Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

• Author: Lappalainen, Paul
• Pages: 58-59

58

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In Sweden, the extent to which positive action is specifically allowed by the Discrimination

Act depends on the ground (racial or ethnic origin, religion or belief, disability, age or

sexual orientation) and the area of prohibition. There is no general clause allowing positive

action. In working life, th ere is a clause that allows p ositive action only in relation to sex.

Positive action in relation to sex is also allowed more broadly in relation to other areas as

well, while it is quite restrictive in relation to ethnicity, and even more limited or non-

existent in relation to the other grounds.

Positive action in relation to persons with disabilities is generally allowed due to the

asymmetric nature of the prohibition against discrimination. Measures benefiting this group

may disfavour persons with no disabilities, but that group is not protected by the

Discrimination Act and thus the discrimination is presumably lawful. The protection

provided for disability i s ‘asymmetric’ as compared with, for example, the protection for

ethnicity, which protects ‘Swedes’ and ‘non-Swedes’, the protection for the ground of sex,

which protects men and women, an d the protection for sexual orientation, which protects

heterosexuals, homosexuals and bisexuals.

In other areas of labour law as well as labour market policy regulations, a number of special

measures are available in relation to person s with disabilities with regard to their working

life. Their purpose is t o directly or indirectly compensate for disadvantages linked to

disability. In some cases, for example, wag e subsidies are available. An individual may

also have a right to certain support measures in order t o regain or retain his/her work

capacity. These measures are regulated in the Social Insurance Code

(Socialförsäkringsbalk, 2010:110) Chapters 29-31. Employers are required to maintain a

good work environment, which means not only the physical aspects but the psycho-social

aspects as well. This also means that certain types of a ccommodation should be made for

employees with disabilities. This can relate to t he physical accessibility of the workplace.

These issues are regulated in the Work Environment Act (Arbetsmiljölagen, 1977:1160)

and the Work E nvironment Regulation (Arbetsmiljöförordningen, 1977:1166), as well as

by the Discrimination Act.

With regard to age, direct discrimination can, in almost all areas, be justified by a

proportionality test. Positive action measures would normally pass such a test.

Ethnicity has an exception from the prohi bition of discrimination regarding labour market

policy activities and for starting or running a business (Chapter 2, Sections 9 and 10).

Ethnicity and religion or other belief have an exception in the context of adult educati on

centres and study associations (Chapter 2, Section 6). These are qualified as exceptions in

the legislation but actually form provisions that allow for positive action measure s.

A right for members of certain religions to refuse military service is also specified

(Chapter 2, Section 15).

There are no exceptions in the act concerning sexual orientation.

The Discrimination Act also contains rules on ‘active’ measures. From an EU legal

perspective, such measures are within the realm of positive action in a more general sense.

The act requires that employers contin uously carry out goal -oriented work concerning all

discrimination grounds so as to actively promote equality i n working life.177 Education

providers are also requi red to undertake continuous goal -oriented work with regard to all

grounds (Chapter 3, Sections 1-3).

177 Discrimination Act (2008:567), Chapter 3 Sections 1-3.