Terror in the conference room

A manager called an employee a "terrorist" and although he later apologised, the employee was ‎awarded DKK 5,000 in compensation by the Board of Equal Treatment.‎

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Employers are required under the Danish Anti-Discrimination Act to provide a reasonably harassment-‎free workplace and protect their employees from harassment. This complaint before the Board of Equal ‎Treatment concerned the issue of whether a manager's remarks about a childcare assistant constituted ‎harassment within the meaning of the Danish Anti-Discrimination Act.‎

A childcare assistant of non-Danish ethnic origin worked at a kindergarten. On one occasion, the ‎assistant's manager had asked around for "the black one" or "the dark one". On another occasion, where ‎the assistant had walked in on a meeting, the manager had called him a "terrorist", which, according to ‎the manager, was intended as a joking remark in light of the fact that the assistant had come barging in.‎

The assistant felt offended by the remarks and complained to the area manager. A reconciliation ‎meeting was held where the manager apologised if his remarks could be seen as racist or offensive. The ‎meeting ended with a handshake between the two parties. Even so, the assistant lodged a complaint ‎with the Board of Equal Treatment, wanting financial compensation.‎

Joking remark or harassment?‎
Before the Board, the municipality argued that the manager had not intended to offend the assistant ‎and that the remarks were not so hurtful as to qualify as harassment.‎

The Board held that the assistant – particularly given the nature of the second remark – had shown facts ‎to create a presumption of discrimination. Although the assistant had acknowledged along the process ‎that the municipality had taken care of the problem, the Board found that the nature of the second ‎remark and the fact that it was made by a manager meant that the municipality had not discharged the ‎burden of proving that it had provided a sufficiently harassment-free workplace. On those grounds, the ‎assistant was awarded DKK 5,000 in compensation, reflecting that attempts had been made to resolve ‎the conflict.

Norrbom Vinding notes

  • that in the harassment test under the Danish Anti-Discrimination Act, it is crucial according to case law ‎whether the employer (here, the municipality) has been aware of and failed to take action against the ‎harassment that has taken place or whether, as a result of the specific circumstances, the manager ‎having engaged in harassment must be deemed to be identical with the employer;‎
  • that it is not clear from the decision which of the two factors was given weight by the Board, but it ‎would be obvious to assume that the manager was held to be identical with the employer municipality; ‎but
  • that it is important to note those conditions when applying the Danish Act on Equal Treatment of Men ‎and Women and the Danish Anti-Discrimination Act in harassment cases because if neither of them is ‎met, the employee will have to issue civil proceedings against the colleague/manager in order to claim ‎compensation.

The content of the above is not, and should not be a substitute for legal advice.

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