The Anti-discrimination Tribunal recently concluded that a municipality's refusal to extend a temporary employee's contract after he had refused to meet their requirement to shake hands with women did not constitute discrimination. However, the tribunal concluded that the Norwegian Labour and Welfare Administration (NAV) had discriminated against the employee when it cancelled his social aid following his refusal to comply with the municipality's requirement.
The Discrimination Act prohibits discrimination on the basis of religion. As such, direct and indirect differential treatment on the basis of religion constitutes discrimination.
'Direct differential treatment' is treatment that is worse than that which is, has been or would have been afforded to others in a corresponding situation on the basis of – among other things – religion. 'Indirect differential treatment' is defined as any apparently neutral provision, condition, practice, act or omission that results in someone being put in a worse position than others on the basis of – among other things – religion.
Differential treatment on the basis of religion is lawful if it:
- has an objective purpose;
- is necessary to achieve that purpose; and
- has no disproportionate negative impact.
In the context of employment or the use of hired personnel or independent contractors, direct discrimination on the basis of religion is lawful only if the above three conditions are fulfilled and the treatment in question is of decisive significance for the performance of the work or the execution of the role.
The tribunal found that the employee's practice of refusing to shake hands with women was based on religion, and that his interpretation of the religious texts in this regard was not particularly uncommon. The tribunal referred to European Court of Human Rights case law and a recent Supreme Court case (for further details please see "Supreme Court opines on limitations of GPs' freedom of conscience"), which both involved an individual assessment of whether there was a sufficiently close and direct connection between the action at hand and the applicable religious beliefs.
The majority of the tribunal found that the employee had received indirect differential treatment based on religion, as the requirement to shake hands with people of all genders had been a general requirement for all employees. The minority found that the employee had received direct differential treatment.
Further, the majority found the indirect differential treatment to be lawful, as the above three conditions had been fulfilled. First, the treatment's objective purpose had been to treat all genders equally in accordance with the equal treatment of gender principle, which is a cornerstone of Norwegian society. Second, there had been no alternative to the municipality's requirement to shake hands with women. Introducing a new greeting other than that which is ordinary in Norway was not considered a practical solution. Finally, as regards proportionality, the majority of the tribunal found that the violation of equal treatment between genders superseded the violation of the employee's right to freedom of religion. In this regard, the majority referred to the fact that, in Norway, women are allowed to be priests, which means that the principle of equality surpasses conservative religion.
On this basis, the majority of the tribunal concluded that the differential treatment had been lawful with regard to the employee not being offered further employment. The majority acknowledged that this outcome could have been different, under certain circumstances, if a permanent employment contract had been terminated.
The minority of the tribunal found that the requirement to shake hands with all genders constituted direct differential treatment on the basis of religion and that none of the three conditions for lawfulness had been fulfilled.
In the case against the NAV, the majority of the tribunal found that refusal to pay social aid to the employee constituted discrimination. NAV's basis for the refusal was that the employee had declined an employment offer because of his refusal to shake hands with women. The differential treatment was not considered lawful, as NAV's decision was disproportionate and had had unreasonable and severe consequences for the employee and his family.
For further information on this topic please contact Lise Gran or Ole Kristian Olsby at Homble Olsby Advokatfirma AS by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby Advokatfirma website can be accessed at www.homble-olsby.no.
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