Johanna Westeson - The ICHRP

aggressively approached by the restaurant owner and asked to leave, had been unlawfully
discriminated against for reasons of their sexual orientation. 102 The Court applied the thenvalid
Swedish anti-discrimination law, 103 Article 9 of which banned discrimination related
to sexual orientation in the provision of goods and services. The Court also relied on
Article 21, according to which it is for the respondent to show that discrimination had not
occurred, if the plaintiff has shown that there were circumstances suggesting
discriminatory treatment. The Court found that the facts – that the two women had been
kissing and hugging gently and that opposite-sex couples showing the same level of
affection were left undisturbed – were established, and the respondent did not succeed in
showing that its treatment had not been discriminatory.
iv.2. Employer-imposed protective measures
In case 178 1 (2006) before Austria’s Federal Equal Treatment Commission, 104 the
Commission discussed ‘protective measures’ taken by an employer to shield a person from
discrimination, against the will of the person. The applicant was a policeman. After
announcing his (homo)sexual orientation in his workplace and suffering negative treatment
he had been transferred against his wishes from a special unit to another post, while the
other colleagues involved in the incident had not faced consequences. The Equal
Treatment Commission concluded that he suffered unlawful discrimination on the basis of
his homosexuality. Although the employer argued that it had transferred the applicant to
protect him against possible harassment, the court ruled that such measures must not be
taken against a person’s will.
iv.3. When non-discrimination and religion conflict
In the 2008 British case London Borough of Islington v. Miss L. Ladele 105 before the
Employment Appeal Tribunal, the claimant (here, respondent) was a state-employed
Registrar who, among other things, registered marriages. When the Civil Partnerships Act
2004 came into force, she refused to register partnerships between same-sex couples
because she claimed doing so was inconsistent with her Christian faith. The council where
she worked insisted that she perform at least some of such duties, disciplined her, and
threatened her with dismissal when she refused. The claimant contended that she had been
subject to direct and indirect discrimination as well as harassment because of her beliefs,
and the Employment Tribunal agreed that she had suffered direct discrimination.
The Employment Appeal Tribunal ruled that there was no proper legal basis to conclude
that discrimination had been established. It held that the applicant had not been directly
discriminated against or subjected to harassment on the basis of her religious beliefs but
rather disciplined on the basis that she had failed to perform work duties. She had also not
been indirectly discriminated against, as the requirement for all registrars to perform civil
partnerships, while adversely affecting persons who shared the applicant’s religious
beliefs, could be objectively justified as a proportionate measure designed to give effect to
the principle of equality of treatment that public authorities were expected to respect. As
such, the court concluded that disciplining a local authority official for refusing to register
same-sex civil partnerships does not constitute religious discrimination.
102 Swedish Supreme Court, NJA s. 170, only available in Swedish.
103 Act Prohibiting Discrimination, SFS 2003:307 (Lag (2003:307) om förbud mot diskriminering). No
official translation exists.
104 Senat II der Gelichbehandlungskommission des Bundes/7. Gutachten, 178 1 (2006), only available in
German.
105 Employment Appeal Tribunal, Appeal No. UKEAT/0453/08/RN, decided on 19 December 2008.
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