Abstract

Equal rights and opportunities are viewed as fundamental components of universal human rights. Sweden is considered by many to be at the forefront of human rights. At the same time, the development of equality law in Sweden both in terms of legislation as well as implementation has been a relatively recent phenomenon. 

The basic elements of equality law have to a large extent moved across the Atlantic from North America, the US as well as Canada, either directly or indirectly, providing a starting point for filling out the form of equality law in Europe, including Sweden. Examples of this are the civil law bans on discrimination (particularly in certain private relations such as on the labor market), shifting the burden of proof, indirect discrimination, affirmative action plans, sexual harassment and equality bodies/commissions. Concepts such as institutional and structural discrimination, intersectionality, and critical race and feminist theory are also gaining influence. Sweden was slow both in terms of adopting the laws in the first place (e.g. after the US, the UK and Canada) as well as in their implementation. Seemingly there was little interest in such laws since Sweden’s self-perception was that it did not have such problems, while at the same time recognizing that such laws were necessary elsewhere. While the laws have slowly been into place in Sweden, including the key elements mentioned, there are underlying issues concerning the actual application and enforcement that lead to questions concerning the substantive content given to the law.  This raises the question of law in books as opposed to law in action, form as opposed to content.

This thesis examines the gap between Swedish equality law and its enforcement, identifying the elements that may be needed for a more effective achievement of equality, both inside and outside the labor market. This analysis is based on a comparison of the historical development of equality law and rights in various systems, civil society mobilization, access to justice issues and the role of equality bodies, in North America (US and Canada) and Europe (EU, UK and Sweden). This also requires an analysis of the law in context concerning the various jurisdictions examined that have relatively similar legal structures against discrimination.  

One major hindrance to more effective equality law in Sweden, particularly in the field of employment, has been the open as well as covert opposition by both employers and unions over the years. Equality law has been seen as a threat to the Swedish corporatist model of labor relations. At the same time, European law on discrimination (the European Convention on Human Rights together with EU law, particularly the EU antidiscrimination directives) is increasingly setting a minimum standard for Swedish equality law based on individual rights – even in labor relations.  

Other aspects related to the US/Canadian environments are increasingly gaining traction in Sweden, such as equality as a constitutional issue (or issue of “higher law” as reflected in the ECHR and EU-law ), a broader civil rights (US) or human rights (Canada) theme in contrast to the European focus on the varying equality or discrimination silos such as sex, race/ethnicity, disability, sexual orientation, a greater NGO advocacy role in regard to legislation as well as in implementation, and an interest in sanctions/remedies as a way to change behavior. Here there is an underlying access to justice theme, partly in terms of the need to develop case law in a manner that actually leads to changes in norms, partly in terms of other measures that can lead to pressure on those with the power to prevent discrimination, to use that power. 

Project managers

Paul Lappalainen

Doktorand

Department of Law

paul.lappalainen@juridicum.su.se

See profile page for Paul Lappalainen

Related link:

The ECCAR Toolkit for Equality, UNESCO’s European Coalition of Cities Against Racism, 2017