Diskrimineringsskydd för gravida arbetstagare. En arbetsrättslig studie av Svensk rätt och EU-rätt

Sammanfattning: The labour legislation in the EU had in its early stages the purpose to avoid barriers of competition and to ensure the free movement within the union. Over time, as EU labour law developed, a greater focus was put on social matters and achieving gender equality became desirable. As a part of this development, the Equal Treatment Directive was adopted. The Directive regulated equal opportunities in employment and prohibited discrimination on the basis of sex. As a further development of labour law, a prohibition of discrimination because of pregnancy was developed and later established. The Pregnant Workers Directive was adopted to protect women’s physical condition before and after pregnancy. During the same period of time, the Swedish legislation developed towards a more equal labour market and the rules of discrimination on the basis of sex grew stronger. Gradually, with the influence of the EU, the Swedish legislation developed protection against discrimination of pregnant employees and rules to protect pregnant women’s physical condition was introduced. The purpose of this thesis is to describe and analyses Swedish labour law on protection against discrimination of pregnant employees and whether the Swedish labour law complies with the demands from the EU. Finally, the aim is to do an analysis in accordance with the liberal feminist theory in order to examine whether the Swedish discrimination protection contributes to the progress towards a sex equal labour market. Discrimination on the basis of pregnancy is a form of direct discrimination on the basis of sex and can never be justified by law. The protection has over time expanded and covers today the entire recruitment process and all forms of employment. To ensure that protection against discrimination has a real effect in practice, the plaintiff enjoys evidence-relief and an independent regulatory agency is overseeing the protection against discrimination on the basis of pregnancy. Damages, in the event of a violation of a discrimination provision, are to be larger than usual damage claims in order to set the standard that "it will cost you to discriminate”. My conclusions to whether the Swedish discrimination protection meets the requirements of EU law are the following; protection of discrimination against pregnant employees are not clearly stated in the Swedish labour law, the protection is instead apparent only after the interpretation of the laws protecting against sex discrimination. In respect to the other provisions regarding discrimination on the basis of sex, the Swedish legislation meets the requirements of the EU, with certain exceptions regarding probationary. I also came to the conclusion that, in some cases, the Swedish protection goes beyond the legal protection of the EU legislation. In my final analysis, in accordance with liberal feminism theory, I conclude that, to a large extent, the Swedish discrimination protection contributes to the development that the liberal feminism theory advocates to achieve an egalitarian society and equal employment. The Pregnant Workers Directive’s provisions, which establish a special treatment of a particular sex, is however not compatible with the development that Liberal feminism advocates.