Discrimination to “need a female employee”

In this case, a specialized children’s hospital was looking for a new sports educator for a fixed-term duration of approximately one year. During the recruitment process, the company received a total of 30 applications, of which 9 came from male job applicants and 21 from female job applicants. Of these, two female job applicants were called in for an interview - one of them got the job.

After the deadline for the job advertisement expired, one of the male job applicants contacted the company to find out if his profile was relevant for the position. The company replied that unfortunately, it had already found someone for the position and explained that “this time it needed a woman”.

A few days later, the company elaborated further on why the male job applicant had not been offered the job, by explaining that the department consisted of five employees, of which two were female employees and that the employee whose position was been filled temporarily was a lady. Consequently, the company wanted “a balance and both female and male role models” but also explained that the female job applicant they chose had the right qualifications.

In light of the company’s reasoning, the job applicant felt discriminated against based on his gender and complained to the Norwegian Anti-Discrimination Tribunal.

Job applicants’ gender had been decisive

In accordance with its managerial right, companies can as a clear main rule decide who to employ. However, if discriminative elements are decisive when making the decision, the recruitment process will result in discrimination. In this case, the Norwegian Anti-Discrimination Tribunal found that that had been the case.

Although the company later claimed that although it wanted to employ a female job applicant, gender had not been decisive as part of the recruitment process. The company only chose to offer the female job applicant the position because she had the best qualifications based on her education, experience and personal traits, based on an assessment of all the job applicants.

Nonetheless, that assessment was not included in the company’s answer to the male job applicant or had otherwise been documented in the case. As no other documentation supported the opposite, the tribunal concluded that gender had been decisive during the recruitment process and, as a result, the male job applicant had been subject to discrimination based on gender. The tribunal therefore found that the company had breached the ban on discrimination based on gender.

IUNO’s opinion

Gender equality is always a relevant topic, and many companies are currently implementing measures to either ensure or improve gender equality at the workplace – or both. However, as this decision also shows, even the best intentions can have the opposite effect and, at worst, unintentionally result in discrimination.

IUNO recommends that companies carefully consider which criteria are applied as part of the recruitment process, as well as what documentation is ensured to demonstrate compliance. The rules on discrimination are subject to strict interpretation. That means that companies only can let gender be decisive to ensure the under-represented gender, if the job applicants are almost equally qualified based on an objective assessment.

[The Norwegian Anti-Discrimination Tribunal’s decision 20/300 of 5 July 2021]