The European trend toward dealing with multiple
discrimination in the framework of a single
equality body and law – the Swedish example
Paul Lappalainen
Senior advisor, Swedish Equality Ombudsman (DO)
email: paul.lappalainen@do.se
Conference: Revisioning Gender - Complex Inequalities and Global Dimensions.
June 13-14, 2014. Stockholm Ersta Hotel
(A version of this paper entitled “The challenge of establishing a cross-cutting equality ombudsman”
was presented at the ECRI seminar “Challenges faced in the current institutional and budgetary
environment” with national Specialised Bodies to combat racism and racial discrimination, Strasbourg
30-31 May 2013Council of Europe. The views presented are the author’s own views and do not
necessarily represent the views of the DO)
Introduction .................................................................................................... 2
The European detour away from multiple ground equality toward single
grounds ........................................................................................................... 3
Equality in Europe.......................................................................................... 5
The Swedish context ...................................................................................... 9
Results of the merger ................................................................................... 10
Challenges and possibilities ......................................................................... 11
If this is the problem - what is the solution?
Introduction
This paper seeks to address some issues that have emerged in light of the
challenges faced by those implementing the developing European
framework on multiple grounds of discrimination. I begin with the initial
focus of European countries on single ground equality bodies and laws.
Here the basic trend initially established sex as a discrimination ground, to
later be followed by race/ethnicity and disability. Separate laws and separate
enforcement mechanisms were the norm; new frameworks basically had to
created in regard to each new ground. This was a trend that broke with the
developments in the more inclusive multiple ground approach used in the
US and Canada. This can be seen to some extent in the titles of the laws the US Civil Rights Act and the Canadian Human Rights Act. More recently
European Union legal developments (new or revised anti-discrimination
directives) combined with other factors such as an increasing understanding
of the interplay of different discrimination grounds as well as the economic
crisis have at least indirectly led to a tendency toward a merger of equality
bodies and laws.1 These types of mergers have raised various issues and
challenges that need to be explored. Sweden has basically followed these
developments with the merger of seven equality laws and four equality
bodies being merged in 2009 into a single multiple ground equality body
and single multiple ground equality law. Here, from my personal
perspective, I will focus on the Swedish context and the role of the
Ombudsman. In conclusion I will discuss certain challenges and dilemmas
related to dealing with multiple grounds of discrimination.
In brief this paper will provide



some comments on the European detour away from the multiple
ground trend set in North America toward single ground
discrimination laws and bodies, particularly with a focus on gender
some comments on the denial of ethnic/race discrimination2 in
Europe
various comments upon and analyses of the move from several
equality laws and enforcement bodies toward a single equality act
and body in the Swedish context
1
The mergers have also to some extent included mergers with other human rights
institutions. All too often this has mainly been a cost saving measure. I use the term other
human rights institutions since there has been a tendency in Europe to refer to Equality
Bodies and National Human Rights Institutions. This can give the impression that Equality
Bodies work with something other than human rights, or the idea that equality issues are not
relevant to National Human Rights Institutions.
2
In general I will be using the term ethnic discrimination to denote even race discrimination.
This is to avoid a problematic and what I consider to be a misleading discussion that can
develop in a European contest in relation to the word race itself.
2

a discussion of some of the challenges and dilemmas posed in this
context
The European detour away from multiple ground
equality toward single grounds
Before discussing my personal views of the situation in Sweden, which are
not necessarily those of the Equality Ombudsman, it is important to look at
the background of equality law.
Inspiration from Canada and the US - a multiple ground approach within a
civil rights/human rights umbrella and a focus on behavior
The tools for counteracting discrimination in Europe and North America
have a shared history. Due to the US history of open and hidden racism and
the resulting civil rights movement, the US also ended up in the forefront of
developing the tools to counteract racism and race discrimination. One
result was the adoption of the US Civil Rights Act of 1964 and the
establishment of an equality body - the EEOC. Naturally race was covered.
But sex discrimination was also covered. Canada followed a similar pattern
with the adoption of the 1977 Canadian Human Rights Act which covered
among other grounds race, religion and sex.
A focus was thus put on a cross-cutting equality.3 This tendency was also
given support by development of the constitutional case law concerning
equality, first in the US and then later in Canada. The constitutional case
law related to both race and sex equality.
Since then North America developed into a source of inspiration for the
anti-discrimination and equality promotion tools adopted in Europe. Beyond
the laws and equality bodies themselves, there are ideas such as indirect
discrimination,4 shifting the burden of proof and intersectionality. These
ideas and practices were often the result of case law in North America rather
than legislation. An issue that should be considered is why such
groundbreaking ideas were developed through case law (and later inspired
the legislation in Europe). One potential explanation is that since the laws
focused more on equality as a civil rights/human rights issue rather than on
equality related to a single discriminated group, different discriminated
groups such as “black” men and women and “white” women basically
developed a common interest in the development of case law on equality –
even if their particular issue was not involved. The courts were hereby given
a greater chance to examine and advance the broader issue of equality as a
fundamental right, rather than examining these cases and laws as only a
means of promoting group-specific rights for women or racial minorities.
3US-1964
Civil Rights Act. Canada-1976 Human Rights Act.
4
Concerning e.g. the development of indirect discrimination see Ronald L. Craig, Systemic
Discrimination in Employment and the Promotion of Ethnic Equality, 2007.
3
This human rights/civil rights framework thus contributed to an
understanding of the issues in a broader social context related to democracy
rather being only about laws intended to help blacks or women.
Beyond the potential commonality due to a broader equality approach there
also seems to be another important idea concerning the purpose of
equality/anti-discrimination laws. Quite simply, one of the important ideas
developed from the 1960s onward has been the focus in the US and Canada
on changing behavior and not just attitudes. And using the law and other
legal tools to this end. (In my opinion, much of the focus in at least Swedish
anti-discrimination law has been that the law is mainly a way of changing
attitudes, which in turn will lead to a change in behaviour. This in turn leads
to a lack of focus on remedies, and their proactive potential.)
Chief Justice Earl Warren of the US Supreme Court (1953-1969) was
quoted as saying many believed ”that you cannot wipe out racial
discrimination by law, only through changing the hearts and minds of men.”
This is a ”false credo. True, prejudice cannot be wiped out, but infliction of
it upon others can.”5
Basically the lesson from at least the US seems to be that if discrimination
costs, or carries with it cost risks, those with the power to discriminate can
and often will change their behavior.
Furthermore, in Canada and the US, relatively early there seems to have
been a realization that anti-discrimination laws alone were not enough in
that they rely on discriminated individuals to carry the burden of social
change, a change which occurs slowly because such laws are reactive. Their
direct effects depend on the occurrence of discrimination and the victim or
target being willing to see a case through to the end, including all the risks
that this entails for the individual.
Thus proactive measures were also developed as complementary tools that
focus on those with the power to discriminate. In the US the primary
complementary tool was the use of contract compliance in regard to the
private sector.6 This means that at a minimum all companies which have
contracts with in particular the federal government risk losing their contracts
if they discriminate. In addition, all federal contractors with larger contracts
must develop annual affirmative action plans that address imbalances in
their workforce. They must also undertake good faith efforts to implement
these plans. A similar proactive concept can be seen in Canada’s
5
Ed Cray, Chief Justice: A Biography of Earl Warren. 1997.
6
This tool was actually developed long before the 1964 Civil Rights Act with a history dating
back to 1941, but it became more effective after the 1964 Act was adopted. See Paul
Lappalainen, Ingen diskriminering med skattemedel! Avtalsklauser mot diskriminering vid
offentlig upphandling (No Discrimination with Public Resources! Anti-discrimination Clauses
in Public Contracts), INTEGRATIONSVERKETS RAPPORTSERIE 2000:7.
4
requirements and regulations concerning employment equity and public
contracts.7
Equality in Europe
In Europe many of the tools developed in North America found their way to
Europe in one form or another. However, Europe has been lagging behind
concerning the civil rights/human rights framework and the idea that
discrimination must cost. As I see it, one of the main reasons is that the
pattern in Europe developed on the basis of single grounds and enforcement
mechanisms taking a primary role.
The initial focus in Europe from the 1970s onwards was on sex
discrimination, both in terms of laws and equality bodies.
The denial of racism and race discrimination was compact. The issue of
ethnic discrimination was kept entirely separate. Europeans, especially on
the continent, were very reluctant about legislating against ethnic/race
discrimination. Even in the UK where there was some recognition, the
framework was set for separate grounds and equality bodies.
Initially the tendency was toward development of relatively strong gender
equality institutions, with some political backing due to an increasingly
active women's movement. Institutions concerning race/ethnicity developed
as the much weaker second cousins.8
The strategy in the UK was the adoption of a relatively meaningful law
against sex discrimination in 1975. In the UK it was possible to achieve a
similar law concerning race discrimination a year later. It was pointed out
that it would be strange if the race discrimination act did not follow the
same pattern or model as the sex discrimination act.9 10
7
Paul Lappalainen, Ingen diskriminering med skattemedel! Avtalsklauser mot diskriminering
vid offentlig upphandling (No Discrimination with Public Resources! Anti-discrimination
Clauses in Public Contracts), INTEGRATIONSVERKETS RAPPORTSERIE 2000:7. For
further information regarding the US, see the Office of Federal Contract Compliance
Programs at http://www.dol.gov/ofccp/index.htm. For further information regarding Canada
see the Canadian Human Rights Commission concerning the Employment Equity Act and
Employment Equity Audits at http://www.chrc-ccdp.ca/eng/content/employment-equity#1
and the Federal Contractors Program at
http://www.labour.gc.ca/eng/standards_equity/eq/emp/fcp/index.shtml
8
Even in the UK the gender equality act and commission came first (1975). Getting gender
through first was seen as necessary to be able to pass the 1976 Race Relations Act. I
believe that the CRE later developed a stronger position in relative terms. But this in turn
meant that the CRE was very reluctant about the single body in the UK - which in turn has
led to some of the merger problems that have appeared in the UK.
9
Hepple, Bob. "The New Single Equality Act in Britain", The Equal Rights Review, Vol. Five,
p 12 (2010). On the web at
http://www.equalrightstrust.org/ertdocumentbank/bob%20hepple.pdf
10
This pattern of having laws that were at least similar in structure was not followed by other
countries. In Sweden, for example, a choice was made during the 1980s and 1990s to not
use the sex equality act as a model for a race equality act. Policymakers chose to look at the
issues as completely separate. One clear example was the civil law against race
5
When the 1976 Race Relations Act was adopted in the UK, my impression
is that other Europeans took that as a sign that the UK law was needed
because the UK had a problem with racism. It was a combination of their
colonial history and ties to South Africa and Rhodesia, their ties to racism in
the US, and/or both. But such problems did not exist on the continent, and in
particular not in Sweden. On the continent, it was not until the 1990s,
mainly due to international pressure that different countries started taking
the issue of ethnic discrimination seriously.11
My conclusion is that the race discrimination laws and institutions to a large
extent for many years were much weaker due to the lack of a strong civil
rights/anti-racism movement in Europe and the corresponding denial of
racism as a major issue.
Another reason was that one of the few potential allies, the women's
movement, which had made gains in putting discrimination against women
on the agenda,12 wanted no comparison between gender equality and race
equality. On the one hand there was an assertion made that women are not a
minority, therefore the issues cannot be compared. Many accepted this
argument, while ignoring the fact that the issue was discrimination (or the
power to discriminate) and not simply a majority/minority issue. For
example, the blacks in South Africa were not a minority, nevertheless the
discrimination was blatant. There was also the idea that if the commonalities
of race and sex equality are looked at together, there was a major risk that
the gains of the women's movement would be diluted. Basically, rather than
looking for an ally, the women’s movement seemed to be satisfied with
being the most important of the discriminated groups.13
Thus at best Europe had a development of separate anti-discrimination laws
and institutions. First gender. Then race. Thereafter other interests such as
disability and sexual orientation moved in the same direction. The different
interests developed into being competitors rather than allies. This pattern
can be seen locally, nationally and at the European level.
discrimination in working life adopted in 1994. The burden of proof rules adopted did not
reflect those applicable in gender discrimination cases. In other words a much higher burden
of proof was required in race discrimination cases. The legislature was afraid of a
boomerang effect if the same rules were applied, while realizing that this would make the
law less effective.
11
Lappalainen, Paul. Det blågula glashuset: strukturell diskriminering i Sverige SOU
2005:56 (The Blue and Yellow Glass House: Structural Discrimination in Sweden – Swedish
government inquiry 2005:56).
12All
too few even realized the role played by the work against race discrimination in North
America in advancing equality between the sexes in Europe.
13
Lappalainen, Paul. Det blågula glashuset: strukturell diskriminering i Sverige SOU
2005:56 (The Blue and Yellow Glass House: Structural Discrimination in Sweden – Swedish
government inquiry 2005:56).
6
The dilemma of the interplay of discrimination grounds14
 I want the same salary as my Swedish co-workers!
 The men or the women?
This meant that those claiming to represent women, ethnic minorities and
minority religions, the disabled and gays and lesbians fought for their "own"
equality interests, but they usually did not struggle for equality for others or for everyone. They were turned into competitors with each other. This is
basically the point made by Kimberlé Crenshaw when she states: "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."15 While her
comment refers to the US context, it seems even more applicable to the
European context where the issue has yet to be the subject of a serious
debate. At least in the US there is an ongoing debate and at least, in my
view, some understanding of the commonalities related to equality and some
understanding that the focus needs to be on those with power, rather than on
my issue be somewhat more important than another discriminated group's
interest.
14
Robert Nyberg is the creator of this picture.
15
Kimberle Crenshaw, "Whose Story Is It, Anyway? Feminist and Antiracist Appropriations
of Anita Hill", in Race-ing Justice, En-gendering Power, Essays on Anita Hill, Clarence
Thomas, and the Construction of Social Reality, ch. 14 (1992).
7
This type of competition means that policymakers can basically maintain
the status quo, since they are usually able to make a “separate” peace with
the different interests. This separate peace in Europe has meant delivering
varying levels of legal protection in the law, varying enforcement
mechanisms, and varying subsidies.
In recent years however there has been somewhat of a trend toward
consolidation of discrimination grounds in the laws of Member States of the
EU as well as a consolidation or merging of equality bodies.
In particular, the EU:s Race Equality Directive (Directive 2000/43/EC)
provided an impetus by requiring all EU Member States to adopt a relatively
high level of protection against discrimination on grounds of race and ethnic
origin. This meant adopting new legislation or revision of old legislation.
This directive was relatively unique in that it basically affected all Member
States and required them all to raise the bar of protection concerning
ethnicity. Also, since the Race Equality Directive was broader in scope than
even the directives covering gender, this created pressures also in regard to
leveling up concerning other grounds. This also provided a stimulus to
rethink the idea of single ground laws and single ground enforcement
bodies.
A contributing factor can be seen in the other discrimination directive
adopted at about the same time, the Employment Equality Directive
(Directive 2000/78/EC) which required a minimum level of protection
against discrimination in working life in regards to the grounds of age,
disability, sexual orientation, and religion or belief.
Thus the EU:s anti-discrimination directives from 2000 and the EU:s
administrative work in the field put pressure on policymakers to make a
number of decisions about how to meet these requirements. What is to be
done with race? What must be done with the other enumerated grounds in
the Employment Equality Directive? And what is to be done about leveling
up concerning sex discrimination since the race directive went beyond the
minimum limits established by the EU in regard to sex. Could sex
discrimination be left behind?
In practice, the trend could be seen in the applicant countries which had to
have equality laws in order to enter the EU. For several of them it was
simply easier, and in my view more logical, to establish consolidated
equality laws covering all grounds. Many had no laws against
discrimination. To some extent they were starting with a clean slate. Among
the older members of the EU there have been two other paths toward
consolidation. In Belgium, there is one equality structure for gender along
with a separate structure that covers the other grounds such as race,
ethnicity, religion, age, sexual orientation and disability. The UK on the
other hand has merged its separate laws and bodies with the establishment
8
of the Equality and Human Rights Commission in 2007 and the adoption of
the Equality Act 2010.16 17
The Swedish context
Sweden basically followed the pattern discussed above. Starting in 1980
with the Equal Opportunities Act concerning sex discrimination in working
life and moving on to 1986 various laws were passed. Thus up until 2009
Sweden had developed seven different civil laws against discrimination.18
Four of these applied to working life concerning discrimination due to
gender, ethnicity and religion or other belief, disability and sexual
orientation. Three applied to higher education, schools and other fields of
social life but were basically cross-cutting with regard to the different
grounds.
In legal terms there were varying levels of protection between the grounds
with a hierarchy, if related in particular to active measures, with gender at
the top, and the others in varying degrees below. For example, in the field of
ethnicity and religion some active measures were required for employers,
but they were more diffuse than those applying to gender. In particular it
can be noted that salary pay gap analyses were required concerning gender
but not ethnicity. Also, positive treatment was allowed in working life
concerning gender but not ethnicity. Regarding sexual orientation and
disability there were no requirements concerning active measures.19
In addition there were four different equality ombudsmen (equality bodies).
The gender equality ombudsman was established in 1980 and the others in
1986 (ethnicity and religion), 1994 (disability) and 1999 (sexual
orientation). Their mandates as well as their budgets varied. By 1999 it
could be said that the latter three were able to go to court on behalf of a
complainant. This power was given to the gender equality ombudsman
already in 1980.
Concerning terminology, the term used in the new law can be directly
translated as ethnic belonging. This is defined as “national or ethnic origin,
16
For more about the Commission and the law see http://www.equalityhumanrights.com/
17
For broader discussions and analyses of EU law and intersectionality see e.g. Dagmar
Schiek and Anna Lawson eds, European Union Non-Discrimination Law and
Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination,
2011;
Krizsan, Andrea, Hege Skjeie og Judith Squires (eds.), Institutionalizing intersectionality :
the changing nature of European equality regimes 2012;
Emanuela Lombardo & Mieke Verloo (2009) Institutionalizing Intersectionality in the
European Union?, International Feminist Journal of Politics, 11:4, 478-495, DOI: on the web
at http://dx.doi.org/10.1080/14616740903237442.
18There
were seven laws plus the bans against discrimination due to parental leave as well
as part-time work. The latter two were not included in the 2009 discrimination act.
19
However, the requirement of reasonable accommodation is considered by some as an
active measure.
9
skin color or other similar circumstance”. This definition is intentionally
meant to be translated in a broad manner. While the term race was removed
in the 2009 act, the term used is intended to cover a wide range of markers
that can be associated with the term race.
On 1 January 2009 the laws were basically collected into a single equality
act and the four ombudsmen were merged into the new Equality
Ombudsman. The hierarchy in protection was basically retained in that the
new law did little to level up the level of the protection provided particularly regarding the issue of active measures. In addition, two new
grounds were added - age as required by the EU and transgender identity
and expression.
Results of the merger
Concerning the new ombudsman, the agency was basically given the
combined budgets of the previous four ombudsmen. Thus there was no
significant reduction in the budget in terms of funding. (It could be asserted
that there was a reduction in that new grounds were added without
additional funding. Also in that a merger process in itself costs. At the same
time there should have been some savings in the merger of four authorities.)
Concerning the structure of the new ombudsman, a conscious choice was
made to not retain a formal breakdown into grounds in regard to the
personnel and the issues involved. The focus was on the development of a
cross-cutting knowledge of all grounds. It follows from what I have been
saying that I believe that this approach was fundamentally correct.
Yet it is no secret that the first years following the merger were a bumpy
ride. I believe that there are a number of reasons for this.
First, I believe that the inherent difficulties of merging different institutions
should not be underestimated. What you had was a merger of four similar
institutions where the employees used similar words, routines and concepts,
but sometimes meant different things. Initially it was basically assumed that
everyone understood the old grounds. Insufficient emphasis was placed on
understanding the differences and commonalities between the grounds and
the history behind them.
Furthermore, looking at all the different stakeholders there was a lack of
focus on creating a common understanding of equality and equality
promotion as the primary purpose of the law and the new institution. There
was lukewarm support at best if not opposition from interested civil society
groups. To a large extent the established women's movement was negative
to a merger. The former gender equality ombudsman was strongly opposed.
The political support for a merged equality body was based on a variety of
diverse thoughts and interests. Some were positive to a single
comprehensive law and body. Some thought that it would then be easier for
individuals to submit discrimination complaints. Others realized that since
Sweden had to ban age discrimination anyways (because of the EU
10
directive), rather than creating a new public agency, an Age Ombudsman, it
was preferable to merge the existing equality ombudsmen into single body.
(The failure of even the strongest group interest in Sweden, ie gender, to
establish its will, demonstrates that there is a major problem in a situation
where different anti-discrimination interests are turned into competitors.
They are still only the strongest among the weak. As far as I know, some of
the same confusion occurred in the UK - except there the stronger ground
was race. This meant that the Commission for Racial Equality was merged
at a later date into the Equality and Human Rights Commission, which in
turn meant less influence on the new structure.)
Even in a relatively smooth merger it takes a while to sort out various
details. And given the existence of different cultures between the four
institutions that went into the merger, and the history of competition
between the grounds promoted by policymakers it should not be surprising
that it has taken some time to iron out the wrinkles.
Regarding expertise, it is arguably inevitable with some losses in a situation
where experts have had a focus on a single ground. Each employee from the
old ombudsmen was given a new position at the new ombudsman. However,
in some cases people were given new tasks. It stands to reason that the
movement from a single ground agency, with like-minded contacts with
civil society and other agencies, to an agency that is to work with seven
grounds will result in challenges.20 As I have stated above, I believe a more
important consideration is the benefit of moving toward a broader focus on
equality which does lead to benefits in terms of, among other things, case
law, access to the agency by discriminated persons, intersectionality and the
interplay with equality as a human rights issue. We can even see some of
these results in our cases and statistics related to complaints.
Challenges and possibilities
One major challenge for a multiple ground equality body is the tendency to
a continuing focus by many e.g. policymakers, researchers, media, and
NGOs on the separation into the separate grounds. This creates a pressure to
continue the work in the same way it was done before (at least was
perceived to have been done). The perceptions here end up being important
especially in regard to civil society and therefore policymakers. For
example, there was a perception, particularly in civil society, that the former
Gender Equality Ombudsman worked in a much more focused manner on
proactive measures related to employers. How much was actually
accomplished has yet to be the focus of a serious analysis? But there has
been a somewhat broad perception among persons working in the gender
equality field that their issues have been downgraded. This in turn has
20
It is possible that the challenges were also exacerbated by the addition of the "new"
grounds age and transgender identity and expression. However, in my view, these new
grounds while important in theory did not really make the challenges much more difficult
than they already were.
11
affected a number of policymakers. At the same these same policymakers
have had a harder time looking at the situation of women who are
disadvantaged due to factors other than gender, such as ethnicity, religion,
disability or sexual orientation. Even though it is to a lesser extent, similar
concerns about "our" issues disappearing have been expressed by e.g. civil
society organizations in relation to the former ombudsmen concerning
ethnicity and religion, disability and sexual orientation. These sentiments
also tend to be based more on perceptions rather than necessarily referring
to actual change.
If this challenge is not recognized and understood, it will be much harder to
develop and maintain a clear focus on the idea that equality is the focus.
From an equality viewpoint there needs to be a preparedness for tackling
public sentiment that continues to function in regards to specific grounds.
On occasion this should even be expected in cases where it seems as if one
ground, for example, religion, seems to have been in conflict with gender.
This seems to have been the case when a Muslim man was believed to have
held his hand over his heart instead of shaking hands with a woman
employer while seeking an apprentice position. His unemployment subsidy
was withdrawn by the “national labour service”. The DO took the case to
court. The court determined that discrimination had occurred and awarded
compensation.21 The backlash in the media was huge, much of it based on
the idea that the DO acted improperly in bringing the case at all.22 The
backlash was based on the perception of a hierarchy of discrimination
grounds and the DO had difficulties in delivering a discourse based on
equality of opportunity rather than an issue of single grounds. In my view,
the backlash was the result of a need to vent various pent up frustrations
related to discrimination due to religion and race by editors, NGOs and
policymakers, rather than an interest in the case itself. At least it did not
seem like many of the critics had read the judgment.
An additional challenge as well as possibility for the future is in developing
a common history of equality - both on the international level as well as the
Swedish level. While there are differences between the various
discrimination grounds, the discriminated groups often focus on those
differences rather than focusing on the commonalities both in terms of
history, but also in particular on the common interests in developing tools to
counteract discrimination. It seems that in particular concerning the tools for
non-discrimination, the different grounds have learned from each other. One
Swedish example of this is the fact that Sweden’s 1980 gender equality act
was to a large extent, according to its legislative history, inspired by the US
Civil Rights Act and the related case law. For many Swedes it is surprising
that a foreign law inspired the Swedish law concerning gender equality,
much less a law that was adopted in the US due to the struggle for the civil
21
The court's decision (in Swedish) can be found at
http://www.do.se/Documents/forlikningar-domstolsarenden/T7324-08%20avid.pdf
22
See eg the DO:s response to one of its critics
http://www.do.se/sv/Press/Debattartiklar/Faktafel-och-fordomar-fran-Lena-Andersson/
12
rights of African Americans. For many years, there was an underlying
theme among many Swedish “gender” equality experts, supporters,
politicians, etc that gender equality had nothing to do with ethnic equality.
This in turn was a contributing factor regarding Sweden’s initial failure to
ban ethnic discrimination and then later the failure to use the gender
equality act as a model.
Another challenge and possibility is in helping discriminated groups
understand that they may benefit from cases where results are produced,
even if the case did not involve their specific ground. Given the structure of
the law today, a disability discrimination case that raises the level of
compensation awarded by the courts could and should benefit persons
asserting discrimination claims related to other grounds – such as gender.
Similarly, precedents clarifying and easing the burden of proof will
probably benefit all discriminated groups, even if their ground was not in
focus in the particular case.
One example of a common focus that can benefit all discriminated groups is
understanding the use of anti-discrimination clauses in public contracts as a
tool for counteracting discrimination on all grounds. During the 1980s and
1990s, gender equality politicians, experts, etc in Sweden tried to establish a
connection between gender equality and public contracts. This failed.
During the late 1990s and 2000s a new tendency arose, a more positive
tendency. The difference now was that discrimination on all grounds
covered by law was included. Presumably national policymakers had a
harder time rejecting the idea when all grounds of discrimination were
covered. And if implementation becomes a reality, all of the discriminated
groups should benefit. This should apply in particular to women, among
other reasons, because women are not a minority.
Anti-discrimination clauses in public contracts would also be an important
means with which to increase the cost risks associated with the failure to
abide by the current discrimination act. Properly written clauses will mean
that the contracting entity has retained the right to cancel the contract in
cases of failure to comply with the law. This includes the parts of the law
that place a positive duty on employers to undertake active measures. The
cost risks related to failure to undertake active measures under the law are
today minimal at best, and possibly non-existent. Widespread use of such
clauses in public contracts would substantially raise the cost risks. At the
same time, it can be presumed that adoption and implementation of such
clauses will probably require the combined pressure of the targets of
discrimination such as women, ethnic minorities, the disabled and the
LGBT communities.
Finally, it seems that too much of the focus from these different interests
thus far has been on what has been lost. In my opinion much of what has
been lost is a perception of influence and power, rather than any real loss. A
great deal of energy has been spent on why a particular ground, such as
gender, ethnicity or disability, is the most important. This means a race to
explain why "my" discriminated group is the most important of the weak,
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rather than on finding common grounds with which to bring a focus on
changing the status quo - not just in words, but in practice. This means
examining and working towards what can be won. If, for example, there is
a concerted effort to raise the cost risks of discrimination, this should in turn
encourage those with the power to discriminate to act in a proactive manner
to ensure that discrimination does not occur in the first place – which is
actually the goal of the law against discrimination.
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