The Anti-Discrimination Tribunal’s decision in the “handshake-case”

The Anti-Discrimination Tribunal’s decision in the “handshake-case”

The Anti-Discrimination Tribunal has now made its decision in the so-called “handshake-case”. In this case, a substitute teacher refused to greet women with a handshake due to religious beliefs. The municipality’s requirement for extended employment was that he had to greet both genders with a handshake. The substitute teacher refused to comply with this requirement, and his employment was therefore not extended. The question was whether he was discriminated on the basis of religion due to this requirement.

 

The Tribunal’s decision regarding the employment

The Tribunal unanimously stated that the substitute teacher was subject to differential treatment in violation of the main rule regarding discrimination on the basis of religion.

The Tribunal subsequently discussed whether the differential treatment was lawful under the exception to the prohibition against discrimination. Differential treatment is lawful if it

  • has an objective purpose
  • is necessary to achieve the purpose and
  • does not have a disproportionate negative impact.

The Tribunal divided themselves into a majority and a minority regarding this question. The majority found that the abovementioned conditions were met, and that the differential treatment was lawful. The minority found the opposite.

The majority meant that the requirement to greet women with a handshake had an objective purpose, with reference to the strong principle of equality between the genders in the Norwegian society and the public school. Furthermore, the majority meant that the requirement was necessary to achieve equality, as there was no alternative to the requirement to greet everyone with a handshake. To introduce a new and gender-neutral way of greeting would seem odd. The Tribunal thereafter discussed the proportionality, and balanced the principle of equality with the principle of religious freedom. The majority found that the principle of gender equality was so strong in Norway that the principle of religious freedom had to be set aside in this case. The differential treatment was therefore not disproportionate.

The minority found that that the requirement to greet both genders with a handshake did not have an objective purpose. Nor was it necessary or proportionate.

Read the decision here. (Norwegian). 

 

The Tribunal’s decision regarding The Norwegian Labour and Welfare Administration’s statements and decision regarding social aid

In connection with the handshake-case, the question of whether The Norwegian Labour and Welfare Administration (NAV) had discriminated the substitute teacher arose. NAV argued that he declined to undertake paid work as he refused to greet both men and women with a handshake, and therefore reduced his social benefits.

In a meeting with the substitute teacher, the employee at NAV informed him of the consequences of still refusing to greet women with a handshake, and thus declining extended employment at the school. She compared the situation with her travelling to Saudi Arabia, and urged him to adapt to the country where he is staying. The employee at NAV further said: “Do you know where social aid comes from? It comes from taxpayers, from the liquor store, from pig farmers, from shops selling alcohol. So, there’s no alternative to grant you this, since you are so religious”.

The Tribunal did not find that the statements had an objective purpose, and concluded that the statements were discriminatory.

The majority of the Tribunal stated that the decision to not grant him social aid was discriminatory. The majority emphasized that the decision was disproportionate, as it had severe consequences for the substitute teacher and his family, and the family’s economic basis for living was threatened.

Read the decision here. (Norwegian)

Homble Olsby advokatfirma as

Akersgata 28 
0158 Oslo 

Tel (+47) 23 89 75 70
Fax (+47) 23 89 75 71

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Sign up for our newsletter


Homble olsby Legal500Homble olsby EuropeChambers2018