“We can’t require employers to work in a certain way, but we can engage in a dialogue and give them guidance. This will no longer be possible under the new proposed legislation. There will be no reporting requirement and no one responsible for enforcement. As described in memorandum, the employer’s duty to make active, targeted and systematic efforts to promote gender equality will become simply an opportunity rather than a duty,” says Claus Jervell, Senior Adviser for the Equality and Anti-discrimination Ombudsman.
The Ministry of Children, Equality and Social Inclusion has requested public input on a proposal for a new, single gender equality and anti-discrimination act. In the proposal, the four existing gender equality and anti-discrimination laws (see fact box) will be replaced by a new, consolidated anti-discrimination act.
Less protection against discrimination
“It sounds like a good idea to have one law instead of four, doesn’t it?”
“Our main objection at the Equality and Anti-discrimination Ombudsman is not that the proposal would create a single law, but that it would weaken the employer’s activity and reporting duties,” says Jervell.
He explains that the Ombudsman believes there are three main reasons that the new proposed legislation as a whole will lead to less protection against discrimination.
“First of all: the employer’s duty to prevent discrimination will be weakened dramatically, and the employer’s duty to report on efforts to promote gender equality will be discontinued.”
“Secondly, the preamble in the new law weakens women’s protection against discrimination, both individually and structurally. The critical reference to socially created barriers will be removed as well.”
“Thirdly, the proposal exempts family life and personal relationships from the scope of the law.”
The employer’s reporting duty is the only duty under the law that is currently being enforced.
“By discontinuing the employer’s reporting duty, the Government is removing both a vital tool for targeted efforts to promote gender equality and the potential to impose sanctions on employers who don’t fulfil their duties. Weakening the structural protection will in practice lead to less individual protection,” explains Jervell.
Difficult to improve gender balance without reporting
Ingrid Guldvik, Professor and Dean of the Faculty of Education and Social Work at Lillehammer University College and Vice Chair of the Committee for Gender Balance and Diversity in Research (KIF) is also concerned about the consequences of the proposed legislation.
“There’s a tendency to talk as if the situation is the same for women and men, and it’s not. It’s easy to make a mistake about what should be corrected if you don’t keep in mind that there actually are huge differences between women and men, as well as major differences between minorities and the general population.”
It is critical to keep these gender equality issues high on the agenda, according to Guldvik.
Like Jervell, she is concerned about the weaker activity and reporting duties. Both believe it is a serious drawback that the proposal does not require employers to document the measures they have taken or the state of affairs of gender equality in their organizations.
“Discontinuing the employer’s reporting duty weakens gender equality efforts. At a workplace you need to document the situation and assess the causes of imbalance or discrimination. Only then can you implement measures and document those. What remains in the proposed legislation is not especially binding when employers no longer need to account for their measures in annual reports, for example.”
Women affected the most
Less protection against discrimination will affect gender equality in particular, because this is the area that has had the strictest reporting duty, according to Jervell.
“This will also have an impact on gender equality in the higher education sector because it concerns the employer’s duty to implement good measures. If this is weakened, it will negatively affect the employees,” he adds.
Many experts have expressed scepticism about the laws being consolidated. For example, legal scholar Vibeke Blaker Strand has criticized the proposal for ignoring the fact that women experience discrimination more often than men.
“I’m concerned that the KIF Committee’s efforts related to gender equality could be weakened. An important point in the new law is that the preamble will be gender neutral. The objective of the Gender Equality Act has been to improve the position of women,” says Guldvik.
“One of the KIF Committee’s main goals is to work for gender balance in senior-level positions in academia. This goal has had great legitimacy in the committee ever since its inception. A single anti-discrimination and gender equality law could mean that this goal will not get as much attention in the future because the committee must also focus on the other forms of discrimination. A gender-neutral law contradicts the Gender Equality Act’s approach and perspective. Although gender equality has been the committee’s main issue for many years, there are still vast differences between women and men in high-level academic positions.”
“What will happen if the provision in the Gender Equality Act ‘to improve the position of women’ is removed?”
“Then I think it could be less legitimate to work to improve the position of women, and it could be more difficult to prioritize efforts to increase the proportion of women in senior-level positions and in management. As long as there are such large differences between women and men like we see in the statistics, it’s premature to remove the preamble. We still have so much work left to do,” says Guldvik.
“‘Everyone’ supports gender equality, but gender equality is not found everywhere. This is why we must count. The reporting duty requires employers to submit reports on the state of affairs of gender equality in their organizations. If there is no longer a requirement to report on what the situation is actually like, we will lose the basis for active efforts,” says Jervell.
“Is Minister of Children and Equality Solveig Horne correct when she says that the current law is not enforced and that the employer’s activity and reporting duties have little impact?”
“She is absolutely correct, because not enough is being done to enforce the law. Today there is very limited opportunity to enforce the law. But Horne will take away all enforcement with this proposal,” he says.
“Then Horne says at the same time that preventive gender equality work is not important, and the Ombudsman disagrees with this view,” says Jervell.
Stronger protection for pregnant women
Although both Guldvik and Jervell believe the overall protection against discrimination will be weakened in the new legislation, both can find some positive aspects to the proposed changes.
“The employer’s activity duty will be made more specific. This could be positive if employers have been unsure about how to fulfil this duty. Now there are four levels of implementation laid out, but I think that employers still need knowledge about how this duty should be carried out,” says Guldvik.
“It’s positive to make the activity duty more specific – but I’m unsure how it will help if the reporting duty is discontinued. In the new law, employers will not be required to report on what they have done,” she continues.
“I also think that stronger protection for pregnant women and people with caregiving responsibilities is excellent, as the law prohibits differential treatment on the basis of pregnancy/birth and parental leave. This may be especially positive for research fellows who are in their childbearing years. It is also good the law states that pregnancy and caregiving responsibilities must not affect the hiring process,” she says.
Translated by Connie Stultz.
The Ministry of Children, Equality and Social Inclusion have proposed creating a joint gender equality and anti-discrimination act. The proposal was circulated for review in autumn 2015 with a response deadline of 22 January 2016.
The four laws to be consolidated under the proposal are:
- Act relating to gender equality (Gender Equality Act)
- Act relating to a prohibition against discrimination on the basis of ethnicity, religion and belief (Ethnicity Anti-Discrimination Act)
- Act relating to a prohibition against discrimination on the basis of disability (Anti-discrimination and Accessibility Act)
- Act relating to a prohibition against discrimination on the basis of sexual orientation, gender Identity and gender expression (Sexual Orientation Anti-Discrimination Act)
The provisions on the employer’s activity duty in Section 20 of the Ethnicity Anti-discrimination Act and Section 23 of the Gender Equality Act are identical: “Employers shall make active, targeted and systematic efforts to promote the purpose of this Act in their undertakings.”
The activity duty encompasses matters such as recruitment, pay and working conditions, promotion, development opportunities and protection against harassment.
Section 24 of the Gender Equality Act requires employers to report on
a) the actual state of affairs as regards gender equality in their undertaking, and
b) equality measures that have been implemented and that are to be implemented to satisfy the activity duty pursuant to section 23.
Section 21 of the Ethnicity Anti-discrimination Act requires employers to report on equality measures that have been implemented and that are to be implemented, but not on the actual state of affairs as regards ethnicity.