Summary
The Working Environment Act sets out rules on protection against discrimination within the workplace. Protection against discrimination in working life is, however, not only governed by the Working Environment Act, 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 stipulates diverse rules on the employer’s duty to actively carry out work on gender equality. This includes the employer’s duty to disclose an annually statement on the undertaking’s work on gender equality, preferably in the undertaking’s annual report. Employers should further note that the authorities have the right to access information on the undertakings work on gender equality.
Extent of Protection
The regulations regarding anti-discrimination apply to all aspects of an employment relationship and areas of society and set out protections against both direct and indirect discrimination. The application of exceptions will vary from case to case, so that the line between legal and illegal unequal treatment often must be drawn up in practice. However, it can nevertheless be said that indirect discrimination more often will be legal than direct discrimination. Positive action is a special form of substantive discrimination. Positive action is therefore allowed in certain cases.
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 there has been unlawful discrimination, the employer must substantiate that discrimination still has not taken place. The Working Environment Act sets out a prohibition against direct and indirect discrimination on grounds of political views, membership in a trade union or age. Furthermore, the Working Environment Act 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 Gender 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 law 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 based on the grounds of gender, ethnicity, sexual orientation or handicap is considered as direct discrimination and thus prohibited by the anti-discrimination laws. Furthermore, the Working Environment Act prohibits harassment on the grounds of membership in trade unions, political views or age. Harassment on other grounds is also regulated in the Working Environment Act, which stipulates that employees shall not be subjected to harassment or other improper conduct. The word harassment is not defined in legislation or in case law.
The Norwegian Labour Inspection Authority defines harassment as cases where an employee is subjected to negative actions, over time, by one or more persons. For example, unwanted sexual attention, leaving someone out, taking away his or her work tasks or hurtful teasing. The Labour Inspection Authority furthermore assumes that the strength of the parties involved are uneven, so that the person being harassed will have a more difficult time defending him or herself. Thus, it is not normally considered harassment if two colleagues on an equal level in the company are in conflict, or if it is only a single incident.
According to case law, employees are not often granted compensation on the grounds of being harassed in the workplace pursuant to the Working Environment Act. The reason for this is that case law stipulates an objective norm for what qualifies as harassment, and the individual’s own assessment of whether or not he or she has been harassed is not decisive in determining whether harassment has taken place. 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 claim compensation for economic losses. However, claims for tort are rarely granted, as the court rarely finds that the employer has acted with intent or culpable negligence when it did not put an end to the harassment.
Employer’s Obligation to Provide Reasonable Accommodations
The anti-discrimination legislation prohibits 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 Working Environment Act requires employers to give due consideration and attention to the individual, in the planning and organisation of occupational activities, but an employee usually cannot 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 Equality Tribunal. The Ombud makes no binding statements. The rulings of the Equality 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.
Workers or applicants subjected to unlawful discrimination may be entitled to compensation for both economic and non-economic loss. The Ombud and the Tribunal may comment on any claims, but cannot order the employer to pay such compensation. This must either be a voluntary arrangement or the employee must take action in the ordinary courts.
Provisions in collective agreements, employment agreements, regulations, statutes, etc. that are in breach with the anti-discrimination rules in the Working Environment Act can be voided. The other anti-discrimination laws do not contain any equivalent provision. Such a claim must therefore be submitted to the ordinary courts.
Violation of anti-discrimination policies can also result in criminal sanctions.
Other Requirements
Preferential 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 preferential treatment is only legal if there is a reasonable relationship between the aim of such treatment and how invasive the preferential treatment is for those who then will be put in a less favorable position. The preferential treatment has to cease to exist as soon as the aim of the treatment has been achieved.
