Employment Law – Discrimination

Discrimination legislation employers should be particularly aware of when conducting job interviews, throughout the employment relationship and in the event of work force reductions – new verdict from the Norwegian  Supreme Court

From January 1st 2018 a new Equality and Discrimination Act came into force in Norway which imposes on employers important obligations. In October 2018 the Norwegian Supreme Court ruled a dismissal of a family doctor as invalid. The family doctor was dismissed because she refused to insert contraception due to conscientious reasons. The case is of current interest with regards to how an employer should deal with the large amount of applicable discrimination rules. We will look at some of the most relevant topics in the following.

1. Introduction

The new Discrimination Act gathers the four previous laws on discrimination, which together with the Working Environment Act chapter 13 provide the most important provisions within this area.

There are several groups that are protected against discrimination; women, ethnic minorities, religious groups, political groups, union members, gay people, people with disabilities, elderly people etc. Recently, the discrimination rules have been expanded to also include part-time employees and temporary employees. The large amount of discrimination rules entails the need for employers, throughout the entire employment cycle – from the announcement of a post to the termination of the employment relationship, to focus on equal treatment, equal opportunity and equal rights, in compliance with the Equality and Discrimination Act § 1 (2)). As long as the company practises equal treatment, equal opportunity and equal rights consequently, which is normally the case in most work places, an employer will not have to assess whether an employee will fall under the scope of a protected group. If there is uncertainty with regards to specific questions, the Equality and Discrimination «Ombudsman», the lawyer associations or the employee / Employers’ Associations can be contacted for guidance.

In accordance with applicable legislation it can be permissible to differentiate, e.g. by prioritizing some groups by increasing their salary or by offering competence training, as long as these differences takes on an objective purpose, is necessary to achieve that purpose, and is proportionate to the legitimate aim pursued, c.f. the Discrimination Act § 9. An important exception to this is differential treatment due to pregnancy and childbirth, where persons who fall under the scope have an exceptional protection against discrimination, c.f. the Discrimination Act § 10 (1).

2. Discrimination regulations in Norwegian law

The discrimination legislation in Norway is based on a number of international conventions from both the UN (including the ILO) and the Council of Europe, which may be precatory when interpreting Norwegian law. The Constitution Act 92 also refers to human rights treaties that are binding upon Norway, imposing state authorities and other legal practitioners to enforce the treaties at the respective level of implementation. However, for Norwegian employers and employees it will in most cases normally be sufficient to be aware that the discrimination rules are set out in the Constitution chapter E on human rights as well as in the Equality and Discrimination Act (2017) and the Working Environment Act (2005) Chapter 13.

The grounds for protection under the Constitution are, amongst others, the right to freedom of association and the Sami ethnic group`s right to association. The Constitution primarily imposes its obligations on Norwegian authorities.

The grounds for protection under the Equality and Discrimination Act are gender, pregnancy, maternity leave, adoption, caretaking, ethnicity, religion and other life philosophies, disability, sexual orientation, gender identity, gender expression and age. The protection grounds according to the Working Environment Act Chapter 13 are political views, membership of employee organization, temporary or part-time employment, in addition to the grounds of the Equality and Discrimination Act. Age is also included as a ground for protection according to the Working Environment Act, for matters relating to the employment relationship.

3. The doctor verdict of 2018 (HR-2018-1958-A)

A Catholic family doctor was dismissed by the local authority in Sauherad because she refused to insert a spiral as a contraceptive for one of her patients, due to conscience reasons. The Norwegian Supreme Court found the local authority’s dismissal as unfair, due to the fact that there was a binding oral agreement that allowed the doctor to refuse such interventions. However the Supreme Court partly accepted a general prohibition against a right to refuse certain interventions as stated in the doctor’s regulative, taking the European Convention on Human Rights. 9 (section 84) into account:

«Accordingly, the Ministry believed that a reservation for certain tasks, including the inclusion of spirals, would impair the system and provide a poorer public healthcare service. The Ministry also stated:

A refusal of the woman by referring her to a different doctor due to conscience reasons could affect the relationship between the doctor and the patient. Nor can it be ruled out that a rejection could affect the psychological health of the woman and that this woman later will refuse to address any complaints with her doctor, which she believes may be caused by for example the spiral or contraception. This can in itself amount to the patient not receiving sufficient health care. In other words, a reservation may be in violation of the requirement for proper and caring health assistance in accordance with section 4, first paragraph, of the Health Personnel Act. Reservation may result in impaired access to the first-line service and impair women’s right to a reproductive health.»

This is undoubtedly weighty legitimate considerations. If the consequence of a doctor’s reservation against inserting a spiral is that the woman will not get this procedure done or that she is faced with unreasonable difficulties in this regard, it will probably be difficult to conclude otherwise than that the considerations which the Ministry has highlighted, must be added decisive weight.

Although it can be said that the Ministry’s assessment of the compliance with the ECHR was rather general, I consider it clear, and in accordance with ECHR’s practice, that the courts with regards to these matters must be reluctant to overrule the assessment of legitimate considerations carried out by political authorities. The state’s discretionary scope is expanded if the right in question has to be balanced against the rights of others, including patients’ health and safety … «

In the Supreme Court’s general comments, the Court opens for a possibility to prohibit a doctor to reserve him/herself against intervention of contraception, e.g. out of conscience or religious reasons. Nevertheless, the Court emphasized that such right of reservation will depend on the court’s concrete assessment in each individual case as to whether an interference with article 9 is necessary and proportionate in order to safeguard a legitimate aim. Thus, we are operating within an area where employers might face relatively complex evaluations.

4. Questions in connection with conducting interviews with potential employees

Questions and burden of proof

In connection with an employment, rules with regards to protection of discrimination will be applicable and will limit what sort of information the employer may obtain in this regard. Every now and then we receive inquiries with questions about what an employer may ask, or in other ways obtain information about, when conducting an employment interview. If the employer ask questions about certain things, it will be assumed that he or she also will place emphasis on these conditions. For example, if an applicant is asked whether he or she intends to have children in the near future, it will be assumed that the employer is also likely to put emphasis on this information when evaluating the candidates in violation of the Equality and Discrimination Act Section 10 as long as the employer cannot prove this to be wrong, cf. the shared burden of proof in the Discrimination Act Section section 37. The «questionnaire ban» is broad, so an employer must be certain that he/she can make exceptions from the rules for protection against discrimination due to political view, union association, ethnic background, religion etc.

Religion

If for example, the position in question is a position as a chef, the employer of the restaurant will usually be allowed to ask whether the candidate can prepare pork meat, among other things, if pork meat is on the restaurant’s menu and it is of importance for the employer that the new cook can prepare such food.

Trade union affiliation

As a main rule, questions with regards to trade union affiliation cannot be asked during an interview. However, in the event of a specific job offer, it may be relevant for administrative purposes, e.g. to pay the membership fee. Normally, the employee or the trade union will provide the employer with this information. Otherwise the employer may ask about this after the person is employed.

Language and clothing requirements

A company may have its own guidelines for clothing and language requirements related to a specific position. The company may have valid grounds for this. If this is the case, it may be lawful to ask candidates how they relate to the company’s current language and/or clothing requirements.

Regarding religious headwear at work, the right to wear religious headwear is fundamental, inter alia on the basis of the right to a working life and the state’s responsibility for integrating certain groups, in particular women, with minority backgrounds. In this regard, the employer is under the obligation to safeguard this right atthe workplace. Restrictions at work with regards to the use of religious headwear requires, among other things, concrete and substantial reasons, for example, for safety reasons where the work task requires the use of protective helmets, and the restriction is strictly necessary to achieve this aim.

Absence due to sickness

Usually, health problems will not fall within the scope of the protection against discrimination. In terms of absence due to sickness, our assumption is that the employer normally can ask questions relating to this without conflicting with the protection against discrimination. The question is however not certain, particularly with regards to the prohibition of indirect discrimination against persons with disabilities, the prohibition of obtaining health information pursuant to section 9-3 of the Working Environment Act. The preparatory work is also somewhat unclear at this point. In NOU 2001: 4 Health Information on Employment (also known as the «Breistein Committee») on page 104, the Committee proposed a rule where the employer is able to ask questions about previous sickness absence. The proposal is justified by the view that such information might be necessary to assess the job seeker’s qualification and ability to perform. At the same time, the Committee emphasized that the reason for any sickness absence will still be covered by the prohibition on obtaining health information in the WEA § 9-3. Nevertheless, the Ministry`s conclusion is the same at the minority of the Committee`s conclusion, , who considered that in practice it would not be possible to address questions about prior sickness absence without also touching upon general questions on health status, which are restricted by the necessity criteria. The Ministry agrees with this view, and concludes that it does not find it «appropriate to propose such a rule.» The statement of the Ministry can be interpreted as referring to a prohibition of asking for prior sickness absence in general, as the proposed general access to this was not considered appropriate. However, the statement does not appear to be based on a thorough assessment of the question, and there is no discussion of the various pros and cons of such access. Accordingly, the Ministry’s statement cannot, in our opinion, be taken into account for a general prohibition of asking about prior sickness absence in an employment interview. Furthermore, it can be argued, against the Ministry’s apparently decisive argument, that it is practically possible to only ask about the frequency of previous sickness absence without further consideration of the cause of absence. This further weakens the weight of the Ministry’s statement.

Some are therefore of the opinion that an employer, under no circumstance can ask about prior sickness absence. Our position is that in some cases it may be justified and lawful to ask about absence due to sickness. The point of view is, inter alia, based on the principle of legality, as our current regulations do not explicitly mention sickness absence as a basis for discrimination. There has been several possibilities for the legislator to include sick leave as a basis for discrimination, especially in connection with the statutory audit and the merger of the four discrimination laws in 2017. In NOU 2001: 4 point 3.2.4, health information is defined as «information about a person’s past, present and future physical or mental condition, including information on medicine and drug abuse «.

The Committee assumes that information with regards to sickness absence is not covered by the definition in relation to the prohibition in the WEA section 9-3, and that such information may be necessary to assess the job seeker’s ability to perform the work, see page 107. It is then problematic that the Ministry assumes that «health information» in section 9-3 shall be understood in the same way as the Breistein Committee’s legal definition, cf. Ot.prp. No. 49 (2004-2005) page 314, as the Committees prerequisite for excluding sick leave from the necessity limitation in section 9-3 was a general right to obtain such information. It can therefore be argued that the legislator has created a relatively unclear legal situation with regards to obtaining information on absence due to sickness. As not only the rule, but also the preparatory work is unclear, it is relevant to look at other authoritative sources for guidance. In this regard, the Ombudsman and the Equality and Discrimination Ombudsman have issued statements in favour of a right to ask about sickness absence, see the Ombudsman’s case no. 2007/294 and Case No. 16/2197 of Equality and Discrimination Ombudsman. The latter case is from 2017, and concerns issues of discrimination in the recruitment process due to disability, through emphasis on information on previous sickness absence. The Ombudsman expresses on a general basis: «However, to emphasize sickness absence due to disability does not automatically imply discrimination.»

The statement indicates that in some cases information with regards to absence due to sickness can be emphasized, and presumably also obtained. Without clear directives from the legislator, one can argue that these legal sources can be added somewhat more weight. The decisive argument is nevertheless, in our view, the principle of legality and policy considerations. If the legislature want to restrict the employer’s access to obtain information about sickness absence, the principle of legality implies that this must be stated in the law itself, or clarified by statements in the preparatory works. For the sake of employer’s management prerogative and legitimate need to clarify whether the applicant is eligible for the position, through necessary and stable presence, it may be argued that, in certain individual cases the employer can have a just reason to ask for sickness absence at the previous workplace. It is usually relevant for the employer that an employee can be present at work. At the same time, employers should be aware that the question has not been finally clarified, with the uncertainty this entails.

5. Discrimination during the employment

Protection against discrimination during the employment is relevant, inter alia, in connection with pay and working conditions, training, competence development and leave, in respect of termination of the employment, where grounds of discrimination can be of particular importance when using severance package and special age limits to force termination. In the following, we will present a case, number 09/1969 from the Equality and Discrimination Ombud, as an example of what employers ought to be aware of in wage negotiations.

The question in this case was whether a lack of wage increase due to absence caused by a disability, represented a violation of the Discrimination Act section 4, which prohibits direct and indirect discrimination due to disabilities. In the case, «A» had a chronic skin disease that caused severe pain and high sickness absence. There was no doubt that A had been treated worse than his colleagues in the wage negotiations with the employer, as only A and one other employee did not received a salary supplement of NOK 1000. It was further clear that A had been treated worse because of his impaired functional capacity. Sick leave was the reason he did not receive the wage supplement, and the sickness absence was a direct consequence of A’s reduced functional capacity. The question was thus whether the differential treatment due to the disability was necessary in order to achieve an objective purpose, and proportionate to the legitimate aim pursued. The Ombud said:

«In the view of the Ombud, it is sometimes necessary to put emphasis on absence in connection with wage determination. In this connection, it is necessary to distinguish between wage increase based on individual performance (individual additions) and general wage supplement granted to all regardless of the effort. In the case of individual supplements, it will often be justifiable not to give wage increases to the employee if the person has not been present during the period of which the salary assessments are based on. In such cases it would be justifiable to give less to the employee for the period in which he or she has been absent. This however, is different with general wage supplements. In the opinion of the Ombudsman, persons who have been absent due to for example disability or parental leave, may also be entitled to such additions. Whether it would be justifiable to avoid paying a supplement to A depends on an assessment of whether the wage supplement is to be regarded as an individual addition or a general addition. »

6. The Discrimination Board decides

From 1 January 2018 the Discrimination Board enforces the legislation with regards to the right to protection against discrimination, based on the 2017 Anti-Discrimination Ombud Act. The law replaces the previous arrangement in which the Equality and Discrimination Ombudsman had the enforcement role, as well as a consultative role, which was eventually found to be unfortunate by both principal and practical reasons. Therefore, it is now the Discrimination Board exclusively that administers these cases, which involves a one-off instance of complaints. The form of procedure is mainly written, and the board may either reject, dismiss or conclude on the case. A development of the law is that the Discrimination Board now has the authority to award damages for non-economic loss and to award compensation in the some of the less complex cases.

**

This article is for general information only. In need of legal assistance, a lawyer should be contacted.

 © 2019 Kvale Advokatfirma DA