The Equal Opportunities Act
As of 1 July 2005
PURPOSE OF THE ACT
The purpose of this Act is to promote equal rights for women and men in matters relating to work, the terms and conditions of employment and other working conditions, and opportunities for personal development at work (equality in working life).
The aim of the Act is primarily to improve conditions for women in working life.
Section 1 a.
Persons who, without being employed, apply for or perform work in a work experience position at a workplace shall be regarded as job seekers and employees respectively in application of the prohibition against discrimination and victimisation contained in Sections 15-16 b, Section 17, item 3, and Section 22, and in the provisions in Sections 22 a-24, Section 25, paragraph 1, and Sections 27-28.
The person or persons on whose behalf the work is performed, or to whom the application for a work experience position is made, shall be regarded as the employer. (Amendment of 1 July 2005, 2005:476)
Section 1 b.
Persons who, without being employed, perform work at a workplace as hired or borrowed labour shall be regarded as employees in application of the provisions in Sections 22, 22 a, 24, fourth paragraph, and Sections 27-28.
The person or persons on whose behalf the work is performed shall be regarded as the employer. (2005:476).
Employers and employees shall cooperate in pursuing active efforts to promote equality in working life. They shall strive in particular to prevent and eliminate differences in pay and in other conditions of employment between women and men performing work that may be considered equal or of equal value. They shall also promote equal opportunities for wage growth for women and men.
Work is to be considered equal in value to other work if, based on an overall assessment of the nature of the work and the requirements imposed on the worker, it may be deemed to be of similar value.
Assessments of work requirements shall take into account criteria such as knowledge and skills, responsibility and effort. When the nature of the work is assessed, particular regard shall be taken of the working conditions. (2000:773)
Goal-orientated work towards equality in working life
Employers shall, as part of their regular activities, conduct goal-oriented work in order to actively promote equality in working life.
Detailed provisions regarding employers’ obligations are set forth in Sections 4-11.
Employers shall take whatever steps may be required, insofar as their resources and general circumstances permit, to ensure that working conditions are suitable for both women and men.
Employers shall facilitate the combination of gainful employment and parenthood with respect to both female and male employees.
Employers shall take measures to forestall and prevent any employee from being subjected to gender-related harassment, to sexual harassment or to victimisation pursuant to the present Act. (2005:476)
Employers shall, through training, skills development and other suitable measures, promote an equal distribution between women and men in various types of work and within different categories of employees.
Employers shall endeavour to ensure that both women and men apply for vacant positions.
At workplaces where there is not, in the main, an equal distribution of women and men in a certain type of work or within a certain category of employees, employers shall, in respect of new positions, strive in particular to recruit applicants of the underrepresented sex and shall seek a gradual increase in the proportion of employees of that sex.
The provisions of the first paragraph shall not, however, apply where there is special cause not to implement such measures or where such measures cannot reasonably be demanded taking into consideration the employer’s resources and circumstances in general.
With the purpose of identifying, rectifying and preventing unwarranted pay differentials and other terms of employment between women and men, employers shall annually survey and analyse
– regulations and practice concerning pay and other terms of employment that they apply, and
– pay differentials between women and men who perform work considered equal or of equal value.
Employers shall assess whether pay differentials that exist are directly or indirectly gender-related. This assessment shall in particular examine differences between
– women and men who perform work considered to be equal (like work), and
– groups of employees who perform work that is or is normally regarded as female dominated and groups of employees who perform work that is considered to be of equal value to such work but is not or is not normally regarded as female dominated. (2000:773)
Each year, employers shall prepare a plan of action for equal pay and therein report the results of the survey and analysis in accordance with Section 10. The plan shall state what pay adjustments and other measures need to be implemented to attain equal pay for work considered equal or of equal value. The plan shall further contain a cost computation and a time schedule aimed at ensuring that the required pay adjustments are implemented as soon as possible and at the latest within three years.
A report and an evaluation of how the planned measures were implemented shall be included in the plan of action for the following year.
The obligation to prepare a plan of action for equal pay shall not apply where the employer had less than ten employees at the end of the immediately preceding calendar year. (2000:773)
Employers shall supply any employees’ organisation to which they are bound by a collective bargaining agreement with whatever information may be necessary to enable the organisation to collaborate in the pay survey and analysis and in the preparation of a plan of action for equal pay.
If the information concerns data relating to pay or other circumstances that affect an individual employee, the rules of confidentiality and damages contained in Sections 21, 22 and 56 of the Employment (Co- Determination in the Workplace) Act (1976:580) apply. The provisions of Chapter 14, Sections 7, 9 and 10 of the Secrecy Act (1980:100) apply in public activities. (2000:773)
Plan of action for equality
Each year, employers shall prepare a plan describing their efforts to promote equality. The plan shall contain a survey of the measures pursuant to Sections 4-9 which are required at the workplace and shall indicate which of such measures the employer intends to initiate or implement during the coming year.
The plan shall also provide a summary report of the plan of action for equal pay that employers are required to implement under Section 11.
A report concerning how the planned measures pursuant to the first paragraph have been implemented shall be included in the plan for the following year.
The obligation to prepare an equality plan shall not apply where the employer had less than ten employees at the end of the immediately preceding calendar year. (2000:773)
Collective bargaining agreements
Collective bargaining agreements which are concluded in respect of the matters referred to in Sections 4-13 shall not discharge the employer from the obligation to comply with the provisions of the aforesaid Sections. (2000:773)
BAN ON SEX DISCRIMINATION
. Employers may not place a job seeker or an employee at a disadvantage by treating her or him less favourably than they treat, have treated or would have treated someone else in a similar position, if such unfavourable treatment is gender-related. (2005:476)
Employers may not place a job seeker or an employee at a disadvantage by applying a provision, a criterion or a practice that appears to be neutral but which in practice is particularly disadvantageous to persons of one sex or the other, unless the provision, criterion or practice can be justified by a legitimate aim and the means are appropriate and necessary in pursuit of such an aim. (2005:476)
Section 16 a.
Employers may not discriminate against job seekers or employees by subjecting them to gender-related harassment or harassment of a sexual nature.
Gender-related harassment is defined as unwelcome conduct in working life that violates the integrity of a job seeker or employee and that is related to the person’s sex.
Sexual harassment is defined as unwelcome conduct of a sexual nature in working life that violates the dignity of a job seeker or an employee. (2005:476)
Instruction to discriminate
Section 16 b.
An employer may not order or instruct an employee to discriminate against a person,
pursuant to Sections 15-16 a. (2005:476)
Scope of the prohibitions
The prohibitions against sex discrimination contained in Sections 15 -16 b apply when the employer
1. takes a decision on an employment issue, selects a job seeker for an employment interview or implements other measures during the employment procedure,
2. takes a decision on promotion or selects an employee for training for promotion,
3. takes a decision or other action in relation to a work experience position.
4. takes a decision or other action in relation to some other form of training or vocational guidance
5. applies pay terms or other terms of employment in respect of work considered equal or of equal value,
6. manages and distributes work, or
7. gives notice of termination, summarily dismisses, lays off or takes other interventionary measures against an employee.
The prohibitions against direct discrimination do not apply
1. in the case of decisions on employment, promotion or training for promotion where a person of a specific sex is required due to the nature of the work or of the circumstances in which it is performed, or
2. if the treatment of the person concerned is part of an effort to promote equality in working life and is not a matter of applying pay terms or other terms of employment for work that is regarded as equal or of equal value. (2005:476)
Information in respect of qualifications
A job seeker who has not been employed, or an employee who has not been promoted or selected for training for promotion is entitled, upon request, to obtain written information from the employer in respect of the nature and scope of the training, professional experience and other comparable qualifications of the person who was awarded the job or the training position. (2005:476)
BAN ON HARASSMENT, ETC.
An employer may not subject an employee to victimisation on the grounds that the employee has rejected unwanted sexual advances by the employer, reported the employer for sex discrimination, drawn attention to discrimination or taken part in an investigation of discrimination.
Nor may an employer subject an employee to victimisation on the grounds that she or he has reported or drawn attention to a failure on the part of the employer to comply with one or more of the provisions on active measures in Sections 3-13.
A person who, in lieu of the employer, is entitled to take decisions concerning an employee’s conditions of work shall, in the application of the provisions of the first and second paragraphs, be equated with the employer. (2005:476)
Obligation to investigate and take action against harassment
Section 22 a
An employer who becomes aware that an employee considers herself/ himself to have been subjected by another employee to gender-related or sexual harassment, shall investigate the circumstances surrounding the said harassment and, where such has occurred, implement whatever measures may be reasonably required to prevent further harassment. (2005:476)
DAMAGES AND OTHER SANCTIONS
A contract shall be invalid to the extent that it prescribes or permits such sex discrimination as is prohibited under Sections 15-17. (2000:773)
If an employee is discriminated against by a provision in a contract in a manner that is prohibited under the present Act, the provision shall be adjusted or declared invalid if so requested by the employee. If the provision is of such importance for the contract that it is unreasonable to demand that the said contract be allowed to apply as to the rest without material changes, the contract may also be adjusted in other respects or be declared invalid in its entirety.
If an employee is discriminated against in a manner prohibited under this Act by termination of a contract or by some other such legal document, the legal document shall be declared invalid if so requested by the employee.
The first and second paragraphs shall not apply where Section 23 is applicable.
If a regulation or some other internal provision at the workplace discriminates against a job seeker or employee in a manner that is prohibited under the present Act, the provision shall be adjusted or declared invalid if so requested by the job seeker or employee. (2005:476)
If a job seeker or an employee is discriminated against by an employer in breach of the prohibitions contained in Sections 15, 16, 16 a or 16 b and Section 17, the employer shall pay damages to the aggrieved person for the violation caused by the discrimination.
In matters that come under Sections 15, 16, 16 a or 16 b, or Section 17, items 4-7, the employer shall also pay damages to the employee for the loss suffered as a result of the discrimination. (2005:476)
If an employee is subjected to victimisation as referred to in Section 22, the employer shall pay damages to the employee in respect of the violation caused by the victimisation. (2005:476)
Section 27 a.
Employers failing to fulfil their obligations pursuant to Section 22 a shall pay damages to the employee for the violation caused by the omission. (1998:208)
Damages pursuant to Sections 25, 27 or 27a can be reduced or cancelled altogether if such a course is deemed reasonable. (2000:773)
Where employers fail to fulfil their obligations pursuant to a collective bargaining agreement as referred to in Section 14, the provisions concerning sanctions contained in that agreement or in the Employment (Co-Determination in the Workplace) Act (1976:580) shall apply. (2000:773)
MONITORING OF COMPLIANCE WITH THE ACT
To ensure compliance with the Act, there shall be an Equal Opportunities Ombudsman and an Equal Opportunities Commission.
The Equal Opportunities Ombudsman and the Equal Opportunities Commission shall be appointed by the Government.
The Equal Opportunities Ombudsman
The Equal Opportunities Ombudsman shall, in the first instance, encourage employers to voluntarily comply with the provisions of the present Act.
The Ombudsman shall also participate in other respects in efforts to promote equality in working life.
The Equal Opportunities Commission
The task of the Equal Opportunities Commission is to consider matters relating to default fine orders pursuant to Section 35 and appeals pursuant to Section 42.
Duty to provide information
Employers are liable at the request of the Equal Opportunities Ombudsman
– to make available all information concerning their activities that may be of value to the Ombudsman for the purpose of monitoring compliance with the Act pursuant to Section 30, and
– to allow the Ombudsman access to the workplace for the purpose of undertaking investigations connected with such monitoring. (2000:773)
If the employer fails to comply with a request pursuant to Section 33, the Equal
Opportunities Ombudsman may order the employer to do so on pain of a default fine.
Employers failing to comply with any of the provisions set forth in Sections 4-13 may be ordered to fulfil their obligations on pain of a default fine. Such orders are issued by the Equal Opportunities Commission upon application by the Equal Opportunities Ombudsman, or, where the Ombudsman has declared itself unwilling to make an application, by a central employees’ organisation to which the employer is bound by a collective bargaining agreement. The order may also be directed against the State as an employer.
The Ombudsman shall, in the application, specify what measures the employer should be ordered to undertake, the reasons invoked in support of the application, and what investigation or investigations have been carried out. (2000:773)
Employers shall be ordered to respond within a specified period to any application pursuant to Section 35, on the understanding that a decision may anyway be taken in the matter, and shall make available whatever information concerning the state of their operations may be required by the Commission for its adjudication.
When an employees’ organisation has made an application, the Equal Opportunities Ombudsman shall be afforded an opportunity to present its views. (2000:773)
The Equal Opportunities Commission shall ensure that matters are investigated
appropriately, treating each case on its own merits.
Where necessary, the Commission shall order a matter to be investigated further. Unnecessary investigations are to be rejected.
Matters concerning orders for default fines pursuant to Section 35 shall be adjudicated after an oral hearing, except where the Commission considers such a hearing unnecessary.
Whosoever presented the application to the Equal Opportunities Commission and the
employer shall be summoned to attend a hearing pursuant to Section 38.
The Commission may order the employer or the employer’s legal representative to attend personally, on pain of a fine.
Where so required for the purpose of its investigation, the Commission may also summon others to the hearing. (2000:773)
A matter concerning a default fine order pursuant to Section 35 may be adjudicated even where the employer fails to express an opinion in the matter or fails to cooperate in the investigation, or if the employer fails to attend an oral hearing.
If the Equal Opportunities Ombudsman or the employees’ organisation that made the application for a default fine order fails to attend a hearing, the application lapses. (2000:773)
The Equal Opportunities Commission may, when adjudicating a matter concerning a default fine order pursuant to Section 35, order the employer to implement other measures than those requested in the application, provided these measures are not manifestly more onerous for the employer.
In the order, the Commission shall indicate how and within what period of time the measures to be taken by the employer shall be initiated or implemented.
The decisions of the Commission shall be made in writing and served on the employer. (2000:773)
Decisions of the Equal Opportunities Ombudsman concerning default fine orders pursuant to Section 34 may be contested by appeal to the Equal Opportunities Commission.
Sections 35-41 shall apply in such appeal cases.
Decisions of the Equal Opportunities Commission pursuant to this Act are not subject to appeal.
Actions for the judicial confirmation of default fines which have been ordered pursuant to this Act shall be brought in a District Court by the Equal Opportunities Ombudsman.
In matters concerning the judicial confirmation of default fines ordered pursuant to Section 35, the District Court may also assess the suitability of the default fine. (2000:773)
LITIGATION IN DISCRIMINATION DISPUTES
Matters concerning the application of Sections 15-17 and 22-28 shall be dealt with in
accordance with the Labour Disputes (Judicial Procedure) Act (1974:371).
In such contexts, job seekers and persons applying for work experience positions or performing such work, as well as persons working as hired or borrowed labour, are also to be defined as employees. The person or persons on whose behalf the work is performed, or to whom the application for a work experience or other position was made, shall be deemed to be an employer.
The provisions of the second paragraph shall also apply to disputes pursuant to Sections 15-17 and Sections 22-28 of the regulations concerning the handling of disputes contained in the Employment (Co- Determination in the Workplace) Act (1976:580). (2005:476)
Burden of proof
Section 45 a.
If a person who feels that she or he has been discriminated against or subjected to
victimisation is able to point to circumstances that support such a claim, it is up to the employer to show that discrimination or victimisation has not occurred. (2005:476)
Right to bring an action
In a dispute pursuant to Section 45, the Equal Opportunities Ombudsman may bring an action on behalf of an individual employee or job seeker if the said individual consents to such a course and the Ombudsman considers that a ruling in the dispute is of importance for the application of law, or where there is otherwise special cause for so doing. When bringing an action on behalf of an individual on the basis of the present Act, the Ombudsman may also in the same proceedings bring another action as representative for that person.
Actions shall be brought in the Labour Court. (1994:292)
When an employees’ organisation is entitled to bring an action on behalf of the individual pursuant to Chapter 4, Section 5 of the Labour Disputes (Judicial Procedure) Act (1974:371), the Equal Opportunities Ombudsman may only bring an action if the organisation does not do so.
The provisions of the aforesaid Act concerning the status of an individual in the legal proceedings shall also apply when actions are brought by the Ombudsman.
Time limits, etc.
If someone brings an action as a result of notice of termination or summary dismissal, Sections 34 and 35, 37, 38, second paragraph, second sentence, Sections 39-42, and Section 43, first paragraph, second sentence, and second paragraph of the Employment Protection Act (1982:80) shall apply.
In matters concerning any other action than those referred to in Section 53 above, Sections 64-66 and 68 of the Employment (Co-Determination in the Workplace) Act (1976:580) shall apply, except that the time limit stated in Section 66, first paragraph, first sentence, shall be two months. (2000:773)
In an action for damages resulting from a decision on appointments to positions made by a public employer, the periods of time pursuant to Section 54 shall be counted from the day on which the decision entered into final legal force.
An action brought by the Equal Opportunities Ombudsman is dealt with as if the action had been brought personally by the employee or the job seeker.
Actions concerning damages pursuant to Section 25 resulting from a decision concerning employment made by a public employer may not be considered before the employment decision has entered into final legal force. (2000:773)