Sweden’s Experience in Combating Employment Discrimination By Dr. Laura Carlson Sweden’s Experience in Combating Employment Discrimination..................................................3 1 The Swedish Discrimination Legislation ......................................................................................5 1.1 The Origins of the Discrimination Legislation in the 1970’s.................................................6 1.1.1 The 1979 Equal Treatment Between Women and Men at Work Act .............................7 1.1.2 The Parental Leave Acts of 1976 and 1978 ..................................................................10 1.1.3 The Repeal of Spousal Maintenance and Family Taxation...........................................11 1.2 The Current Swedish Discrimination and Parental Leave Legislation ................................14 1.2.1 The 1991 Equal Treatment Between Women and Men at Work Act ...........................15 1.2.2 The 1995 Parental Leave Act........................................................................................17 1.2.3 Other Related Discrimination Legislation.....................................................................18 1.2.4 Pending Proposals for Legislative Changes..................................................................19 2 The Swedish Labour Court and its Discrimination Jurisprudence..............................................20 2.1 The Swedish Labour Court ..................................................................................................21 2.2 Proceedings before AD ........................................................................................................23 2.3 The Discrimination Case Law of AD...................................................................................24 2.3.1 Direct Discrimination....................................................................................................24 2.3.1.1 “Clearly Better Objective Qualifications” – The Cases in the 1980’s ...................26 2.3.1.2 “Clearly Better Objective Qualifications” – The Cases in the 1990’s ...................29 2.3.1.3 “Position of a Similar Nature” – The Cases in the 2000’s.....................................31 2.3.2 Indirect Discrimination .................................................................................................33 2.4 General Comments Regarding AD’s Discrimination Jurisprudence ...................................35 3 Access to Justice Issues within the Swedish Model....................................................................37 3.1 The Remedies Available under the Acts..............................................................................38 3.1.1 The Award of Exemplary Damages ..............................................................................38 3.1.2 The Award of Economic Compensatory Damages .......................................................39 3.2 The Award of Trial Costs and Fees......................................................................................39 3.3 The Statute of Limitations as to Sex Discrimination Claims ...............................................40 4 Conclusions .................................................................................................................................41 Appendix One: The Swedish Equal Treatment Act.......................................................................47 Appendix Two: The Award of Exemplary Damages by the Swedish Labour Court in Discrimination Cases......................................................................................................................56 Appendix Three: The Award of Trial Costs and Attorney’s Fees by the Swedish Labour Court in Discrimination Cases......................................................................................................................58 2 Sweden’s Experience in Combating Employment Discrimination By Dr. Laura Carlson When evaluating the statutory scheme and case law concerning equality issues in general in Sweden, one is first struck by the paradox that Sweden, often receiving accolades for the advancements made in the area of sex equality, the most recent a 2005 report placing Sweden first for narrowing the gender gap,1 at the same time demonstrates other tendencies that go in the opposite direction, such as that the wage gap between women and men in Sweden has not changed since the 1970’s,2 that the levels of both horizontal and vertical occupational segregation in Sweden are among the highest in the world, with half of all Swedish women employed in the public sector, as compared to 30 % in the United Kingdom and 19 % in the United States, and the marked absence of women in positions of power in Sweden, with 29 % of the higher management positions held by women, as compared to 33 % in the United Kingdom and 45 % in the United States.3 Sweden first legislated against unlawful discrimination on the basis of sex in 1979. The case law by the Swedish Labour Court however demonstrates a reluctance to interpret the statutory provisions in the spirit in which they were enacted, with the last case in which the Swedish Labour Court found wage discrimination in 1996, and direct sex discrimination under Swedish law on the basis of qualifications in 1993. To understand these paradoxes, one must look not only at the text of the discrimination legislation, but also at the industrial relationships model in Sweden, as well as the attitude towards legislation in general. The aim of the efforts as to equality must also be examined, with the Swedish legislator focusing on enabling women to have access to work. Among the reasons for Sweden maintaining a top position with respect to sex equality in the international arena is the social welfare system that has been created to this end, including the availability of day care for children, health care as well as the number of women participating in politics.4 This balance between success and persisting problems is reflected in the efforts that have been made both historically and currently with respect to the Swedish legislation addressing the needs of women at work, with the main emphasis on facilitating women’s work and not on discrimination per se. 1 World Economic Forum, Women’s Empowerment, Measuring the Global Gender Gap, 2005 Report, available at: http://www.weforum.org/pdf/Global_Competitiveness_Reports/Reports/gender_gap.pdf. Many of the more extensive references have been omitted here, but can be found in Laura Carlson, SEARCHING FOR EQUALITY: SEX DISCRIMINATION, PARENTAL LEAVE AND THE SWEDISH MODEL WITH COMPARISONS TO EU, UK AND US LAW (Iustus 2007) 2 See Inget lönelyft för kvinnor trots löfte, SVD, 21 September 2005 at 6. 3 See, e.g., Myth & Reality, Forget all the talk of equal opportunity. European women can have a job – but not a career, NEWSWEEK, 27 February 2006. 4 Even this latter statistic can be viewed with a certain degree of skepticism, with women absent from many of the top and most powerful political positions in Sweden. In a survey conducted by one of Sweden’s leading newspapers in 2004, 60 % of the 155 (of 158) female members of parliament felt that they had been discriminated against based on their sex in the form of information being withheld, being kept out of decision-making processes or being made invisible, or in the form of negative comments by male colleagues including “little woman, you are so cute when you are angry” or “you understand that we need young women to look at.” See Sex av tio i riksdagen förtrycks – Undanhållande av information och osynliggörande vanligt visar SvD:s granskning, SVD, 8 March 2004 at 1. 3 This paper focuses on the Swedish legal structures concerning sex discrimination and parental leave, the two avenues taken as to the issue of economic equality between the sexes, and access to justice issues. The current approach adopted to achieve economic equality between the sexes in Sweden politically and through the legislation is to create a greater economic independence of women from the family through paid work, as well as encourage men to assume a greater share of unpaid work, particularly parental leave, resulting in a lessening of the double burden of work for women. This double burden of paid and unpaid work as carried by women is seen as the major obstacle to economic equality as well as the root of sex discrimination. Mothers in Sweden take over 80 % of the state subsidized parental leave, a parental leave that is one of the most generous in the world, with one parent currently allowed to take up to eleven months of leave with full parental cash benefits. After returning to the workforce, a significant number of Swedish women work part-time in order to better balance the requirements of work and family. Because of this extensive parental leave, as well as the shouldering of the larger share of responsibility in the home, the argument is made that employers discriminate against women not simply on the basis of sex, but on the belief that women cannot participate as fully as men in employment. In addition, women lose ground with respect to seniority, pay, and social benefits in the form of pensions due to their absences from work. The double work load as carried by women is also seen as one of the causes of the large number of sick leaves and early retirements taken by women in Sweden, a way of opting out of the labor market due to stress, leading to further losses of income and pensions for women. Many in Sweden argue today that the solution to sex