The Equality and Anti-discrimination Ombud- participation in ordinary employment for people with disabilites

Lars Kolberg & Kristel Jüriloo

The Ombud - structure and organisation

• Established 1 January 2006 through the Anti-Discrimination Ombud Act

• Integrates three former offices• Under the Ministry of Children, Equality and

Inclusion• An independent public administrative agency • Operates free from the instruction of the

Ministry

Likestillings- og diskrimineringsombudet

Ombud Sunniva Ørstavik

The Ombud’s office

Law enforcement

• Law enforcement

• Statements of opinions

• Public hearings

• legal advice on questions of law

• Information

• Guidance to employers

• Information

• Forum

• Media

• Web

• Administration

• Human Resources

• Economy

Guidance CommunicationAdministration

and HRMonitoring

conventions

• CEDAW

• CERD

• CRPD

• Monitoring

• Reporting

• Public hearings

•

Likestillings- og diskrimineringsombudet

LDO as a law enforcer

• An alternative to courts of law• Free of charge• Handles complaints about breaches of law • Gives legal advice• Also take on cases by own initiative• Procedural features:

The principle of contradiction Shared burden of proof: presumption/ rebuttal

Likestillings- og diskrimineringsombudet

The Ombud’s statements of opinion

– Not legally binding

– No power to sanction our opinions

– Statements can be appealed to The Equality and Anti-Discrimination Tribunal

– Civil Courts can overrule

Likestillings- og diskrimineringsombudet

The Anti-discrimination legislationGender Equality Act 2013

Anti- Discrimination on Ethnicity Act 2013

Anti- Discrimination and Accessibility Act 2013

Anti-Discrimination Act on Sexual Orientation 2013

Working Environment Act Chapter 13

Gender All areas of society

Ethnicity (national origin, descent, skin colour, language) Religion Belief

Disabilities All areas of society

Sexual orientation Gender expression Gender identity All areas of society

Political view Membership in labour organisations Age In cases of employment only

Statistics 2014• Guidance: 1430 • Complaints (resulting in decisions): 207• Majority of cases are connected to

employment/working life• Disability is the second most common

discrimination ground in these cases

Number of complaints regarding disability

2007 2008 2009 2010 2011 2012 20130

20

40

60

80

100

120

140

160

180

200

Complaints regarding disability

2007 2008 2009 2010 2011 2012 20130

20

40

60

80

100

120

140

160

EmploymentGoods and servicesPublic administrationEducationHousing Police, justice systemOther

Number of inquiries regarding disability

2007 2008 2009 2010 2011 2012 20130

100

200

300

400

500

600

Inquiries regarding disability

2007 2008 2009 2010 2011 2012 20130

20

40

60

80

100

120

140

160

180

Goods and servicesEmploymentOtherPublic administrationEducationHousing Police, justice system

The Anti- Discrimination and Accessibility Act

• Main elements:– Prohibition of direct and indirect

differential treatment– Exception if the differential treatment is

legitimate, necessary and proportionate

– Affirmative/Positive action

The Anti- Discrimination and Accessibility Act

• Main elements:– Public and private entities open to the

public have a duty to ensure universal design (exception: undue burden)

– Right to individual accommodation in education, employment, the kindergarten and of long-lasting public health and social services (exception: undue burden)

Likestillings- og diskrimineringsombudet

The Anti- Discrimination and Accessibility Act§ 26 Right to individual accommodation

Employees and applicants with a disability have a right to reasonable individual accommodation of the place of employment and their work tasks in order to ensure that they can obtain or continue employment, have access to vocational training and other development of their qualifications, and to be able to perform their tasks and have the opportunity to be promoted on an equal basis with others.

…

Likestillings- og diskrimineringsombudet

The Anti- Discrimination and Accessibility Act § 26…

The right to individual accommodation is limited to accommodation that is not an undue burden.

In this assessment one should particularly take into account the effect of the accommodation on building down barriers, the necessary costs of the accommodation and the resources of the entity.

Likestillings- og diskrimineringsombudet

Paradox?

• Unemployment rate is much higher also w/ higher education

• 85-90000 persons with disability want to work.

• Many (state) employers are actively seeking persons with disabilities. Unsucsessful.

• Misfit?

What happens in recruitment?

What happens in recruitment?

Søker Intervju Intervju 2

Innstilt Tilbud Ansatt

Discrimination – you have to discriminate between candidates in order to find one!

Risk-averse employers => less diversity

What is the consequence?

• Bad for diversity– inequality / lack of diversity– some groups always underrepresented– Segregated and «clustered» labour market

• Bad for business– Homogenity – we are all the same– Less dynamics, less creativity etc. – Broad agreement on this in Norway

What employers are required to do

• Positive duty:– All employers* are required to promote equality

combat discrimination on gender, ethnicity and disability

* all public employers and private >50

What can employers do?

Fight my inherent tendency to employ someone similar to me

Good recruitment…

• Find out what I need - really• Assess applicants on whether they meet the

actual qualifications for the position• Choose candidates on the basis of these

criterias – without a view to other aspects – age, gender, religion, disability…

= Equal recruitment – good for diversity

Job analysis Advertising Interview Selection

Positive action – in general

• Legal for all grounds - possibility– Restricted for men (only position w/child care)

• Promote equal opportunities, proportional, temporary

• Conditions: In national discrimination law• In collective agreements, regulations etc.

Positive action

• Encourage to apply• Selection to interview• Preferential treatment in hiring

– Weak and strong

• Trainee positions

• «What is legal has moderate effects. What works tends to be illegal»