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

AuthorLappalainen, Paul
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.

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