Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Denmark (Ratification: 1960)

Article 1(1)(a) of the Convention. Discrimination based on sex. The Committee once again asks the Government to:

• (i)provide information, including statistical data, on the number of cases dealt with by the courts and the Board of Equal Treatment regarding discrimination on the basis of sex, in particular on pregnancy and maternity leave; and
• (ii)provide information on the measures taken, in cooperation with the social partners, to prevent and eliminate discrimination on the grounds of pregnancy and maternity leave, and the results obtained in this regard.

Discrimination based on gender identity, gender expression and gender characteristics. The Committee notes withinterest that Act No. 2591 of 28 December 2021, amending Act No. 1001 of 24 August 2017 on Prohibition of Discrimination in the Labour Market, introduced an explicit ban of discrimination on the grounds of gender identity, gender expression and gender characteristics. The Government specifies that these criteria were previously included in the scope of prohibition of discrimination based on sexual orientation, but they have now been made explicit. The Committee further notes that Act No. 2591 of 28 December 2021 also amended Act No. 1230 of 2 October 2016 on the Board of Equal Treatment, by explicitly extending the Board’s competence to deal with complaints of discrimination on the grounds of gender identity, gender expression and gender characteristics, both inside and outside of the labour market. It finally notes that same Act No. 2591 amended Act No. 553 of 18 June 2012 on the Institute of Human Rights, by also explicitly extending the Institute’s reporting competence to discrimination based on the same criteria. The Committee requests the Government to provide information on the application in practice of the legislation relating to prohibition of discrimination on the grounds of gender identity, gender expression and gender characteristics, including any relevant decisions of the courts and the Board of Equal Treatment. It also requests the Government to provide information on any activities and research conducted by the Institute of Human Rights regarding discrimination on the basis of gender identity, gender expression and gender characteristics, and on any further follow-up action taken.

Sexual harassment. The Committee notes withinterestthat, on 4 March 2022, the Government and the social partners entered into a tripartite agreement on initiatives to combat sexual harassment in the workplace. This tripartite agreement marks an important step forward in terms of protection, prevention and above all a change of culture involving all social partners with regard to this phenomenon. The parties identified 17 initiatives, offering the individual organisations tools and strategies to prevent and handle workplace sexual harassment and highlighting responsibilities and duties of both employers and employees. The initiatives that can be implemented without changes to the law entered into force on 4 March 2022 with the conclusion of the tripartite agreement, while other initiatives require statutory amendments according to the Danish Parliament's legislative procedure. The initiatives are focused on five main topics: (1) a new regulatory framework to be applied in matters involving sexual harassment and increased compensation in case of serious harassment: these initiatives – that require amendments to the Equal Treatment Act and the Work Environment Act – provide for an increase in the level of compensation for sexual harassment and the possibility to raise compensation claims also by the offender, as well as the introduction of a clear definition of the employer's duty to provide a harassment-free environment and the employee's duty to draw attention to sexual harassment; (2) protection against harassment in the workplace: the initiatives include policies to address and prevent sexual harassment focusing on sexual harassment in work related to health and safety risk assessments (so-called HSAs). The social partners have also developed a Code on the use of confidentiality clauses; (3) awareness and knowledge about sexual harassment: among other proposals, the Danish Working Environment Authority must make a statement on the number of decisions, guidelines, etc. on sexual harassment each year; (4) trainees and apprentices: the agreement also strengthens trainees and apprentices' position in sexual harassment claims, providing the possibility to terminate the training agreement in the event of sexual harassment. This will require an amendment of the Vocational Education Act; and (5) a future-proof strategy to prevent sexual harassment: the agreement proposes an alliance between the labour market, the education sector and civil society, aiming to prevent sexual harassment. The Committee requests the Government to provide information on:

• (i)any legislative amendments adopted or envisaged following the adoption of the tripartite agreement of 4 March 2022 on sexual harassment in the workplace; and
• (ii)the application in practice of this agreement, including relevant judicial or administrative decisions, remedies provided and sanctions imposed.

Articles 2 and 3. National policy to promote equality of opportunity and treatment in employment and occupation. Legislative developments. The Committee notes the absence of information on the application in practice of: (1) the ActNo. 217 of 5 March 2013, which introduces provisions on the right to request flexible working hours during parental leave (section 8) and protection measures against dismissal because of absence due to pregnancy, birth, adoption and maternity (sections 9 and 16); and (2) the Act on Gender Equality, as amended and consolidated by Act No. 1678 of 19 December 2013. The Committee asks the Government to provide information on the effective application of the equality legislation such as, for example, relevant judicial or administrative decisions, sanctions imposed, and remedies provided.

Further, the Committee notes the publication in March 2019 of the Danish National Strategy for Artificial Intelligence (AI). It notes that, expecting that the use of AI technologies will raise new ethical and legal issues, the strategy foresees the development of an ethical framework based on six principles in order to improve the level of trust and confidence in AI. The six principles for AI relate to self-determination (i.e. ensuring that citizens can make informed and independent decisions), human dignity, equality and justice (i.e. ensuring that there is no infringement of human rights and maintaining respect for diversity), as well as responsibility and explainability (i.e. openness and transparency). The Committee notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observation of 2021, expressed concern about “the risk of algorithm-driven gender-based discrimination in advertising and hiring practices in the labour market, in particular against women belonging to disadvantaged and marginalized groups”, and recommended the Government to “implement measures to prevent gender-based discrimination in the design of algorithms under the 2019 National Strategy for Artificial Intelligence” (CEDAW/C/DNK/CO/9, para. 32c and 33c). The Committee requests the Government to provide information on:

• (i)the challenges encountered in the implementation of its national policy on equality of opportunity and treatment in employment and occupation following the rolling-out of the National Strategy for Artificial Intelligence; and
• (ii)any measures taken or envisaged to ensure that the use of such algorithms in advertising and hiring practices does not result in any direct or indirect discrimination on all the grounds listed in the Convention.

Public employment services. The Committee again asks the Government to provide specific information on:

• (i)how public employment policies address occupational gender segregation and ensure equality mainstreaming in all the activities carried out by job centres and other actors engaged in the implementation of public employment policies; and
• (ii)the work of the Danish Agency for Labour Market and Recruitment to promote gender equality in employment and occupation, and the results achieved.

National institutions. The Committee notes the general indications of the Government regarding the nature and competence of the Board of Equal Treatment. It once again asks the Government to provide specific information on:

• (i)the cases relating to discrimination at work brought before the Board of Equal Treatment with the assistance of the Danish Institute for Human Rights and the courts; and
• (ii)the activities of the Anti-discrimination Unit in giving effect to the provisions of the Convention.

Statistics on equality of opportunity and treatment. The Committee notes that, according to Statistics Denmark data for 2020, the employment rate of persons of Danish origin was 77 per cent (78.2 per cent for men and 75.7 for women), compared to an employment rate of 58.1 per cent for immigrants from non-Western countries (63.9 per cent for men and 52.6 per cent for women) and 60.9 per cent for their descendants (59.4 per cent for men and 62.6 for women). Statistics Denmark data also show that the percentage of full-time unemployed persons remains higher for immigrants from non-Western counties (9.3 per cent for men and 9.4 per cent for women) than for Danish nationals (3.9 per cent for men and 4.0 per cent for women). The Committee further notes that, in its 2022 Country Report on Non-Discrimination on Denmark, the European Commission observed that 45 per cent of immigrants and descendants of non-Western origin experience discrimination due to their ethnic origin, and highlighted the need to undertake research on the institutional barriers preventing minorities from gaining access to the labour market and obtaining jobs that match their education (see page 101). It also notes that, in its 2022 conclusions, the European Commission against Racism and Intolerance (ECRI) of the Council of Europe identified as a specific issue the fact that employment agencies have access to information on whether jobseekers are of non-Western background or not, which may result in stigmatisation of non-Western jobseekers as difficult to employ (ECRI (2022), 29 March 2022, para. 102 and 104). The Committee finally notes that, in its 2021 concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern about the persistently low participation of migrant women in the labour market and recommended the Government to collect comprehensive data on this issue (CEDAW/C/DNK/CO/9, para. 32d and 33d). The Committee asks the Government to provide information on the specific measures taken or envisaged:

• (i)to improve the employment situation of both men and women immigrants and their descendants in the labour market, in particular migrants originating from non-Western countries, and
• (ii)to prevent and eliminate any discrimination on the grounds of sex, race, colour, religion or national extraction.