Main legislation

It should be noted that in 1995 the European Convention on Human Rights was incorporated into national legislation and given a quasi-constitutional status. Any law that contradicts the rights set forth in the Convention is void and may not be applied. Sweden has also signed and ratified the Revised European Charter, the International Covenant on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of Discrimination against Women, as well as a number of relevant ILO Conventions. If not incorporated, international agreements are not as such part of the internal Swedish hierarchy of laws and these instruments thus can not be directly relied upon in domestic courts of law.

Although a late starter in the field of non-discrimination legislation, Swedish domestic law in 2008 contained a considerable quantity of explicit prohibitions on discrimination, which were to be found in seven specific acts.[2]

These seven acts are from 1 of January 2009 repealed and replaced with the new Discrimination Act (2008:567). 

There are also criminal law provisions, such as the provision that bans unlawful discrimination by businessmen on the grounds of ethnicity, religion and sexual orientation with regard to the provision of goods and services and the ‘hate speech’ provision, which makes it a criminal offence to disseminate a message which is threatening or degrading to a group of persons.

Generally speaking, Swedish law may be said to be in conformity with the Article 13 Directives. Especially as regards religion and other beliefs and sexual orientation, domestic law goes beyond the requirement of EU law. This is also true with regard to discrimination on the grounds of disability. Nevertheless, there are some flaws in the implementation. The following flaws remains with new Discrimination Act.
 

• The protection against discrimination or victimisation does not fully cover self-employed people.
• Discrimination against legal persons is not prohibited.
• Discrimination and harassment from fellow workers or third parties are not as such prohibited. 

The unwillingness to make harassment from fellow workers prohibited as such is connected to a more general restriction of vicarious liability for employers.  It can be illustrated with Labour Court 2007 case no 15 and 45. In the latter case all parties started from the fact that the Iranian had been discriminated against, but no person could be held responsible since the erring employee did not have the authority to reject his application for the job. In these cases we have a person being discriminated against by an employee not liable under the civil discrimination law.

The plaintiff must go through the employer and the employer can only be liable if he or she has been negligent by for instance not reacting promptly on being informed of an harassment or by giving authority to represent the employer to an employee who have bad judgement.  The principle of vicarious liability in relation to discrimination law is restricted when employees act outside their authority to an extent that is problematic in relation to discrimination law.

It is also worth pointing out that it seems to be easier to establish a prima facie case and to win discrimination cases in the ordinary court system compared to the Labour Court. It further seems to be very hard to win cases of ethnic discrimination in the Labour Court. One possible reason is that the Labour Court applies the rules on shifting the of burden of proof in the Swedish Discrimination Act and EU legislation in a more restricted way compared to the ordinary courts.