an 
understanding  of  the  current  legal  and  political  environment,  as  well  as  the  direction  in 
which it  needs  to  go.  This  means  understanding  that  case  law  must  now  be  developed, 
even  with  regard  to  less  powerful  interests.  This  is  a  disruptive  change  as  regards  the 
Swedish  model,  where  collective  thinking  has  reigned  and  individual  rights  were  not 
particularly significant, at least not in regard to the less powerful. As a rule,  ‘they’ have 
been  expected  to  accept  the  consensus  of  those  with  power.  This  is  one  reason  why  a 
key  factor  going  forward  is  empowerment.  One  key  test,  when  it  comes  to 
empowerment, is to see if the law means what it says.  

This is why the following are key concerns and/or needs: 

- 

- 

- 

- 

- 

- 

- 

including 

The lack of case law in regard to the Discrimination Act and related fields. Indirect 
discrimination is one of several areas. 
The DO needs to be investigating more complaints more effectively. This is needed 
for building up the knowledge of  DO  staff  concerning discrimination as well as the 
trust of the victims and groups representing victims. Even from a strategic litigation 
viewpoint, development of this knowledge and trust is key.  
The slow development of public interest law firms that serve  discriminated-against 
groups. 
Amendment  of  the  Discrimination  Act  in  a  way  that  can  lead  to  larger  and  more 
substantive  awards, 
in  prohibition  of 
discrimination cases, with forward-looking orders on reporting back to the courts on 
the implementation of active measures. 
Reducing the cost risks placed on victims of discrimination who take cases to court 
on their own. 
A  test  case  fund,  controlled  mainly  by  NGOs,  which  can  provide  support  in 
potentially strategic cases.  
On discrimination awards, the possibilities concerning the prevention portion should 
be considered as a potential source of financing for the fund above. For example, if 
50 %  of  the  preventive  (or  dissuasive)  portion  is  to  be  paid into  a  test  case  fund, 
the courts might be more easily convinced that they should make awards that are 
both compensatory and dissuasive. The author believes that one hindrance to more 
dissuasive  awards  being  made  is  the  fear  of  unjust  enrichment  of  the  victim.  This 
type of idea could help remove that obstacle. 

issued  by  courts, 

those 

139 

 
 
 
 
 
 
 
Even  though  the  cost  of  going  to  court  is  not  terribly  expensive  from  a  middle-class 
perspective,  it  is  clear  that  many  of  the  persons  who  suffer  the  worst  discrimination 
cannot  afford  to  defend  their  rights.  For  a  person  who  discriminates  against  Roma  or 
persons of African ethnic origin, for instance, the risk of ending up in court is small.  The 
risks for the discriminator are generally minor, except in extreme situations.  

One alternative is to support the anti-discrimination bureaus so that they can take more 
cases to court. It is important that they learn to think in terms of legal activism. To the 
extent  that  there  are  role  models  in  Sweden,  the  Civil  Rights  Defenders  organisation  is 
one,  and  another  is  the  Centre  for  Justice.  Long-term  strategic  thinking  is  important, 
along with understanding the idea that it is necessary to risk losing in order to win, that 
today’s  losses  may  be  necessary  for  tomorrow’s  successful  cases,  that  settlements  can 
provide  a  basis  for  moving  forward,  that  the  trust  of  the  client  is  key,  and  that  the 
courtroom, while important, is just one part of the arena. Winning in court but not being 
heard elsewhere is not really winning. 

The  Government  White  Paper  2016:87,  on  measures  to  improve  the  implementation  of 
the anti-discrimination principle provided some arguments for the creation of a new Anti-
Discrimination  Board.  In  the  author’s  opinion,  however,  the  suggested  general 
framework, along with the need for an additional inquiry, meant that the idea  had little 
chance of gaining serious support. The inquiry treated the issue of discrimination as if it 
was a simple consumer case that could be resolved on the basis of written submissions. 
The critical comments by various actors in the field will probably mean that this idea will 
be disregarded.  

Unfortunately, other than proposing increased funding for the anti-discrimination bureaus 
and  suggesting  that  the  DO  should  voluntarily  investigate  and  act  on  more  individual 
complaints,  the  board’s  suggestion  was  about  the  only  concrete  proposal  that  was 
relevant to implementation of the anti-discrimination principle. In particular, nothing was 
suggested that would lessen the cost risks for an individual who wants to take a case to 
court.  Nor  was  anything  suggested  that  would  increase  the  cost  risks  of  those  with  the 
power to discriminate.  

140 

 
 
 
 
 
 
 
12  LATEST DEVELOPMENTS IN 2017 

12.1 Legislative amendments 

Two minor changes were made to the Discrimination Act in 2017 that are relevant to this 
report. 

• 

• 

The  repeal  of  the  exemption  of  businesses  with  less  than  10  employees  from  the 
rules on inadequate accessibility.434  
The  introduction  of  a  possibility,  in  certain  situations,  to  appeal  a  decision  by  a 
university  to  the  Higher  Education  Appeals  Board  as  a  violation  of  the 
Discrimination Act. However, this only means that the decision is nullified and sent 
back  to  the  university  for  a  new  decision.  It  does  not  include  the  possibility  of 
receiving a discrimination award or injunctive relief.435 

12.2 Case law 

Labour Court 
2017-12-20 
Equality Ombudsman v. People’s Dentists of Stockholm County 
Case 65/2017 
http://www.arbetsdomstolen.se/upload/pdf/2017/65-17.pdf   
Brief  summary: The People’s Dentists of Stockholm County (Folktandvården) is a very 
important dental care provider owned by the Region of Stockholm. It required all dentists 
to  work  with  bare  lower  arms  regardless  of  the  outcome  in  the  district  court  in  the 
Karolinska  Institutet  Case.  A  Muslim  dentist  was  thus  disfavoured,  and  the  Equality 
Ombudsman took the case to the Labour Court. 

The  employer  set  out  reasons  why  it  was  genuinely  (albeit  theoretically)  possible  that 
there could be a problem with hygiene. The expert for the Equality Ombudsman showed 
that it was not possible to detect increased infections in Britain connected to permitting 
disposable lower arm protection in that country.  

The  Labour  Court  said  that,  since  the  employer  had  presented  genuinely  objective 
theoretical hygienic reasons, the burden of proof had shifted back to the claimant. Since 
the  Equality  Ombudsman  failed  to  disprove  the  employer’s  expert,  the  Equality 
Ombudsman lost the case. The main argument for this outcome was that, when patient 
security  is  at  risk  the  employer  must  be  allowed  a  wide  margin  of  appreciation  when 
setting  hygiene  rules  (försiktighetsprincipen  –  the  duty-of-care  principle),  and  thus  any 
remaining doubt must fall on the claimant. 

Labour Court 
2017-10-11 
Equality Ombudsman v. Södertörn University 
Case 51/2017 
http://www.arbetsdomstolen.se/upload/pdf/2017/51-17.pdf   
Brief  summary:  A  university  refused  to  hire  a  lecturer  who  was  deaf.  The  Equality 
Ombudsman  and  the  education  provider  agreed  that  an  interpreter  between  sign-
language and spoken language was needed. The cost to the employer was disputed with 
regard to how much could be financed with employment policy allowances, among other 
factors.  The  Labour  Court  started  by  assessing  the  case  as  if  the  Equality  Ombudsman 
had  made  a  correct  cost  assessment  of  SEK 520 000  (approximately  EUR 48 660)  per 
year as a net cost for the education provider (the lowest cost assessment).  Considering 
all  of  the  facts,  that  cost  was  considered  excessive  and  the  Ombudsman  lost  the  case. 

434  Act 2017:1081 Changing the Discrimination Act, adopted 16.11.2017.  
435  Act 2017:282 Changing the Discrimination Act, adopted 13.04.2017.  

141 

 
 
 
 
 
 
 
 
 
                                                 
There  was  thus  no  need  for  the  Labour  Court  to  assess  whether  the  correct  cost  was 
higher than SEK 520 000 as the university claimed. 

Labour Court 
2017-04-12 
E.G. v. Jönköping County  
Case 23/2017 
http://www.arbetsdomstolen.se/upload/pdf/2017/23-17.pdf   
Brief summary: A woman was employed as a nurse but applied several times for a job 
as  a  midwife.  However,  because  of  her  Christian  faith,  she  refused  to  perform  some  of 
the  duties  regarding  abortions  or  contraceptives.  Her  employer  refused  to  adapt  the 
midwife’s job so that it corresponded to her faith. Her employer also refused to allow her 
an  ‘education  wage’  for  the  last  two  terms  of  the  midwife  specialist  education,  because 
they  believed  that  she  would  not  use  the  education  for  them  by  working  as  a  midwife. 
She  believed  that  the  employer  had  thus  violated  both  the  Swedish  Discrimination  Act 
and ECHR Articles 9, 10 and 14. 

The Labour Court found that this could not be a case of direct discrimination since all job 
seekers who refused to do some of the required tasks would not have been hired. 

The  Labour  Court  found  that  the  requirement  that  midwives  must  do  some  tasks 
regarding abortions was a potential source of indirect discrimination, because it affected 
persons of certain Christian beliefs more than others.  

In Sweden, a woman has a right to abortion during the first 18 weeks of the pregnancy. 
There is a general instruction to respect the woman’s decision and proceed with no delay 
if an abortion is requested. Therefore, the Government bill for the Abortion Act says that 
counties shall avoid hiring midwives or other staff who, for religious reasons, are against 
abortions  in  clinics  where  this  question  may  arise.  One  cannot  know  in  advance  if  a 
particular woman will wish to discuss abortion when she meets the midwife. 

Abortions  are  an  integrated  part  of  the  work  performed  in  a  women’s  clinic.  It  would 
cause  delays  and  other  problems  if  the  midwife  in  charge  of  the  patient  refused  to 
perform her tasks. The societal interest of having a high standard of healthcare was thus 
given preference and was regarded as a valid justification for the negative impact.  

Svea Court of Appeal 
2017-03-22 
Swedish  State  Through  the  National  Employment  Agency  v.  Equality 
Ombudsman  
Case T 777-16 
http://www.do.se/globalassets/diskrimineringsarenden/hovratt/dom-
hovtratt-arbetsformedlingen-anm-2014-1037.pdf   
Brief  summary:  A  Jehovah’s  Witness  who  was  in  an  employment  programme  and  was 
receiving an activity grant was asked to  apply for a job at the Swedish National  Lottery 
and  Gambling  Monopoly.  His  job  would  have  involved  selling  companies  packages  of 
lottery  tickets  with  the  customer’s  logo,  so  that  they  could  give  them  to  employees  or 
customers  or  use  them  for  other  promotional  purposes.  His  job  would  thus  not  involve 
selling tickets to individuals. 

Nevertheless,  in  accordance  with  his  faith  as  a  Jehovah’s  witness,  he  believed  that 
gambling is sin and thus refused to go to the job interview and therefore lost his place in 
the programme, and thus also his right to the activity grant.  

This  was  regarded  as  indirect  discrimination.  The  criterion  of  seeking  all  employment 
including  jobs  promoting  gambling  was  considered  to  be  a  disproportionate  burden  on 
Jehovah’s  Witnesses  compared  with  average  Swedes,  and  the  National  Employment 

142 

 
 
 
 
 
 
 
 
 
Agency  could not present a  valid justification. There  were many potential employers for 
this  person  whose  main  activity  was  not  gambling,  and  it  should  therefore  have  been 
possible  to  let  him  refuse  this  job.  He  was  awarded  SEK 60 000  (approximately 
EUR 5 614). 

Lund Municipal Court 
2017-04-10 
Malmö Against Discrimination v. Helsingborg Municipality  
Case FT 3174/16 
Not available on line on a site free of charge  
Brief  summary:  A  Muslim  man  was  not  allowed  to  continue  as  a  temporary  employed 
substitute  at  a  centre  for  persons  with  social  problems.  He  and  Malmö  Against 
Discrimination  (a  local  anti-discrimination  bureau)  believed  that  it  was  because  he 
refused to shake hands with women.  

The employer said that he had a problem in his attitude towards female co-workers and 
residents. The employer also claimed that he sometimes did not fulfil certain duties such 
as  cleaning  up.  The  district  court  emphasised  the  fact  that  an  employer  under  the 
circumstances of the case can refuse to renew someone’s temporary employment for any 
reason. Therefore, even a description of relatively minor problems at the workplace may 
give rise to legitimate and proportionate action in an indirect discrimination case, as the 
same  issues  could  have  prevented  an  ethnic  Swede  from  being  offered  continued 
temporary employment.  

Skaraborg County District Court 
2017-05-24 
Equality Ombudsman v. Vara Municipality  
Case T 2447/16 
http://www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingratten-skola-
anm-2016-9402.pdf  
Brief summary: For three years, a pupil who used a wheelchair had attended a school 
with  inadequate  access  ramps.  In  particular,  he  was  required  to  use  ramps  that  were 
steep or without railings. On two occasions, his wheelchair tipped over as a consequence. 
The Equality Ombudsman asked for SEK 75 000 (approximately EUR 7 018). The district 
court determined that this was discrimination in the form of inadequate accessibility and 
awarded the pupil SEK 30 000 (approximately EUR 2 800). 

The  Equality  Ombudsman  has  appealed  the  case  (seeking  a  higher  award),  and  the 
Appeal Court for Western Sweden has decided to take the case on. 

Stockholm District Court 
2017-10-17 
Equality Ombudsman v. Braathens Regional Aviation (BRA) 
Case FT 8882/17 
http://www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingratt-flytbolag-
anm2017-1260-ft888217.pdf  
Brief  summary:  A  male  passenger,  AA,  who  was  sitting  in  a  plane  preparing  to  fly  to 
Stockholm,  was  removed  by  two  guards  and  forced  to  undergo  a  further  and  more 
extensive  security  check  than  had  already  taken  place  in  the  airport.  The  man  was 
subsequently denied the opportunity to re-board the plane. After investigating the issue, 
the DO determined that these actions were based on AA’s ethnicity and thus demanded 
SEK 10 000  (EUR 940)  as  a  discrimination  compensation  award  via  a  lawsuit.  BRA 
consented to payment of the amount demanded, while at the same time stating that this 
was  not  an  admission  that  discrimination  had  occurred.  In  accordance  with  the  rules  of 
procedure  for  this  type  of  dispositive  case,  the  district  court  issued  a  judgment  for  the 
amount requested without an examination of the facts in the case. The court also denied 

143 

 
 
 
 
 
 
the  DO’s  request  for  a  finding  that  discrimination  had  taken  place,  as  well  as  a  request 
for a referral to the CJEU for a preliminary ruling.  

The DO appealed the case, and the appeal court agreed to take the case on. 

Stockholm District Court 
2017-10-05 
Equality Ombudsman v. The State through the Chancellor of Justice 
Case T 16908/15  
http://www.do.se/globalassets/diskrimineringsarenden/tingsratt/dom-tingratten-
trakasserier-universitet-20152431.pdf  
Brief  summary:  AA  contacted  the  DO  concerning  a  claim  of  sexual  harassment  and 
harassment with a connection to sexual orientation. AA was a university student and was 
subjected to the harassment by a teacher. The DO investigated and, finding the claims to 
be  credible,  filed  a  lawsuit  requesting  the  payment  of  a  discrimination  compensation 
award  to  AA  of  SEK 100 000  (EUR 9 400).  The  State  /  university  consented  to  pay  the 
amount  requested  while  still  denying  that  discrimination  had  occurred.  In  accordance 
with  the  rules  of  procedure  for  this  type  of  dispositive  case,  the  district  court  issued  a 
judgment for the amount requested without an examination of the facts in the case. The 
court  also  denied  the  DO’s  request  for  a  hearing  and  a  finding  that  discrimination  had 
taken place. 

The Roma Registration scandal 

The  Chancellor  of  Justice  completed  consideration  of  the  first  phase  of  the  Roma 
registration scandal in 2015.  

In  Sweden,  a  violation  that  is  regarded  as  less  severe  results  in  a  normal  level  of 
damages of SEK 3 000 (EUR 280). The information in the register was not disseminated 
outside  the  police,  and  no  person  suffered  a  loss  due  to  that  information,  therefore  the 
violation  was  considered  to  be  marginally  more  than  ‘less  severe’,  and  was  worth 
SEK 5 000 (EUR 468).436 This decision was given in May 2014. 

Throughout  this  process,  the  police  assertion  that  the  case  did  not  involve  ethnic 
registration has been accepted – or at least not proven wrong – by all of the authorities 
involved,  most  of  them  making  their  final  decisions  in  2013-2015.437  All  of  them  have 
viewed  this  registration  practice  as  being  in  violation  of  the  Data  Protection  Act,  but 
nothing more. The damages were set at the same level that a non-Roma Swedish person 
would have received in the same situation. 

In  a  second  phase,  11  persons  were  helped  by  the  Civil  Rights  Defenders438  to  bring  a 
case  before  the  Stockholm  District  Court.  The  decision  of  the  court  was  delivered  on 
10 June 2016.439 

436  Decision of the Chancellor of Justice of 7 May 2014 concerning the police travellers’ registry, available at: 

http://www.jk.se/beslut-och-yttranden/2014/05/1441-14-47/. 

437  Commission on Security and Integrity Protection (decision from December 2014), available at: 
http://www.sakint.se/dokument/rapporter-och-uttalanden/Uttalande-PM-Skaane-Uppfoeljning-
Kringresande.pdf; Equality Ombudsman (decision from February 2014), available at: 
http://www.do.se/globalassets/stallningstaganden/ovriga/stallningstagande-beslut-med-rekommendationer-
till-polismyndigheten-gra-2013617.pdf; Public prosecutor (decision from December 2013); The 
Parliamentary Ombudsman (decision from March 2015), available at: 
http://www.jo.se/PageFiles/6353/5205-2013.pdf. 

438  More information about Civil Rights Defenders, a Swedish NGO that defends people’s civil and political rights 

internationally as well as in Sweden, can be found at: https://crd.org.  

439  Stockholm District Court, Case T 2978-15 (and 10 more cases), Fred Taikon (and 10 more claimants) v. 

Swedish State through the Chancellor of Justice (judgment of 10.06.2016). 

144 

 
 
 
 
 
 
 
 
 
                                                 
The claimants were awarded SEK 30 000 (EUR 2 807) in addition to the damages already 
awarded  by  the  Chancellor  of  Justice.  The  important  difference  is  that,  while  the 
Chancellor  of  Justice  found  only  a  violation  of  the  Data  Protection  Act  not  connected  to 
the ethnic background of the individuals, the Stockholm District Court found that the only 
reason for the registration was their ethnicity.  

The court applied a shifted burden of proof. Given that the 11 claimants had proved the 
existence  of  the  register  and  that  people  were  registered  because  they  were  friends  or 
relatives  of  three  criminal  Roma  families  or  friends  of  friends,  there  was  an  assumption 
that  these  11  persons  were  registered  because  they  were  Roma  (in  the  case  of  10 
persons) or married to a Roma (in the case of one person). It was then up to the state to 
prove that there was another valid reason to register the persons that was not connected 
to ethnicity. Nobody could remember why these 11 persons had been registered in 2011, 
and thus the state failed to prove a valid reason that was not connected to ethnicity.  

The  amount  of  SEK 30 000  (EUR 2 807)  was  set  for  a  violation  of  Article  14  of  the 
European Convention on Human Rights. The district court considered the violations to be 
particularly egregious because of the long historical discrimination against Roma, among 
other  reasons.  This  in  turn  was  a  reason  to  set  the  amount  at  a  higher  level  compared 
with what might have applied in other more ‘normal’ cases.  

In  the  Court  of  Appeal  in  2017,  the  Swedish  state  admitted  for  the  first  time  that  the 
registration amounted to discrimination in that it constituted a violation of Articles 8 and 
14 of the ECHR. The registration was at least partly connected with the claimants’ Roma 
ethnicity.  If  ethnicity  is  a  contributing  causal  factor,  it  is  sufficient  to  make  it  ethnic 
discrimination under Article 14 of the ECHR in conjunction with Article 8. Like the district 
court had done in 2016, the Svea Court of Appeal in 2017440 found that the sole reason 
for the registration was indeed ethnicity, and thus found that there had been a breach of 
the Police Data Act as well as discrimination. The award of SEK 30 000 was not changed. 
The state did not appeal this verdict and has paid out the compensation to all registered 
persons  (not  only  the  11  persons  for  whom  the  Civil  Rights  Defenders  took  the  case  to 
court). 

440  Svea Court of Appeal, Case T 6161-16, Fred Taikon (and ten more claimants) v. Swedish State through the 

Chancellor of Justice (judgment of 28.04.2017). 

145 

 
 
 
 
 
                                                 
ANNEX 1: TABLE OF KEY NATIONAL ANTI-DISCRIMINATION LEGISLATION 

The  main  transposition  and  anti-discrimination  legislation  at  both  federal  and 
federated/provincial level. 

Country:  
Date:   

Sweden 
1 January 2018 

Title of 
legislation  
(including 
amending 
legislation) 

Title of 
legislation  
(including 
amending 
legislation) 

ship  of 

Title of the law: The Discrimination Act (2008:567)  
No common abbreviation 
Date of adoption: 05.06.2008 
Entering into force: 01.01.2009 
Amended by Act (2017:1128) changing the Discrimination Act 
Date of adoption: 23.11.2017 
Entering into force: 01.01.2018 
Web link: https://www.riksdagen.se/sv/dokument-
lagar/dokument/svensk-forfattningssamling/diskrimineringslag-
2008567_sfs-2008-567  
Grounds  protected:  Sex,  transgender  identity  or  expression, 
ethnicity,  religion  and  other  belief,  disability,  sexual  orientation, 
and age. 
Civil/administrative/criminal law: 
Civil and administrative law. 
Material scope: 
Public  and  private  employment,  education,  labour  market  policy 
activities and employment services, starting or running a business 
and  professional 
certain 
recognition,  member 
organisations,  goods  services  and  housing,  health,  medical  care 
and  social  services,  social  insurance,  unemployment  insurance 
and  financial  aid  for  studies,  national  military  service  and  civilian 
service 
Principal content: 
Prohibition  of  direct  and  indirect  discrimination,  harassment, 
sexual  harassment,  victimisation,  inadequate  accessibility  and 
instructions  to  discriminate  (civil  law  part)  and  rules  on  active 
measures (administrative law part).  
Title of the law: The Equality Ombudsman Act (2008:568) 
Abbreviation: No abbreviation 
Date of adoption: 05.06.2008 
Entering into force 01.01.2009 
Amended  by  Act  (2014:959)  changing  the  Equality  Ombudsman 
Act 
Date of adoption: 26.06.2014 
Entering into force: 01.01.2015 
Grounds  protected:  Sex,  transgender  identity  or  expression, 
ethnicity,  religion  and  other  belief,  disability,  sexual  orientation, 
and age.  
Web link: https://www.riksdagen.se/sv/dokument-
lagar/dokument/svensk-forfattningssamling/lag-2008568-om-
diskrimineringsombudsmannen_sfs-2008-568  
Grounds  protected:  Sex,  transgender  identity  or  expression, 
ethnicity,  religion  and  other  belief,  disability,  sexual  orientation, 
and age  
Civil/administrative/criminal law:  
Administrative law. 
Material scope: 
The internal work of the Equality Ombudsman 

146 

 
 
 
 
 
Title of 
legislation  
(including 
amending 
legislation)  

Principal content: 
A detailed description of the tasks of the Equality Ombudsman 
The (1962:700) Penal Code  
Abbreviation BrB  
Date of adoption: 21.12.1962 
Entering into force: 01.01.1965 
Latest  relevant  amendment:  Act  (2008:569)  changing  the  Penal 
Code 
Entering into force 01.01.2009 
Web link: https://www.riksdagen.se/sv/dokument-
lagar/dokument/svensk-forfattningssamling/brottsbalk-
1962700_sfs-1962-700  
Grounds covered: 
Ethnicity, religion and other belief, sexual orientation 
Civil/administrative/criminal law: 
Criminal law 
Material scope: 
Access to goods and services, protection against hatred 
Principal content: 
The crimes of unlawful discrimination and hate speech. 

147 

 
ANNEX 2: TABLE OF INTERNATIONAL INSTRUMENTS 

Country:  
Date:   

Sweden 
1 January 2018 

Instrument  Date of 

signature  
(if not 
signed 
please 
indicate) 
Dd/mm/ 
yyyy 

Yes 
28.11.1950 

Date of 
ratificatio
n  
(if not 
ratified 
please 
indicate) 
Dd/mm/ 
yyyy 
Yes 
04.02.1952 

Derogation
s/ 
reservation
s relevant 
to equality 
and non-
discriminat
ion 

Right of 
individual 
petition 
accepted? 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

No 

Yes 

Yes 

European 
Convention 
on Human 
Rights 
(ECHR) 
Protocol 12, 
ECHR 

Revised 
European 
Social 
Charter 

International 
Covenant on 
Civil and 
Political 
Rights 
Framework 
Convention 
for the 
Protection of 
National 
Minorities 
International 
Covenant on 
Economic, 
Social and 
Cultural 
Rights 
Convention 
on the 
Elimination 
of All Forms 
of Racial 
Discriminatio
n 

Not signed 

- 

- 

- 

Yes 
03.05.1996 

Yes 
29.05.1998 

Art. 8.2, 8.4, 
8.5, 12.4, E 

Yes 
29.09.1967 

Yes 
06.12.1971 

No 

Ratified 
collective 
complaints 
protocol? 
Yes 
Signed 
09.11.1995 
Ratified 
29.05.1998 
No 

- 

No 

No 

Yes 
01.02.1995 

Yes 
09.02.2000 

No 

No 

No 

Yes 
29.09.1967 

Yes 
06.12.1971 

No  

No 

No 

Yes 
05.05.1966 

Yes 
06.12.1971 

No 

Yes 

No 

148 

 
 
 
 
 
 
 
 
 
Instrument  Date of 

signature  
(if not 
signed 
please 
indicate) 
Dd/mm/ 
yyyy 

Yes 
07.03.1980 

Date of 
ratificatio
n  
(if not 
ratified 
please 
indicate) 
Dd/mm/ 
yyyy 
Yes 
02.07.1980 

Derogation
s/ 
reservation
s relevant 
to equality 
and non-
discriminat
ion 

Right of 
individual 
petition 
accepted? 

Can this 
instrument 
be directly 
relied upon 
in domestic 
courts by 
individuals? 

No 

No 

No 

Convention 
on the 
Elimination 
of 
Discriminatio
n Against 
Women 
ILO 
Convention 
No. 111 on 
Discriminatio
n 
Convention 
on the Rights 
of the Child 
Convention 
on the Rights 
of Persons 
with 
Disabilities  

Yes 
20.06.1962 

Yes 
20.06.1963 

No 

No 

No 

Yes 
26.01.1990 

Yes 
29.06.1990 

No 

Yes 
30.03.2007 

Yes 
15.12.2008 

No 

No 

Yes 

No 

No 

149 

 
 
HOW TO OBTAIN EU PUBLICATIONS 

Free publications: 

• one copy:

via EU Bookshop (http://bookshop.europa.eu);

• more than one copy or posters/maps:

from the European Union’s representations (http://ec.europa.eu/represent_en.htm);
from the delegations in non-EU countries
(http://eeas.europa.eu/delegations/index_en.htm);
by contacting the Europe Direct service (http://europa.eu/europedirect/index_en.htm)
or calling 00 800 6 7 8 9 10 11 (freephone number from anywhere in the EU) (*).

(*)  The information given is free, as are most calls (though some operators, phone boxes or hotels may
charge you).

Priced publications: 

• via EU Bookshop (http://bookshop.europa.eu)

D
S
-
0
4
-
1
8
-
3
8
6
-
3
A
-
N

PDF 

ISBN: 978-92-79-84514-7 

doi: 10.2838/246746