Positiv särbehandling - diskriminering eller ett nödvändigt led i jämställdhetsarbetet?
LikabehandlingDiskrimineringJämställdhetAktiva åtgärderPositiv särbehandlingJuridical scienceRättsvetenskapJuridikLaw and Political Science
To achieve the goals that the government has put in place for equal opportunities in the labour market, the Swedish law is divided into two separate regulatory frameworks. One is positive action to promote equal opportunities and the other is the prohibition of sexual discrimination. Since males, despite the measures taken so far, still have a great advantage on the labour market, the law concerning equal opportunities has an exception from the prohibition of sexual discrimination, whose purpose is to promote the progress of equal opportunities, also known as preferential treatment. The regulations concerning preferential treatment allow the employer to hire a less qualified person from an underrepresented gender in spite of the presence of higher qualified applicants of the overrepresented gender. The purpose of this paper is to investigate the meaning and the application of preferential treatment as well as to give an insight to the argumentation around its application. The questions that will be dealt with in this paper are the following: What is the legal significance and base of preferential treatment? Where is the line drawn between preferential treatment and sexual discrimination? Is preferential treatment the right way to go to reach equal opportunities in the labour market? To gain comprehension of the legal meaning of preferential treatment, the historic developments of the legal frameworks dealing with equal opportunities in the labour markets on both the national as well as a European level need to be considered. The Swedish case-law regarding the application of preferential treatment are close to non-existing. Instead the question has been handled in the European Union court to give the member countries principles. Four cases in particular have been conclusive. In the Kalanke-case, Marschall-case, Badeck-case, and the Abrahamsson-case the European Union court interpreted the legal space for application of preferential treatment. The discussion around the usage of preferential treatment has been lively and the criticism extensive. Many have seen preferential treatment as converted discrimination which takes us back to the discrimination we once rejected