Etnisk diskriminering i arbetslivet : Är Arbetsdomstolens rättstillämpning tillräckligt harmoniserad med EU-rätten?
Sammanfattning: At this time writing, Sweden has reached a record high immigration from countries both within and outside the EU. In correspondence with this massive migratory movement the question of integration becomes prioritized and one of the aspects arising due to this is the possibility to access the labor market. Analyzing the Swedish labor market situation, it is shown by evidence that there is an extensive ethnic discrimination that is partly linked to the recruitment process. Legislators both from Swedish and European level have issued acts to prevent employment discrimination because of ethnicity in order to maintain the protection of the fundamental right to non-discrimination and equal treatment. On the other hand, in support with legislation there is a possibility for the employer to justify indirect discrimination in the recruitment procedure by applying a criterion for certain language skills. Furthermore, this language criterion can occur to be a particular disadvantage for people who do not master the Swedish language fluently as a native. In order to justify a discriminatory act like this, the court must investigate whether the criterion is proportionate by applying a proportionality test. This study intends to investigate and analyze the case-law on ethnic discrimination disputes derived from the Swedish Labor Court and the European Court of Justice and throughout that establish if the Swedish Labor Court case-law is compatible with EU-law. In order to answer the research questions, a legal dogmatic method has been used in combination with an EU legal method. The investigation shows that the Swedish Labor Court is addressing the principle of proportionality in a manner of minimum standards which mainly focuses on the underlying reasons for the action that is linked to benefit the interest of the employer. The investigation also shows that the Swedish Labor Court lacks to obtain the standards that is set in provision of the burden of proof that is set by EU-law and Swedish law.
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