The current coronavirus epidemic is forcing many employers to make difficult decisions in order to stay in business. For many employers, avoiding discrimination might not seem like a top priority at this time. It is important to keep in mind, however, that it is still illegal for employers to discriminate against their employees, also when deciding who should be selected for temporary lay-offs (permittering).
The legal protections against discrimination are in place in order to protect those in danger of being treated worse than others.
We provide guidance with regard to the Equality and Anti-Discrimination Act. We do not provide guidance with regard to the various rules concerning temporary lay-offs or other related subjects.
If you would like more information about what a temporary lay-off is and which rules govern temporary lay-offs work in Norway, you can og to the website of the Norwegian Labour Inspection Authority (Arbeidstilsynet).
If you have been temporarily laid off you might qualify for unemployment benefits (dagpenger). You can find more information on the website of the Norwegian Labour and Welfare Administration (NAV).
What is discrimination?
We all have characteristics or qualities that can lead us to be singled out for differential or unfair treatment in different situations. Treating people differently because of certain characteristics or qualities can be discrimination. Discrimination is illegal in Norway and is forbidden by the Equality and Anti-Discrimination Act.
Not all treatment that we experience as unfair is necessarily considered discrimination according to the law, however. The Equality and Anti-Discrimination Act identifies certain conditions which must be met in order for differential or unfair treatment to be legally classified as illegal discrimination.
According to the law, discrimination is understood as differential treatment related to certain protected «grounds» or characteristics, and which has no otherwise legitimate basis.
- Differential treatment is typically an action or oversight that leaves someone worse off than others
- The specific «grounds» or characteristics protected under Norwegian law are: gender, pregnancy, parental leave, role as care-giver, ethnicity (including national origin, descent, skin colour, and language), religion/ lifestance, disability, sexual orientation, gender identity, gender expression, and age. In the field of employment there are additional protections against discrimination on the basis of labor union membership and political views.
- In certain situations, differential treatment can be legitimate, even if it is related to a protected ground.
If you are unsure if you have experienced discrimination, you can try to answer the following three questions:
- Has differential treatment taken place?
- Is the differential treatment related to a protected «ground»?
- Is there a legitimate reason or basis for the differential treatment which might make it acceptable?
If the answer to the first two questions is «yes», then there are certain conditions for legal differential treatment which must be fulfilled in order for the treatment to be allowed under the law.
It should be noted that there is no simple, one-size-fits-all explanation concerning when these conditions are met. This must be evaluated on a case-by-case basis, based on the concrete situation at the particular time the differential treatment took place.
The particular «ground» being affected can also have significance for this determination. This is explored in greater detail below.
Here are two examples concerning temporary lay-offs which go through the necessary considerations which must be taken in order to determine whether or not discrimination has taken place.
Example 1: A pregnant employee is temporarily laid off
Your employer must temporarily lay off several employees because business has been affected by the coronavirus epidemic. You are among those who have been temporarily laid off. You are pregnant.
Have you been discriminated against?
As a person who is pregnant you are subject to particularly strong legal protections against discrimination. For example, an employer is never allowed to fire you or refuse to hire you because you are pregnant. There are very few situations where differential treatment against pregnant women is allowed. In other words, if your pregnancy is the reason that you have been temporarily laid off, you have likely been discriminated against because of your pregnancy.
That being said, legal protections against discrimination are not meant to provide anyone with better circumstances than anyone else, either. That means that if your employer can provide a legitimate reason for why you were chosen to be temporarily laid off - for example, if you were the most recent person to be hired (kortest ansiennitet) - then it is likely that you were not discriminated against.
This is the case even though you are pregnant - as long as your pregnancy did not play a role in your selection. If, however, you are pregnant and you are the only one who received this alternative explanation as to why you were temporarily laid off, then there is a possibility that your pregnancy might still have played a role in the decision, and it can be worth looking deeper into the matter.
Example 2: An employee with small children is temporarily laid off
Your employer must temporarily lay off several employees because business has been affected by the coronavirus epidemic. Your employer’s explanation concerning those who have been chosen for temporary laid-offs involves the need to prioritize employees who are able to be physically present at the workplace in order to maintain operations.
You are unable to be physically present at the workplace, and are temporarily laid off. The reason you can’t be physically present at the workplace is that you have young children and daycare (barnehage) has been closed due to governmental social distancing measures; you have to stay at home to take care of your children.
Have you been discriminated against?
In this example we will use the three questions mentioned above in order to make a determination.
- Has differential treatment taken place? Yes, you have been temporarily laid off. You are worse off than others because you are unable to go to work and your employer will not pay you while you are laid off.
- Is the differential treatment related to a protected «ground»? Yes, the reason you are unable to be at work is that you have to be at home with your children. Responsibility as a care-giver is a protected «ground». In this example, your role as a care-giver is not the direct reason you are being temporarily laid off, rather it is the fact that you are unable to be physically present at the workplace - a neutral requirement applied equally to all employees.
However, the reason you can’t be present at the workplace is your role as care-giver. In other words, your employer’s policy, which, while on the surface neutral, still leaves you worse off than other employees because of your role as care-giver. This can be referred to as indirect differential treatment. The prohibition against discrimination also protects against indirect differential treatment.
- Is there a legitimate reason for the differential treatment which might make it acceptable?
Yes, most likely there is.
Here we must consider whether or not the necessary conditions for legal differential treatment have been met. Your employer justified their selection of who to temporarily lay off with the fact that they need to prioritize employees who can be physically present at the workplace in order to maintain operations. For an employer in a difficult financial situation this will likely be a legitimate factor to consider when deciding who to temporarily lay off.
It will likely also be a form of legal differential treatment of you, even though the reason you have to stay at home is because you have to care for your children. It is important to be aware that the protection against discrimination can vary with regard to different grounds of discrimination, depending on the situation. In these two cases, the protection against discrimination for care-givers is not as strong as the protection for those who are pregnant. This has to do with the employer’s legitimate need to be able to run their business, and the difference between keeping someone who is able to be present (a pregnant person) vs keeping someone who is unable to be present (a person who must remain at home to care for children).
It should be noted that what might be a legitimate reason for treating someone differently in one situation, is not necessarily a legitimate reason in another situation. The actions taken in each situation must be evaluated independently, and within the specific context of the respective situations. For example, it will usually not be necessary for an employer to lay off an employee who is already on parental leave (permisjon) and receiving public assistance (foreldrepenger), if the intended goal of implementing temporary lay-offs is to limit the costs related to wage/salary payments.
The right to an interpreter
Health service providers are responsible for ensuring good communication between health care staff and patients, which is essential during the pandemic. As a patient, you have the right to receive information about your health, medical condition, and treatment in a language that you understand. As a patient with limited ability to speak and/or understand Norwegian, you have the right to a qualified interpreter who can translate to the language you prefer. In order to ensure the best communication possible, your health care provider can also decide that they need to use an interpreter, even if you speak Norwegian on a daily basis.
Although health service providers are responsible for arranging for an interpreter when needed, there can be a wait for interpreters who are in demand. For this reason it is your responsibility to inform your health service provider as soon as possible if you think you need an interpreter. Children and other family members should not be used as interpreters. In order to limit the danger of spreading the coronavirus, there may be limitations on who is allowed to be present with you under medical consultations.
Screen and telephone-based interpreters can sometimes be good alternatives to having an interpreter present in the room, for example in situations where there are no qualified interpreters in the area. If you are not provided with an interpreter, even though you have aksed for one, you can register a formal complaint with your health service provider. You can also register a formal complaint with the Health and Social Services Ombud (Pasient- og brukerombudet).
Do you have a complaint?
If you are not satisfied with the quality of the interpreter you can also register a formal complaint about this with your health service provider.
It is important to include as much concrete information as possible in your complaint: time and place, the names of those involved, and a detailed description of what you are unhappy about. Your complaint does not have to be in Norwegian. If you are not happy with the way your complaint is handled by your health service provider or by the Health and Social Services Ombud, you can contact the Equality and Anti-Discrimination Ombud for further guidance.
Read more about the right to an interpreter at Helsenorge. Here you can find information in several different languages.