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.