Thematic feature - implementation of the EU framework equal treatment Directive

This article examines the Norwegian situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.

The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).

A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.

In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The Norwegian responses are set out below (along with the questions asked).

Existing situation

What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?

At the time of the Directive's adoption, and at present, the issue of employment discrimination is mainly regulated by the Act relating to Workers Protection and the Working Environment (Arbeidsmiljøloven, AML). In addition, discrimination against women is regulated by the Gender Equality Act (NO0204101N).

The most relevant regulation regarding employment is Section 55A of the AML, on 'engagement of employees'. Here the Act specifically states that employers may not discriminate against job applicants on grounds of race, colour, national or ethnic origin, 'homosexuality or homosexual form of cohabitation' or disability. The Act also specifically forbids the employer to ask for, or otherwise collect, information regarding the applicant's political, religious or cultural views, or whether applicants are members of any labour organisations. The same applies to 'homosexuality or homosexual form of cohabitation'.

The anti-discrimination regulations were strengthened in 2001 (NO0108138F) when disability was added to the list of groups specially protected by the Act. In addition, the employees' position was strengthened in terms of proving that discrimination has taken place. Employers have a duty to provide, on request, information in writing on the job-related qualifications and skills of the persons appointed to a job. In addition, the 2001 revision of the Act strengthened the position of people bringing case of alleged discrimination before the courts, by introducing the principle of a 'shared burden of proof', and by allowing the applicant the right to compensation if discrimination has taken place.

Section 55A of the AML deals only with the process of appointment. However, some of the more general sections of the AML are also relevant for equal treatment in the workplace. Section 12 (on 'planning the work') states that work should be arranged in such a way that employees 'are not exposed to adverse physical or mental strain'. The section further states that: 'Employees shall not be subjected to harassment or other improper conduct'. This also applies to harassment based on sexual orientation, national and ethnic origin etc.

A third clause relevant to discrimination is Section 60 (on 'protection against unfair dismissal'), which states that: 'Employees may not be dismissed unless this is objectively justified on the basis of matters connected with the establishment, the employer or the employee.'

The current situation with regard to the four grounds of discrimination covered by the EU framework equal treatment Directive is thus as follows.

• There is no current legal regulation regarding age discrimination in connection with the recruitment of employees, though the more general provisions (on harassment, improper conduct and unfair dismissal) are regarded as relevant for age discrimination.

• Disability ('impaired functionality') was included in the list of grounds on which discrimination is specifically banned in connection with recruitment in 2001. In cases where there is sufficient reason to believe that discrimination has taken place due to a person's disability, the determining factor is the extent to which 'it would have been possible for the employer to adapt the workplace to suit the needs of the disabled person concerned'.

• With regard to religion or belief, discrimination in recruitment because of 'religious beliefs or cultural background' is forbidden in the present regulations. The provisions in section 55A of the AML preventing collection of information regarding job applicants are not applicable if such information 'is justified by the nature of the post or if the objective of the activity of the employer in question includes promotion of particular political, religious or cultural views and the post is essential for the fulfillment of the objective'.

• With regard to sexual orientation, section 55A of the AML prohibits discrimination in recruitment based on 'homosexuality or homosexual form of cohabitation'. An exception to this rule is made for posts associated with religious communities where 'special requirements based on the nature of the post or the purpose of the activities of the employer are specified in the advertisement of the vacant post' (this applies only to 'homosexual form of cohabitation').

State response

How has the state responded to the Directive since December 2000 in terms of:

• legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;

• broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.

The government responded positively to the framework Directive, and stated its intension to implement the Directive. This is the case even though the European Economic Area agreement has not yet placed a direct commitment on Norway (which is not an EU Member State) to implement this particular Directive.

The relevant legal framework in which to implement the Directive is the AML. A public committee is presently drawing up proposals for a revision of this Act, including issues covered by the Directive (NO0210103F). The government wanted to implement the Directive within the December 2003 deadline set by EU, and thus asked the committee to prepare a special report on how the Directive could be implemented (NO0301102N). Based on this report, in June 2003, the government put before the parliament (Stortinget) a proposal for amendments to the AML.

The government's proposal mainly follows the recommendations of the committee, and its main provisions are as follows:

• the AML will have a new chapter on equal treatment (Chapter X A), in which the present regulations on this issue (Section 55A) will be incorporated together with some new provisions necessary to implement the Directive;

• the ban on discrimination is extended to cover the whole period of employment from beginning to the end, and not just appointment, as is the case at present. Examples given are the announcement of vacancies, appointments, transfers, promotion, training and other types of 'competence development', pay and employment conditions, and termination of employment;

• age is included as criterion for equal treatment;

• the new regulations will refer to 'sexual orientation' instead of homosexual orientation/cohabitation;

• the new regulations will apply to companies' selection and treatment of self-employed people and temporary agency workers;

• the exemptions to the present regulations are mostly retained in the new regulations. In addition, the new regulations state that an employer may treat employees differently based on age if this 'serves an earnest objective, and the measures chosen to achieve the objective are purposeful and necessary'. The regulations do not forbid affirmative action in order to encourage equal treatment; and

• the principle of the shared burden of proof in discrimination cases, and of the 'employer's objective responsibility' for discrimination, introduced by the 2001 revision of the AML (see above), will be retained.

Broader policy response

The government and the social partners are presently involved in a major campaign to include more groups in the labour market, based on a 2001 agreement between them on achieving a more 'inclusive working life' (inkluderende arbeidsliv, IA), known as the 'IA agreement' (NO0110107F) - though this is not linked to the EU anti-discrimination Action Programme. One of the aims of this initiative is to reduce early retirement and to encourage labour market participation as an alternative to sick leave and disability pensions (NO0301104F), and a variety of measures have been proposed and implemented. The initiative is based on the involvement of the social partners at central and local level and various public bodies, inviting companies to sign up to individual IA agreements. In addition, both employers' organisations such as the Norwegian Confederation of Norwegian Business and Industry (Næringslivets Hovedorganisasjon, NHO) and the public authorities focus on encouraging employers to engage more employees with an immigrant background.

The IA agreement and the efforts to integrate immigrants in working life are not directly targeted against discrimination, but concentrate more on how to avoid excluding groups from the labour force. However, the government is also considering new regulations in relation to ethnic discrimination – a new Act is to be presented to parliament – as well as the prevention of discrimination against people with disabilities. Some of these regulations will probably have to be coordinated at a later stage.

Social partner response

What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?

All the major social partners on the trade union and employers' sides were represented in the committee which drew up the 2003 proposal for new anti-discrimination legislation in response to the framework Directive. In addition, the social partners have been invited to comment on the committee's proposal.

There is no disagreement among the social partners on the intentions of the EU framework Directive or in the new legislation. The trade unions also support the content of the proposal for new legislation and have few reservations. However, the employers have expressed discontent with parts of the proposal. This criticism is partly directed at the so-called 'objective employer responsibility', whereby an employer might be held economically responsible for discrimination even if it was not aware of such activity taking place and even if the damage was of a non-financial kind. In addition, the employers have argued against the 'shared burden of proof', ie that the employer in certain situations will have to prove – or at least demonstrate the probability of - discrimination not taking place. The employers' organisations argue that both the principle of shared burden of proof and the proposed regulations on objective responsibility/non-financial damage are in conflict with the Norwegian legal tradition. Since Norway has so far not been obliged to implement this EU Directive, the employers' organisations argue that such measures should be avoided. Both principles have already been introduced into the AML, although at present only with regard to the recruitment of employees (see above).

Impact

What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?

The new anti-discrimination legislation will most probably pass unaltered through parliament. It is difficult to assess what the consequences the AML's new chapter on equal treatment will have for Norwegian industrial relations. It is beyond doubt that discrimination takes place in the Norwegian labour market, perhaps specially related to ethnic background. However, few cases are brought before the courts. One might argue that the new regulations - or perhaps more accurately the 2001 revision of the AML - will make it easier to bring alleged discrimination cases before the courts. Until the 2001 revision, lawyers argued that it was very difficult to take such cases before the courts, since the regulations provided few sanctions on employers breaking the law.

With regard to the inclusion of age discrimination in the forthcoming legislation, this will represent Norway's first legal provisions on this issue and may thus have an impact. It is well known that older employees often feel pressured to retire, especially in situations where their employer is cutting its workforce or otherwise restructuring the company. Older employees may also experience problems finding a new job or being promoted. (Kristine Nergaard, FAFO Institute for Applied Social Science)