The definition of discrimination

AuthorLøvdal, Lene
Pages18-35
18
2 THE DEFINITION OF DISCRIMINATION
2.1 Grounds of unlawful discrimination explicitly covered
Norwegian anti-discrimination legislation provides a basis to address the following
grounds of discrimination within all sectors: gender, ethnicity (including national origin,
descent, skin colour, and language), religion or belief, sexual orientation and disability
under the GEADA. From 1 January 2018, pregnancy, leave in connection with childbirth
or adoption, care responsibilities and age are also explicitly included as grounds of
unlawful discrimination. ‘Other significant characteristics of a person’ is stated as one of
the grounds within the aim of the GEADA, but is not specified as a protected ground in
the list in Article 6 of the GEADA.
Discrimination based on age, political views, membership of a trade union, as well as
part-time and temporary work is covered within working life under the WEA.
2.1.1 Definition of the grounds of unlawful discrimination withi n the directives
a) Racial or ethnic origin
The scope of the term ‘ethnicity’ is vague, and provision is made for some exercise of
discretion by the enforcing agencies in defining its reach. Referring to the preparatory
works of the ADA, the GEADA’s preparatory works note that the term has both subjective
and objective elements:61
It is not possible to provide a comprehensive definition of what the term ethnicity
includes. (…) When we try to define the term ethnicity, relations are a key issue.
For example, a person’s ethnicity is often expressed through the individual’s or
group’s experience of being different than others.
The term ethnicity will also encompass objective elements. National origin, descent,
skin colour and language are examples of such objective elements.
Thus, skin colour and language are closely linked to and subsumed under the concept of
ethnicity, while the subjective part of the concept is quite similar to the definition of
ethnicity in CJEU CHEZ C-83/14.62 The preparatory works of the GEADA also make it
clear that national origin and descent, as grounds for discrimination, are closely
associated with the term ethnicity: these grounds could include place of birth, non-
Norwegian country background, the place where one was brought up or from which one
has one’s background, an d relationships in the broad sense. Nationality is thus not seen
as a ground in itself, but differential treatment based on nationality may be seen as
indirect discrimination on the basis of ‘ethnicity’ (see section 4.4 below). Statelessness is
also covered.63 This does not imply a change in the understanding of the main concepts
61 See the preparatory works to the GEADA; Prop 81 L (2016-2017) Chapter 11.2.3.2 Ethnicity, available (in
Norwegian) at https://www.regjeringen.no/no/dokumenter/prop.-81-l-20162017/id2547420/sec12 (in
Norwegian).
62 CJEU, Judgment of 16 July 2015, CHEZ, C-83/14, paragraph 46, EU:C:2015:480.
63 See decision of the Equality Ombud in Case No. 09/892 of 3 May 2012. In its Case 28/2015 of 29
September 2015, the Equality Tribunal found that demanding a Norwegian or Swedish criminal record check
from 18 years of age to follow job applications to a security company constituted indirect discrimination
because of nationality in breach of ADA Article 6. In reality, the demand from the security company signified
that the company only accepted applicants that had been Norwegian or Swedish citizens since 18 years of
age. The practice was seen as discriminatory vis-à-vis both EU citizens and third country nationals, that is
everyone who is not a Norwegian or Swedish citizen. See also decision by the Equality Tribunal in Case No.
18/2006 on advertisements for apartments to rent, ‘only to Norwegian citizens’, referred to in the
preparatory works to the GEADA: Proposition to Parliament, Prop. 81 L (2016-2017) Lov om likestilling og
forbud mot diskriminering Chapter 11.2.3.3.
19
and definitions.64 These examples are now included in Article 6(1) of the GEADA.65 These
examples are binding, but not exhaustive, for the interpretation of the concept of
ethnicity. National origin, descent, skin colour and language are not seen as individual
grounds of discrimination and are only protected when there is a link to ethnicity, or the
discrimination is on the grounds of ethnicity.66
Race or racial origin is not specified as a separate distinction in the GEADA, as the
starting point for combating racism is to eliminate the idea that people can be divided
into different races, in line with preamble no. 6 of Directive 2000/43. Discrimination
based on perceptions of a pers on’s race is regarded as discrimination based on ethnicity.
Skin colour was taken in to the GEADA’s list of examples of ethnicity on th e basis that the
law should at least mention skin colour explicitly in order to better fulfil the requirements
of CERD while not using the word race, as suggested by the Ombud and supported by
several anti-racist NGOs.67
b) Religion and belief
The GEADA covers discrimination because of religion or belief. The preparatory works of
the GEADA do not refer to any EU sources regarding the interpretation of the concept of
religion or life stance. ‘Religion’ is not defined in the preparatory works, although it is
stated that the word ‘belief’ is specifically chosen to emphasise that all kinds of life-
stance beliefs are covered, not only those linked to a specific line of religious thinking.68
However, the preparatory works to the previous act (the ADA) specified that the wording
follows the wording of Directive 2000/78, and that both having and not having a religion
or belief is covered.69 Political opinion is not protected as a ‘belief’, but is specifically
protected in the Working Environment Act. In the preparatory works to the GEADA, the
definition of religion in the ECtHR judgment Eweida and others v. UK is taken as a
starting point.70 In a recent Equality Tribunal case, the members of the tribunal all
agreed that a refusal to shake hands with women should be seen as an expression of
religious views, which is protected against discrimination.71 However, the majority of the
members of the tribunal did not see it as discriminatory to refuse to renew a man’s
contract on the basis of these views.
64 See the legal preparatory works; Proposition to Parliament, Prop. 81 L (2016-2017) Lov om likestilling og
forbud mot diskriminering Chapter 11.
65 See the legal preparatory works; Proposition to Parliament, Prop 81 L (2016-2017) Lov om likestilling og
forbud mot diskriminering (likestillings- og diskrimineringsloven), Chapter 11.9.4.
66 Proposition to Parliament, Prop. 81 L (2016-2017) Lov om likestilling og forbud mot diskriminering Chapter
11.2.3.2, cfr the proposition of the first Anti-Discrimination Act regarding ethnicity etc., Ot.prp. No. 33
(2004-2005) Chapter 10.1.8.2.
67 See Proposition to Parliament, Prop. 81 L (2016-2017) Lov om likestilling og forbud mot diskriminering
chapter 11.2.3.1.
68 In its Case LDN-2016-16, the Equality Tribunal accepted veganism as a life stance. The preparatory works
of the GEADA refer in particular to the ECtHR case of Eweida v. United Kingdom, premises 80-82, stating
that not any action motivated by religious views is protected, it must be a closely connected to the religious
belief, but not limited to issues generally acknowledged or seen as compulsory. Prop 81 L (2016-2017) Lov
om likestilling og forbud mot diskriminering (likestillings- og diskrimineringsloven), Chapter 11.2.3.7.
69 See the preparatory works to the WEA; NOU 2003:2 Skjerpet vern mot Diskriminering i arbeidslivet p. 36.
70 With the following quotes from paras 80-82: ‘The right to freedom of thought, conscience and religion
denotes views that attain a certain level of cogency, seriousness, cohesion and importance’; ‘Even where
the belief in question attains the required level of cogency and importance, it cannot be said that every act
which is in some way inspired, motivated or influenced by it constitutes a manifestation of the belief. Thus,
for example, acts or omissions which do not directly express the belief concerned or which are only remotely
connected to a precept of faith fall outside the protection of Article 9 § 1.’ Prop 81 L (2016-2017) Chapter
11.2.3.7 https://www.regjeringen.no/no/dokumenter/prop.-81-l-20162017/id2547420/sec12.
71 Equality Tribunal, Case Nos. 48/2018 and 18/325. A was temporarily employed as an assistant at a school.
From the beginning he had made it clear that he did not shake hands with women on the basis of his
religious convictions. His contract was not renewed due to this refusal. The majority of the members of the
tribunal interpreted the school's actions as indirect differential treatment and concluded that it was
necessary to demand that A shook hands with women. The minority of the tribunal saw the school's
dismissal as direct differential treatment, and unjustifiable.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT