Summary
The WEA sets out rules on protection against discrimination within the workplace. Protection against discrimination in working life is, however, not only governed by the WEA, but also by the Gender Equality and Anti-Discrimination Act. The law regulates gender equality and anti-discrimination rules related to gender, pregnancy, leave related to birth and adoption, caring tasks, ethnicity, religion, belief, disability, sexual orientation, gender identity and gender expression, age, and a combination of these grounds.
In addition to the material rules on anti-discrimination, the law imposes a range of obligations on employer’s to actively promote gender equality. This includes a duty to disclose an annually statement on the undertaking’s work on gender equality, preferably in the undertaking’s annual report. This requirement applies to all public undertakings, as well as private undertakings that ordinarily employ more than 50 persons. It also applies to private undertakings with more than 20 employees if requested by the employees or employee representatives. Employers should also be aware that the public authorities have the right to disclosure of documentation relating to the to the undertaking’s gender equality work.
Extent of Protection
The regulations regarding anti-discrimination apply to all aspects of the employment relationship and areas of society, and set out protections against both direct and indirect discrimination. Whether an exception applies must be assessed on a case-by-case basis, meaning that the boundary between lawful and unlawful unequal treatment is often determined in practice. Nevertheless, indirect discrimination will more frequently be considered lawful than direct discrimination. Positive differential treatment is permitted in certain circumstances.
The laws regarding protection against discrimination also include rules on shared burden of proof. If the employee can present information that gives reason to believe that unlawful discrimination has taken place, the employer must substantiate that such has not occurred. The WEA sets out a prohibition against direct and indirect discrimination on grounds of political views, membership in a trade union or age. Furthermore, the WEA sets out a prohibition against direct and indirect discrimination of workers who work part-time or who are temporarily employed.
Additionally, the law regarding protection against discrimination also includes rules applicable to hiring processes. The Equality and Anti-Discrimination Act states that a vacant position cannot be announced as vacant for only one gender and the announcement cannot give the impression that the employer expects, or prefers, one gender over the other for the position. The Act also establishes rules that prohibit the employer from collecting specific information about the applicant. An applicant, who believes he was denied a position in violation of the provisions of this chapter, may require that the employer provide information in writing about the education, experience and other clearly demonstrable qualifications of the person who was hired.
Protections Against Harassment
Harassment as such is prohibited and shall not take place at the workplace. Harassment based on the basis of gender, pregnancy, leave in connection with childbirth or adoption, care responsibilities, ethnicity, religion, belief, disability, sexual orientation, gender identity, gender expression, age or combinations of these factors, and sexual harassment is prohibited by the Equality and Anti-Discrimination Act. Furthermore, the WEA prohibits harassment on the grounds of membership in trade unions, political views or age. Harassment on other grounds is also regulated in the WEA, which stipulates that employees shall not be subjected to harassment or other improper conduct.
The Norwegian Labour Inspection Authority defines harassment as cases where an employee is subjected to negative actions, over time, by one or more persons. Unwanted sexual attention, leaving someone out, taking away his or her work tasks or hurtful teasing are circumstances that may constitute harassment or sexual harassment.
The Labour Inspection Authority further emphasizes that harassment typically involves an imbalance of power of the parties involved, making it difficult for the affected employee to defend themselves. Consequently, conflicts between colleagues of equal standing are not normally considered harassment, nor are isolated incidents.
According to case law, employees are rarely granted compensation for workplace harassment under the WEA. This is largely because the courts apply an objective standard when assessing what constitutes harassment; the employee’s own assessment is not decisive. Furthermore, the employee must be able to prove that he has been harassed, which can be difficult.
If the court finds that harassment has taken place, the employee may be entitled to compensation for economic losses. However, claims for non-economic loss are rarely granted, as the court rarely finds that the employer acted with intent or culpable negligence in failing to stop the harassment.
Employer’s Obligation to Provide Reasonable Accommodations
The Equality and Anti-Discrimination Act prohibit direct and indirect discrimination on the basis of religion or disability. Employers should ask the employee what they expect of accommodation to practice their religion and be clear about which expectations may be met. Fundamental issues related to religion in the workplace should be implemented in the company’s HSE procedures.
The WEA requires employers to give due consideration and attention to the individual, in the planning and organisation of occupational activities, but an employee cannot usually refuse to perform a task because of their religion.
Disabled persons are entitled to suitable individual accommodation of workplaces and tasks to ensure they can obtain or retain employment, access to training and other skills development as well as perform and have the opportunity to progress in the work on an equal basis with others. This right applies, provided that it does not involve undue burden for the employer. In assessing whether the arrangement involves a disproportionate burden, particular emphasis is on the effect of the dismantling of the accommodation, the necessary costs and the employer’s assets.
Remedies
Two independent administrative agencies enforce the anti-discrimination rules; the Equality and Anti-Discrimination Ombud and the Anti-Discrimination Tribunal. The Ombud makes no binding statements. The rulings of the Anti-Discrimination Tribunal are administratively binding. The Tribunal may order halting, correction or other measures that are necessary to stop discrimination and may order daily fines if the deadline to comply with the decision is missed. The Tribunal’s decisions can be brought before the courts.
Employees or job applicants who are subjected to unlawful discrimination may be entitled to compensation for both economic and non-economic loss. The Ombud and the Tribunal may comment on such claims, but they do not have the authority to order the employer to pay such compensation. Any compensation must therefore be agreed voluntarily or pursued through the ordinary courts.
Provisions in collective agreements, employment contracts, regulations, statutes, etc. that conflict with the anti-discrimination rules in the WEA may be declared void. Other anti-discrimination legislation does not contain any equivalent provision, meaning such claim must be brought before the ordinary courts.
Breaches of any anti-discrimination rules may also result in criminal liability.
Other Requirements
Differential treatment is legal if it is reasonable that it will promote gender equality or contribute to prevent discrimination due to pregnancy and leaves related to child birth and adoption, work in the home, ethnicity, religious views or beliefs, functional disabilities, sexual orientation and gender expression, age or a combinations of these mentioned grounds. Such differential treatment is only legal if the negative impact of the differential treatment on the person or persons whose position will worsen is reasonably proportionate in view of the intended purpose. Furthermore, the differential treatment has to cease when its purpose has been achieved.
