Discrimination in employment

Discrimination in employment has been subject to increased attention the latest years, and several questions related to discrimination on the basis of age, gender or ethnicity has been considered by the courts.

Discrimination in employment will, in most cases, be a burden for the employee which is subject to the discrimination. Allegations of harassment may also have negative consequences for the company’s reputation. It is therefore important for companies to be updated on the rules which prohibits differential treatment.

1 Prohibition against discrimination

The Norwegian Working Environment Act and the Equality and Anti-Discrimination Act prohibits discrimination (differential treatment) in employment based on certain circumstances. Below is a list of the discrimination factors, and where the prohibition is found:

The prohibition against discrimination applies to all aspects of the employment, including announcement of position, appointment, during the employment, as well as upon termination. The prohibition applies correspondingly to self-employed persons and hired employees.

The prohibition applies to indirect and direct discrimination based on the factors listed above. Direct discrimination means treatment of a person that is worse than the treatment that is, has been or would have been afforded to other persons in a corresponding situation, on the basis of discrimination factors. For example, direct differential treatment exists where a person, despite of his qualifications, does not get hired due to age, ethnicity, gender or religion.

Indirect differential treatment means any apparently neutral provision, condition, practice, act or omission that results in persons being put in a worse position than others on the basis of factors specified above. An example of indirect differential treatment is to refuse to let employees wear headwear at the workplace, as this will particularly affect Muslim women using hijab as a part of their religious practice.

2 Lawful differential treatment

The Working Environment Act and the Equality and Anti-Discrimination Act contains exceptions to the prohibition against discrimination (lawful differential treatment). The wording of the provision is somewhat different in the two laws. To summarize, differential treatment is allowed if all of the following conditions are met. Differential treatment is lawful if it

• has an objective purpose
• is necessary to achieve the purpose and
•  does not have a disproportionate negative impact on the person or persons subject to the differential treatment.

Direct differential treatment in employment is only allowed if it is necessary for the performance of work or profession.

3 Prohibition against harassment, retaliation, instructions and participation

Harassment on the basis on the discrimination factors is prohibited. Harassment means acts, omissions or statements that have the purpose or effect of being offensive, frightening, hostile, degrading or humiliating.

It is also prohibited to retaliate against anyone who has submitted a complaint regarding breach of the Equality and Anti-Discrimination Act, or indicated that such complaint may be submitted. Furthermore, it is prohibited to instruct a person to discriminate, harass or retaliate. It is also prohibited to retaliate against anyone who fails to follow an instruction to discriminate, harass or retaliate.

It is also prohibited to participate in discrimination, harassment, retaliation or instruction.

The Working Environment Act contains a prohibition to retaliate against an employee who has notified of censurable conditions at the employer’s undertaking, including discrimination or harassment. If the employee discloses information that provides grounds for believing that retaliation has been made, retaliation shall be assumed to have occurred unless the employer demonstrates otherwise.

4 Prohibition against collection of information

The Working Environment Act and the Equality and Anti-Discrimination Act prohibits employers to collect information which is prohibited to discriminate upon. For example, an employer may not collect information about an applicant’s pregnancy or plans to have, or to adopt children. Nor must the employer implement measures to obtain such information in any other manner.

The prohibition is however not absolute - the employer may collect information which is relevant for the undertaking and/or the position. For example, a position as a spokesman for a political organization may entitle the employer to collect information about the applicant’s political views. It must be stated in the job advertisement if such information will be required.

5 Employer’s disclosure duty

Applicants who consider themselves disregarded in breach of the prohibition against discrimination may demand that the employer provide written information about the person who was appointed. The employer shall provide information about education, experience and other clearly measurable qualifications.

An employee who suspects discrimination upon payment terms may demand that the employer provides written information about the salary level and the criteria for determining the salary of the person or persons the employee is comparing him/herself with.

6 Duty of employers to promote equality

All employers shall, in their operations, make active, targeted and systematic efforts to promote equality and prevent discrimination on the basis of the discrimination factors within the company. Such efforts shall include recruitment, payment and working conditions, promotion, development opportunities, arrangement of work, the opportunity to combine work with family life and to prevent harassment. In addition, all public employees (regardless of size) and employers in the private sector, who regularly employ more than 50 employees, have an expanded duty to promote equality. The duty implies that the employer must, within his business, investigate whether there is a risk of discrimination or other barriers to equality, analyse the causes of identified risks, implement measures suited to counteract discrimination, contribute to greater equality and diversity in the undertaking, and to assess the results of such efforts.

7 Burden of proof

If an employee or applicant provides information which indicates that discrimination has occurred, the employer has the burden of proof to prove otherwise.

8 Breach of the prohibition against discrimination

Employers in breach of the prohibition against discrimination may be liable for damages and damages for non-economic loss towards the employee which is subject to the discrimination, regardless of whether the employer has acted negligent or can be blamed otherwise. The damages shall cover financial losses resulting from the discrimination. The compensation for non-economic loss shall be determined on the basis of the nature and scope of the harm, the relationship between the parties and the circumstances in general.

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Our experience and advice

Homble Olsby have extensive experience in assisting undertakings and employees in issues related to discrimination in employment.