Equality Bodies

Handshaking: Conflicts between Religion and Gender Equality

The Swedish Equality Ombudsman recently investigated and delivered her opinion in two cases concerning demands to shake hands in the working life. The employers involved in both cases had denied (male) applicants jobs when the applicants had declared that, according to their interpretation of Islam, they could not shake hands with persons of the opposite sex.

This article by the Swedish Equality Ombudsman examines both cases where these conflicts arise between the manifesting of a religion and gender equality.

Case 1: Shelter-facility for unaccompanied refugee children

The first case concerned a position at a company providing a shelter-facility for unaccompanied refugee children. According to the employer, the applicant’s practice not to shake hands with women could be perceived negatively. In addition, the practice would also run counter to the shelter’s task of integrating the children into Swedish society. Finally, the employer submitted, physical contact was required with children of both sexes harboured by the shelter. As the applicant could not touch persons of the opposite sex (outside his close family), he would not be able to perform tasks in relation to girls.

Case 2: Shelter providing treatment and behaviour-programs for boys and young men with social problems

The second case concerned a private company who managed a shelter providing treatment and behaviour-programs for boys and young men with social problems, such as drug-abuse or criminality. The employer stated that the applicant’s refusal to shake hands with persons of the opposite sex would amount to discrimination of women. In any event, the practice would be perceived negatively and could be a source of conflict, potentially jeopardizing the treatment. Furthermore, allowing the practice would be in breach of the employer’s values and guidelines, notably on promoting equality between men and women. Finally, the employer referred to its contractual obligations with public authorities, obliging the employer to uphold Swedish customs.

Equality Ombudsman’s Opinions

In both of her opinions, the Equality Ombudsman stressed that upholding a principle of equal treatment in the work place must generally be considered a legitimate and important aim. To mark a distinction between men and women, even if done respectfully, does not conform to the demands of equal treatment that equality requires. So, while the employer – considering that touching is connected to issues of bodily integrity – cannot typically require greetings specifically by hand shaking, it is legitimate to demand that no relevant distinction is made based on gender or any of the other grounds protected under the Swedish Discrimination Act (naturally with the exceptions for situations where someone has expressed a wish to be treated differently, or where circumstances otherwise require an adjustment to be made in the individual case).

As for the conclusions with regards to the issue of discrimination, the Equality Ombudsman made two separate assessments. In the first case, concerning the shelter facility for unaccompanied refuge children, the Ombudsman held there was an objectively justified need for employees to be able to have physical contact with children of both sexes in various situations, e.g. comforting. The Applicant was therefore not in a comparable situation with respect to his possibilities to provide such physical contact with girls. Thus, the employer was neither in breach of the prohibitions of direct nor indirect discrimination (Decision 2016-09-01, ANM2016/230).

In the second case, concerning the shelter for boys and young men with social problems, the Equality Ombudsman did see that the applicant’s reluctance to touch persons of the opposite sex would impede his possibility to perform the tasks involved. Although both the aims of equal treatment and avoiding conflicts were legitimate aims, the Equality Ombudsman concluded that a demand specifically to greet by shaking hands would appear an undue burden with respect to the applicant’s interests to abide by his religion. In determining the outcome of the balancing, the Equality Ombudsman, gave specific weight to the strong societal interest to ensure that persons with religious beliefs are not excluded from employment and income. In thus finding a violation of the prohibition of indirect discrimination, the Ombudsman concluded that it would have been more proportionate to demand that the applicant greet persons without distinction based on gender etc. to attain the stated aims of equality. The Ombudsman further stated that the company´s internal rules did not qualify as a principle of neutrality of the kind that was subject for review by the ECJ in the case of Achbita (C-157/15, G4S Secure Solutions, EU:C:2017:203). As regards the contractual obligations regarding Swedish norms, the Ombudsman did not find those reasons capable of affecting her conclusions as to the lack of proportionality of the measure (Decision 2017-05-09, GRA 2016/55).

Further Information

This article was written by The Swedish Equality Ombudsman. For more information, you can visit their website or contact:

Kerstin Jansson
International coordinator | Phone +46 8 120 20 797 |

The Equality Ombudsman (Diskrimineringsombudsmannen, DO)
PO Box 4057 | SE-169 04 Stockholm | Visit Råsundavägen 18 Solna Sweden | Switchboard +46 8 120 20 700 | Telefax +46 8 120 20 800 | |

The Equality Ombudsman works to promote equal rights and opportunities and combat discrimination regardless of sex, gender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age.

Related readings

arton340-2f0ef.png For more information on this topic, Equinet’s publication – Equality Law in Practice: Religion and Belief in Europe – concentrates on religion and belief cases as it was apparent to equality bodies that this area of law was bringing forth a number of controversial and difficult cases which were affecting the fundamental rights of those who hold religion and belief and those who do not. Chapter 7 specifically discusses the conflicts between the right to manifest religions and the rights of others defined by gender.

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