remedies, sanctions, other tools – making discrimination cost ! paul lappalainen, head of equality...
TRANSCRIPT
Remedies, sanctions, other tools –
making discrimination cost !
Paul Lappalainen, Head of Equality Promotion,
Swedish Equality Ombudsman,
ERA, Trier, 22-23 February 2010
Who is free from prejudice?
Harvard Implicit Association Test( https://implicit.harvard.edu/implicit/demo/ )
People with openly sexist or racist opinions have the same levels of underlying prejudices as “non-racists”
Difference between the man on the soap-box and his audience
Discrimination as part of Swedish history
Denial is often based on a perception that Sweden is ”different” from other countries.
As the leader in gender equality, there is little to be learned from others
Sweden, it is thought, lacks a history of racism and repression of ethnic minorities.
YET, SWEDEN’S HISTORY IS EUROPE’S HISTORY
Changing attitudes or behaviour?
Earl Warren – Chief Justice US S Ct 1953-1969
Many people believed ”that you can't wipe out racial
discrimination by law, only through changing the hearts and minds of men.”
Warren disdained that as a ”false credo. True, prejudice cannot be wiped out, but infliction of it upon others can.”
Lesson – see to it that discrimination costs.
Making discrimination cost
Antidiscrimination laws on the individual level are often reactive – damages (in theory placing the person back where he/she would have been if the discrimination had not occurred)
Some include a positive duty and/or allow affirmative action (not quotas)
Policymakers can raise the cost risks of discrimination through complementary measures
Result - proactive measures and positive action
Civil law as opposed to criminal law ???
Need to apply to all grounds
When feminism does not explicitly oppose racism, and when antiracism does not incorporate opposition to patriarchy, race and gender politics often end up being antagonistic to each other and both interests lose.
Kimberlé Williams Crenshaw 1992
Interplay of grounds
I want the samesalary as my Swedish
co-workers!
The men or the women?
Anti-discrimination measures
Interplay of an equality movement, political leadership and a focus on changing behavior
Result - laws, institutions and policies US and Canadian laws have inspired the work in
Europe. Shifting the burden of proof, equality plans, indirect
discrimination, anti-discrimination clauses in public contracts and intersectionality.
Two new laws - 1 January 2009
The Act on the (2008:568) Swedish Equality Ombudsman
Swedish Equality Act (2008:567)
The Swedish Equality Ombudsman (DO)
Katri Linna is the DO 100 employees / www.do.se
The Ombudsman shall
Handle individual complaints, negotiate, go to court Supervise employers, schools and universities Propose changes in legislation Propose other measures
Duties and remedies
Gender equality plans/salary charts every third year/25 employees or more/ active measures re ethnicity
Effective? Implemented?
Discrimination compensation
More than normal damages? Effective, proportionate and dissuasive? Full economic damages
What was not included?
Economic damages where a job seeker was clearly the most qualified applicant.
This could have led to substantial damages
A judge being able to impose active measures and a follow up by the court or the DO – in cases indicating a systemic problem
Defendants would think twice about such a risk
EU directives
Sanctions …must be
effective,
proportionate and
dissuasive.
Examples of positive solutions – complaint led to change in clothing policy
An amusement park refused to employ a young woman because she wanted to wear a religious headscarf. The park asserted that the headscarf would not fit in with their uniform.
A settlement was reached
• 15 000 SEK in damages• The job at the amusement park• The park developed a headscarf that fit in
with the uniform.
Positive solutions – settlement concerning preventive work
A restaurant i Gothenburg refused entry to six young men due to their ”foreign looks”. Testing.
The settlement meant that • The restaurant admitted the discrimination• The men received SEK 50 000 each in
damages• The restaurant agreed to introduce
preventive anti-discrimination measures in order to avoid such incidents in the future.
Some proposals – all grounds
Equality plans in all government agencies covering their role as employers and service providers - leadership responsibility - testing.
Comprehensive law and supervisionAntidiscrimination conditions - liquor licencesAnti-discrimination clauses in all public contracts
and subsidiesAnti-discrimination educ in key university
educations – lawyers, teachers, journalistsEmpowerment of NGOs –their advocacy role
Interesting cases
The case in Uppsala – gynecological examination forced on an 11 year old girl – going to court now
Västerstaden in Gothenburg – ”suitable mix”
Handshake case – court awards damages SEK 60000
Public baths – Muslim mothers denied entry due to dress code
Government equality plans
Govt authorities – annual equality plans
Counteract discrimination/promote equality
Role as an employer, service provider, rulemaker, public
contracts
Equality duty in re head of auth.
Anti-discrimination clause in the Glass House inquiry
§ 1 The supplier shall throughout the contract period, in his business activities in Sweden, follow the applicable anti-discrimination laws. The laws currently referred to are Article 141 of the EU Treaty, 16:9 of the Swedish Penal Code, the Swedish Gender Equality Act (1991:433), the Act on measures against ethnic discrimination in working life (1999:130), the Act banning discrimination in working life against persons with a disability (1999:132), the Act banning discrimination in working life due to sexual orientation (1999:133), the Act on equal treatment of university students (2001:1286), and the Act prohibiting discrimination (2003:307).
§ 2 The supplier, during the contract period, has a duty, at the request of the contracting entity, to provide a written report concerning the measures, equality plans etc., that have been undertaken in accordance with the duties specified in § 1. The report shall be submitted to the city within one week after a request is made unless some other agreement has been reached in the individual case.
§ 3. In his or her contracts with sub-contractors, the supplier shall apply the same duty to them as is specified in § 1. The supplier shall be responsible to the contracting entity for a sub-contractor’s violation of the anti-discrimination laws specified in § 1. The supplier shall also ensure that the contracting entity can upon request be informed of the sub-contractor’s measures, plans etc. in accordance with §2.
§ 4 As it is of very substantial importance to the contracting entity that its suppliers live up to basic democratic values, a violation of the duties in §§ 1-3 shall constitute a significant breach of the contract. The contracting entity therefore has the right to cancel the contract if the supplier or a sub-contractor violates the conditions in §§ 1-3. However, the contract will not be cancelled if the supplier immediately remedies the situation or undertakes other measures with the purpose of achieving compliance with the laws specified in § 1, or if the violation is considered to be insignificant.
WHY? Equality and quality
The company risks losing the contract if they violate Sweden’s antidiscrimination laws.
1. Are legal. Clause is in accordance with EU and Swedish law.
2. Strengthen equality. Assures people that their taxes are not going to companies willing to discriminate.
3. Assure quality. The law basically requires that the most qualified applicants shall not be disregarded due to irrelevant factors like gender, ethnicity, religion, disability, sexual orientation or age.
4. Clauses are proactive. According to studies in Canada and the US antidiscrimination clauses have led to positive results in companies that have such clauses. Few contracts are cancelled, but have led to positive action.
Equality time line
1841 International anti-slavery conference 1848 Women’s emancipation proclamation 1865 Separate women’s movement 1948 UN human rights declaration 1954 Separate but unequal unconstitutional 1964 US Civil Rights Act – ethnicity, religion and sex 1967-68 Women break with civil rights and anti-war movements 1975 UK Equal opp act (sex) 1976 UK Race relations act (easier to pass after the 1975 gender act 1980 Sweden – Gender equality act // based largely on the civil rights act 1994 Sweden – law against ethnic discrimination 1997 EU adopts article 13 in the Amsterdam Treaty giving the EU broad anti-discrim power 1999 Sweden – laws against discrim due to ethnicity/religion, disability and sexual orientation 2000 Sweden – gender equality act amended to catch up with the 1999 acts. 2000 Race directive, employment directive 2000-2006 All grounds covered in the Acts on equal treatment in higher education, on non-discrimination
outside of working life, against discrimination in non-university schools, the decree requiring the 30 largest gvt agencies to introduce a anti-discrimination clause into their public contracts.
2009 A comprehensive Swedish law and ombudsman covering all grounds of discrimination. Compare with Canada’s Human Rights Act
Equality movements
1800s – interplay between the anti-slavery and the early women’s movement. The women’s movement was able to build on and be inspired by the emancipation thinking of the anti-slavery movement as well as the built in conflicts within the movements concerning gender and ethnicity.
1940s – Human Rights became an international issue as a reaction to the prewar and wartime racism. This gave a boost to gender equality as a question of human rights.
1960s – Civil rights movement leads to the Civil Rights Act. Gender included. Women’s movement gets a boost as it rejects the sexism of the civil rights movement and the anti-war movement. The sexual orientation movement was also inspired thru1970s and early 1980s – This also affects the European women’s movement, with the introduction of gender equality laws in Europe. These laws build on the experiences with the US Civil Rights Act. But the UK was the only country to adopt a modern law against race discrimination as well.
1980s – The US disability movement started a 10 year process that led to the Americans with Disabities Act - ADA. This moved the issue of disability from being a health/welfare/charity issue to being a question of equal rights. Built on the thinking underlying the civil rights and women’s movements. This required the development of cooperation within the disability movement.Alliances were made with the civil rights and women’s movements. The ADA in turn inspired disability movements in other countries to press for laws against discrimination due to disability.
1990s – EU. Anti-racist orgs meet in the early 90s concerned about a series of racist incidents. They agree that an EU wide anti-discrimination legislation is neededl. Draft an EU directive. After the commission rejects the proposal due to a lack of EU power, the ngos decide to change EU law. Built a coalition with hundreds of womens’, ethnic, religious, age, disability, sexual orientation orgs. Leads to adoption of Article 13. Which later leads to adoption of the 2000 Race directive and employment directives. Raises the minimum standard of protection against discrimination throughout the EU.
1990s - Sweden – modern laws against discrim in working life due to ethnicity/religion, disability and sexual orientation adopted in 1999. The gender equality act was amended thereafter in large part to catch up with the 1999 acts.