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Sweden: Court Rules Accommodating Deaf Professor Would Place Disproportional Burden on State Employer

(Nov. 3, 2017) On October 11, 2017, the Swedish Arbetsdomstol (Labor Court) held that a deaf man could be denied a position as lector at a university, even though he was the best qualified applicant, because the cost of translating his lectures from sign language would be too great. (Labor Court, Decision No. 51/17, Case No. A 146/16, ARBETSDOMSTOLEN, Oct. 11, 2017.) The Diskrimineringsombudsmannen (Discrimination Ombudsman [DO]) had brought Södertörn University before the Labor Court, arguing that the man had been discriminated against based on his hearing disability when he was overlooked for a position as lector despite being the most experienced applicant. (Id.) 

Relevant Provisions of Law

Under Swedish law, a person may not be discriminated against based on a disability. Discrimination includes not providing resources that would put the disabled person on an equal footing with a non-disabled person (bristande tillgänglighet). (1 kap. 4 § 3 Diskrimineringslagen [Discrimination Act] (Svensk författningssamling [SFS] 2008:567), NOTISUM.) Applicants for jobs as well as employees are covered by the provisions of the Discrimination Act. (Id. 2 kap. 1 §.)

Sweden also abides by the United Nations Universal Declaration of Human Rights and is bound by the European Union Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Both the Swedish Discrimination Act and EU Directive 200/78/EC only require that the accommodating measures be provided as long as they do not place an unreasonable or disproportional burden on the employer.  (Id. 1 kap. 4 § 3;  Universal Declaration of Human Rights (Dec. 10, 1948) United Nations website; Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation,  2000 O.J. (L 303) 16, art. 5, EUR-LEX.)

The Decision

The DO argued that the man, who the university found to be the most competent applicant, had been discriminated against because he was deaf, arguing that the university should have hired a sign-language translator to assist him. The DO noted that the state, as an employer, should set a good example, citing the legislative history of Proposition (Prop.) 1999/2000:79, Från patient till medborgare – en nationell handlingsplan för handikappolitiken (From Patient to Citizen – A National Action Plan for Disability Policy). (Case No. A146/16, at 7-8.)

Södertörn University countered that providing translator services placed an unreasonable financial burden on them and estimated that 450 hours out of the total 1,700 working hours would require translation services, at a cost of a minimum SEK520,000 (about US$62,000) and possibly amounting to SEK900,000 (about US$108,000). (Id. at 3-4.)

The Court, basing its decision on the high cost, found that even though the state-funded university has a large budget and that it acts a state employer, it cannot be required to pay even SEK500,000 (about US$60,000) annually to accommodate the applicant.  The Court unanimously found that this was a disproportional burden on the employer, as the cost of accommodating the person would equal the person’s basic salary The Court  did not determine what a reasonable cost would have been.  (Id. at 12.)   Decisions by the Labor Court are final and cannot be appealed. (2 kap. 4 § Lag om rättegången i arbetstvister [Act on Civil Procedure in Labor Disputes] (SFS 1974:371), NOTISUM.)