Remedies, sanctions, other tools –
making discrimination cost !
Paul Lappalainen, Head of Equality Promotion,
Swedish Equality Ombudsman,
paul.lappalainen@do.se
ERA, Trier, 22-23 February 2010
paul.lappalainen@do.se
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
paul.lappalainen@do.se
Hi, I’m applying
for the job
Blackskull !
Sorry!
paul.lappalainen@do.se
Hi, I’m applying
for the job
Soon
pregnant!
Sorry!
paul.lappalainen@do.se
It is easy to see when the
personal chemistry just will
not work!
paul.lappalainen@do.se
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
paul.lappalainen@do.se
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.
paul.lappalainen@do.se
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 ???
paul.lappalainen@do.se
9
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
paul.lappalainen@do.se
10
Interplay of grounds
I want the same
salary as my Swedish
co-workers!
paul.lappalainen@do.se
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.
paul.lappalainen@do.se
A positive spiral
Counteract
discrimination
Diversity with
competence
Empowerment
paul.lappalainen@do.se
Two new laws - 1 January 2009
 The Act on the (2008:568) Swedish
 Swedish Equality Act (2008:567)
Equality Ombudsman
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
.
paul.lappalainen@do.se
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.
paul.lappalainen@do.se
Some proposals – all grounds
Equality plans in all government agencies covering
their role as employers and service providers leadership responsibility - testing.
Comprehensive law and supervision
Antidiscrimination conditions - liquor licences
Anti-discrimination clauses in all public contracts
and subsidies
Anti-discrimination educ in key university
educations – lawyers, teachers, journalists
Empowerment of NGOs –their advocacy role
paul.lappalainen@do.se
21
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
paul.lappalainen@do.se
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.
paul.lappalainen@do.se
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 antidiscrimination 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 antidiscrimination 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.
paul.lappalainen@do.se
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.
paul.lappalainen@do.se
25
Aha! Now I see them...!
paul.lappalainen@do.se
Equality time line
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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
paul.lappalainen@do.se
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.
paul.lappalainen@do.se