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By Marcus Hoy
Sweden's Discrimination Ombudsman has ruled that a company should not have excluded a jobseeker from applying for a position at an all-male care home because his religion prevented him from shaking hands with women. Published May 29, the May 9 ruling is not directly applicable to other companies, though DO enforcement decisions are widely used as legal guidance.
According to the Ombudsman, the jobseeker had suffered indirect discrimination when the company halted the recruitment process after learning that he was unwilling to shake hands with women on religious grounds.
In halting the recruitment process, the DO stated, the company set a requirement that was too far-reaching in relation to the man's ability to exercise his interpretation of the Islamic faith without negative consequences. Generally, however, the DO said that an employer may require employees to make no distinction in greeting persons related to their gender or any other legal grounds for discrimination. Equal treatment, the DO stated, must be the norm unless a legitimate purpose exists to differentiate between genders. Even if it is done in a respectful manner, the DO held, the practice of systematically greeting men and women in a different manner breaches equal treatment obligations required under Swedish law, so if the man refused to shake hands with women, he could not shake hands with men.
“There are two issues here,” Martin Mork, deputy ombudsman and head of litigation at the DO, told Bloomberg BNA June 2. “Firstly, whether an employee should be required to greet in a particular way and secondly the separation of the way you greet on grounds of gender. It is okay for an employer to demand that you greet without distinction to uphold gender equality, but demanding that you greet in a particular way, by touch, is going too far if it violates your religious beliefs. Given the aspiration of not excluding religious persons from the workplace, we do not see it as justified or proportionate to require an employee to touch another person as a form of greeting.”
“If you decide that you do not wish to shake hands and prefer to greet in a different fashion, then it is fair to require that you do not make any distinction based on gender, sexual orientation, ethnicity, etcetera,” Mork said. “In such cases, the employer has a legitimate interest in upholding principles of equal treatment in the workplace.”
“In certain jobs you must have physical contact with people of the opposite sex—otherwise you cannot perform your job function—but in this case that was not required,” Mork said. “In relation to the tasks involved, requiring that an employee greet in a particular way cannot be justified in this case.”
Mork agreed that the principle could potentially be applied to traditional business meetings in which an employee's refusal to shake hands could be seen as impolite.
“This is not only a matter of religion,” Mork said. “You have people with certain learning disabilities, for example, who have difficulties with touch. Legislation requires that there should be a real occupational requirement before an employee can be obliged to physically touch another person. Demanding that a greeting must involve touching, we would consider is going too far. There are various forms of greetings that can be used that do not involve touch. Our assessment is that a handshake should in most cases not be considered a real occupational requirement.”
“We have another ongoing case that concerns handshaking,” Mork added. “In this case, the company is saying that ‘in our workplace we shake hands.’ We are saying that this is not a genuine occupational requirement that is needed to perform a task.”
“We see the decision as stating that the employer's grounds for the exclusion—that is, women and men should be treated equally—is justifiable,” Åsa Gotthardsson, senior associate at the Vinge legal firm, told Bloomberg BNA May 31 “In the case in question, the employer not only determined that the potential employee was not entitled to greet men and women in different ways, but also imposed a requirement on how an employee should greet someone. If the employer had settled for a less intrusive principle which nevertheless protected gender equality rights, then in our view the Ombudsman's decision would have been different.”
“Such cases demonstrate that it is becoming increasingly complex for employers to balance various interests,” Gotthardsson said. “For example, a situation could arise during an employment interview where an employer and a candidate agree that a precondition for employment is that the employee is not required to shake hands in conjunction with work duties. If the employee subsequently greeted men by shaking their hand but refused to afford the same courtesy to women, questions could arise over whether the employer has objective grounds for dismissal, especially if such behavior could be seen as discriminatory to a third party and therefore lead to third party claims.”
“The question of whether or not it is appropriate for an interviewer to demand that a job applicant shakes hands has previously been the subject of court proceedings,” Dasha Gafur, an attorney at the Bird & Bird legal firm told Bloomberg BNA June 1. “These proceedings implied that generally the question of whether religious views are given prominence over company policy will depend on individual circumstances. Nevertheless, we do not believe that this decision implies that a desire to integrate religious minorities into the workforce can override gender equality principles. In line with the DO's reasoning, we think that it will generally be deemed too far-reaching for an employer to demand that employees greet others in a specific manner such as a handshake.”
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