Protection Against Discrimination in the Workplace – Rules, Rights, and Employer Obligations

Protection against discrimination has become a central part of employment law in Norway. Both the Working Environment Act and the Equality and Anti-Discrimination Act contain provisions that protect employees from unlawful discrimination. This article provides an overview of current discrimination protection in the workplace, focusing on which grounds for discrimination are protected, what constitutes unlawful discrimination, and the rights and obligations that apply to employers and employees.

Basis and development of discrimination protection

Discrimination protection in Norwegian law has a solid foundation in human rights and international conventions. Article 98 of the Constitution states that everyone is equal before the law and that no one shall be subjected to unreasonable or disproportionate discrimination. Norway is also bound by several international conventions that protect against discrimination, including UN conventions and EU/EEA directives.

The development of discrimination protection has occurred gradually. From an initial focus on gender discrimination through the Equality Act of 1978, the protection has been expanded to include several grounds for discrimination. In 2017, anti-discrimination legislation was consolidated into one law—the Equality and Anti-Discrimination Act—while some grounds for discrimination are still regulated in the Working Environment Act.

Grounds for discrimination in the workplace

Today's protection against discrimination in the workplace covers a variety of grounds:

The Equality and Anti-Discrimination Act protects against discrimination based on:

• Gender

• Pregnancy, leave for birth or adoption, care responsibilities

• Ethnicity (including national origin, descent, skin color, and language)

• Religion and beliefs

• Disability

• Sexual orientation, gender identity, and gender expression

• Combinations of these grounds

Chapter 13 of the Working Environment Act protects against discrimination based on:

• Political views

• Membership in employee organizations

• Age

• Part-time and temporary employment

What constitutes discrimination?

Discrimination is defined as unlawful differential treatment related to certain grounds of discrimination. For discrimination to be present, three basic conditions must be met:

1. There must be direct or indirect differential treatment

2. The differential treatment must be related to a protected ground of discrimination

3. The differential treatment must not be permitted according to specific rules about lawful discrimination

Direct and indirect differential treatment

Direct differential treatment means that a person is treated worse than others are, have been, or would be treated in a corresponding situation due to a protected ground of discrimination. Examples include age restrictions or when individuals of a certain gender, ethnicity, or disability are not considered for positions.

Indirect differential treatment includes seemingly neutral provisions, conditions, or practices that in reality disadvantage people due to a protected ground of discrimination. This concerns the effects of a provision or practice, not whether it is directly discriminatory in its design.

Lawful differential treatment

Not all differential treatment is unlawful. Differential treatment is permitted when it:

• Has a legitimate purpose

• Is necessary to achieve the purpose

• Is not disproportionately intrusive to those who are discriminated against

In cases of direct differential treatment in the workplace based on gender, ethnicity, religion, beliefs, disability, sexual orientation, gender identity, and gender expression, additional requirements apply: The characteristic must have "decisive importance for performing the work or occupation."

For discrimination based on pregnancy, childbirth, and breastfeeding, there are particularly strict rules. During hiring, termination, and extension of temporary positions, the prohibition against such discrimination is absolute.

Special rights and duties in the workplace

Harassment and sexual harassment

Harassment due to a protected ground of discrimination is prohibited. Harassment is defined as actions, omissions, or statements intended or resulting in being offensive, frightening, hostile, degrading, or humiliating.

Sexual harassment is also prohibited and defined as any form of unwanted sexual attention intended or resulting in being offensive, frightening, hostile, degrading, humiliating, or bothersome.

Information obligations

Employers have specific information obligations in connection with hiring processes and wage determination:

• A job seeker who believes they have been overlooked contrary to discrimination rules can request the employer to disclose the preferred candidate's qualifications

• An employee suspecting discrimination in wage determination can request information about wage levels and criteria for wage determination for named colleagues

Right to accommodation

Employees and job seekers with disabilities and pregnant women have the right to individual accommodation:

• Accommodation for people with disabilities should ensure they can gain or retain employment, access training, and have the opportunity for advancement in the workplace

• Accommodation for pregnant women should ensure they can remain in or take on work during pregnancy

The right does not cover measures that impose an undue burden on the employer, but this is intended as a safety valve and should be interpreted strictly.

Equal pay and rights during parental leave

The Equality and Anti-Discrimination Act guarantees the right to equal pay for work of equal value, regardless of gender. The assessment of whether work has equal value is based on a holistic evaluation, where competence, effort, responsibility, and working conditions are central.

During parental leave and other leaves related to pregnancy and childbirth, employees have special rights:

• The right to return to the same or equivalent position

• The right to benefit from improvements in working conditions that would have been entitled during the absence

• The right to submit wage claims and be considered in wage negotiations in the same manner as other employees

Enforcement and sanctions

Discrimination rules are enforced both by the courts and by a separate enforcement apparatus consisting of the Equality and Anti-Discrimination Ombudsman and the Anti-Discrimination Tribunal. This service is intended to be low-threshold, with a free complaint process and no need for legal assistance.

In cases of breach of discrimination rules, the person subjected to unlawful treatment may be entitled to compensation for economic loss and redress for non-economic damage. In the workplace, the employer's responsibility is primarily objective, regardless of guilt.

In discrimination cases, a rule of shared burden of proof applies. If there are circumstances that give reasons to believe discrimination has occurred, the responsible party must demonstrate that discrimination has not happened.

Active equality work

All employers have a duty to work actively, purposefully, and systematically to promote equality and prevent discrimination. For public employers and larger private employers (more than 50 employees), there is an enhanced activity obligation, which includes mapping wage conditions based on gender, analyzing the risk of discrimination, and implementing measures.

These employers also have a reporting obligation, where they must report on both measures and the actual state regarding equality within the organization.

Summary

Discrimination protection in the workplace is comprehensive and covers many grounds and situations. The protection offers safeguards against both direct and indirect differential treatment and imposes duties on employers not only to avoid discrimination but also to actively promote equality. With knowledge of these rules, both employers and employees can contribute to a more inclusive workplace.