New anti-discrimination act with a twist

On 16 June 2017, the debate about a new, joint equality and anti-discrimination act was closed, at least for the time being, when the Storting voted to approve the following items:

• The Gender Equality Act and the three anti-discrimination laws on ethnicity, sexual orientation, and disabilities will be consolidated.
• Employers will be permitted to give preferential treatment to men as well as to women. In practice this means that gender quotas for men may be used in special cases, both within and outside working life.
• There will be a specific activity duty for gender equality efforts for employers with more than 50 employees and a general activity duty for smaller employers.
• The new law will be enforced in a slightly different way than the previous one. The case administration and complaints function will be moved from the Equality and Anti-discrimination Ombudsman in Oslo to the Equality and Anti-discrimination Tribunal in Bergen. This was approved in a separate law.

Still a duty to report

The proposal to remove the employer’s reporting duty has been one of the major controversies in the draft legislation, which was presented in its final form in April of this year. In brief, the reporting duty requires employers to submit an annual report on the measures they use to comply with the activity duty. This was reflected in the following proposal from the members of the Labour Party and the Christian Democratic Party who serve on the Standing Committee on Family and Cultural Affairs:

The Storting asks that the Government retain the employer’s activity and reporting duty, as well as strengthen it by following up the Skjeie Commission’s recommendations for changes, and respond to the Storting in an appropriate manner with a proposition on this matter.

There was last-minute tension about what position the Liberal Party would take on the draft legislation as a whole, as this could ensure a majority for the Government. The Labour Party, Christian Democratic Party, Socialist Left Party, Green Party and Centre Party all declared their opposition to the bill. The Liberal Party’s Storting group arrived at a “yes” to the Government’s proposal, except for three amendments, including the proposal mentioned above.

“The Liberal Party did not want to remove the employer’s activity and reporting duty like the Government had proposed,” says Trine Skei Grande, leader of the Liberal Party.

“The law that was adopted is different from the original proposal, and the Liberal Party supported it because we believe it gives an overall boost to the entire field of gender equality and anti-discrimination,” says Grande.

The outcome of the vote on the entire piece of legislation was 52 votes in favour and 45 opposed.

Reporting duty still up in the air

The approved proposal from the Labour Party and Christian Democratic Party is known as a “proposition to Government”. This means that the proposal does not recommend wording to include in the law itself, but rather is a request submitted to the Government.

As a result, the new anti-discrimination act has, in practice, been approved without the reporting duty – at least for now. This means the question of how and when the reporting duty will be incorporated into the existing legislation is still up in the air. The proposal to remove the reporting duty was based on the argument that it is impractical and bureaucratic.

During the consultation rounds, the Equality and Anti-discrimination Ombudsman submitted several proposals for how the reporting duty could instead be made more specific and easier to comply with. The Ombudsman proposed that the reporting duty for employers should at a minimum address these points:

• Gender distribution at various position levels in the organization. The overview must include all employees.
• Gender-specific statistics on salaries at various position levels and the total for the organization.
• Gender-specific overview of parental leave use.

Åsulv Solstad, head of the Ombudsman’s advisement department, believes the Storting’s decision may pave the way for re-introducing the proposals on making the reporting duty more specific.

“We plan to speak with the Storting and the Government about this, and try to influence how the proposal can now be implemented specifically in working life and in legislation,” he says.

The Ombudsman has raised concerns about many of the proposed amendments throughout the legislative process, so Solstad is especially pleased that the reporting duty has been given a second chance.

“The reporting duty is crucial for giving all those who work in the field of equality and anti-discrimination the knowledge they need. Documentation is necessary so we know in what areas we should focus our efforts and where we should allocate our resources. Now we will continue to have this,” says Solstad.

The opposition is not satisfied

Although the request to the Government to continue the employer’s reporting duty gained majority approval, the opposition is far from satisfied with the outcome of the Storting’s decision. Of all the opposition parties, only the Christian Democratic Party and the Labour Party are represented on the Standing Committee on Family and Cultural Affairs, which was the first legislative body to support the proposal. Together these two parties presented multiple alternative bills, which essentially discontinued the entire effort to enact a joint anti-discrimination act.

Geir Jørgen Bekkevold of the Christian Democratic Party is the committee’s vice chair, and was the person who presented the proposals. He is pleased that the Liberal Party decided to support the continuation of the reporting duty, but he remains dissatisfied with the entire piece of legislation. He is especially critical of consolidating the four laws into one.

“I think it’s crazy to put gender equality in the same category as equality for ethnic minorities by consolidating them under one law. Women are not a minority. And although we have come far in Norway, we still have a long way to go in the gender equality field. I’m afraid that in practice this will weaken the focus on equality between men and women.”

Liberal Party leader Trine Skei Grande does not share Bekkevold’s concerns. She believes the law strengthens protection for other groups without weakening the gender aspect.

“A joint equality and anti-discrimination act will give a boost to many groups that experience discrimination. It’s especially important for all those who experience discrimination from multiple sources. Now we have clearer protection against compound discrimination, and the act encompasses various forms of discrimination, such as age.”

“The change agents will become even more important” 

According to plans, the new act will enter into force on 1 January 2018. The Labour Party’s representative on the Standing Committee on Family and Cultural Affairs, Hege Haukeland Liadal, previously told kifinfo that she thinks it is possible to reverse all the amendments to the laws if the Storting election in autumn 2017 results in a change of government. Liadal was not available for a follow-up comment after the legislation was approved.

Bekkevold of the Christian Democratic Party is more cautious, but positive about a reversal.

“Politicians are often eager to reverse everything under the sun right before an election, and this is especially the case in the Labour Party now. In practice, this is not so easy. But with that said, if the matter is brought to the Storting, we will stand firm in our position, and we will absolutely consider it.”

“What do you think will be the practical consequences of consolidating the four laws into one?”

“I think it means that the change agents, those who work to promote gender equality on a daily basis, will become more important than ever. It will largely be their task to uncover how the new law works in practice and what consequences it has, so they need to challenge the ministry and the Storting on this. Then they will also give us politicians a basis for raising the matter again,” says Bekkevold.

Like the majority of the consultative bodies, the KIF Committee was critical towards many of the Government’s proposals. Heidi Holt Zachariassen, Senior Adviser for the KIF Committee, is nonetheless relieved that it appears the reporting duty will be continued.

“When we know even more, we will send out a short guide to the institutions on the legislative change. In the guide we can emphasize that the employer’s activity duty has been strengthened and that the changes to the reporting duty do not imply any change in the daily work with gender balance and ethnic diversity.”

“Now that the law permits giving preferential treatment to men, we can use new measures to achieve gender balance at the institutions. It’s perhaps especially in the area of student recruitment to health and care studies and other subjects where men are underrepresented that the new law will open up opportunities,” says Zachariassen.

Translated by Connie Stultz.