Exceptions

• Author: Justesen, Pia
• Pages: 51-60

51

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

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

occupational requirements, cf. Section 6(2) of the Act on the Prohibition of Discrimination

in the Labour Market etc.

According to Section 6(2) of the Act on the Prohibition of Discrimination in the Labour

Market etc., if it is of crucial significance that a person has a particu lar race, political

opinion, sexual orientation or national, social or ethnic origin, has a pa rticular skin colour,

age or disability or is of a certain religion or belief and if the requirement for such a

characteristic is reasonable in relation to th e concrete work in question, the employer can

apply for a dispensation from the relevant Government mi nister. After having obtained a

statement from the Minister of Labour, the minister may issue a concrete exempt ion from

the prohibition of differential treatment. Subsequently, the employer in question can

legally make a requirement that the future employee for the job in question has a

particular ethnic or igin, etc. As an example, a police commissioner who wants to app oint

a person with a particular ethnic origin for a particular job has to apply to the relevant

and concerned Minister of Justice fo r a dispensation. As the minister responsibl e for the

‘subject matter concerned’, the Minister of Justice will subsequently provide a

dispensation after h aving obtained a statement from th e Ministry of Labour. A concrete

example of an exemption to the prohibition of discrimination is a poultry slaughterh ouse

exporting to Arab countries that received a dispensation to hire a Muslim to perform ha lal

slaughter. According to the Ministry of Labour, the ministry has only evaluated four

dispensation cases regarding ethnic origin and religion.151

A 2016 case before the Board of Equa l Treatment dealt with a 53-year-old woman who

applied for a position as a personal assistant for a 13 -year-old girl with muscular

dystrophy.152 The woman received a written rejection, i ncluding an explanation that the

girl’s family preferred a team of personal assistants aged between 20 and 25. The

woman issued a complaint to th e Board, claimin g that she had experienced

discrimination based on her age. The Board referred to a decision of 13 October 2005 by

the Ministry of Social Affairs allowing age to be taken into consideration when appointing

personal assistants to persons with disabilities. In other words, the decision allowed

persons with disabilities to lo ok for employees in t he same age group as t hemselves. The

Board argued tha t the case in question was covered by the disp ensation provided by the

Ministry of Social Affairs and concluded that it was legitimate to reject the job applicant

because of her age.

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

2000/78)

In Denmark, national law provides for an exception for employers with a special political

opinion or an ethos based on religion or belief, cf. Section 6(1) of the Act on the

Prohibition of Discrimination in the Labour Market etc. None of the other discrimina tion

grounds are covered by the exception.

According to this exception in Section 6(1), in particular situations the prohibition of

discrimination does not apply to employers whose establishments have the aim of

promoting a certain political or religiou s point of view (for example, a church that wants

to hire a priest can exclude all applicants of an other faith, because religion is an

occupational requirement in thi s case). Th e same applies to organisations with a specific

ethos (for example, private schools established on the basis of a specifi c religion).

151 Andersen, S. and Justesen, P. (2017), Hvornår må man lave etnisk særbehandling – Personer med etnisk

oprindelse på arbejdsmarkedet, Institut for Menneskerettigheder, p. 27.

152 Board of Equal Treatment, Decision No. 10111 of 7 September 2016.