The definition of discrimination
| Author | Lappalainen, Paul |
| Pages | 17-35 |
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2 THE DEFINITION OF DISCRIMINATION
2.1 Grounds of unlawful discrimination explicitly covered
The following grounds of discrimination are explicitly prohibited by national law: sex;
transgender identity or expression; ethnicity; religion or other belief; disability; sexual
orientation; and age.
2.1.1 Definition of the grounds of unlawful discrimination withi n the directives
a) Racial or ethnic origin
In the 2009 Discrimination Act, the concept of ethnicity is defined as ‘national or ethnic
origin, skin colour or other similar circumstance’ (Chapter 1 Section 5, p. 3). Although, the
word ‘race’ was removed in the 2009 act, the definition in the law is nevertheless supposed
to cover the term ‘race’. Discrimination due to ethnicity and religion were considered fairly
interchangeable until the 1999 Act on measures against discrimination in working life on
grounds of ethnicity, religion or other belief (Lag om åtgärder mot etni sk diskriminering i
arbetslivet) (1999:130). At the same time, the delineation between discriminatory acts
related to ethnicity as opposed to religion (or being a combination of both) is often unclear
– both for those who discriminate and for those who are the victims.
There is case law that provides some clarity concerning the concepts of race or ethnic
origin. One case in this area involved a landlord taking higher rent from refugees. The trial
court, based on a restrictive view of the term ‘ethnic origin’, determined that refugees were
not protected by the prohibition against ethnic discrimination – refugees were not an
ethnicity. In 2010, the court of appeal reversed the judgment of the trial court.41 The court
held that the term ethnic origin had to be interpreted more broadly, given the intent of the
act. This meant that refugees fell within the protection of the law, which also meant that
the landlord’s actions violated the law. Discrimination against refugees, foreigners,
immigrants or any other mixed group defined as being ‘non -Swedish’ in the eyes of the
discriminator can generally be regarded as ethnic discrimination. Since the concept of
discrimination relates to the ground and not to the person, it is not necessary to determine
whether or not the victim of discrimination actually belongs to a specific ethnic group.
Sweden has for a number of years been working towards the elimination of the word ‘race’
from Swedish law. According to the Government’s assessment, n either Directive 2000/43
effective protection against race discrimination, which, according to the Government, is
achieved under the Discrimination Act as currently written. The author of this report
contends that this assessment is correct, in that it is likely that the Court of Justice of th e
European Union (CJEU) would come to the same conclusion. The directives require the
establishment of certain minimum standards, but implementation differs according to
national traditions and allows for some flexibility. The directives do not necessarily require
specific words to be used in achieving those goals. However, in the author’s opinion, there
are certain policy and implementation risks involved, even if removing the word ‘race’
would not necessarily violate the directives. Due to a denial of race discrimination as a
problem in Sweden, Swedish policymakers were slow to adopt modern legislation in this
regard. Symbolic laws – at best – were adopted to change attitudes rather than behaviour.
The removal of the word ‘race’ may in turn feed into the more general denial of racism as
a Swedish problem and thus confuse judges, lawyers and others in implementing the
Discrimination Act. As far as terminology related to discrimination is concerned,
policymakers tend to be sensitive to the interests of organisations representing
discriminated groups. This relates to empowerment. However, there seems to have been
little interest in the opinions of those affected b y the term ‘race’, particularly Swedes with
41 Göta Appeal Court, 25.02.2010, T 1666-09, Equality Ombudsman v. Skaret.
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an African heritage. Furthermore, since policymakers seem to believe that such changes
are an important step in the effective implementation of the Discrimination Act, this may
in turn be a hindrance to the development of actual improvements in the law.
b) Religion and belief
There is no definition of religion in the Discrimination Act itself. However, the preparatory
works regarding the current act and the older acts provide some guidance. This ground
covers beliefs that emanate from or are connected to religious beliefs. Atheism and
agnosticism are related to the existence or non-existence of a God and are thus counted
as beliefs sufficiently connected to religion to be protected by the Discrimin ation Act.
There is no case law where it has been necessary to define religion or belief more deeply.
For example, in the 2018 handshake case,42 the Labour Court accepted the refusal to shake
hands with persons o f the opposite sex as a part of the complainant’s religion without a
detailed analysis of the religion at hand, referring to the case law of the European Court of
Human Rights. This indicates that a deeper analysis of religious practices is not needed.
However, that does not mean that such practices must necessarily be accepted by others,
since the practice must be weighed against the interests of others, such as employers.
It is also possible that such cases raise the issue of multiple discrimination, for example,
discrimination due to religion, ethnicity and/or sex. Although the author of this report does
not know of any cases where the issues have been clearly defined, the Government bill for
the Discrimination Act points out the complementary and overlapping nature of the grounds
of ethnicity and religion:
‘What can be perceived as a cultural or traditional behaviour or expression can
generally be assumed to fall under the grounds of discrimination ethnic affiliation if
it is not considered to be covered by the ground of religion or other belief. Together,
the two grounds of discrimination cover a broad area and it can be assumed that in
practice that it is of subordinate importance which of the discrimination grounds is
referred to in e.g. a negotiation or before a court.’43
Therefore, a court would not necessarily have to delve that deeply into whether the wearing
of a headscarf, niqab or burqa is rooted in religion or ethnicity.
There are situations where the question of definition may be important. If the members of
a small group, such as the Jehovah’s Witnesses, hold a moral conviction (for example, that
gambling is a sin), then it is connected to religion, even if most Christians believe
otherwise. When protection for a practice is upheld only by a minority within a
congregation, the delimitation of religious belief as opposed to individual philosophical and
moral choices can be problematic. Nevertheless, it seems that courts will typically accept
the claimant’s statement that their religious belief is important to h im or he r in adopting
the practice in question.44
c) Disability
According to Chapter 1, Section 5(4), disability means:
‘Long-lasting physical, mental or intellectual limitation of a person’s functional
capacity that as a consequence of an injury or illness that existed at birth, has arisen
since then or can be expected to arise.’45
42 Labour Court 2018 No. 51, Equality Ombudsman v Almega/Semantix Interpreters, 15.08.2018.
43 Government bill 2007/08:95, p. 122 (author’s translation).
44 See e.g. Svea Court of Appeal, case T 777-16, 22.03.2017, concerning religious views on gambling and
Labour Court 2018 No. 51 concerning a refusal to shake hands with a person of the opposite sex.
45 The Swedish Government’s translation of the law into English, translates the term ‘varaktig’ as permanent.
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