När skämt blir till kränkning - bedömningen av etniska trakasserier i arbetslivet

Sammanfattning: In recent years, most reports regarding discrimination received by the Equality Ombudsman concern ethnic discrimination at work. Nevertheless, there are only two cases in which discrimination have been established by the Labour Court since 1994; one case regarding indirect ethnic discrimination and the other concerning ethnic harassment. A significant amount of criticism has been directed towards Sweden from the European Commission against Racism and Intolerance and the United Nations´ Committee on the Elimination of Racial Discrimination. This paper aims to investigate possible reasons for the limited number of cases in which discrimination was established and to find achievable solutions to the addressed problem with focus on ethnic harassment. One reason for the low number of cases in which discrimination was established, may be due to the fact that the Labour Court seem to demand more evidence from the plaintiff to fulfil the burden of evidence than the law prescribes, which may be against European Union law. One way to ensure a uniform and correct application of the law is to allow the Supreme Court to reconsider discrimination cases. Another possible cause to the addressed problem could be the Labour Court's strict interpretation of the legislative history to the Anti Discrimination Act, which is possible for the court to change. Anyhow, the need for new legislation may be acknowledged. On the basis of the results of this study generated by discourse analysis and postcolonial theory, there are reasons to change the necessary condition regarding the knowledge of the person that is claimed to have been harassing the plaintiff. The new necessary prerequisite could instead be ”should have understood”. Furthermore, it follows from postcolonial theory that knowledge about every-day racism could be taken into consideration in the judicial decision. Finally, it is suggested that the plaintiff are given the opportunity to judge what kind of behaviour that equals an infringement. In conclusion, it could be stated that changes in legislation or adjudication need to be made to make sure that Sweden has an opportunity to fulfil the demands set by the European Commission against Racism and Intolerance and the United Nations´ Committee on the Elimination of Racial Discrimination.