4 Draft statute – Act relating to prohibition against discrimination on the basis of disability (Discrimination and Accessibility Act)

In Norwegian, the basis for discrimination is nedsatt funksjonsevne. It is difficult to find a precise English term for this central concept. In the WHO’s terminology, the closest equivalent is strictly speaking impairment. However, since all legislation from English-speaking countries in this field uses the term disability, we have used the latter term to translate “nedsatt funksjonsevne”. The Norwegian term “nedsatt funksjonsevne” denotes individual physical, mental and cognitive impairments without specifying degree or duration or requiring that the impairment has resulted in any impedimental consequences for the person concerned. Section 4, sixth paragraph, entails that the Act also protects against discrimination on the basis of past, future and assumed impairments and impairments of other persons. Disability thus denotes the protected ground, not a protected group. The purpose of this interpretation of disability as the protected ground is to ensure broad protection against discrimination on the basis of disability where the focus is on the discrimination itself and not on individual biological or medical conditions and their consequences.

Section 1 Purpose

The purposes of the Act are to ensure equality and promote equal opportunities for social participation for all persons regardless of disabilities and to prevent discrimination on the basis of disability.

The Act shall help to dismantle disabling barriers created by society and prevent new ones from being created.

Section 2 Scope and extent

The Act shall apply in all areas of society with the exception of family life and other circumstances of a personal nature.

The Act shall apply in the Realm with the exception of Svalbard and Jan Mayen. The King may issue regulations concerning application of the Act in Svalbard and Jan Mayen, and may provide special rules giving due consideration to local conditions. The King may decide whether and to what extent the provisions of this Act shall apply to persons on board Norwegian ships engaged in foreign trade, to Norwegian civil aircraft in international traffic and to installations and vessels at work on the Norwegian continental shelf.

Section 3 Activity obligation

Public authorities and organizations of employers and employees shall make active, targeted and systematic efforts within their spheres of operation to promote the purposes of the Act.

Employers in the public and private sectors shall make active efforts to promote the purposes of the Act within their undertakings.

Section 4 Prohibition against discrimination

Direct and indirect discrimination on the basis of disability is prohibited.

For the purposes of this Act, direct discrimination shall mean that the purpose or effect of an act or omission is such that persons on the basis of disability are treated less favourably than other persons are, have been or would have been treated in a comparable situation.

For the purposes of this Act, indirect discrimination shall mean any apparently neutral decision, condition, practice, act or omission that results in persons on the basis of disability being placed in a particularly unfavourable situation compared with other persons.

For the purposes of this Act, indirect discrimination in connection with employment shall mean any apparently neutral decision, condition, practice, act or omission that in fact has the effect that a job applicant or employee is placed in a less favourable situation than other job applicants or employees on the basis of disability.

Different treatment that is necessary in order to achieve a legitimate aim and which does not involve disproportionate intervention in relation to the person or persons so treated is not regarded as discrimination pursuant to this Act.

The prohibition against discrimination in the present section applies to discrimination on the basis of present disability, past disability, possible future disability or assumed disability as well as discrimination on the basis of other persons’ dis­ability.

It is prohibited to be an accessory to any breach of the prohibition against discrimination laid down in the present section.

Discrimination owing to inadequate physical accommodation is exhaustively regulated in sections 9 and 10.

Section 5 Prohibition against harassment

Harassment on the basis of disability is prohibited.

For the purposes of this Act, harassment shall mean acts, omissions or remarks that seem or aim to seem offensive, frightening, hostile, degrading or humiliating.

The prohibition against harassment laid down in the present section applies to harassment on the basis of disability, past disability, possible future disability or assumed disability and harassment on the basis of other persons’ disability.

It is prohibited to be an accessory to any breach of the provision laid down in the first to the third paragraph.

Employers and the managements of organizations or education institutions shall within their spheres of responsibility take precautions against and seek to prevent the occurrence of harassment in breach of the present section.

Section 6 Prohibition against instructions

It is prohibited to instruct anyone to carry out acts of discrimination or harassment in breach of sections 4 and 5. It is also prohibited to instruct anyone to carry out acts of reprisal in breach of section 7.

It is prohibited to be an accessory to any breach of the provision laid down in the first paragraph.

Section 7 Prohibition against reprisal

It is prohibited to carry out reprisals against anyone who has made a complaint concerning a breach of the provisions of sections 4, 5, 6, 9 or 10 or who has let it be known that a complaint may be made. This shall not apply if the complainant has acted with gross negligence.

The first paragraph applies correspondingly to witnesses in a complaint case.

It is also prohibited to carry out reprisals against anyone who has omitted to comply with an instruction that is in breach of section 6.

It is prohibited to be an accessory to any breach of the prohibition against reprisal laid down in the present section.

Section 8 Positive action

Specific measures that help to promote the purpose of the Act shall not be regarded as discrimination pursuant to this Act. Such measures shall cease when the purpose of it has been achieved.

Section 9 Obligation regarding general accommodation (universal design)

Public undertakings shall make active and targeted efforts to promote universal design within the undertaking. The same applies to private undertakings that offer goods and services to the general public.

By universal design is meant design or accommodation of the main solution as regards the physical conditions so that the normal function of the undertaking can be used by as many people as possible.

Public undertakings and private undertakings that offer goods and services to the general public are obliged to ensure that universal design is applied to the normal functions of the undertaking provided this does not entail an undue burden for the undertaking. When assessing whether the design or accommodation entails an undue burden, particular importance shall be attached to the necessary costs associated with the accommodation, the undertaking’s resources, the consequences of the accommodation in dismantling disabling barriers, whether the normal function of the undertaking has a public character, safety considerations and the consideration of cultural heritage.

Breach of the obligation to ensure the application of universal design pursuant to the third paragraph is regarded as discrimination if a person with a disability is adversely affected by the in­adequate accommodation.

It is not regarded as discrimination pursuant to the fourth paragraph if the undertaking meets specific provisions laid down in statutes or regulations concerning the obligation to implement universal design.

Section 10 Obligation regarding individual accommodation

Employers are obliged within reason to individually accommodate workplaces and tasks in order to ensure that employees or job applicants with a disability are able to take up or continue employment, have access to training and other forms of competence development as well as perform work and have a potential for progress in their work equal with other employees.

Schools and other educational institutions are obliged within reason to individually accommodate the educational institution and the teaching in order to ensure that pupils or students with disabilities are given equal opportunities for education and training.

Municipal authorities are obliged within reason to individually accommodate day care facilities in order to ensure that children with disabilities are given equal opportunities for development and activity.

Municipal authorities are obliged within reason to individually accommodate public services such as day centres, respite care facilities, etc. that are of a permanent nature for individuals and particularly serve persons with disabilities.

The obligation pursuant to the first to the fourth paragraph does not include accommodation entailing an undue burden. When assessing whether an accommodation entails an undue burden, particular importance shall be attached to the necessary costs of the accommodation, the undertaking’s resources and the effect of the accommodation in relation to the dismantling of disabling barriers.

Breaches of the obligation within reason to individually accommodate pursuant to the first to the fifth paragraph shall be regarded as discrimination.

Section 11 Obligation to implement universal design to buildings and constructions, etc.

Buildings, constructions and developed outdoor areas intended for the use of the general public that are erected or completed following major alterations (general renovation) after 1 January 2009 shall be subject to universal design.

Buildings, constructions and developed outdoor areas intended for the use of the general public shall be subject to universal design from 1 January 2019.

The planning and building authorities shall ensure that the requirements of the first and second paragraphs are observed when dealing with plans and applications for building permission pursuant to the Planning and Building Act.

The planning and building authorities may grant exemptions from the obligation pursuant to the first and second paragraphs where there are conservation considerations or other particularly weighty grounds.

Appeals against such exemptions may be brought before the Equality and Anti-Discrimination Tribunal by organizations representing persons with disabilities. The Equality and Anti-Discrimination Tribunal may decide that such exemptions shall be revoked.

The King may issue regulations with further provisions concerning the obligation to implement universal design pursuant to the first and second paragraphs.

Pursuant to section 12 of the Equality and Anti-Discrimination Ombud Act, the state planning and building authority may institute legal proceedings for full review of revocation decisions made pursuant to the fifth paragraph.

Section 12 Burden of proof

If there are circumstances that give reason to believe that there has been a breach of any of the provisions of sections 4, 5, 6, 7, 9 or 10, such a breach shall be assumed to have taken place unless the person responsible for the act, omission or remark produces evidence showing that no such breach has taken place.

Section 13 Employers’ obligation to disclose information in matters concerning appointments

A job applicant who believes himself or herself to have been discriminated against in breach of section 4, first paragraph, or section 10, first paragraph, may demand that the employer provide information in writing concerning the education, practice and other clearly ascertainable qualifica­tions of the appointee for the post in question.

Section 14 Right of organizations to act as an agent, etc.

An organization whose purpose is, wholly or partly, to oppose discrimination on the basis of disability may be used as an agent in administrative proceedings pursuant to this Act.

A person appointed by and associated with an organization whose purpose is, wholly or partly, to oppose discrimination on the basis of disability may be used as a legal representative in cases brought before the courts pursuant to this Act. This shall not apply in such cases as referred to in section 44, first paragraph, of the Civil Procedure Act.

The court may refuse to approve such an authority to conduct legal proceedings for another person if, in the view of the court, there is a risk that the legal representative is not sufficiently qualified to satisfactorily defend the interests of the party concerned.

In addition to the authority referred to in section 46 of the Civil Procedure Act, a legal representative shall at the same time present a written orientation from the organization concerning the legal representative’s qualifications.

Section 15 Enforcement

The Equality and Anti-Discrimination Ombud and the Equality and Anti-Discrimination Tribunal shall, with the exception of section 16, monitor compliance with and help to implement this Act, cf. the Equality and Anti-Discrimination Ombud Act.

The planning and building authorities shall oversee and help to implement this Act in accordance with section 11.

Section 16 Compensation

A person who wilfully or through gross negligence acts in breach of section 4, section 5, first to fourth paragraph, or section 7 may be ordered to pay compensation to the aggrieved person. Such compensation shall be stipulated in the amount that is found reasonable in view of the circumstances of the parties and other facts of the case.

A job applicant or employee may demand compensation in respect of a breach of section 4, section 5 first to fourth paragraph or section 7 in connection with employment regardless of the guilt of the employer. The same applies for a person who applies for membership of or who is a member or participant of an employee, employer or profes­sional organization.

Compensation in respect of a breach of the obligation regarding individual accommodation pursuant to section 10 may nevertheless be demanded pursuant to the provisions of the first and second paragraphs if an order to stop, rectify, etc. pursuant to the Equality and Anti-Discrimination ombud Act cannot remedy the consequences of the discrimination.

Compensation for financial loss resulting from breaches of this Act, may be demanded pursuant to the general principles of the law of damages.

Section 17 Commencement

The Act shall enter into force on the date decided by the King.