Indicator history

A shift of the burden of proof is required in Ch. 6 sec. 3 of the Discrimination Act. The relevant section reads: “If a person....demonstrates reason to presume that he or she has been discriminated against... the defendant is required to show that discrimination or reprisals have not occurred.”

The victim of discrimination must present facts that make it possible to presume that discrimination has occurred (a similar situation and unfavourable treatment). Thereafter the burden of proof is shifted to the accused who must show that one of the requirements is not fulfilled or that the unfavourable treatment was not associated with the ground in question. No intent to discriminate is required (Per Norberg, Report on measures to combat discrimination, Directives 2000/43/EC and 2000/78/EC, Country Report 2010, Sweden). 

 The Supreme Court treats less favourable treatment in a similar situation as the fact that makes the presumption apply. The burden of  proof is thus sometimes reversed when the victim proves a similar situation and a less favourable treatment. The Labour Court applies the presumption more narrowly. The plaintiff must always prove the similar situation and the less favourable treatment according to normal standards of proof. The presumption applies only to the causal link between these two facts and the ground of discrimination. If that is so, the Labour Court may apply the rules on shared burden of proof in a very restricted way, especially with regard to ethnicity (Per Norberg, Report on measures to combat discrimination, Directives 2000/43/EC and 2000/78/EC, Country Report 2010, Sweden). 

Source: 

The Discrimination Act (SFS 2008:567), http://www.do.se/Documents/pdf/new_discrimination_law.pdf (accessed 03.03.2012). 

Sandesjö 2010 (Jurcom AB), Domar i diskrimineringsmål 1999-2009, p.11.

Per Norberg, Report on measures to combat discrimination, Directives 2000/43/EC and 2000/78/EC, Country Report 2010, Sweden.