HRS International

The hijab verdict and the employer robbed of his rights

Recently Aftenposten reported on a firm that was found guilty of discrimination by the Equality and Anti-Discrimination Ombud (LDO). ”To forbid the wearing of hijad is discrimination” read the headline, but Aftenposten later decided to alter it to “Hijab protest was discrimination.” The firm’s manager, Roger Trones, wanted to tell Aftenposten’s readers about his experience with the LDO, but his op-ed was rejected. Here is his account of his experience, which is important both because it shows that the LDO doesn’t seem to understand the intention underlying the ”reverse burden of proof” clause in the Discrimination Law and because it makes clear how easily the law can be exploited. Trones’s account also warns employers that they don’t enjoy the same rights as others in this country, and suggests that “hijab protests” can lead other employers to hesitate to employ Muslims.

The hijab verdict and the employer robbed of his rights

Roger Trones, Ph.D.

On September 25, 2009, at 1:30 P.M., I met with the Complaints Board of the LDO (the Equality and Anti-Discrimination Ombud) in connection with a decision made by the same ombud last March.

What happened is this. In November 2007, I hired a Muslim woman. She was one of 20 applicants, and definitely not the most qualified. I took her on nonetheless, as my contribution to immigrants who have a rough time of it on today’s job market. My small firm sunk a considerable amount of resources into her training.

One day in September 2008 she came to work in a hijab, and expected me to congratulate her because she had experienced a religious awakening. On the contrary, I was not particularly happy to see this public display of religion at the workplace, and I was honest enough to say so. Though I pointed out that I could not deny her the right to wear hijab at work, I did request that she refrain from doing so.

The woman took offense at this request, and at lunchtime she told me that she was quitting. She handed back her keys and left. But the next day, after working hours, I received a text message that I immediately knew meant trouble. Her message read as follows: “Hi. I was not at work today because of illness.” I sought legal advice, and was told by the lawyer that according to the labor law, the woman had “walked out.” He had experienced this type of conduct and agreed to take the case.

Communications that I subsequently received from the woman’s lawyer presented her version of the story: she had been thrown out of the workplace. Soon enough, her version filled an entire page of Dagbladet. My own version is that she quit the job without pressure of any kind because she could not accept her three colleagues’ failure to express unreserved pleasure over her wearing of hijab during working hours.

We were required to prove that she wasn’t offended.

Letters were exchanged between the firm’s lawyer and the woman’s lawyer, and we soon understood that things would get hot. For as long as the matter was defined as essentially one of “discrimination,” conditions were introduced into the case that in practice withdraw from one of the parties the right of due process. What I am referring to is the fact that legislative changes introduced in 2005 reversed the burden of proof in discrimination cases, meaning that we had to prove that she had not been offended. But it should be obvious to most people that as long as somebody claims to have been offended, there is little or nothing that one can do to disprove it.

The existing evidence and the witnesses in the case, to be sure, strengthened the firm’s case, not the woman’s. At a meeting, the parties agreed on a settlement under which the firm promised to pay the woman about 90,000 kroner and each of the parties promised to make no further demands of the other. The woman and her lawyer also agreed to withdraw the complaint she had made to the LDO. We wanted to put the case behind us.

LDO: “the settlement amounts to an admission of guilt»

The case had been over for six months when, without warning, I received a ruling from the LDO in the woman’s favor. We were accused of having discriminated against her – and the LDO argued that our settlement with her amounted to an admission of guilt! It is obvious that the LDO’s employees and administrators are not very familiar with the realities of personnel conflicts, but what is perhaps worse is that the LDO had been supposedly working on the case for six months, apparently on their “own initiative,” without taking into account the fact that the parties had settled the case and without informing the accused. As far as I can see, this violates the clauses in the Law on Public Administration relating to disclosure and the right to defend oneself. What we have here, in short, is a government body operating outside of Norwegian law. I therefore filed a complaint with the Complaints Board.

I left the board at about 2:10 P.M., and at 3:07 I received an e-mail from the board informing me of its ruling. The ruling was crushing for the firm – and consisted of only two sentences. I received a gracious explanation of the grounds for the ruling over two weeks later. The ruling was consistent with the LDO’s decision, even though my statement that I had not denied her the right to wear hijab at work was believed. The board did not take a position on whether I had thrown her out. Yet its judgment was that it had been a criminal offense to ask her not to wear hijab at work. The board’s decision plainly means that it isn’t legal to tell a Muslim woman that you don’t like her wearing hijab during working hours. Even though the woman herself had asked for my reaction, I was to be punished for answering honestly.

The ruling is unsettling for several reasons, among them the Discrimination Law’s reversed burden of proof, which violates long-established principles of law. When this comes together with a politically correct integration policy that favors multiculturalism, an imbalance arises. The law becomes a weapon that can be used against employers. It goes without saying that this does not contribute to integration or to good relations.

Small businesses will not dare to employ Muslims.

Eighty percent of the businesses in Norway have four or fewer employees. Many of them, out of concern for the work environment and/or customers, will be reluctant to hire women who wear hijab at work. The result of the LDO’s ruling, in short, will be that many small businesses will not dare to employ Muslims. One day it’s hijab, they’ll think, and the next day it’ll be prayer times or special food. With every case of this kind that comes along, the chances of Muslims on the private labor market go south. The Discrimination Law is a dangerous instrument in the hands of a politicized LDO: in the name of encouraging participation in the labor force, the LDO has established discord and injustice. This is unworthy of a nation of laws.

Some people tried to warn us about this when the law was passed. Now we can see how the law operates in practice, and it has become exactly the kind of instrument of extortion that was feared. It is one thing to experience unreasonable demands from individuals; it is something else again when the state leads the way. This ruling opens the door to total arbitrariness, and the result can be the very opposite of integration.

Translated from the Norwegian by Bruce Bawer