Explaining paradigm shifts in Danish anti-discrimination law

A. The legal and political culture of Denmark pre-Danfoss

Denmark has a long history of establishing working conditions though collective bargaining. Parliament has been reluctant to interfere in private arrangements through national legislation, and has traditionally done so only when negotiations between social partners have completely broken down. ¹¹ Danish labour organisations enjoy substantial autonomy in concluding collective agreements and, given the high rate of union membership in Denmark, many labour disputes involve disagreements over collective bargaining agreements.

Founded in 1898, Denmark’s umbrella employees’ union is the Danish Confederation of Trade Unions (LO). ¹² Most blue-collar workers’ unions and HK are members of LO. ¹³ The Danish Employers’ Confederation (DA) is Denmark’s umbrella employers’ association. Members of DA include, inter alia, several employers’ associations in the manufacturing and service sector. ¹⁴

Nielsen notes that: ‘Equal pay [was] for many years a traditional collective labour law issue in Denmark, which was settled by the social partners by collective bargaining without statutory intervention’. ¹⁵ In other words, industrial arbitration tribunals were in the business of parsing the meaning of contracts between unionised employers and unionised employees. The Danish Parliament gave the social partners a wide berth to conclude agreements and to resolve disputes without undue interference. Acts of Parliament had little bearing on this autonomous, self-regulated world.

Indeed, prior to joining the EU, the Danish Parliament had debated, and overwhelmingly rejected, the adoption of equal pay legislation. The prevailing view was that such matters should be left to the social partners to address as they saw fit. ¹⁶ The country’s entry into the EU in 1973 required Denmark to adopt equal pay legislation, but it did so cautiously. ¹⁷ The original Danish Equal Pay Act provided only for ‘equal pay for the same work’, which was the phrase most commonly used in collective bargaining agreements. The European Commission brought a successful infringement proceeding against Denmark in 1985, ¹⁸ after which the wording of the Equal Pay Act was amended to include the more expansive concept of equal pay for ‘work of equal value’. ¹⁹

HK occupied an unusual space in the collective bargaining world. Most of LO’s members were male, blue collar workers; HK’s members were predominantly female, clerical workers. ²⁰ HK’s organisational structure also stood apart. It was larger than most unions under the LO umbrella, had a larger legal staff than the other LO unions and, crucially, one of its main departments was led by Jens Pors, a dynamic, determined and well-connected actor who ran his department with a high degree of independence. Although the composition of HK’s membership (predominantly female) meant that the principle of equal pay for work of equal value was a higher priority for HK than for most other Danish trade unions, ²¹ the strength of its legal department provided it with the tools and resources to effect change.

The robustness of HK’s legal department has historical roots. Unlike most employees’ unions, a large portion of HK’s membership was—and is—covered by Denmark’s law on salaried workers (Funktionærloven), which was first adopted in 1938. Originally, workers that fell into this category did not participate in collective bargaining agreements. Rather, their working conditions were determined by legislation drafted by the Danish Parliament. As a result, HK had a greater need than other trade unions to develop legal teams that could operate in the ordinary courts and the Labour Court. Over time, HK members were covered by collective bargaining agreements in greater numbers, but HK remained an outlier in its capacity to move between the national court systems (where Danish law prevailed) and industrial arbitration tribunals (where the collective bargaining agreement was the primary focus). ²²

HK did not take recourse to EU law lightly. Trade unions had tried to enforce the principle of equal pay several times—mostly without success ²³ —through the arbitration tribunals and ordinary courts, ²⁴ before HK took the contentious step of invoking EU law in arbitration proceedings. ²⁵ Initially, LO was strongly opposed to the move. ‘Both the LO and employers’ associations were afraid that the minimum wage system would collapse’, said Jens Pors in a 1992 newspaper article titled ‘Lukewarm Backing from the LO’. ²⁶ Consistent with its opposition to national equal pay legislation, the LO saw the intervention of the European Court as a major threat to Denmark’s collective bargaining system.

Despite stiff resistance from defenders of the status quo, Pors and HK forged ahead with their plans to leverage EU law to improve conditions for HK members. Pors acknowledged that the traditional collective bargaining system might collapse, but considered it worth the risk. Equal pay for equal value was the first priority. If the existing collective bargaining system could not deliver equal pay, it was up to the social partners to create a new payroll system that did. ²⁷

It gradually became apparent that enlisting the support of the CJEU offered HK the most promising way forward.

B. The Danfoss preliminary reference and judgment

Danfoss was a preliminary reference from a Danish industrial arbitration tribunal that posed several questions involving the interpretation of Directive 75/117, commonly known as the ‘Equal Pay Directive’. ²⁸ Danfoss paid the same basic wage (grundloen) to employees in the same wage group (loengruppe). Pursuant to a collective bargaining agreement, employees were eligible for pay supplements which were calculated on the basis of mobility, training, and seniority. ²⁹ In an earlier case involving the same parties before an industrial arbitration tribunal, HK alleged that women in two wage groups were paid, on average, less than their male counterparts. The tribunal, in a decision dated 16 April 1985, found that the number of employees that formed the basis of HK’s calculations was too small to sustain its claim of gender discrimination. ^30,31

The CJEU concluded that Danfoss’ opaque system of determining wages and salaries unfairly hindered HK from producing the kind of evidence it needed to prove discriminatory practices, and in the present case, it was sufficient for the plaintiff to show at the initial stage of the litigation that the average pay for ‘a relatively large number of’ women was less than the average pay for a relatively large number of men. Once this has been established, ‘it is for the employer to prove that his practice in matter of wages is not discriminatory’. ³²

After HK secured a victory in the Danfoss case, many employees’ unions still reacted with muted enthusiasm. Spokespeople from the Danish General Workers’ Union (Specialarbejderforbundet i Danmark), Danish Metalworkers’ Association (Dansk Metalarbejderforbund), and even the Women’s Workers’ Union (Kvindeligt Arbejderforbund) wondered aloud if the equal pay legislation would do more harm than good for their members in the long run. ³³

A contemporary Danish newspaper summed up the new reality succinctly: ‘Women earn less than men—that is the only thing that the trade unions can prove, and that’s not enough to win an equal pay case in Denmark. But with the Court of Justice judgment in hand, the day is coming when the employer will have the burden of proving that a difference in pay is not due to gender [discrimination]’. ³⁴ One employment lawyer described the case as a ‘bomb under the minimum wage system’, and questioned how Danish collective bargaining could survive if all you needed was some statistics that ‘men get paid a bit more’. ³⁵ Danfoss’ managing director viewed the case as a potential step backward for HK members. In his view, women were not prepared to compete against men in rigorous qualifications assessments. ³⁶

Unsurprisingly, HK was considerably more upbeat: ‘It’s clear that we are going to use the Danfoss decision to its utmost’, said Pors. The Chairman of LO’s Equality Committee, Ib Wistisen, hailed the decision as ‘a fantastic advance’ in the battle for equal pay. ³⁷

C. The post-Danfoss path

With the benefit of hindsight, we can now see that Danfoss taught litigants that EU anti-discrimination law can be an extremely powerful tool to rebuff recalcitrant national actors. With the Danfoss judgment in hand, HK and other trade unions obtained results in Danish courts that had eluded them for years. Once this lesson had been internalised, Danish litigants attempted to build on the success of Danfoss in other areas of EU competence. ³⁸ In 1994, Nielsen went so far as to declare that ‘that there had been a paradigm shift within the Danish labour legislation from collective to individual rights and from the prevalence of collective agreements to the reference to EU treaties and regulations’. ³⁹

A new comprehensive database developed by the Academy of European Law reveals the extent to which HK’s successful strategy quickly gave rise to a new modus operandi. ⁴⁰ As illustrated below in Table 1 , in the 15 years between its accession the European Union in 1973 and Danfoss, Denmark sent 25 preliminary references to the CJEU. None of them involved the interpretation of EU anti-discrimination provisions. Since Danfoss,16 additional preliminary references have been sent to the CJEU requesting guidance in interpreting EU anti-discrimination provisions, four of which were brought by HK. ⁴¹ From 1988-2018, almost 10% of all references from Danish courts involved EU anti-discrimination provisions. These cases include Pedersen ⁴² and Tele Danmark, ⁴³ which produced ground-breaking judgments that strengthened pregnant workers’ rights. ⁴⁴

OPEN IN VIEWER

Table 1.

Preliminary references from Danish courts by subject matter (1973-2018).

	Total # of Preliminary References (PRs)	Total # of Anti-Discrimination PRs	Total Anti-Discrimination PRs as % of all PRs
Pre-Danfoss (1973-1987)	25	0	0%
Post-Danfoss (1988-2018)	170	16	9,4%

When we compare these figures to the preliminary reference activities for EU Member States as a whole, the effects of Danfoss become clear. As shown in Table 2 , from 1973-1987, 1,7% of all cases referred to the CJEU involved EU anti-discrimination provisions. From 1988-2018, the percentage of anti-discrimination preliminary references rose only slightly to 3,6%.

OPEN IN VIEWER

Table 2.

Preliminary references from all Member State courts by subject matter (1973-2018).

	Total # of Preliminary References (PRs)	Total # of Anti-Discrimination PRs	Total Anti-Discrimination PRs as % of all PRs
(1973-1987)	1494	26	1,7%
(1988-2018)	9009	326	3,6%

The dramatic increase in references to the CJEU in the field of anti-discrimination law that occurred in Denmark (from 0% to 9,4%) was not replicated on an EU-wide basis. It appears that Danfoss radically altered trade union litigation strategies in Denmark, while having little or no influence on preliminary reference behaviour outside of the referring jurisdiction.

At the national level, Danfoss was also successfully invoked in several cases involving the burden of proof, work of equal value, and transparency in wage setting. ⁴⁵ HK actively looked for new cases to enforce equal pay and prevailed in several of them during the early 1990s. ⁴⁶

A. Pre-Ring/Werge: Denmark’s tradition of disability rights scepticism

Jacob Goldschmidt, lead counsel for Jette Ring, explained in an interview with the present author that after Directive 2000/78 was transposed into Danish law in 2004, there was a great deal of uncertainty in the legal community about how the concept of disability should be interpreted in the area of anti-discrimination employment law.

Danish disability policy has not been insensitive or inattentive to the needs of individuals with disabilities. In some respects—such as income transfers and government expenditures to encourage labour market participation—Denmark’s disability policies have been generous compared to most European countries. ⁴⁷ But the fact remains that Denmark has been slow to embrace the concept of legally enforceable disability rights. ⁴⁸ Several factors have militated against the reception of the disability rights model in Denmark—factors which initially contributed to considerable confusion about how Directive 2000/78 should be enforced.

First, the hierarchical political opportunity structure for interest groups in Danish policymaking stunted the development of a strong, bottom-up movement capable of challenging Denmark’s traditionally paternalistic understanding of disability legislation. Consistent with its commitment to corporatist structures, Danish governments have historically preferred to negotiate with ‘meta-organisations that can speak on behalf of a number of disability organisations’. This reduces ‘the number of actors participating in policy-making’, and (in the view of its proponents) makes ‘the process more efficient and rational’. ⁴⁹ Since 1934, the umbrella organisation ‘Disabled Peoples Organisation—Denmark’ (DPOD) has been the Danish government’s principal interlocutor in matters involving issues of interest to individuals with disabilities. ⁵⁰ DPOD has pursued a strategy rooted in ‘dialogue and consensus-seeking.’ ⁵¹ Bonfils’ research on the DPOD’s recruiting practices indicate that the organisation promotes ‘members who are consensus seeking and good at creating a relation of trust’ over ‘members who are more critical and provocative’. ⁵²

Since its creation, DPOD has worked in partnership with Danish governments to achieve a number of important goals for its members. It navigated a shift from a charity-based disability policy to a publicly-funded support system, and successfully lobbied the government to improve educational and work opportunities and benefits for individuals with disabilities. ⁵³ However, DPOD’s special mandate has been criticised as giving it ‘power to exclude specific groups and organisations of disabled people from the political arenas as they, to some degree, control the routes of access to arenas of influence’. ⁵⁴

DPOD was very slow to embrace the rights-based approach to disability discrimination, which helped to legitimise the position of Danish scholars who argued that Denmark’s approach to disability policy was superior to the rights-based approach. For example, in an article published in 2000, Steen Bengstsson, a senior researcher at the Danish National Centre for Social Research, ⁵⁵ argued that ‘the Scandinavian model of institutional disability policy is more appropriate in European societies than the American [disability rights] model, which is based on the judicial system.’ ⁵⁶ Bengstsson pointed out that while the passage of the Americans with Disabilities Act sparked a debate about disability rights legislation in Denmark, DPOD ‘did not favour such legislation but preferred to continue the development of the negotiation society and its corporatist institutions’. ⁵⁷ Similarly, when the issue was raised in the context of the Treaty of Amsterdam, the Danish Disability Council, an advisory body on disability issues, dissociated itself from the American emphasis on anti-discrimination legislation. In the Council’s view, this legislation is more an expression of American society with its extreme individualism, its division into widely different subcultures without mutual ties and its lack of communal solidarity, and hence less appropriate for European societies. In the ongoing debate, the Danish Disability Council has strongly argued that legislation which establishes rights is irreconcilable with cooperation with the power structure on implementing concrete measures for people with disabilities. ⁵⁸

In the absence of a ‘home-grown movement for stronger protection against discrimination’, it took Denmark until 2004 to adopt its first law explicitly protecting individuals with disabilities from discrimination in the labour market, which it undertook to comply with its obligations under Directive 2000/78. ⁵⁹ Ventegodt Liisberg reports that Danish employers’ organisations had not lobbied for an anti-disability discrimination law, and the Danish disability movement was split between disability organisations that supported the rights-based approach to equal treatment and those that preferred to rely on the traditional Danish approach. ⁶⁰ Under these circumstances, it comes as no surprise that Denmark’s law went no further than the minimum required to comply with EU law. ⁶¹

In addition to ambivalence in Denmark about the wisdom of a rights-based approach to disability law, the task of transposing Directive 2000/78 (and Directives 2000/43, which covers racial and ethnic discrimination) fell to a centre-right government coalition that reportedly—prior to assuming power—had objected to the contents of the directives when they were discussed in a parliamentary European Committee in 2000. ⁶² As members of the opposition, the centre-right parties could not prevent the Council of Ministers from approving the directives, but as members of the government, they were obliged to transpose them into national law. ⁶³ According to Vincents Olsen, the government’s view on the anti-discrimination laws ‘seemed based on the assumption that the legislation in question had the character of clarification of principles, if not the rules, already in place in Danish society’. ⁶⁴ In interviews conducted for this article, experts consistently reported that Denmark would not have passed new anti-discrimination legislation had it not come under pressure to meet its obligations under EU law.

The government’s lack of enthusiasm for the new anti-discrimination legislation probably contributed to uncertainty about how the implementing legislation, known in English as The Danish Act on Differential Treatment on the Labour Market, should be enforced. For example, the law does not define the term ‘disability’ at all. In the view of the authors of the parliamentary preparatory works, Directive 2000/78 did not change the Danish understanding of the concept of disability, and there was no need to propose a definition of the term. ⁶⁵ Then, in apparent contradiction, it clarifies in a separate section that the concept of disability must be understood as a ‘physical, psychological or intellectual impairment [which] must be compensated in order for that person to function on an equal footing with other citizens in a similar situation’ (emphasis added). ⁶⁶ Prior to the transposition of Directive 2000/78, ‘compensation’ in the Danish disability context had a rather specific meaning. Pursuant to the Danish National Action Plan, a bedrock of Danish disability policy, compensation meant that ‘society helps persons with disabilities and offers benefits and assistive services to minimise the consequences of disability’. ⁶⁷ Hence, ‘compensation’ in this context meant public assistance and assistive devices, such as hearing aids and wheelchairs. As shown below, confusion about the proper understanding of the terms ‘disability’ and ‘compensation’ in the context of anti-disability discrimination law bedevilled Danish courts, ultimately resulting in a preliminary reference to the CJEU to request clarification on these points.

A final relevant factor is the uncommon flexibility that Danish employers enjoy in dismissing employees. As a rule, Danish employers are given wide discretion to act in the best interest of the business. ⁶⁸ As a trade-off for the low level of protection against employment termination, employees may avail themselves of relatively generous unemployment benefits. ⁶⁹ Employment flexibility, or ‘flexicurity’ as it is known in Denmark, does not mesh well with the concept of ‘reasonable accommodation’. Flexicurity suggests that judges should be very reluctant to second-guess an employer’s business decision. The principle of reasonable accommodation demands the opposite. ‘Reasonable Accommodation’, as defined in Article 5 of Directive 2000/78, obliges employers to ‘take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer’. Unlike the hands-off approach that judges are expected to follow for hiring-and-firing decisions under flexicurity, the reasonable accommodation obligation requires a fact-intensive inquiry into the measures that the employer has taken to accommodate an employee with a disability, and the circumstances under which an individual with a disability can, or cannot, perform the essential functions of the job.

B. Ring/Werge: Building the case for a disability rights counter-narrative

Against this inhospitable backdrop, Danish trade unions gradually built the foundations for a counter-narrative rooted in a rights-based approach to disability law. ⁷⁰ Rather quickly, Danish courts began to issue decisions that interpreted the disability-related provisions of Directive 2000/78 quite narrowly. Particularly disconcerting for disability rights advocates, two early cases from the Danish Western High Court determined that plaintiffs with, respectively, multiple sclerosis and post-traumatic stress syndrome, were not disabled. The court reached this result because the plaintiffs had only requested reduced working time as an accommodation for their disabilities, and, in the court’s opinion, reduced working time was not an accommodation required by Danish law. ⁷¹ These cases deeply concerned employees’ representatives. Had the courts concluded that the plaintiffs were disabled, but did not obtain protection under the law because the requested accommodation was not reasonable, that also would have been cause for concern, since it would have suggested that the Danish courts were planning to take a very restrictive view of the extent of an employer’s burden to accommodate the needs of a disabled employee. In the view of disability rights advocates, however, these judgments were more fundamentally flawed. The courts were conflating the question of whether or not the complainant was disabled with whether or not an employer was required to accommodate the needs of a disabled person. Goldschmidt explained: ‘From the day we had those two rulings from the Western High Court, it was on the agenda. Let’s try to get to the Court of Justice to have this put back on track’. ⁷² Employees’ representatives agreed that ‘the worst thing that can happen now is that the Danish courts follow a path which seems obviously wrong’. ⁷³ Many employees’ representatives became convinced that a preliminary reference could provide Danish courts with greater clarity about the scope and appropriate application of the Directive, and that the CJEU would probably take a more expansive view of the Directive than Danish courts had thus far.

HK represented both of the plaintiffs in Ring/Werge. Jette Ring had worked as a customer service centre operator for the firm Dansk Almennyttigt Boligselskab (DAB) since 2000. ⁷⁴ She was dismissed from her position in November 2005 after several absences primarily due to chronic back pain attributable, inter alia, to osteoarthreitis between the lumbar vertebrae. ⁷⁵ Ms Skoube Werge was dismissed from her position as an administrative assistant for Pro Display A/S under similar circumstances. ⁷⁶

When Ms Ring was dismissed from her job in 2005, she immediately contacted her union. Goldschmidt recalled: ‘She didn’t say, ‘I have been discriminated against because of my disability.’ She was simply saying, ‘it’s not fair that I have been dismissed’. ⁷⁷ In fact, when she first approached her union representative, Ms Ring did not consider herself to be disabled at all. Perhaps reflecting the prevailing understanding of Danish employment law at the time, she believed that her condition—arthritis—rendered her in need of accommodation for her illness. To Ms Ring’s surprise, her local union representative suggested that she was not ill, but disabled, and so, it appears that a non-lawyer working in the local chapter of a trade union was the first person to identify that Ms Ring might be a good candidate to test the contours of the new anti-disability discrimination law before Europe’s highest court. Goldschmidt attributed this to how thoroughly information had been disseminated: ‘Everybody was looking for the borderlines—it was on everybody’s agenda’ ⁷⁸ , particularly HK’s.

The preliminary reference to the CJEU posed several questions, ⁷⁹ but from the perspective of the employees’ representatives, the key goals were to clarify the definition of disability, delineate the step-by-step analysis a court should follow to determine whether a violation of Directive 2000/78 had occurred, and—with a nod to the aforementioned Danish Western High Court judgments of 2007—establish whether a reduction in working hours could be considered a reasonable accommodation.

In her Opinion, Advocate General Kokott concluded that, for the purposes of determining whether an individual had a disability pursuant to Directive 2000/78, it was irrelevant whether the impairment was caused by a curable or incurable illness, or was permanent or temporary. The only material question was whether the impairment was ‘likely to last for a long time’. ⁸⁰ Advocate General Kokott disposed of the remaining questions without much difficulty. The Danish court had asked if the concept of disability presupposed that the individual needed ‘special aids’ or whether it was sufficient that the individual was unable to work full-time. Advocate General Kokott saw no reason to interpret Directive 2000/78 as presupposing the need for a special aid. ‘The requirement of a need for special aids seems to be based only on the scenario of a person with physical impairments. If aids were required as a compulsory element of the concept of disability, the mental or psychological impairments explicitly referred to in the directive would not be covered, as they do not normally call for aids’. ⁸¹ Rather, ‘the only decisive criterion is whether there is a hindrance to participation in professional life’. ⁸² Advocate General Kokott was equally dismissive of the defendants’ argument that a person may only be regarded as disabled if he is completely excluded from professional life, meaning that an individual whose condition enabled him to work, albeit only part-time, would not fall within the ambit of Directive 2000/78. ‘Even on a general linguistic understanding, the phrase ‘hindered from participating in professional life’ also covers barriers which are only partial and is not confined only to a comprehensive ‘exclusion’ from professional life’. ⁸³

The CJEU judgment largely followed Advocate General Kokott’s Opinion. It held that so long as the individual qualified as disabled under the legal definition in the Directive, it made no difference whether the impairment was curable or incurable. ⁸⁴ Furthermore, the definition of disability did ‘not depend on the nature of the accommodation measure such as the use of special equipment’. ⁸⁵ Regarding the concept of reasonable accommodation, the CJEU concluded that a reduction in working time could be a reasonable accommodation, but that it was up to the Danish court to determine whether the accommodation constituted a disproportionate burden on the employer. ⁸⁶

C. Validating the new post-Ring/Werge path in disability rights

To better understand how disability rights laws in Denmark have evolved over time, the present author compiled a dataset of approximately 250 decisions of the Board of Equal Treatment. The dataset does not include decisions of Danish municipal courts, the Labour Court, Denmark’s High Courts, or the Danish Supreme Court.

The Board of Equal Treatment (Ligebehandlingsnævnet) was established in 2009. Private litigants may address to it claims of discrimination on the grounds of, inter alia, disability within the labour market. The Board considers complaints on the basis of written observations only; no oral evidence is taken. The Board’s decisions are legally binding, and parties have the right to appeal the Board’s decision to the national courts. If a defendant does not comply with a Board’s decision, the Board may bring an action against the defendant in court, taking over the procedural and financial burden from the plaintiff. ⁸⁷

The dataset was built using the Board of Equal Treatment’s database, which is a publicly available online resource. The only search criterion was to retrieve cases identified by the Board’s database as disability (‘handicap’) cases. This search returned 241 hits. ⁸⁸ The cases were then coded in an effort to determine whether Board cases decided prior to the Ring/Werge decision could be meaningfully distinguished from Board cases decided after the Ring/Werge decision. Fortunately for the purposes of this project, once the CJEU judgment in Ring/Werge had been handed down, the Board explicitly cited the case as binding precedent in almost all of its cases involving questions of disability discrimination. Therefore, the Board’s decision can be divided into ‘pre-Ring/Werge’ and ‘post-Ring/Werge’ periods with a good amount of precision. A closer examination of the cases revealed that approximately 40 cases fell into the ‘pre-Ring/Werge’ category’; 132 cases fell into the ‘post-Ring/Werge’ category. The remaining cases were removed from the dataset because the Board did not issue a decision on the merits or because the case involved allegations of associational discrimination. ⁸⁹

Two limitations of this research design should be acknowledged from the outset. First, because the dataset draws exclusively from the Board of Equal Treatment’s case-law, it cannot test whether the patterns identified below are equally evident in the jurisprudence of other adjudicative bodies in Denmark. Nevertheless, a focus on the Board of Equal Treatment is justified because it decides the vast majority of disability discrimination cases in Denmark, and thereby produces a much larger number of cases to analyse than any other institution. Furthermore, because Board decisions can be challenged in the ordinary court system, and the Board must follow the decisions of the ordinary courts, it is not unreasonable to posit that Board decisions do not deviate much, if at all, from the case-law of the other Danish adjudicative bodies.

A second limitation of the research design is my inability to check the kinds of cases that came before the Board. I am able to track changes in the jurisprudence of the Board of Equal Treatment over time, but I cannot rule out the possibility that some of the changes that I observe in the data are the result of complainants bringing stronger cases to the Board’s attention, or, alternatively, that employers/defendants have changed their behaviour in ways that could influence my findings. ⁹⁰

I first examined whether plaintiff-win rates and Board findings that the plaintiff had a disability had changed in the pre-Ring/Werge and post-Ring/Werge periods. The data showed that plaintiff-win rates had increased from 20% to 27% over time. However, the percentage of plaintiffs who were found to have a disability slightly decreased from 63% to 62%. Hence, it appears that, measured as a percentage of cases in which the Board had made a finding that the plaintiff has a disability, the situation has not changed very much following the Ring/Werge litigation.

A different story emerges, however, when taking a closer look at the reasons the Board has given for why plaintiffs have won and lost cases before it. As shown in Figure 1 , in the pre-Ring/Werge period, 42% of all plaintiffs lost their case because they failed to show that disability was a factor in the defendant’s decision. This figure dropped to 21% in the post-Ring/Werge period. In the pre-Ring/Werge period, the Board found that 27% of all plaintiffs were unable to perform the essential functions of their jobs. In the post-Ring/Werge period, this percentage dropped to 13%. Approaching the issue from the perspective of why defendants lose, I found that in the pre-Ring/Werge period, the Board found in 12% of all cases that the defendant had failed to meet its burden to reasonably accommodate the plaintiff. This number increased to 25% in the post-Ring/Werge period. These figures suggest that if plaintiffs are able to show that they have a disability, then defendants face a heavier burden in establishing that they have met their obligation to provide a reasonable accommodation to their disabled workers.

OPEN IN VIEWER

Figure 1.

Danish Board of Equal Treatment outcomes by percentage (2009-2018).

The Board developed a markedly different approach to disability discrimination law after the Ring/Werge decision. Frequently citing directly Ring/Werge, the Board now places a heavier burden on employers. They are now less deferential toward employers who argue that disabled employees cannot perform the essential functions of the job, and/or cannot be reasonably accommodated in the workplace. I contend that the Ring/Werge decision is the most important proximate cause of this shift in jurisprudence. With the support of the CJEU, Danish trade unions prompted a revision in the legal relationship between employers and disabled employees. In effect, they set in motion a new consolidated line of jurisprudence from a welfare-focused, individual rights-sceptical jurisprudence, to a more rights-based approach to disability law that, while conscious of the relatively relaxed hire-and-fire policies that undergird the Danish flexicurity model of employment, place a greater weight on the countervailing right of disabled employees to obtain reasonable accommodations in the workplace.

The evolution of the Board’s jurisprudence on deaf rights illustrates what this paradigm shift has meant in practice: in March 2015, an employer identified as ‘an organisation working to combat discrimination’ advertised that it was hiring a part-time employee. ⁹¹ It sought a candidate with, among other skills, experience working in the field of financial management in an international or Danish NGO. In April 2015, a claimant applied for the job. He informed the employer that he had the background and skills to succeed in the position, and though he was deaf, he was fully capable of performing the required tasks. Shortly thereafter, the employer invited him for a job interview. The claimant wrote back to confirm the date and time of the interview, and to remind the employer that he would bring a sign language interpreter to the meeting.

Later that day, the employer cancelled the interview, explaining that it had not realised that the claimant was deaf when it offered him the interview. The claimant pressed for the meeting to go forward, but when it became clear that the parties had reached an impasse, he filed a complaint with the Board of Equal Treatment. The Board concluded that the employer had unlawfully rejected the claimant’s application. Citing Ring/Werge, it found that the claimant was entitled to recover monetary damages due to the employer’s failure to show that hiring the claimant would result in a disproportionate burden.

The claimant’s case was the first to acknowledge that an employer could be responsible for providing a sign language interpreter as a reasonable accommodation. ⁹² Less than a year later, another deaf plaintiff successfully sued an employer for failing to hire him because he needed a sign language interpreter. ⁹³ In December 2017, a deaf nursing student prevailed in a complaint against her university for failing to provide a sign language interpreter. ⁹⁴