Exceptions

• Author: Løvdal, Lene
• Pages: 45-56

45

4 EXCEPTIONS

As the non-discrimination directives (2000/78 and 2000/43) are not incorporated in the

EEA agreement, the specific exceptions allowed under the directives have not been

clearly articulated in national law as such.

4.1 Genuine and determining occupational requirements (Article 4)

In Norway, national legislation provides for an exception for genuine and determining

occupational requirements.

As of 1 January 2018, there is a general exception in Article 9(2) of the GEADA for

genuine and determining occupational requirements for all protected grounds, including

disability, which is in line with Article 4(1) of Directive 2000/78. Age within the

employment sector is protected in the WEA (for more on this, see section 4.7 below).

There have been several cases on genuine and determining occupational requirements,

mostly regarding language or medical requirements. The majority of these cases were

assessed by the Ombud only, such as case 09/1609 regarding medical requirements for

drivers of locomotives (which were deemed genuin e and necessary),152 and case 14/153

where a mu nicipality required a language test for a number of emp loyees without any

specific assessment, thus not having justified that the requirement was genuine and

determining.153 Compared to the 2014 legislation, the GEADA states more clearly that

direct differential treatment is only allowed for genuine and determining operational

requirements. This lack of clarity in the legislation preceding the GEADA has probabl y

contributed to th e differences in the results of cases assessed by the Equality Tribunal

regarding the difference between direct and indirect discrimination (described in section

2.2.a above). As seen in these cas es, which all concerned language requirements, there

is also a lack of clarity on what are genuine and determining occupational requirements,

as exemplified by the Equality Tribunal case regarding the refusal to shake hands with

women on the basis of religious convictions.154

4.2 Employers with an ethos based on religion or b elief (Article 4(2) Directive

2000/78)

In Norway, national law provides for an exception for employers with an ethos based on

religion or belief, which is not specific in the revised current legal text, but follows from

the legal preparatory works.155

Before the revision of the ADA in force as of 1 January 2014, there was a general specific

exception to the scope of the ADA relating to:

‘Actions and activities carried out under the auspices of religious and belief

communities and enterprises with a religious or belief-related purpose, if the

152 Available in Norwegian at https://www.ldo.no/nyheiter-og-fag/klagesaker/2010/Helsekrav-for-opptak-til-

lokomotivforerutdanningen-ikke-diskriminerende/.

153 At https://www.ldo.no/forebygg/i-arbeidslivet/Ansettelse-og-oppsigelse/Lover-og-regler1/Ansettelse/ the

Ombud presents a number of examples of requirements that are allowed or prohibited, but without

reference to individual cases.

154 Equality Tribunal, Case No. 48/2018. A was temporarily employed as an assistant at a school. From the

beginning he had made it clear that he did not shake hands with women on the basis of his religious

convictions. His contract was not renewed due to this refusal. The majority of the members of the tribunal

interpreted the school’s actions as indirect differential treatment and concluded that it was necessary to

demand that he shook hands with women. The minority of the tribunal saw the school’s dismissal as direct

differential treatment, and unjustifiable. None of the tribunal saw the possibility of not shaking hands with

anyone as a solution.

155 See the legal preparatory works; Proposition to Parliament, Prop 79 (2008-2009) Chapter 6.1.3.3.