The Swedish Equality Ombudsman ruled that separate opening hours in public swimming pools for women and men can constitute discrimination, but that separate opening hours can be legal if the discrimination is a result of achieving a permissible and legal purpose. As such, it is permissible for a public swimming pool to have female-only hours in the event that the group of women using the swimming pool do not bathe with men due to their religious beliefs, and would not be able to learn how to swim otherwise. In the decisions, the Swedish Equality Ombudsman stressed that such permissible discrimination justifications are exceedingly rare, and that the ground rule is that public swimming pools should be open to both women and men at all times.
Women and Justice: Keywords
Domestic Case Law
Tillsyn avseende könsseparerade öppettider i sim- och idrottshallar Stockholm och Malmö (Case No. GRA 2016/8 and Case No. GRA 2016/9 – Decision on gender separation in swimming and sports halls - Stockholm and Malmö) Diskrimineringsombudsmannen (Discrimination Ombudsman) (2016)
Case No. T 3905-15 – the Swedish Equality Ombudsman v. the Kingdom of Sweden through Karolinska Institutet Stockholms tingsrätt (Stockholm Municipal Court) (2016)
A Swedish dental student was during her dental clinic required to work with bare under-arms. Due to the student’s religious convictions, she asked for permission to wear disposable underarm protection, but her request was denied. The student filed a complaint with the Swedish Equality Ombudsman, who decided to bring an anti-discrimination case to civil court against the education provider Karolinska Institutet. Both parties agreed that working with bare underarms constituted a higher burden on Muslim women, and the case came down to conflicting expert testimony regarding how sanitary the arm covers were in practice. The court found that the education provider had the burden of proof to provide objective justification for an indirect discrimination and that both experts provided equally strong arguments. Therefore, the court ruled in favor of the student. The student was awarded SEK 5000 as compensatory damages.
Case No. B 10/16 – E.G. in Tenhult v. the Region of Jönköping County Arbetsdomstolen (Swedish Labor Court) (2017)
A to-be midwife, E.G., was denied jobs for which she had applied at three different obstetrics and gynecology departments. When applying, E.G. said that she could not participate in performing abortions due to her religious beliefs. The court considered whether the region had discriminated against E.G. according to Article 14 of the European Convention on Human Rights (ECHR) and the Swedish Discrimination Act and whether the region had violated E.G’s rights under Article 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the ECHR. The Swedish Labor Court found that the region’s decision not to employ E.G. for the positions she applied to, which included tasks that she had declared that she would not perform, did not constitute direct or indirect discrimination. The Labor Court stated that the region’s criteria – that the applicant could perform all tasks falling within the position, including abortion – was motivated by a legitimate purpose, i.e. good healthcare for the women seeking abortion as defined in the democratically adopted law. The criteria was also found appropriate and necessary to reach the aim of good health care. The Labor Court further deemed that it was E.G’s “professional limitations” and not her opinions regarding abortion that had mattered in the region’s decision not to hire her. Therefore, the Labor Court ruled that region had not committed violations of neither Article 9, 10 or 14 of the ECHR, nor the Swedish Discrimination Act.
Case No. A 46/17 – the Swedish Equality Ombudsman v. Almega Tjänsteföretagen and Semantix Tolkjouren AB Arbetsdomstolen (Swedish Labor Court) (2018)
A Muslim woman refused to shake a male interviewer’s hand for religious reasons during a job interview. She placed her hand over her heart and explained her reasons. The recruitment process was then canceled, as the company had a policy which required employees to shake hands with both men and women. The Swedish Equality Ombudsman claimed that the cancellation was an indirect discrimination of Muslims who refuse to shake hand with a person of an opposite sex. The Swedish Labor Court first established that the right to refuse a handshake on religious grounds is protected by the European Convention on Human Rights. The court further found that the handshake policy was neither appropriate nor necessary to achieve its justified purpose (promoting gender equality at the workplace). The court ordered the company to pay the woman SEK 40,000 in damages.
BVerwG 6 C 25.12 Bundesverwaltungsgericht (Federal Administrative Court) Bundesverwaltungsgericht (Federal Administrative Court) (2013)
The Court rejected the appeal and upheld the decision of the lower court that a female Muslim high school student was not exempt from compulsory swimming lessons on the grounds of her religion. In the circumstances, there was not sufficient reason to undermine compulsory school attendance of children. The girl's parents had applied to the school for an exemption from swimming lessons on the grounds that Islamic dress custom did not allow their daughter to participate in co-educational swimming lessons. The school had rejected the application but permitted the girl to wear swimwear in accordance with Islamic custom (a burkini).
Das Gericht wies die Revision zurück und bestätigte die Entscheidung der Vorinstanz, dass eine muslimische Schülerin nicht aufgrund ihrer Religion vom obligatorischen Schwimmunterricht befreit werden kann. Unter den gegebenen Umständen gab es keinen ausreichenden Grund, die Schulpflicht von Kindern zu umgehen. Die Eltern des Mädchens hatten bei der Schule eine Befreiung vom Schwimmunterricht mit der Begründung beantragt, dass die islamischen Bekleidungsvorschriften ihrer Tochter die Teilnahme am koedukativen Schwimmunterricht nicht erlaube. Die Schule lehnte den Antrag ab, erlaubte dem Mädchen jedoch, eine dem islamischen Brauch entsprechende Badekleidung (einen Burkini) zu tragen.
R.A. v. N.C. Queensland Civil and Administrative Tribunal (2018)
The complainant was a Muslim woman who wore a hijab covering her hair. While the complainant and the respondent were in a residential elevator, the defendant made disrespectful remarks to the complainant about the complainant’s presumed religion.The two did not know each other – the complainant’s hijab was the only way for the defendant to identify her religion. The complainant sought an apology. Video evidence was submitted at trial from CCTV. Importantly, there was an additional individual in the lift. As a result of this witness, the tribunal was able to find that the defendant had committed a “public act” for the purposes of the Anti-Discrimination Act 1991 (Qld). However, the tribunal ultimately did not find for the complainant as the words used were determined by the tribunal to not, in fact, result in religious vilification as the additional individual in the lift did not react to the words. This case is relevant as it goes directly to ongoing discrimination women may face in Australia as a result of expressing their religion (through, for example, wearing a hijab).
RRT Case No. 1101038 Refugee Review Tribunal (2011)
The applicant appealed a decision denying her a protection visa. The applicant demonstrated evidence that if she returned to Uganda, she would be forced to undergo FGM. The applicant was a member of the Sabiny tribe, meaning her father’s family had the right under Ugandan law to take her away from her mother and compel her to obey traditional practices, including FGM. She further testified that if she returned to Uganda there would be a risk of abuse as she was a Christian, which was not accepted in her family village. Furthermore, when she was 12, her family found a potential husband for her, a witchdoctor who believed in Satan and professed sacrificing people to achieve a particular objective. She was therefore afraid that if she returned to Uganda, she would be forced to marry this individual, who believed that sacrificing people could bring him power and money. The tribunal found that the applicant was a person to whom Australia owed protection obligations.
Ekhamanzi Springs Ltd. v. Mnomiya Labor Appeal Court of South Africa (Arbeidsappèlhof van Suid Afrika) (2014)
The respondent was employed by the appellant to bottle Aquelle spring water. The appellant’s plant was located on property belonging to a religious mission, and to gain access to the workplace, the appellant’s employees had to cross the mission’s property. The mission’s security guards were instructed to bar entry to any persons who did not comply with its code of conduct; one provision, for example, prohibited “amorous relationships between any two persons outside of marriage”. The respondent and a colleague were denied access because they became pregnant outside of marriage. Consequently, the respondent and her colleague were not able to access the workplace, as they were refused access to the mission’s property. They were subsequently fired. The court ruled that the dismissal of the respondent employee was automatically unfair because she had been dismissed for her pregnancy. The court noted that all persons have a constitutional right to equality. Discriminatory dismissals, such as this one, are accordingly automatically unfair and higher compensation is allowed in such cases. Employers are obliged to avoid discriminating against employees directly or indirectly ̶ protection against being discriminated against on the ground of pregnancy is not a preserve of married women. An agreement that denies pregnant employees access to the workplace is accordingly prima facie unenforceable unless it can be justified on grounds consistent with constitutional norms. The mission’s code of conduct interfered with the employment relationship between the appellant and its employees and created a situation in which breaches could lead to dismissal. Such provisions blurred the line between the appellant’s terms and conditions of employment and the mission’s code. That the employee was not a party to the mission’s code proved decisive. As lessee, the appellant had legal remedies to compel the mission to allow full use and enjoyment of the leased property. The appellant’s faint plea of operational necessity could not serve as a defense because it had failed to exercise its rights as lessee to protect its pregnant employees. The employee had tendered her services, and the appellant’s refusal to accept the tender constituted a breach of contract. The court further held that the appellant’s acquiescence in the mission’s discriminatory practice of barring unwed pregnant women from the leased premises violated the appellant’s constitutional duty to treat its employees fairly and was a breach of its common law duty to accept the employees into service. The court, therefore, confirmed that the employee had been dismissed and that her dismissal was automatically unfair. The court also confirmed the remedy of 12 months’ compensation.
Die respondent is in die diens van die appêlant om Aquelle water te bottel. Die appêlant se aanleg was op eiendom wat aan 'n godsdienstige sending behoort, en om toegang tot die werksplek te verkry, moes die appêlant se werknemers die sending se eiendom oorsteek. Die sending se sekuriteitswagte is opdrag gegee om toegang te verbied aan enige persone wat nie aan hul gedragskode voldoen het nie; een bepaling, byvoorbeeld, het "verliefde verhoudings tussen enige twee persone buite die huwelik" verbied. Die respondent en 'n kollega is toegang geweier omdat hulle buite die huwelik swanger geraak het. Gevolglik was die respondent en haar kollega nie in staat om toegang tot die werksplek te verkry nie. Aangesien hulle toegang tot die missie se eiendom geweier is is hulle is daarna afgedank. Die hof het beslis dat die ontslag van die respondent werknemer outomaties onregverdig was omdat sy vir haar swangerskap ontslaan is. Die hof het kennis geneem dat alle persone 'n grondwetlike reg tot gelykheid het. Diskriminerende afdankings, soos hierdie een, is dienooreenkomstig outomaties onregverdig en hoër vergoeding word toegelaat in sulke gevalle. Werkgewers is verplig om te verhoed dat daar diskriminasie is teen werknemers, direk of indirek - beskerming teen diskriminasie op die grond van swangerskap is nie 'n bewaar van getroude vrouens nie. 'n ooreenkoms wat verwagtende werknemers se toegang tot die werksplek ontken is gevolglik prima facie-onafdwingbaar tensy dit geregverdig kan word op grond wat met grondwetlike norme bestaanbaar is. Die sending se gedragskode het met die werksverhouding tussen die appêlant en sy werknemers ingemeng en 'n situasie geskep waarin oortredings tot ontslag kan lei. Sodanige bepalings vervaag die lyn tussen die appêlant se bepalings en voorwaardes van indiensneming en die sending se kode. Dat die werknemer nie 'n party tot die sending se kode was nie, was beslissend. As huurder het die appêlant regsmiddels gehad om die sending te dwing om volle gebruik en genot van die gehuurde eiendom toe te laat. Die appêlant se dowwe pleidooi van operasionele noodsaaklikheid kon nie dien as 'n verdediging nie omdat dit versuim het om sy regte as huurder om sy swanger werknemers te beskerm uit te oefen. Die werknemer het haar dienste aangebied, en die appêlant se weiering om die aanbod te aanvaar het 'n skending van die kontrak saamgestel. Die hof het verder bevind dat die appêlant se vrywaring in die diskriminerende praktyk van die missie om ongewenste swanger vroue van die gehuurde perseel te belet. Die appellant se grondwetlike plig om sy werknemers billik te behandel is geskend en dat dit ‘n oortreding van sy gemeenregtelike plig was om die werknemers in diens te neem. Die hof het dus bevestig dat die werknemer ontslaan is en dat haar ontslag outomaties onregverdig was. Die hof het ook die regsmiddel van 12 maande se vergoeding bevestig.
International Case Law
D.T. v. Canada Human Rights Committee (ICCPR) (2017)
D.T., a Christian born in Nigeria, married a Muslim. Her parents were against the marriage, and when she was pregnant, they threatened to kill the baby. After her husband died, she was forced to drink the water used to bathe his corpse and to sleep in the room with the corpse for three days. With help, she escaped and traveled to Canada where she gave birth to her son. Her son suffers from conditions, including a heart murmur, malformation of his meniscus and attention deficit hyperactivity disorder (ADHD). D.T. applied for asylum, but Canada denied her application because it found that she failed to provide materials or documentation establishing her identity and her claims. Canada dismissed her application for judicial review and ordered her to leave Canada with her seven-year-old son. To the Committee, D.T. argued that Canada’s decision violated articles 17 and 23(1) of the Covenant, that her son is also the victim of a violation of article 24(1), and that they face a risk of irreparable harm if deported to Nigeria, which has education and health care facilities inadequate to meet her son’s needs. Further, if her son remained in Canada as a citizen, it would result in family separation from his sole caregiver. The Committee concluded that given that there was no evidence that that the child had any alternative adult support network in Canada, it was foreseeable that D.T. would take her son to Nigeria. Therefore, Canada did not adequately explain why its legitimate objective in upholding its immigration policy should have outweighed the best interests of the D.T.’s child nor how that objective could justify the degree of hardship that confronted the family because of the decision to deport the mother. Acting under article 5(4) of the Optional Protocol, the Committee found the removal resulted in arbitrary interference with the right to family life in breach of article 17(1) and article 23(1) of the covenant with respect to D.T. and her son, and that it violated article 24 due to a failure to provide her son with the necessary measures of protection owed to him by Canada. Canada was ordered to provide D.T. with an effective re-evaluation of her claims, based on an assessment of the best interests of the child, including his health and educational needs, and to provide her with adequate compensation. The Committee stated that Canada also is under an obligation to avoid similar violations in the future and to publish the Views and have them widely disseminated in Canada in French and English.