Active equality efforts - Duty of employers to promote equality
The Equality and Anti-Discrimination Act of 2018 stated that all employers, regardless of size, and including also the cultural and creative sector, were obliged to make active, targeted and systematic efforts to promote equality and prevent discrimination in all their operations on all discrimination grounds. Employers in the public sector and employers in the private sector with more than 50 employees, were obliged to follow a four-step model in their equality work. Further, according to the 2018 Act, undertakings that were required by the Accounting Act to submit an annual report, were obliged to issue a statement on equality in their annual report. As a result of amendments in the Accounting Act in 2018, the duty to prepare an annual report did not apply to small undertakings.
In January 2020, amendments in the Equality and Anti-discrimination Act, clarifying and strenghtening the employers activity and reporting duties, entered into force. Firstly, the activity duty which applies to all employers is continued and clarified. The new rules clarifiy that the duty includes proactive work against intersectional discrimination. The new rules also clarify that the duty includes an obligation to prevent harassment, sexual harassment and gender-based violence. Secondly, according to the new rules, all employers, regardless of size and sector, shall document how they work to fulfil their obligations to work actively, targeted and systematic to promote equality and prevent discrimination. Thirdly, as before, the activity duties of public employers and private employers with 50 employees or more are more extensive. These employers are still obliged to follow the four-step model to fulfill their duty to work actively, targeted and systematically to promote equality and prevent discrimination. According to the amendments, this includes a review on pay conditions by reference to gender and to review the use of involuntary part-time work. Fourthly, as before, public employers and private employers with 50 employees or more are obliged to report in their annual report or another public document on the status of gender equality and how they work to comply with the activity duty. This includes, among others, the gender balance in the undertaking, proportion of part-time work, proportion of temporary employees, the results of the pay review and the review of the use of involuntary part-time work. Finally, the new rules also state that the activity and reporting duties which apply to the public and bigger private enterprises shall now also apply to private undertakings that ordinarily employ more than 20 persons if requested by the employees or employee representatives.
The Equality and Anti-discrimination Ombud is mandated to scrutinize the activity duty of employers, as well as their new duties to issue a statement on their equality work. The Ombud is entitled to make follow-up visits to enterprises and may require access to the enterprises' documentation relating to the employers' equality and anti-discrimination work. Employers' breach of the duty to issue statement can be brought before the Anti-discrimination Tribunal.
Active equality efforts - the duty of public authorities to promote equality:
The Equality and Anti-Discrimination Act of 2018 stated that public authorities, both as employers, public authorities and service providers, had a legal duty to make active, targeted and systematic efforts to promote equality and to prevent discrimination. In January 2020, these duties were clarified and strenghtened. The new rules clarify that the public authorites`duty to promote equality and prevent discrimination, in capacity as public autority and service provider, includes an obligation to prevent harassment, sexual harassment and gender-based violence, and to counter stereotyping. The new rules also give public authorities, in capacity as public autority and service provider, a duty to issue a statement on their work with equality issues. The duty to issue a statement entails the following: public authorities shall issue a statement on what they are doing to integrate considerations relating to equality and non-discrimination into their work, public authorities shall describe what they are doing to convert equality and non-discrimination principles, procedures and standards into action, public authorities shall provide an assessment as to what has been achieved as a result of these efforts, and outline expectations with regards to future efforts in this area. The statement shall be provided in the annual report or another document available to the general public. The duty of public authorities to promote equality apply to all public authorities, including public authorties in cultural and creative sectors.
The Equality and Anti-discrimination Ombud is given mandate to scrutinize the activity duty of public authorities. The Ombud is entitled to make follow-up visits to enterprises and may require access to the enterprises' documentation relating to the employers' equality and anti-discrimination work.
There have been challenges in the implementation of the duty of active equality efforts. The duties are therefore now strengthened and clarified. The new rules entail that employers and public authorities are obliged to report more than before, and the Ombud shall now also supervise the activity duty. The Norwegian Ministry of Culture assumes that the strengthening of the regulation will ensure more adequate and efficient implementation of these duties.
The Norwegian Ministry of Culture has allocated 3 million Norwegian Kroner (NOK) to the Ombud to follow up on the activity duty and to cover the Ombud's work to provide guidence on the new provisions about sexual harassment.
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The Norwegian Directorate for Children, Youth and Family Affairs has, in cooperation with relevant partners, including labour unions and employers' associations, prepared a guidance document for implementation of the activity duty.