New authority to the Board of Equal Treatment

A recently adopted amendment of the Act on the Board of Equal Treatment means that the Board now has authority to hear complaints concerning harassment, including sexual harassment.

The Board hears complaints concerning discrimination within/outside the labour market and is regulated by the Act on the Board of Equal Treatment. On 24 May 2012, the Danish Parliament adopted an amendment to the Act resulting, inter alia, in a number of changes as regards the Board's authority and presidency.

Authority to hear complaints concerning harassment due to gender

Under the present Act on the Board of Equal Treatment, the Board is authorised to hear complaints about labour market matters concerning discrimination due to gender, race, colour, religion or faith, political opinion, sexual orientation, age, handicap or national, social or ethnic origin. As regards non-labour market matters, the Board is authorised to hear complaints about discrimination due to ethnic origin, race and gender.

According to the Board's present case law, the Board does not consider itself authorised to hear complaints concerning harassment under the Act on Equal Rights. However, the authority within this area has not been clear as the Act on Equal Rights stipulates that harassment is part of the concept discrimination due to gender, and that the Board is therefore authorised to hear such complaints.

The recent amendment settles this uncertainty, and a direct reference has been added to section 2a of the Act on Equal Rights according to which harassment and sexual harassment are considered discrimination due to gender. With this reference to section 2a, the Board will be authorised to hear complaints about harassment and sexual harassment in the future.

Amendment to the provision concerning presidency

The recently adopted Bill also contains an amendment as to who may be appointed president of the Board. In the future, the president must be a High Court judge or the president or vice-president of the Maritime and Commercial Court. The reason for this amendment is that the decisions of the Board may involve leading cases, and often the Board must assess legislation based on EU law or international conventions.

The possibility of dismissing complaints

Finally, there has also been a need for specifying the Board's possibility of dismissing complaints. The previous provisions concerning dismissal have now been united stating that the Board may dismiss a complaint if it is not deemed qualified for hearing by the Board, or if it is evident that the Board will not find in favour of the claimant.

Comments

The amendments and the specification of the Board's authority in relation to harassment, including sexual harassment, under the Act on Equal Rights, may be of importance to employers.

In a number of complaints, where the defendant has claimed dismissal of the complaint stating that actual evidence was to be produced before the compliant could be decided upon - evidence which cannot be produced to the Board as all complaints are conducted in writing - the Board has still decided on the complaints in terms of substance.

If this practice is transferred to future complaints concerning harassment, including sexual harassment, it should be expected that the Board will become the court of first instance in such cases, notwithstanding that such cases are often characterised by significant differences as to the understanding of the actual circumstances. There is a risk that the Board will, to a greater extent, take the claimant's written description into consideration than in case of an oral presentation before the courts.

The content of this Newsletter is not, and should not replace, legal advice.

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Finn Schwarz

Managing Partner

Marianne Lage

Partner