As the world sees an increased focus on diversity in basically all aspects of modern society, Denmark has – at least so far – maintained a legal position on the labour market where positive discrimination and diversity considerations are no-go’s.
Introduction
As described in other country perspectives , the western world is seeing an increased focus on diversity, equal treatment and anti-discrimination.
Like in most other western countries, Denmark has had Black Lives Matter demonstrations and similar events. In addition, Denmark is currently undergoing a second #metoo wave which was sparked by the well-known TV personality Sofie Linde on live tv accusing an anonymous former boss of sexual indecency years earlier, and culminating in the stepping down of the leader of one of the parties in the Parliament as well as the Lord Mayor of the City of Copenhagen.
1. What is the employment law position in Denmark?
Denmark has decided to implement the anti-discrimination directive [1] in a rather direct way, essentially banning both direct and indirect discrimination relating to the following specific criteria; race, skin colour, religion, religious beliefs, political opinion, sexual orientation, age, disability, and national, social or ethnic origin. The Danish Anti-Discrimination Act [2] is supplemented by the Equal Treatment Act, The Equal Pay Act, and the Equality Act.
With only a few exceptions [3], it is strictly prohibited for an employer to placing any weight on any of these criteria in relation to employees or job applicants which would result in any adverse treatment. The indirect prohibition covers “a provision, a criterion or a practice which is apparently neutral but that will place persons of a certain race, colour of skin, religion or belief, political affiliation, sexual orientation, or national, social or ethnic origin or of a certain age or with a disability in a position that is inferior to that of other persons, unless the objective grounds for the provision, criterion or practice in question is a relevant objective and the means to achieve it are appropriate and necessary”.
Also harassment is considered discrimination where undesirable conduct related to a person’s race, colour of skin, religion or belief, political affiliation, sexual orientation, age, disability or national, social or ethnic origin takes place with the intention or the effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or unpleasant environment for the person in question.
The Danish Anti-Discrimination Act establishes a split burden of proof, according to which a person who believes that discrimination has occurred, is required to establish the existence of factual circumstances suggesting that discrimination has occurred. If successful, the burden of proof would shift to the employer who would then be required to prove that this was not the case. Very often this can be quite difficult, although case law has become slightly less demanding in relation to such counterevidence.
One of the standard pitfalls is employers asking about any of the prohibited criteria. Inquiring into any of these – and, in particular, if answered – would establish a clear presumption that the employer attributed relevance to this information (why else ask the question?) and would be enough for the employee or applicant to point to the question itself in order to shift the burden of proof to the employer.
In essence, the criteria are all in their basic components neutral (except for disability) as all individuals have all of the criteria: we all have an age, a national, social and ethnical origin, a sexual orientation, a political view, etc. What the Danish Anti-Discrimination Act stipulates is that attributing any relevance to either is illegal. In theory this means that it is as illegal to reject an application by a middle-aged white heterosexual male as any other applicant’s application, if any of these characteristics have played any role in the rejection.
Some of the characteristics are, however, much more sensitive than others, and are at the same time considered as such by the legislator without any relevance for the employer whatsoever. Where age could arguably be said not to be 100% irrelevant to the employer, other criteria, such as sexual orientation or ethnic , social and national origin, would have no relevance for employers in the eyes of the legislator.
For this reason, the Danish Anti-Discrimination Act therefore contains an explicit prohibition against requesting, obtaining, receiving or making use of information about the worker’s race, colour of skin, religion or belief, political affiliation, sexual orientation or national, social or ethnic origin in connection with or during an employment.
2. How does the Danish position affect the daily life of the HR manager?
With the banning of both direct and indirect discrimination relating to the criteria mentioned above, the approach in Denmark is essentially to encourage employers to ignore the prohibited criteria such that these should not play any role in any decision-making. The exception to this is disability, where the law sets out an obligation to implement measures that are appropriate to the specific needs of the individual, in order to provide access to employment for people with disabilities.
Practically, this means that employers should refrain from carrying out any diversity monitoring on the workforce and should not collect any diversity data as this would require the registration of such information, which, as mentioned, is illegal.
Even allowing the employees to voluntarily register or self-declare any preferred gender preference or variant would be in severe risk of constituting a violation of the above-mentioned registration ban [4].
The Danish legal position also means that in redundancy situations, for instance, there is no obligation to conduct any diversity monitoring or to take any social or diversity considerations when selecting the employees for termination. Doing so would constitute a breach of the rules and would lead to claims for compensation.
3. Could we carry out anonymous diversity monitoring?
Many multinational businesses would have policies in place which make diversity monitoring an integrated part of the company. What should HR managers and diversity officers do in relation to Denmark? One solution could be to conduct an anonymous survey on the criteria that in the employer’s view would be relevant. This would undoubtedly almost always include race and ethnical/social origin.
The response from a Danish legal perspective would in many cases be to refrain from doing this. Even an anonymized voluntary survey could be a breach of the ban against requesting, obtaining, receiving or making use of the prohibited information, especially since in many workplaces it will be extremely difficult to collect this data in a truly anonymous way.
4. How can we then promote diversity?
HR managers seeking to roll out a diversity program in Denmark might then ask how they go about to the promote diversity. To a very large extent, the answer would be to comply with the above rules, and to prohibit any conduct that does not comply with the above rules, including harassment and similar wrongdoing by co-workers.
It is also very normal to encourage all groups to apply for vacant positions. This is often done by explicitly stating this in job ads [5].
5. Concluding thoughts
While some other jurisdictions would require or at least allow for diversity monitoring and positive discrimination, Denmark has taken the stance to prohibit attributing any relevance to any of the protected criteria. To many HR managers with multiple responsibility over multiple jurisdictions, the Danish approach might seem very cynical and without the proper means to ensure a diversified workplace. The approach might very well be a result of a relatively homogenic population, but also (at least in this author’s mind) a way to erase anything else than competences from the employer’s scoreboard. Whether this is the better way to obtain the diversity that everyone is seeking, only time will tell.
[1] Directive 2000/43/EF
[2] An English translation can be found here: https://bm.dk/media/7825/lov-om-forbud-mod-forskelsbehandling-eng.pdf
[3] Political organisations, religious organisation and other interest groups may require that applicants share the political views or religious beliefs of the organisation if this request is deemed justified.
[4] To the extent the information relates to a sexual preference (i.e. more than just an “introvert” gender perception), it definitely will be.
[5] Often with wordings like: “We encourage everyone, regardless of age, gender, religion or ethnicity, to apply for a job with us.”
