Exceptions

• Author: Lappalainen, Paul
• Pages: 49-57

49

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Sweden, the Di scrimination Act provides for an exception for genuine and dete rmining

occupational requirements.

Chapter 2, Section 2 of the Discrimination Act is formulated as f ollows:

‘The Prohibiti on in Section 1 does not prevent … differential treatment based on a

characteristic associated with one of the grounds of discrimination if, when a decision

is made on employment, promotion or education or training for promotion, by reason

of the nature of the work or the context in which the work is carried out, the

characteristic constitutes a g enuine and determining occupational requirement that

has a legitimate purpose and the requirement is appropriate and necessary to achieve

that purpose.’

In the preparatory works, it is made clear that typical examples concerning this clause

include those where a Muslim organisation has the right to demand that an imam be of the

Muslim faith, or an organisation campai gning for equal rights for gays and lesbian s or an

interest organisation serving a certain immigran t group may have a right to require that,

for some ‘core’ positions, the employees themselves should be homosexuals or should have

the relevant immigrant background. At the same time, it is emphasised that exceptions

from the prohibition of discrimination must be given a narrow interpretation.149 Concerning

an organisation, only the positions that are ‘visible’ to the public or of particular relevance

can come into question, not an entire organisation per se, and not automaticall y. The

employer must, furthermore, have a strong motive for applying the exception, and the

position must clearly have required t he qualification concerned. Religious commun ities do

not have a special status under the Discrimination Act, but they are explicitly mentioned

in the preparatory works, along with other examples.

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

2000/78)

In Sweden, the Discrimination Act does not provide for an exception for employers with an

ethos based on religion or belief.

In Sweden, all grounds of discrimination are in principle considered equal, and special

provisions would violate this equality. The general rule on exceptions in the labour market

in Chapter 2, S ection 2 applies and there are thus no special exceptions for religious

organisations/employers.

4.3 Armed forces and ot her specific occupations (Art icle 3(4) and Recital 18

Directive 2000/78)

In Sweden, the Discrimination Act provides for an exception for the armed forces in relation

to age but only with regard to conscription and military education under Chapter 2, Section

15 of the Discrimination Act, (Article 3(4), Directive 2000/78).

For ordinary military employees, the employment rules of the Discrimination Act apply and

there are no special exceptions.

Chapter 2, Section 15, also covers enrolment procedures, admission tests and other

examinations of p ersonal circumstances under the National Total Defence Service Act

149 Government bill 2002/03:65, pp. 185-187 and Government bill 2007/08:95, pp. 155-157.