Enforcing the law

However, with regard to state employees there is, due to the constitutional rules on objective grounds in hiring, sometimes also the alternative or complementary route of appealing against a decision through administrative procedures.

Cases outside working life will be dealt with by the ordinary court system, i.e. the relevant district court in the first instance. Discrimination in connection with for instance social security (an example of an area normally falling under administrative law) is thus dealt with by the ordinary civil court system and the ordinary rules on civil process apply.[3]

The new Discrimination Act also gives non-profit organisations whose statutes states that it is to look after its members, the right to bring actions in their own name as a party.

Relevant criminal procedures may be initiated by a public prosecutor or the private party him or herself. The Ombudsman and non-profit organisations do not have legal standing before the courts in criminal procedures.

A shared burden of proof of discrimination was introduced with the old acts. Nevertheless, very few cases of alleged discrimination have been won so far. In most cases this is due to the plaintiff’s failure to prove a prima facie case of discrimination. The statistics from the Ombudsmen’s offices show that a considerable number of cases are settled out of court, however. The same is probably true for the trade unions.

Situation testing is not explicitly touched upon in Swedish law and thus there is no definition, nor any explicit procedural law dealing with the conditions for admissibility. However, situation testing can be permitted and the value of such evidence has to be assessed in accordance with the circumstances at issue.Testing is accepted both in relation to criminal offence and civil damages claim. However, in 2008 the Supreme Court ruled that the damage suffered by persons involved in situation testing was lower than the damage suffered by other persons and therefore reduced the civil damage substantially.  

As regards statistical evidence this is normally used in indirect discrimination cases. The (1998:2004) Act on Personal Information (Personuppgiftslagen) contains the general rules on the right to register personal information. There is a general prohibition to register (among other things) such ‘sensitive personal information’ as ethnicity, religion or other beliefs and information concerning health and sexual life including sexual orientation (Sec. 13). There is no case-law in the areas of discrimination outside sex discrimination using statistics to the knowledge of the author. As regards sex discrimination: statistics have first and foremost been used in cases concerning equal pay but to some extent also employment. In these cases, there has been no real legal dispute as regards the statistics as such.

A contract (collective or individual) is invalid to the extent that it prescribes or permits discrimination, and a discriminatory provision or legal act may be declared invalid if so requested.

There is also a right to damages for the violation caused by the discrimination and – in employment cases not relating to hiring or promotion – for the economic loss that arises. Damages are known to be low in Sweden. The new Discrimination Act introduced a new form of civil damages, the discrimination award. The courts are by law instructed to give particular attention to the purpose of discouraging infringements. The level of damages will therefore be higher in the future. Generally speaking, sanctions must be said to be proportionate, effective and dissuasive.