Judgment issued in first ethnic discrimination case

In December 2002 the Swedish Labour Court delivered its judgment in the first case of alleged ethnic discrimination brought since new legislation on the subject came into force in 1999. The Court ruled that there had been indirect discrimination against a Bosnian-born woman who failed to get a job at a telemarketing company because she was said to have a foreign accent.

At the beginning of December 2002, the Labour Court (Arbetsdomstolen, AD) issued its judgment (AD nr 128/02) in the first case relating to discrimination on ethnic grounds brought since a new Act on Measures against Ethnic Discrimination in Working Life (1999:130) came into force in 1999 (SE9903148F).

The case

The case related to a young woman born in Bosnia who came to live in Sweden at the age of 10. She attended Swedish schools and became a student. In May 2001, she contacted a telemarketing company and said that she was interested in working as a telephone interviewer. She was invited to an introductory meeting where she was informed about the company and also signed a promise of professional secrecy. She was informed that the company's recruitment process involved three test situations, with test interviews carried out with the applicants' friends and the public while the company staff was listening. The job applicant took part in the first test. Some days later, she called a member of the staff to make an appointment for the second test. During this phone call, the member of company staff told the woman that she had a slight foreign accent. After the call there was no more contact between her and the company.

The Ombudsman against Ethnic Discrimination (Diskrimineringsombudsmannen, DO) represented the woman in bringing a case in the Labour Court. The Ombudsman claimed that it was the company that broke off the recruitment process and that the reason for this was the woman's foreign accent. The Ombudsman also asserted that the company had laid down a demand for 'clear and distinct' Swedish that was far too high and therefore not objective. Therefore the company was guilty of direct discrimination as well as of indirect discrimination, it was claimed.

The employer stated that the applicant herself broke off the recruitment process. Therefore, there was no discrimination invovled. It added that a demand for employees to have clear and distinct Swedish in all cases was objectively based. Thus there was no indirect discrimination, either.

Direct and indirect discrimination

Ethnic discrimination is forbidden by the Act on Measures against Ethnic Discrimination in Working Life in a number of situations, for example when an employer takes a decision in an employment situation, selects a job applicant for an interview for a new job or takes other measures during the recruitment process. The law (in sections 8 and 9) also makes a distinction between direct and indirect discrimination.

An employer may not treat a job applicant or an employee less favourably than the employer treats or would have treated persons with another ethnic background in a comparable situation, unless the employer shows that the less favourable treatment has no connection with ethnic background. In other words, the law outlaws a direct casual connection between unfair treatment and the ethnic background of the job applicant or employee.

Furthermore, an employer may not (section 9) treat a job applicant or an employee less favourably by using a rule, requirement or procedure that seems neutral but however in practice is particularly disadvantageous to persons of a particular ethnic background (indirect discrimination). The preparatory documents for the law mentioned, for example, employment tests or demands for certain language knowledge or education that may put at a disadvantage persons with a certain ethnic background. Of course the employer may demand a certain knowledge of language knowledge/ability, but the level of this demand should vary considering the demands of the work tasks. There is no discrimination if the employers' action could be motivated by objective reasons and the measures taken can be considered appropriate and necessary (section 9:2).

The ruling

A key question in the case was whether the telemarketing company had interrupted the recruitment process for the job applicant and consequently caused ethnic discrimination. According to the Labour Court, the undisputable circumstances were that the recruitment process was broken off by the phone call from the job applicant regarding further tests. What was disputable was why it was broken off. The parties had different opinions about this. The job applicant said when that she was told that she had a foreign accent, she asked if she could come back anyway, but this was met by a 'no' and the company employee said good-bye and hung off. The company employee stated that she said on the phone 'you have a broken accent', whereupon the applicant responded by becoming angry.

Considering the circumstances, the Court found that it was the company that broke off the recruitment process. The Ombudsman against Ethnic Discrimination submitted to the court a letter from the company which lent support to this opinion. The letter stated that 'our judgment after the interview was that the applicant did not fill the demands we have on staff working at our telephone centre.' The Court found that the reason why the company broke off its relations with the job applicant, was partly that she had become angry, and partly that her Swedish was defective.

However, the Court found that no direct discrimination had occurred. It is objectively justified for a company working in market research to demand that its telephone interviewers have a good knowledge of Swedish and be able to express themselves in a clear and distinct way. The company did not, however, repudiate the assertion from the Ombudsman that the job applicant to a reasonable extent met the demand for clear Swedish actually required by the position applied for. Therefore the company, in the job applicant's case, used a demand for language knowledge that was higher than necessary considering the work tasks she would have had at the company. The company used criteria appearing to be neutral but in practice, considering the job applicants' ethnic background, this criterion was unfavourable to her. The Court thus found that there was indirect discrimination against the applicant.

According to the rules, the applicant was entitled to damages. She claimed a sum of SEK120,000, but the Court set the damages to be paid by the company to SEK 40,000. In lowering the sum, the Court stated that it should be taken into consideration that the company had made an unintentional misjudgement of the job applicants' suitability for the jobs. There was also reason to believe, the Court added, that the job applicant's behaviour during the telephone call with the company representative may have contributed to the company choosing to break off the recruitment process.

Commentary

This was the first case brought to the Labour Court under the new Act on Measures against Ethnic Discrimination in Working Life which came into force in 1999. In its ruling, the Court used the new definition of 'indirect discrimination' taken from the EU law and the EU rules on burden of proof in discrimination cases based on the EU Directive (97/80/EC) on this issue. The Directive's rules are supposed to be used when judging cases brought under the ethnic discrimination legislation (and two other anti-discrimination laws adopted at the same time - SE9903148F)

After the Court issued its judgment in December 2002, there was some discussion among lawyers as to whether there was also direct discrimination involved in the case. There was also a reaction to the Court's decision on the amount of damages to be paid to the rejected job applicant (only a third of the sum claimed was awarded). The Court's judgment states that the job applicant's behaviour during the telephone call may have influenced the company's decision, raising the question of whether a person in this situation is not allowed to be angry. The question was put to the Ombudsman against Ethnic Discrimination, Margareta Wadstein, who answered diplomatically that the young woman was of course within her rights to be angry, and that probably the members of the Labour Court had not been too well justified in this context. She stated also that she hoped she would never see a thing like this happen again. (Annika Berg, Arbetslivsinstitutet)