Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)
Author | Justesen, Pia |
Pages | 61-63 |
61
5POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive
2000/78)
a)Scope for positive action measures
In Denmark, positive action in respect of racial or ethnic origin, religion or belief,
disability, age or sexual orientation is permitted to a limited extent in national law. There
is, however, no general provision for special or positive measures in Danish law
embracing all the discrimination grounds.
Section 9(2) of theAct on the Prohibition of Discrimination in the Labour Market etc.
states that the Act does not prevent measures being taken with a view to improving
employment opportunities for persons of a specific race, skincolour, religion, political
opinion, sexual orientation or national, social or ethnic origin, age or disability by virtue
of other legislation, rules other than legislation and other public measures. Such special
measures require legal authority and are primarily to be taken by the minister through
public projects. According to the preparatory work, Section 9(2) of the Act is directed
primarily at the public sector and general projects improving the integration of ethnic
minorities.
The right to take special measures in Section 9(2) does not apply to private employers
who want to improve employment opportunities for marginalised groups. Thus,
legislation makes it difficult for private employers to actively offer equal opportunities in
practice. The fact is that even simple outreach initiatives can be claimed to discriminate
against the groups that are not the target of the individual outreach initiatives.
Furthermore, private employers who are interested in actively offering equal
opportunities (which do not conflict with the prohibition of discrimination) are met with
another legal barrier. Section 4 of the Act on the Prohibition of Discrimination in the
Labour Market etc. prohibits employers to ask for, obtain, receive or use information
about the race, skin colour, religion or belief, political opinion, sexual orientation or
national, social or ethnic origin of a job applicant or an employee. Neither anonymity nor
informed consent nor any other exemption will allow an employer to use such
information about ethnic origin, etc. and the prohibition applies no matter how the
employer gets the information.176 This rule makes it difficult in practice for private
employers to measure the results of their equal opportunity initiatives.
The legislative barriers in the Act on the Prohibition of Discrimination in the Labour
Market etc. are assumed to prevent private employers from being active in creating
actual equal opportunities in the labour market.
According to Section 9(3) of the Act on the Prohibition of Discrimination in the Labour
Market etc., it is possible for private employers to take positive measures in relation to
older persons and persons with disabilities.
Outside the labour market, Section 4 of the Act on Ethnic Equal Treatment allows for the
maintenance or adoption of specific and temporary measures to prevent or compensate
for disadvantages linked to racial or ethnic origin. Both public authorities and private
organisations and entities can initiate such measures. Section 8 of the Act on the
Prohibition of Discrimination due to Disability permits similar temporary measures in the
area of disability.
176Guidance on the Act on the Prohibition of Discrimination in the Labour Market (1 February 2019), p. 68.
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